PEOPLE of the State of Colorado, Petitioner, v. Teddy Ralph RISTER, Respondent.
No. 89SC212.
Supreme Court of Colorado, En Banc.
Dec. 10, 1990.
Rehearing Denied Jan. 28, 1991.
803 P.2d 483
Chief Justice ROVIRA delivered the Opinion of the Court.
Accordingly, we order that David Terrell Goens be disbarred and that his name be stricken from the list of attorneys authorized to practice before this court. David Goens was ordered to make restitution to the Calloway estate in the amount of $3,025, and to the Estes estate in the amount of $13,676.14, in criminal proceedings against the respondent. (Denver District Court Case No. 89CR2124.) We order payment or restitution to Debbie Chenoweth in the amount of $136 plus statutory interest from September 14, 1989, within six months of the date of this opinion. The respondent is also ordered to pay costs in the amount of $368, within six months to the Colorado Supreme Court Grievance Committee, 600-17th Street, Suite 500-S, Denver, Colorado 80202-5435.
Until restitution is made, in accordance with the order of the Denver District Court in 89CR2124, and in compliance with the directions in this opinion, together with payment to Debbie Chenoweth, the respondent may not make an application for readmission to the Colorado bar.
David F. Vela, State Public Defender, William S. Schurman, Deputy State Public Defender, Denver, for respondent.
Thomas T. Crumpacker, Carbondale, Bradley H. Dickerson, Denver, for amici curiae The American Civ. Liberties Union Foundation of Colorado and Nat. Lawyers Guild, Colorado Chapter.
Pozner, Hutt, Gilman & Kaplan, Abraham V. Hutt, Denver, for amici curiae The Colorado Crim. Defense Bar, Nat. Ass‘n of Crim. Defense Lawyers and Colorado Trial Lawyers Ass‘n.
Chief Justice ROVIRA delivered the Opinion of the Court.
This certiorari1 proceeding presents the question whether the Colorado State Patrol‘s brief stop of the defendant, Teddy Ralph Rister, while it was operating a sobriety checkpoint on a county highway violates the fourth and fourteenth amendments to the
I
In September 1985, Colonel John Dempsey, Chief of the Colorado State Patrol, issued an “Operational Procedures Bulletin” authorizing the use of sobriety checkpoints “to reduce the number of motor vehicle accidents in which alcohol is a contributing factor” and “to aid in the detection, apprehension and/or deterrence of drivers who are intoxicated or under the influence of alcohol.” The bulletin set forth numerous procedures to be followed in establishing and operating a sobriety checkpoint, including providing the criteria for selecting a sobriety-checkpoint site, and the physical requirements of a checkpoint site. The bulletin provided that:
As each vehicle is contacted the trooper will approach the motorist and state “This is a Colorado State Patrol Sobriety Checkpoint set up to determine the sobriety of drivers.” The trooper will then normally ask for the driver‘s license only. If during this brief encounter the trooper perceives no evidence of alcohol impairment, the motorist should be allowed to proceed immediately, being assisted back into traffic by an officer. Constitutional rights of motorists must be foremost in the minds of our officers. The purpose of a sobriety checkpoint is deterrence/apprehension of DUI. If other types of violations or articulable suspicions of other violations are immediately discernible, those may also be investigated; however, as a general rule, the encounter involving checking the driver‘s license should be adequate to determine any evidence of alcohol impairment.
During the stop, the trooper will be alert for any articulable conditions normally associated with persons driving under the influence. These conditions would include, but not be limited to, odor of alcoholic beverage about the driver, slurred speech, flushed appearance, disorderly or unusual conduct, visual disorders and/or lack of muscular coordination. In the event any condition or combination of conditions exist which give the trooper probable cause to believe the driver may be under the influence of alcohol, the driver may then be requested to perform certain psychomotor coordination tests and/or submit to a chemical test of either his blood or breath. If
sufficient evidence of intoxication is then developed, the driver will be arrested.
The bulletin provided that state patrol officers would take no action against motorists who make “an apparent attempt to avoid the checkpoint” by turning around or turning off the highway before reaching the checkpoint, unless “a specific action other than merely turning around would justify pursuit.” Moreover, the checkpoints would be maintained for a predetermined period of time, but would be canceled if “significant traffic congestion at the site or other circumstances arise ... as determined by the on-scene officer-in-charge.” Under the procedures outlined in the bulletin, the state patrol would publicize the use of sobriety checkpoints and the dates of their use to deter alcohol-impaired driving, but “the exact location and times of scheduled checkpoints will be kept confidential.” Written instructions corresponding to the bulletin‘s specified procedures would be provided to all officers operating the checkpoint.
Lieutenant Ralph Martin of the Colorado State Patrol authorized a sobriety checkpoint in Jackson County to be implemented on July 5, 1986, a Saturday during the Fourth of July weekend. The checkpoint was to be located at the three-way intersection of Highway 14 and County Road 12. On July 5, six state patrol officers, who had been given specific instructions on how to conduct the checkpoint screening of vehicle operators, set up traffic cones in the intersection demarcating two adjacent, off-road areas in which vehicles would be directed to stop. One “stop area” was located on the northwest corner of the intersection, and vehicles southbound on Highway 14 were directed to stop in that area. Another stop area was located on the east side of the intersection where a dirt parking area was located, and vehicles northbound on Highway 14 and eastbound on County Road 12 were directed to stop there. Signs stating “Be Prepared to Stop” and “sobriety checkpoint” were placed two-tenths and one-tenth of a mile before the checkpoint.
The state patrol operated the checkpoint for two and one-half hours, from 4:30 p.m. to 7:00 p.m., and stopped 233 vehicles that entered the Highway 14-County Road 12 intersection. All vehicles were stopped; however, officers diverted all traffic past the checkpoint on a few occasions when volume would not allow additional vehicles without creating safety hazards or imposing unreasonable delay to motorists. The average stop lasted three minutes. Several vehicles turned around or turned off before reaching the intersection, and the state patrol did not attempt to stop them.
The defendant, who was eastbound on County Road 12, was asked to drive into the checkpoint stop area when he came to a stop sign at the intersection. The defendant requested permission to turn right at the intersection and proceed south on Highway 14. The officer denied the request and directed the defendant into the parking area. After the defendant parked his car, two state patrol officers saw the defendant and the passenger in his car leave the car and switch places so that the passenger was sitting in the driver‘s seat. An officer subsequently checked the defendant‘s driver‘s license on a computer and found that his license had been denied. The officer then issued the defendant a summons and complaint charging him with driving a motor vehicle while license denied in violation of
The defendant moved to suppress “any statements or observations made by law enforcement officers surrounding the seizure and arrest of the defendant” on the ground that there was no probable cause to seize and detain him. Following a suppression hearing, the county court ruled that since the stop was not based on probable cause or reasonable suspicion it was unconstitutional under the
The fourth amendment, which is applicable to the states through the fourteenth amendment,2 provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
Because we are bound by the United States Supreme Court‘s decisions concerning the fourth amendment, People v. Quintana, 785 P.2d 934, 938 (Colo.1990), we look to that Court‘s decisions to determine whether the state patrol‘s sobriety-checkpoint stop of the defendant violated his fourth amendment right against unreasonable seizures.
Although the state patrol‘s stop of the defendant‘s vehicle was brief, the stop was a “seizure” under the fourth amendment. Michigan Dep‘t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990); see United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116 (1976). Accordingly, we must decide whether the state patrol‘s seizure of the defendant was “reasonable” under the fourth amendment.
Recently the United States Supreme Court considered the constitutionality of highway sobriety checkpoints in a case similar to the one now before us. In Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the Michigan State Police established a sobriety-checkpoint pilot program that set forth numerous guidelines governing checkpoint operations, site selection, and publicity.
Under the guidelines, checkpoints would be set up at selected sites along state roads. All vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow, where an officer would check the motorist‘s driver‘s license and car registration and, if warranted, conduct further sobriety tests. Should the field tests and the officer‘s observations suggest that the driver was intoxicated, an arrest would be made. All other drivers would be permitted to resume their journey immediately. Id. 110 S.Ct. at 2484. During the only checkpoint set up by the Michigan State Police prior to the Court‘s decision in Sitz, 126 vehicles were stopped. The average delay for each vehicle was about 25 seconds. During the 1 hour and 15 minute duration of the checkpoint‘s operation, two drivers were detained for field sobriety testing, and one of the two was arrested for driving under the influence of alcohol. A third driver who drove through the checkpoint without stopping was pulled over and arrested for driving under the influence.
“[A]ddress[ing] only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers,”3 the Court reaffirmed that a “balancing analysis” derived from Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), and applied in cases concerning highway checkpoints for detecting illegal aliens was the appropriate test for determining whether the checkpoint stops violated the fourth amendment. Sitz, 110 S.Ct. at 2485. The analysis in the context of checkpoint seizures balances “the State‘s interest in preventing drunken driving, the extent to which [the checkpoint] system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped.” Id. at 2488. The Court found that the state‘s interest in eradicating
Applying the balancing test for checkpoint stops as enunciated in Sitz,5 we conclude that the checkpoint stop of the defendant was not an “unreasonable” seizure under the fourth amendment. It is beyond debate that drunken driving is a serious problem, and that the state has a substantial interest in preventing the loss of life and damage to property caused by drunk drivers. See, e.g., Noe v. Dolan, 197 Colo. 32, 37, 589 P.2d 483, 486 (1979). The burden on the fourth amendment rights of the motorists who were stopped at the checkpoint was relatively minor. Motorists were directed to pull off the road, and state patrol officers would request that each produce a driver‘s license. The duration of the average “stop” in this case was 3 minutes, in contrast to the 25-second average “stop” in Sitz. We cannot conclude that this fact alone renders the checkpoint unconstitutional under the fourth amendment, in view of the limited discretion afforded state patrol officers at the checkpoint and amount of time reasonably necessary to stop vehicles and check for driver licenses and signs of intoxication.
The Highway 14 checkpoint stops suffer from none of the defects the United States Supreme Court found to contribute to the unreasonableness of police searches and seizures of vehicles on the open road. The primary evil the Court sought to prevent in random stops of vehicles was “the ‘kind of standardless and unconstrained discretion’ ” present in those kinds of stops. Sitz, 110 S.Ct. at 2487 (quoting Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979)); see Prouse, 440 U.S. at 662, 99 S.Ct. at 1400; United States v. Brignoni-Ponce, 422 U.S. 873, 882-83, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975). Other defects in police seizures of vehicles which the Court has identified as “subjective” factors weighing against permitting the seizures include the ” ‘generating of concern or even fright on the part of lawful travelers,’ ” Prouse, 440 U.S. at 656, 99 S.Ct. at 1397 (quoting Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083); and interfering with motorists’ freedom of movement, causing inconvenience, consuming time, and creating substantial anxiety in motorists, see id. at 656, 99 S.Ct. at 1397. The state patrol officers in this case had limited discretion over which vehicles could be stopped. The checkpoint-operating guidelines required that the officers stop all cars entering the intersection, with the only exception being that officers could permit all cars, or a fixed number of cars, to proceed through the intersection if traffic began backing up. The location of the
[T]he subjective intrusion—the generating of concern or even fright on the part of lawful travelers—is appreciably less in the case of a checkpoint stop. In [United States v.] Ortiz, [422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975),] we noted:
” ‘The circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.’ 422 U.S., at 894-895 [95 S.Ct. at 2587-2488].”
Sitz, 110 S.Ct. at 2486-87 (quoting Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083) (brackets in Sitz). The defendant does not identify, and we do not find in the record, that the “subjective” concerns present in roving-patrol stops were present in the Highway 14 checkpoint stops. Cf. Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. at 3083 (routine checkpoint stops do not intrude on motorists in the same manner as roving-patrol stops: interference with legitimate traffic is minimal; checkpoint stops appear to and actually do involve less discretionary enforcement activity; and any claim that “particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review“). In view of the limited scope of the checkpoint stop, in which state patrol officers were not permitted to stop vehicles that turned around before entering the checkpoint, to engage in prolonged questioning, or to search vehicles, cf. Martinez-Fuerte, 428 U.S. at 558, 566-67, 96 S.Ct. at 3083, 3086-87; People v. Andrews, 173 Colo. 510, 514, 484 P.2d 1207, 1209 (1971), we find that the intrusion on motorists’ fourth-amendment rights was reasonable.6
The final factor to consider in the Sitz balancing test is whether the Highway 14 checkpoint reasonably advanced the state‘s interest in combatting drunken driving. The question this factor presents is whether in the furtherance of the state‘s legitimate goal of combatting drunken driving the checkpoint stop “is a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail,” Prouse, 440 U.S. at 659, 99 S.Ct. at 1399. The Court in Sitz explained that this factor did not “transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger.” 110 S.Ct. at 2487. However, the requirement that the method chosen by police must reasonably advance the state‘s interest in dealing with a serious public danger serves an important role in preventing blanket police detention of motorists where there is only a “marginal contribution to roadway safety,” Prouse, 440 U.S. at 661, 99 S.Ct. at 1400.
The state patrol set up the checkpoint site on Highway 14 on the basis of information that drunk drivers had been arrested or had been involved in accidents on roads, such as Highway 14, that provided access to nearby recreational sites.7 Notwith-
As we view the balance of the competing interests involved in the sobriety-checkpoint stops conducted by the State Patrol in this case, the relatively minor intrusion on the motorists’ fourth amendment rights to accomplish the state‘s objective of reducing drunken driving was not unreasonable.
III
As the amicus curiae Colorado Criminal Defense Bar has pointed out, we have previously noted that “[s]everal times we have determined that the Colorado proscription against unreasonable searches and seizures protects a greater range of privacy interests than does its federal counterpart,” Oates, 698 P.2d at 815. See, e.g., People v. Corr, 682 P.2d 20 (Colo.), cert. denied, 469 U.S. 855, 105 S.Ct. 181, 83 L.Ed.2d 115 (1984); Sporleder, 666 P.2d at 139-43; Charnes v. DiGiacomo, 200 Colo. at 98-99, 612 P.2d at 1120-21. However, our approach in determining what kinds of seizures are “reasonable” under
Neither the defendant nor amici curiae have suggested any means other than by balancing the interests of the state and motorists by which we are to determine the reasonableness of the checkpoint stops. In Exotic Coins, Inc. v. Beacom, 699 P.2d 930 (Colo.), appeal dismissed, 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 214 (1985), we considered an argument similar to the defendant‘s in this case that the “reasonableness” standard of
We can find no basis in checkpoint-stop cases for concluding that “reasonableness” under
QUINN, J., dissents.
LOHR and KIRSHBAUM, JJ., join in the dissent.
Justice QUINN dissenting:
I dissent. Although the United States Supreme Court in Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), held that a state‘s use of a highway sobriety checkpoint program does not violate the Search and Seizure Clause of the
I.
In Sitz, the United States Supreme Court considered whether Michigan‘s use of a highway sobriety checkpoint program violated the Search and Seizure Clause of the
This court, of course, is obligated to follow the Sitz decision as a matter of federal constitutional law. Nonetheless, the Sitz holding is remarkable for its failure to acknowledge the long-standing search and seizure principle, first enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that the temporary seizure of a person for a brief investigation is constitutionally permissible as long as there are circumstances which, although not amounting to probable cause essential for a traditional arrest, are sufficient when judged against an objective standard to support a reasonable suspicion that “criminal activity may be afoot.” 392 U.S. at 30, 88 S.Ct. at 1884. The sobriety checkpoint program in Sitz was aimed at the acquisition of incriminating evidence for use in a criminal prosecution for drunken driving. Intrusions into personal privacy or security that have as their purpose the discovery of incriminating evidence traditionally have been subjected to, at the very least, a minimal level of reasonable suspicion. See, e.g., Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (warrantless taking of scrapings from fingernails of murder suspect, for whom police had probable cause to arrest, was constitutionally permissible when suspect appeared voluntarily at police station for questioning); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (officer may make a reasonable investigatory stop and frisk of suspect on basis of informer‘s tip
Prior to Sitz, the only case upholding a suspicionless seizure of a motorist for temporary investigation was United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).1 In Martinez-Fuerte, the Court held that routinely stopping motorists for brief questioning of the occupants of the motor vehicle at permanent checkpoints operated by the Border Patrol for brief questioning of the occupants of the motor vehicle “may be made in the absence of any individualized suspicion” because of the demonstrated need for such enforcement technique in dealing with the problem of illegal immigration at this country‘s borders. 428 U.S. at 562, 96 S.Ct. at 3085. It should be noted that the Court expressly limited its holding “to the type of stops described in this opinion.” 428 U.S. at 567, 96 S.Ct. at 3087. Those stops, as described in the opinion, were made at “permanent” checkpoints under circumstances where the stops were routine and there was little opportunity for unreasonable exercise of discretion by the Border Patrol officers. 428 U.S. at 553-54, 96 S.Ct. at 3081.
As Justice Stevens emphasized in his dissenting opinion in Sitz, there is a constitutionally significant difference between a routine stop at a permanent and clearly posted immigration checkpoint and a temporary highway sobriety checkpoint which the motorist encounters by surprise. “A motorist with advance notice of the location of a permanent checkpoint has an opportunity to avoid the search entirely, or at least prepare for, and limit, the intrusion on her privacy.” 110 S.Ct. at 2492. No such opportunity is available, however, in the case of a temporary sobriety checkpoint, which often depends for its effectiveness on the element of surprise. Id. There is another significant difference, as pointed out by Justice Stevens, between the amount and kind of discretion that an officer may exercise at these two types of checkpoints:
A check for a driver‘s license, or for identification papers at an immigration checkpoint, is far more easily standardized than is a search for evidence of intoxication. [An] officer who questions a motorist at a sobriety checkpoint has virtually unlimited discretion to detain the driver on the basis of the slightest suspicion. A ruddy complexion, an unbuttoned shirt, bloodshot eyes or a speech impediment may suffice to prolong the detention. Any driver who had just consumed a glass of beer, or even a sip of wine, would almost certainly have the burden of demonstrating to the officer that her driving ability was not impaired.
Id. at 2493. Finally, many of the stops at permanent immigration checkpoints occur during daylight hours, while the sobriety checkpoints are often operated at night. Id. A seizure of the motorist, followed by interrogation and even a cursory search at night, is clearly “more offensive than a daytime stop that is almost as routine as going through a toll gate.” Id. These fears are not the sole concern of the guilty, for “[t]o be law abiding is not necessarily to be spotless” and “what begins mildly may by happenstance turn severe.” Id.
Because the Michigan program was patterned after an older program in Maryland, the trial judge gave special attention to that State‘s experience. Over a period of several years, Maryland operated 125 checkpoints; of the 41,000 motorists passing through those checkpoints, only 143 persons (0.3%) were arrested. The number of man-hours devoted to these operations is not in the record, but it seems inconceivable that a higher arrest rate could not have been achieved by more conventional means. Yet, even if the 143 checkpoint arrests were assumed to involve a net increase in the number of drunk driving arrests per year, the figure would still be insignificant by comparison to the 71,000 such arrests made by Michigan State Police without checkpoints in 1984 alone....
Any relationship between sobriety checkpoints and an actual reduction in highway fatalities is even less substantial than the minimal impact on arrest rates. As the Michigan Court of Appeals pointed out, “Maryland has conducted a study comparing traffic statistics between a county using checkpoints and a control county. The results of the study showed that alcohol-related accidents in the checkpoint county decreased by ten percent, whereas the control county saw an eleven percent decrease; and while fatal accidents in the control county fell from sixteen to three, fatal accidents in the checkpoint county actually doubled from the prior year.”
Id. at 2491-92 (footnotes and citations omitted). Similar observations have been made by state courts in concluding that sobriety checkpoint programs have not advanced the public interest in curbing drunken driving in a manner that justifies the accompanying intrusion into personal privacy and security. E.g., State v. Henderson, 114 Idaho 293, 756 P.2d 1057 (1988); State v. Koppel, 127 N.H. 286, 499 A.2d 977 (1985); City of Seattle v. Mesiani, 110 Wash.2d 454, 755 P.2d 775 (1988).2
II.
The liberty interests of Colorado citizens find their source not only in the federal constitutional and statutory law, but also in state constitutional jurisprudence and the legislative enactments of our General Assembly. State courts can effectively approach state constitutional interpretation in a manner more responsive to these interests than can the United States Supreme Court, which is forced to operate from a homogenized, abstracted, national vision, looking for the lowest common denominator and taking into account many of the variations from state to state and region to region. Sager, 63 Tex.L.Rev. at 976. When, as here, a state constitutional claim is properly raised, a state court has an affirmative duty to engage in an independent analysis of state constitutional principles when a critical evaluation of controlling federal precedent reveals it to be doctrinally unconvincing.
The “balancing” test adopted by the majority in this case is at odds with long-standing principles of Colorado search and seizure jurisprudence. We have held in countless cases that before an individual may be seized for a temporary investigation, three conditions must exist: (1) the law enforcement officer effecting the seizure must have a specific and articulable basis in fact for suspecting that the person has engaged in criminal activity, is presently committing a crime, or is about to do so; (2) the purpose of the temporary seizure must be reasonable; and (3) the scope and character of the seizure must be reasonably related to its purpose. E.g., People v. Wilson, 784 P.2d 325, 327 (Colo.1989); People v. Ratcliff, 778 P.2d 1371, 1376 (Colo.1989); People v. Melgosa, 753 P.2d 221, 225 (Colo.1988); People v. Carlson, 677 P.2d 310, 315 (Colo.1984); People v. Thomas, 660 P.2d 1272, 1274 (Colo.1983); People v. Tate, 657 P.2d 955, 958 (Colo.1983); People v. Schreyer, 640 P.2d 1147, 1149 (Colo.1982); People v. Casias, 193 Colo. 66, 72-77, 563 P.2d 926, 931-34 (1977); Stone v. People, 174 Colo. 504, 509, 485 P.2d 495, 497 (1971). This three-part standard for a temporary seizure of the person was developed with a conscious regard for the privacy interests of Colorado citizens under the Colorado Constitution. See, e.g., Ratcliff, 778 P.2d at 1375; Thomas, 660 at 1276-77; Schreyer, 640 P.2d at 1149.
Colorado statutory law also recognizes a need for reasonable individualized suspicion before a temporary seizure of the person may be effected.
A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions.
(Emphasis added). Although on July 5, 1986, the day on which the defendant was subjected to the highway sobriety checkpoint, Colorado statutory law provided that any licensee “shall have his driver‘s license in his immediate possession at all times when operating a motor vehicle, and shall display the same upon demand by any [law enforcement] officer,”
We do not believe that the legislature intended the statute to confer upon a police officer unlimited discretionary authority to stop any car at any time for any reason as long as he asked contemporaneously for display of a driver‘s license. A construction of the statute which would give to police officers such carte blanche authority would be inconsistent with section 16-3-103, C.R.S. 1973, which specifically limits an officer‘s authority to stop persons for investigation in the absence of probable cause to arrest. The clear intent of section 42-2-113 is simply to permit the officer to demand the license of the driver whose vehicle has been stopped for an otherwise proper purpose.
191 Colo. at 84, 550 P.2d at 314. Moreover, in 1987 the General Assembly amended
The constitutional jurisprudence and statutory law of Colorado reflect values, standards, and practices that are irreconcilable with the judicial legitimatizing of suspicionless temporary seizures of motorists solely on the basis of balancing the gravity of the public interest against the severity of the intrusion associated with the seizure. The majority‘s rejection of a reasonable individualized suspicion component as a necessary condition for a temporary seizure of the person under the Colorado Constitution results in subjecting all persons to the risk of governmental intrusions that, in my view, are antithetical to the precious “right to be let alone” contemplated by
III.
The express purpose of the sobriety checkpoint program in this case was to detect and apprehend motorists who were operating their vehicles while intoxicated or under the influence of alcohol. The Operational Procedures Bulletin promulgated by the Chief of the Colorado State Patrol directed the checkpoint officers to stop each vehicle, approach the motorist, state that the purpose of the stop was to determine the sobriety of the driver, and to ask the driver for his or her license. The officers were directed to look for evidence of alcohol impairment, and only if no such evidence was found was the motorist to be directed to proceed on his or her way. According to the operational procedures, if the checkpoint officer observed an “odor of alcoholic beverage about the driver, slurred speech, flushed appearance, disorderly or unusual conduct, visual disorders and/or lack of muscular coordination,” and if the officer reasonably believed that the motorist was under the influence of alcohol, the officer was then required to request the driver to perform certain “psychomotor coordination tests and/or submit to a chemical test of either his blood or breath.” Although general questioning with respect to a driver‘s license and the associated observation of the motorist‘s demeanor and speech do not involve an intrusive search for personal characteristics hidden from public view, see Carlson, 677 P.2d at 316, the Operational Procedures Bulletin leaves no doubt that the purpose of the questioning and observation at the highway checkpoint is to discover evidence of the crime of drunken driving.
The operational procedures provided for publication of the dates on which sobriety checkpoints would be used, but the exact location and times of the checkpoints were to be kept confidential. The motorist approaching the checkpoint, therefore, would have no advance notice of any option other than to submit to the temporary seizure of his or her person for the associated questioning and observation by checkpoint officers. Moreover, even if some preliminary
Although the operational procedures stated that no action would be taken against a motorist who turned around or turned off the highway to avoid the sobriety checkpoint unless “a specific action other than merely turning around would justify pursuit,” it requires no great leap of imagination to realize that a motorist‘s act of turning around or off the highway would only draw further attention to the police with the resulting risk of an arbitrary exercise of discretion that might well result in a more intensive intrusion into the motorist‘s personal privacy and security. Indeed, if the facts of this case demonstrate anything, they quite clearly show that the sobriety checkpoint program places a motorist at the unfettered discretion of the checkpoint officers. When the defendant approached the checkpoint, he requested permission to make a right turn at the intersection to avoid the checkpoint examination. The checkpoint officer, however, denied the defendant‘s request and directed him to proceed to the parking area, which the defendant did. Notwithstanding the fact that the guidelines provided the motorist with the right to avoid the sobriety checkpoint program by turning around or off the highway, and notwithstanding the further fact that the checkpoint officer observed nothing at this point in time that would justify either pursuit or further detention of the defendant, the defendant was nonetheless denied his right under the guidelines to avoid the sobriety checkpoint and was required instead to submit to the checkpoint examination. These facts alone, in my view, render the seizure of the defendant in this case constitutionally unreasonable.
Lastly, irrespective of the majority‘s rejection of the reasonable individualized suspicion requirement for limited intrusions into personal privacy and security under the Colorado Constitution, I fail to see how the balancing process employed by the majority somehow weighs more heavily in favor of the state‘s interests rather than the motorist‘s right to personal privacy and security. The evidence shows that during the two and one-half hour period from 4:30 p.m. to 7:00 p.m. on July 5, 1986, the officers stopped 233 vehicles at the sobriety checkpoint without, however, arresting a single motorist for driving under the influence of, or while the motorist‘s ability was impaired by, intoxicating liquor. The majority seems to find solace in the fact that “the announcement and establishment of a sobriety checkpoint undoubtedly had some effect on advancing the state‘s interest in preventing drunken driving.” Maj. op. at 489. I believe Justice Stevens’ observations in his dissenting opinion in Sitz cogently put to rest the notion that dramatizing the public interest in the prevention of alcohol-related accidents somehow tilts the constitutional balance in favor of the checkpoint program. After noting that the shock value of the program may be its most effective feature, he echoed Justice Scalia‘s dissenting comments in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 1401, 103 L.Ed.2d 685 (1989), to the effect that the “impairment of individual liberties cannot be the means of making a point.”
Even symbolism for so worthy a cause as the abolition or deterrence of drunken driving, in my view, cannot validate an otherwise unreasonable and unconstitutional seizure of the person. The traditional “roving patrol” techniques of policing our highways and roads, the abolition of plea bargaining in drunken driving cases, and stringent administrative revocation or suspension of licenses provide effective means, consistent with constitutional processes, for combatting the threat to public safety caused by the drunken driver. Unfortunately, this court “is transfixed,” as was the United States Supreme Court in Sitz, “by the wrong symbol—the illusory prospect of punishing countless intoxicated motorists—when it should keep its eyes on the road plainly marked by the Constitution,” Sitz, 110 S.Ct. at 2499 (Stevens, J., dissenting).
Even assuming that roadblocks may have some deterrent effect, we believe that it is purchased at too high a price. Doubtless other devices may also increase the effectiveness of law enforcement, including punishment without trial, repealing of the privilege against self-incrimination, dispensing with the right to confrontation of witnesses, and elimination of trial by jury. Such techniques, however, would diminish the rights of all in order to secure the punishment of a few.
I would affirm the suppression ruling on the basis that the evidence of the defendant‘s act of driving while his license had been denied was obtained as the direct result of an unconstitutional seizure of his person in violation of
LOHR and KIRSHBAUM, JJ., join in this dissent.
Notes
In Koppel, the New Hampshire Supreme Court invalidated a drunken driving roadblock program under the New Hampshire constitution because the roadblock stops required no individualized suspicion and the state failed to demonstrate that the roadblocks produced sufficient public benefit to outweigh their intrusion on individual rights. In the course of its opinion the court observed as follows:
The record indicates that 47 roadblocks were set up on 21 weekend nights between April 29, 1984, and October 20, 1984. A total of 1,680 vehicles were stopped, resulting in only 18 DWI arrests. During roughly the same six months, the Concord police made 175 DWI arrests by traditional methods; i.e., through the use of roving patrols.
499 A.2d at 979. But cf. Opinion of the Justices, 128 N.H. 14, 509 A.2d 744 (1986) (upholding validity under New Hampshire constitution of statutory scheme authorizing law enforcement agency to apply for a warrant for sobriety checkpoint in manner similar to application for search warrant or administrative inspection warrant, and permitting judge to issue warrant only upon express finding that proposed checkpoint would be reasonably effective means of detecting and apprehending impaired motorists and that public interest in drunken driving enforcement would outweigh intrusion upon individual motorists).
In Mesiani, the Washington Supreme Court invalidated Seattle‘s sobriety checkpoint program under the Washington Constitution. In the course of its opinion the court noted that the City of Seattle “has failed to demonstrate the need for sobriety checkpoints or that less intrusive alternatives could not achieve most of the constitutionally permissible benefits sought, such as the addition of more officers to its special enforcement unit.” 755 P.2d at 778.