Sitz v. Department of State Police

443 Mich SITZ v DEPARTMENT OF STATE POLICE (Calendar 5). 2, Argued Decided No. March No. Docket 93851. 14, September 1993. Michigan brought an Rick Sitz other licensed drivers and several against Department Wayne the action the Circuit Court director, seeking Hough, L. State its Gerald Police and sobriety along enjoin checkpoints at sites the use of certain trial, court, Following highways. the Michael L. state a bench J., Stacey, checkpoints the the Fourth found that violated both 1, 11 of the United Constitution and art § Amendment States enjoined Michigan permanently their Constitution and Gribbs, P.J., Appeals, implementation. D. The Court of and E. JJ., affirmed, ruling Jr., Lambros, and N. J. that Holbrook, Amendment, checkpoints violated the Fourth and thus finding unnecessary to decide if the state constitution offered (Docket 93823). protection Supreme greater Michigan No. (1989). appeal, leave to 432 Mich 872 The United denied Court, reversed, finding sobriety Supreme States that Amendment, checkpoint program did not violate Fourth (1990). remand, Appeals, 496 US the Court D. E. On (Gribbs, P.J., dissenting), Holbrook, Jr., McDonald, JJ. affirmed, holding stopping of the indiscriminate motor suspicion roving vehicles in the form of without roadblocks (Docket 1, Michigan violates art 11 of the Constitution No. § 131032). appeal. Police The State by joined opinion Boyle, In an Levin, Justice Justices Riley, Mallett, Court held: 1, Michigan checkpoints Sobriety art § violate Constitution. Michigan protections 1. The afforded Constitution and given may the United States Constitution in instance lesser, greater, Michigan or the courts should same. While reject rights unprincipled creation of under the state constitu- obligated counterparts, tion exceed federal courts are not accept protection provided major under the limitations of Michigan simply Su- Constitution because United States respect preme chosen to the federal Court has to do so with Rather, inter- Constitution is to be constitution. State Police jurispruden- preted light of its framers and its intent history. tial light, 2. in the § Viewed in such a Const seizures, protec- expansive of automobile extends more context interpreted by the United tion than the federal constitution Historically, and seizures for States Court. searches differently investigatory purposes have treated criminal been regulatory purposes. than for or administrative While those regulatory in the ab- administrative or searches and seizures traditionally regarded suspicion been as reason- sence of have sense, goal primary able in a constitutional seizures with the enforcing generally required the criminal law have some level suspicion. regarding seizures and searches of Precedent implicitly incorporates balancing is automobiles a test assessing their reasonableness. Seizures of vehicles inherent investigation suspicion, and extreme defer- for criminal without officials, politically judgments is accountable ence to the contrary Michigan precedent. constitutional Cavanagh only concurred in the result. Chief Justice Affirmed. dissenting, joined by Justice Griffin, Brickley, Justice program Michigan’s sobriety checkpoint withstands stated that scrutiny under 11 of the Constitution. § governing the standard the seizure of a This case is not about rather, reason; particular particular the driver a concerns for every governing systematic seizure of vehicle standard the passing through given point given time. The reasonable- depends upon intrusive than an arrest ness of a seizure less right public the interest and the individual’s balance between by personal security arbitrary interference law free from officers. seizure, reviewing constitutionality courts of a When public weigh gravity concerns served must seizure, public degree advances the to which seizure interest, severity with individual and the of the interference expectation liberty, reasonable and assure that an individual’s balance, subject arbitrary privacy invasions. On eradicating problem driving of drunk and state’s interest in checkpoints sobriety further reasonable manner in which checkpoints outweighs goal the minimal intrusion momentarily stopped. only on motorists who are (1992) App 485 NW2d 135 affirmed. 193 Mich Gordon, Granzotto, L. and Wil- Mark Deborah Gage, liam plaintiffs. for the 443 Mich Opinion op the Court Attorney Kelley, General, and

Frank J. Casey, General, the defen- L. for Solicitor Thomas dants.

Amici Curiae: Jr.), (by Rizik, for Rizik, B. & P.C. Michael

Rizik Michigan. MADD Attorneys R. Defense

John Minock Criminal Michigan. (by Pepper, Abraham Hamilton & Scheetz Singer), Counsel, for Teir, Robert General and Rights Responsibilities. American Alliance for Riddering, (by Varnum, & Howlett Schmidt Joseph Vogan), Fields J. and Michele McDowell Stephen Oesch, Institute L. for the Insurance Safety, Highway Alliance American of for Company, Insurers, the Ameri- Allstate Insurance Association, Insur- Arnica Mutual can Insurance ance Group Company, of Com- Farmers Insurance Group, panies, Liberty Mu- Mutual Lumbermens Company, Casualty of tual National Association Independent Insurers, Mutual Insur- Nationwide Progressive Company, Casualty Insurance ance Company, Property Casualty Insur- Prudential Company, Royal Insurance, Mu- State Farm ance Company, Insurance the Travel- tual Automobile ers tomobile Association. Company, Indemnity Au- and United Services us a chal- J. The case before concerns Boyle, checkpoints lenge sobriety of to the use Michigan Police. United State The States checkpoint held scheme does not that of the Fourth Amendment of constitute a violation Michigan Dep’t of the United Constitution. States Police Sitz of State v Opinion of the Court 2481; 110 Sitz, US 110 S Ct State Police (1990). Court, a from that L On remand Ed 2d Ap- Michigan two-judge majority Court of checkpoints sobriety peals violate determined Michigan Because 1, § 11 Constitution. art of the support history of is no the constitutional there Michigan police may proposition for the suspicionless engage seizures of in warrantless enforcing purpose the crimi- for the automobiles sobriety violate law, checklanes we hold that nal Michigan Constitution. 1, § 11

I undisputed following in this case are facts Appeals opinion, forth in the Court and are set (1988): App 433, 435-437; 429 NW2d 170 Mich Michigan Drunk 1982 PA 310 established Department of State in the Driving Task Force 9.2325(10). Police, The Task 257.625j; MSA MCL reviewing aspects all charged was with Force Septem- In driving problem in the state. the drunk 1985, report final ber, its the Task Force submitted thirty-five recommendations set forth which traffic accidents. One combating alcohol-related sobriety implementation suggestion was the checkpoints on legislative Due to public highways. attempt imple- did not opposition, defendants checkpoints at that time. sobriety ment January the State Address on In his State of directed defendants Blanchard Governor checkpoint pilot program. sobriety implement a Hough, Direc- Gerald L. February, defendant Police, Department of State tor of the Checkpoint Advisory Com- Sobriety appointed of the State mittee, representatives of composed officials, prosecuting Police, local law enforcement Michigan Trans- University of attorneys, and The committee Institute. Research portation guidelines program. guidelines for drafted 443 the Court selection, publicity, to site procedures as set forth briefing, including checkpoint, operation and scheduling, safety contact, considerations, motorist assignment of duties. staffing and estab- checkpoints would be program, Under All highways. along state sites at certain lished motorists reaching upon a check- stopped would be signs intoxica- for be examined point and would examining find indications officer tion. Should intoxication, the driver would direct the officer of to an out-of-traffic license and car location, driver’s check the possibly conduct registration, tests, Breathalyzer including a sobriety further was the driver concluded test. If the officer intoxicated, have discretion the officer would driver; conclude the the officer should arrest intoxicated, the driver was to be was not driver released. checkpoint operation was con- sobriety The first Road in Highway and Gretchen at Dixie ducted 18, May 17 and 1986. The Saginaw County on Saginaw County Sheriff’s

Department cooperated 11:45 from about operation which lasted in the p.m. twenty-six in that hundred vehicles to 1:00 a.m. One time, checkpoint with passed though the twenty-five sec- average delay to motorists an for so- Two drivers were retained onds or less. driving tests; one was arrested briety field of alcohol. A third under the influence while stop- through checkpoint without driver drove an officer in an observa- ping, pulled over was vehicle, driving under arrested for tion and was the influence. 1986, May on action was commenced This declar- filing plaintiffs’ for a

with the complaint Plaintiffs are judgment injunctive relief. atory licensed drivers of Michigan who the State of auto- throughout the state in their regularly travel proceed- initial During the course of the mobiles. ings, agreed implementation delay defendants checkpoint program pending resolu- sobriety the case. tion of through place May

Trial took from Police of State op Opinion the Court 24, 1986, 3, opinion In dated June 1986. its June the statutory that, although there was trial court found of the so- authority operation the Fourth plan violated checkpoints, briety Constitution to the United States Amendment 1, Michigan Constitution. 11 of the art § 1988, unani- Appeals the Court August On that ruling trial court’s mously affirmed the Fourth Amend- violated checkpoints sobriety if the state to decide ment, finding unnecessary greater protection. offered constitution to this appeal of leave to Following a denial (1989), ap- the defendants Court, Mich 872 Court, which Supreme States to the United pealed Supreme The United States certiorari. granted Ap- decision of the Court reversed the Court check- Michigan sobriety finding that peals, Fourth Amend- not violate the did point program States Constitution.1 of the United ment "the held that remand, Appeals the Court of On of motor ve- stopping suspicionless indiscriminate roadblocks roving form of hicles in the violates] 193 Mich Constitution.” 11 of the § (1992). This Court 699; 485 NW2d App (1992). 441 Mich 869 to appeal, leave granted II States note, the United outset, as did we At Supreme Court observed: United States The preventing sum, interest of the State’s the balance system driving, this can reason- to which the extent drunken ably interest, degree of intru- and the that said to advance weighs stopped, briefly upon who are individual motorists sion it is program. therefore hold We of the state in favor judgment of the Fourth Amendment. with the consistent Michigan reversed, accordingly and the Appeals proceedings inconsistent with for further is remanded cause this [Sitz, opinion. 496 US 455.] 443 Mich op the Court a facial involves Court, this case checkpoint constitutionality challenge to the program: inquiry is recognize what our important It is unrea- us of allegations are before

not about. No person after an actual any of treatment sonable detention at checkpoint. See particular a [United 543, 559; Martinez-Fuerte, 96 S Ct 428 US States ("claim (1976)] that L Ed 2d locating or in of discretion exercise particular subject checkpoint is unreasonable operating review”). in the pursued As post-stop judicial to challenges only courts, action the instant lower ad- generally. We checkpoints sobriety of the use passing motorist stop initial of each only the dress prelimi- the associated checkpoint and through a checkpoint and observation nary questioning for more particular motorists of officers. Detention require satis- testing may sobriety field extensive suspicion standard. of an individualized faction original.] Emphasis in the 450-451. [Sitz, US Supreme Court estab- the United States Because checkpoints Michigan’s sobriety do not lished United of the Fourth Amendment the violate question presented specific Constitution, the States in this case is whether checkpoints sobriety are Michigan 1, § 11 of the under art unreasonable addressing issue, must this we Before Constitution. first address question, how the more fundamental interpret the Constitution. we

A Supreme During United States the decade of "commonly jurisprudence characterized as Court of the Warren law revolution 'criminal ” "rapidly extend[ed] Court,’ Court ap- provisions of various constitutional the reach State Police the Court justice process plicable . . . the criminal p Procedure, 2.1, Israel, § & Criminal LaFave Burger Subsequent n decisions 1. pull- some commentators were characterized weakening scope ing suspending, from, back including specific protections, of constitutional Rights. guarantees Justice of the Bill of "patron Brennan, saint William J. law,”2

revival of interest state constitutional article, in a on the "trend” landmark commented urging interpretation state state activism law: foreclose very premise of cases [T]he call to state remedies constitutes clear

federal into step courts the breach. With federal weakened, our protections locus our double betray if the survive states liberties cannot if the put has in them. And trust trust is, the Court Court, enough strong to override the for the it, up how may risk states live that some state courts much we trust strongly more should expand purpose is to constitutional whose manifest diminished, protections. scrutiny With federal increasing their respond by must own. state courts protection and of [Brennan, State constitutions 489, (1977).] rights, 90 L R 503 Harv individual heralded and Brennan The movement Justice strengthened to article came be called with his has noted: commentator "New Federalism.” One has its roots movement Today’s New Federalism reaction phenomena. in The first the liberal two jurisprudence in mid-1970s to Burger Burger As slowed the Court. constitutionally protected individual expansion Court, many rights liberals begun the Warren theory prophet state 2 Maltz, Brennan False and —Justice (1988). law, Hastings L 429 constitutional 15 Const Q 443 Mich Opinion of the Court began up to take the War- look state courts rights-protective legacy ren Court’s in the form rulings. phenome- state constitutional non is much older and criticizing tions as a source of law and for The second sparser tradition of ignoring state courts for state constitu- failing develop vigorous independent bodies of state constitu- irrespective tional law constitutional Court. of the character of the jurisprudence U. S. [Gardner, The failed discourse of state con- (1992).] stitutionalism., 761, L R potential reappraisal Awakened to the for grounds, on claims based state constitutional mem- joined colleagues bers of the their bar country3 pressing seeking across interpretations expansive claims provided

of state law that more procedure protections criminal than recognized By 1983, those number of law had under federal law.

rights-expansive claims on based state proliferated point guidance to the that appropriate from this Court was deemed both necessary. People Thus, Nash, 418 Mich (1983), NW2d the Court conducted the first modern-day comprehensive survey of the circum- surrounding stances art the creation of Const 1, § 11 to determine whether our constitution required higher pro- level of search and seizure tection than the Fourth Amendment of the United Nash, States Constitution. conclusion in Our history "[t]he 1, § 11, of Const and its plain import, suggest . . . its further expansion only . . . should occur when there is a compelling so,” reason to do id. at in- was clarify tended to bench and bar that claims interpreted expan- 1, § that art 11 should be more sively than the Fourth Amendment must rest on

3Gardner, supra at 776. State Police Opinion op the Court disagreement United States with the more than a Supreme Court.

B began noting analysis by Our Nash provisions that federal and state constitutional are and seizures unreasonable searches forbid nearly primary difference, and identical.4 The surrounding adoption of a the debate center of provision, anti- and seizure was search exclusionary-rule proviso to the Michi- first added gan 10, 2, § amend- art Constitution ment in 1936:

Provided, however, provisions of this That evidence construed to bar from shall not be section in any or in jurisdiction, criminal any court of magistrate or any proceeding held before criminal firearm, rifle, pistol, re- peace, any of the justice bomb, volver, gun, bomb pistol, machine automatic shell, slungshot, billy, metal- explosive, blackjack, device, knuckles, any other dan- gas-ejecting or lic Const, provides: US Am IV houses, persons, right people to be secure in their The seizures, effects, against papers, shall not be probable larly unreasonable searches and and issue, violated, upon shall but and no Warrants affirmation, particu- cause, supported by or Oath searched, persons describing place or and the to be things to be seized. provides: 11§ Const every person houses, possessions papers person, and seizures. No unreasonable searches secure from

shall be warrant things any person any place or to seize to search them, probable describing nor without issue without shall provisions cause, supported by of this or affirmation. The oath any from evidence construed to bar shall section criminal or outside firearm, bomb, explosive drug, proceeding any narcotic peace dangerous weapon, officer any seized other any dwelling curtilage in this state. house 754 Opinion op the Court gerous weapon thing, peace or by any seized officer curtilage dwelling any outside the house in the 1, state. Joint Resolution No ratified [1935 3, November 1936.][5] proviso The convention focus on retention of the prompted by was the decision of the United States Mapp Ohio, in 643; Court 367 US 81 S (1961), applying 1684; Ct 6 L Ed 2d 1081 the exclusionary rule to the states. The Court Nash length legislative discussed at debate: Michigan The focus of the Constitutional Con- Mapp vention of 1961 was on the effect of on the 1908, 2, third sentence of Const art 10. The § Rights, Suffrage, Committee on Declaration of proposed Elections the final sentence of Const 1908, 2, art in phrase be deleted favor of the § "Evidence obtained in violation of this section except shall not be used by authorized law.” holding committee reasoned that the broad Mapp may have invalidated the final sentence of 1908, 2, Const 10. The merits of that sentence § by were also considered the committee. The com- phrase "except mittee added the as authorized law” because: "Should the definition of the federal limits im-

posed respect on the States with to the admissibil- ity Legislature rate, change future, Michigan of evidence and the incorpo- courts could decisions, in statute and court those rules respect with to the admissibility of evidence which opinion reflect Michigan Legislature and the ought courts as to what to constitute State, practice sound subject this only to the 1952, phrase "any drug drugs” narcotic was added to the proviso. 4, 1952 Joint Resolution No ratified November 1952. 6The Fourth Amendment of the United States Constitution was not applied Colorado, 25; to the until states 1949. See Wolf v 338 US 69 S (1949) (Fourth privacy rights Ct implicit 93 L Ed 1782 Amendment are concept liberty against in the of ordered and thus enforceable Clause). through the states the Due Process of State Police recognition

continuing set federal limits Proposals supremacy.” constitutional Committee 1961, Sup- Reports, Constitutional Convention pp Proposal No porting Report, Committee 10. It the committee was appears therefore possibility of a less attempting to allow for if stringent application exclusionary rule law, attempting to by federal rather than allowed strengthen Michigan protec- and seizure search tion. the debates of the committee of whole at The of, the considered both the merits convention on, 1908, 2, 10. Mapp art See effect of Const § Record, 1961, pp Convention Official Constitutional 488-533, 464-484, Mapp 674-688. The view that was dwellings that a limita- to

limited tion on the searches proper on the exclusionary rule was day. Attempts to unite Michi- merits carried the law and seizure the gan and United States search adopting language of Fourth Amend- the exact proposed ment in the Constitution were Instead, anti-exclusionary-rule pro- defeated. 1908, 2, art 10 was amended back viso of Const § Record, proposed constitution. Official into the 1961, pp 531-688. Ulti- Convention Constitutional mately, that of language substantially similar amended, 1908, 2, 10, adopted was art Const § people. to the and recommended the convention people stated to the The convention’s address 1963, 1, 11 was "No proposed that Const art § 10, II, present Article of the change from Sec. improvement phraseol- except for constitution Record, Convention ogy.” 2 Official Constitutional Indeed, understanding 1961, the common p 3364. proposed constitu- reading the people upon nothing provision could but belief tional provision of new and seizure search represented change. There had no constitution There is no indica- no alterations. been substantive 1908, readopting language of Const tion that in 1963, 1, 2, people art art 10 in Const § § place on law en- restrictions this state wished 443 Mich Opinion of the Coukt greater required by forcement activities than those fact, the federal the contrary constitution. in- expressed. tent is [Id. 211-213.] analysis historical found Nash un- 1963, 1, 11§ assailable. The creators of art Const asserting forcefully sovereignty by were re- state acting Mapp readoption to the decision with proviso. anti-exclusionary-rule the limited At the reiterating they time, same were the venerable standard of reasonableness for seizures and an remedy preceded exclusionary the full feder- by forty-two alization of the Fourth Amendment years.7 rounding reality On the basis the historical sur- adoption 1, § 11, of art this Court repeat import concluded in words we for their on present inquiry: our people adopted When the of this state the third 1963, 11,

sentence of Const art they also § adopted sentences, the first two. nearly Those identical ment, contained in the Fourth those Amend- part Michigan’s had been Constitutions 1, 8; since 1835. See Const Const § 6, art 26. It under was those sentences that this § Court body created a of state constitutional search and adopted rule, seizure and exclusionary law an all subject before was either to a federal floor. We necessarily cannot view the final sentence of Const 1963, 1, as against art 11 an evolving interdiction § concepts of reasonableness the under first two Though people sentences. of the State of Mich- igan have corrected this Court when they have far, gone believed it to have too the historical general power of this Court to construe the consti- provision relating tutional to searches and seizures 7 Marxhausen, People 559; (1919), v 204 Mich 171 NW 557 this country apply Court became one of the first courts in the to exclusionary unlawfully federal to rule exclude seized evidence in the States, 383; of our courts state. See also Weeks v United 232 US 34 S (1914). 341; Ct 58 L Ed 652 757 Sitz of State Police v Opinion of the Court 1963, history Const

has not been removed. however, 11, suggest 1, import, plain and its art § expansion, with the concomitant that further its it,[8] exclusionary to enforce expansion of the rule compelling only when there is should occur reason to do so. at [Id 214.] consistently analysis applied since has This been 9 Nash. 8 compelling explicitly reason to limit The Nash Court declined questions involving exclusionary rule: test to dissenting brother, analy- Cavanagh, this Our Justice

sis, reasonable- he notes that the standard of correct when exclusionary application under the rule ness Michigan ies. and inquir- analytically separate be Constitution should assumption Unfortunately, that the standard reason- remedy that are and the for breach of standard ableness prior inexorably permeates in Court. This decisions of this linked Moore, 426; [People v 391 Mich NW2d Court’s statement 770 1, (1974)], anti-exclusionary-rule proviso of art § higher precluded federal constitution when that of the than a standard of reasonableness weapons involved or narcotics are assumption. [People analytically this incorrect likewise makes expanded Secrest, (1982)]merely 321 NW2d Mich weapons assumption when to state that on that incorrect involved, the standard of reasonableness narcotics are not searches higher. must that reveal all other items therefore, We, analysis of issues with our are left whether anti-exclusionary- involving rule we whether whether of reasonableness and standard it be. proviso or as should Were should be as has been slate, analyses separate has been violated writing we our on would a blank Michigan Constitution application of the calls for violation now, however, exclusionary rule. To do would so common-law necessitate overruling n [Id. 4.] both Moore Secrest. (1991): Collins, 8, 25; People v 475 NW2d 684 See Discerning people who of the framers and the the intent 1, 11, adopted . . this has held . that art § Const protection provide the same 11 is to be construed § Amendment, "compelling absent the Fourth that secured interpretation. impose a different reason” 29, 34, citing: And id. at n (no 1, 20; (1984)]

People Mich NW2d v Smith [420 443 Mich Opinion op the Court C Today clarify compelling we interpreted that the reason test must be in the context of our observa- proviso tion that should not be read as "an clauses, interdiction” of the first two under which body this Court "created a search and seizure law and of state constitutional

adopted an exclusion- ary subject rule, all before either was to a federal supra "compelling Nash, floor.” Thus, at 214. rea- establishing son” should not be understood as presumption artificially linking conclusive constitutional state

interpretation to federal law. As question presented today, illustrated eral ignore a lit- application of the term would force us to jurisprudential history of this Court in analysis Supreme favor of the of the United States Properly Court announced in Sitz. understood, the compels acceptance Nash rule neither the of fed- compelling 1963, 1, requires reason that Const aft 11§ standing requirement, purposes challenging the admissi- bility warrant, of evidence seized without a more liberal than interpre- that mandated the United States Court’s Amendment); People tation of the Fourth v Catania Mich [427 447; (1986)] (plurality 398 NW2d 343 decision which followed analysis Nash, supra, holding 1, set forth in that art 11§ require suppression pursuant did not of evidence seized to a entry by police agent warrantless "ruse” an undercover into parallel the defendant’s home because federal constitutional provisions interpreted permit had been the use of such evidence); People 305; v (1990)] Perlos 462 NW2d 310 [436 (MCL 257.625a[9]; 9.2325[1][9], permits MSA which chemical analysis samples of blood taken from a driver of a motor vehicle involved in an accident to be admitted into evidence in subsequent prosecution arising accident, criminal out of such does not violate the Fourth Amendment of the federal constitu- compelling greater tion and there is "no reason” to afford 11). protection 1963, under Const art § (there compelling See also id. at 40 interpret is no reason to Const prohibit participant monitoring 11 to § without a warrant Amendment); People Faucett, where does not violate the Fourth (1993) (the 442 Mich not determining 499 NW2d 764 Constitution does provide protection more than the federal constitution when validity anonymous tip). of an informant’s 759 Sitz of State Police v Opinion op the Court rejection. interpretation in- its In each nor eral required stance, ing Court is a search- of this what is people "the to discover what law examination Harding, People 481, 485; v Mich have made.” (1884). 19 NW 155 simply judiciary not free to of this state is "enlightened” rights

engraft 1, § art 11 more onto By token, we the same than the framers intended. guarantees may disregard our consti- not the that merely Michigan citizens because tution confers on Supreme has withdrawn United States protection. not extended such III 1, § 11 not does The Constitution right upon citizens exclude a confer unreasonably weapons or narcotics discov- seized dwelling curtilage of house. As ered outside Mapp supra Nash, "The view that noted in dwellings and that searches of was limited to proper exclusionary on rule on the was limitation day.” It not until after carried the was the merits adoption proviso clear that it became Con- United States Amendment the Fourth right. does confer such stitution Supremacy Clause, of this the courts Under rights obliged to enforce the conferred are state the United if the state States Court even rights.10 provide Thus, such does constitution Pennington, People 611, 620; provides: VI, cl of the United States Constitution Article Constitution, which Laws the United States This and the thereof; supreme . . . shall be in Pursuance shall be made Law of the every Land; Judges in State shall be bound and the any Thing thereby, any or Laws of State Constitution notwithstanding. Contrary 443 Mich Opinion of the Court (1970), recognized NW2d 471 anti-exclusionary provision the Court "the 1, § 11,

of Article Mich- igan 1963, cannot, Constitution of under Federal against decisions, stand the Fourth and Four- teenth Amendments to the United States Constitu- Mapp.”11 tion However, and the decision in while Pennington recognized correctly the Court in supremacy law, of federal the conclusion that proviso itself was unconstitutional was based on premise. an incorrect Michigan Rights, Declaration of like the Rights, govern-

federal Bill of mental conduct and to is "drawn to restrict

provide protection from governmental infringement and excesses . . . .” Lobby, Woodland v 188, Citizens (1985). compet- NW2d 337 When there is a clash of ing rights under the state and federal constitu- Supremacy tions, Clause, VI, the 2, art cl dictates right prevails. right the federal Where a is given law, to a citizen under federal it does not organic govern- follow that the instrument of state interpreted conferring ment must be as the identi- right. right cal Nor does follow where a given by given by thé federal constitution is not constitution, state the state constitution offends only the federal constitution. It is where the or- ganic prive government purports instrument of to de- right granted by

a citizen of a the federal Pennington 618, As the Court observed at federal courts had not Michigan hesitated to supremacy recognize reverse courts that failed to the Kropp, of federal Supp law. In Winkle v 279 F (ED Mich, 1968), (CA grounds 6, 1968), rev’d on other 403 F2d 661 Judge Federal District Wade McCree held: might Whatever innovations be devised in the area of seizures, thing

searches and it would seem that one which justify by cannot be done is to a search its results. It must proviso, applied case, therefore be held that violative of the Fourth Amendment. the as in this [Emphasis added.] of State Police Opinion op the Court can said to instrument constitution that the violate the constitution. anti-exclusionary-rule provision face,

On its the deprive purport of a an individual not does right guaranteed the constitution. under federal origi- proviso as The intent the framers applica- adopted nally limit the to affirm and was exclusionary The intent of the rule. tion of readopted, to reaffirm § 11, was framers of art prevent Michigan principles "same” using to extend from the state constitution courts granted exclusionary right federally declared Mapp. rights conflict of exists between under No Fourth § 11 and the the last sentence art Michigan Constitution as Amendment because right simply federal failed to extend enacted categories of evidence. certain provision anti-exclusionary-rule Because deprive purport citizen of a does federally right, guaranteed under conflict exists only when 1, 11 Amendment § Fourth rights ignore conferred state courts into admit evi- Constitution and United States unreasonably under the Fourth seized dence items action It is of such state Amendment. virtue Supremacy is offended. Clause analysis appropriate our constitution Thus, premise begin a from the conclusive not does fragile Indeed, of the foundation floor.12 federal 12As one commentator observes: image in as a "floor” state constitutional law of federal commentary litigation pervades on constitu- most state court cases, adjudicating contend that law. tional Commentators adopt fall judges rules which not state constitutional state must however, appeal floor; may, the relevant of courts this below "ceiling” rights higher to establish state constitution individuals. . . . law, Certainly, courts are bound matter of federal state as a apply any is inconsistent with decisions rule which 443 744 Opinion op the Court against arbitrary federal floor as a bulwark action clearly when, here, is revealed the federal floor protection. minimum falls below state As a matter simple logic, because the texts were written people, protections different times different may greater, lesser, afforded or the same.13 1, § The statement Collins that art will be provide protection construed to the same as the Supreme interpretation United States Court’s the Fourth Amendment should not be understood having precedent as contrary created a ladder of is language

to the Constitu- require tion. Nor should the statement be read to ignore "body us to of state constitutional pursuant search and seizure law” created to "the Supreme Court; Supremacy Clause of the Federal Constitu- clearly mistake, tion embodies this mandate. It would be a however, to view federal law as floor for state constitutional analysis; principles prohibit Supreme of federalism dictating words, from the content of state law. other state required incorporate federally-created princi- courts are not ples analysis; only require- into their state constitutional ment is that in the event of an irreconcilable conflict between principles, principles federal law and state law the federal must prevail. independent courts must undertake an [S]uch determination solely principles of the merits of each claim based on of state begins analysis constitutional the view that state court law. If the state court its with "floor,” practice the federal establishes a allowing governmental body a federal —the define, part, rights United States Court—to at least in guaranteed Thus, by the state constitution. to avoid conflict principles autonomy, with fundamental deciding of state a state court expand federally recognized rights whether to as a employ two-stage process. matter of state law must The court federally recognized rights first must determine whether the incorporated only themselves are in the state constitution and protections then must determine whether those are more ex- pansive in the [Maltz, supra Emphasis under state law. n 2 at 443-444. original.] 1993). Tucci, parte (Tex, Davenport Garcia, Ex SW2d v (Tex, 1992); Smith, (1986). Oregon SW2d 4 301 Or 725 P2d 894 Dep’t of Police State Opinion of the Court general power this Court to construe historical relating provision to searches the constitutional supra Nash, 214. at . . . and seizures analyzing required review when The historical People Catania, in as articulated the constitution (1986), 466; 398 NW2d supra Collins, we did illustrates14 regard- appropriate inquiry intend to obscure ing of this role of the courts constitutional "compelling test is convenient reason” state. formulation of find a overarching responsibility to juris- history principled our basis rights. prudence is to the creation of new What gleaned our former cases is that from be unprincipled reject cre- should courts this state rights that exceed of state constitutional ation their federal counterparts. hand, our other On obligated accept what we deem are not courts protections major under citizen contraction simply States United constitution because our obli- chosen to do so. We are Court has organic gated interpret our own instrument government. the crux of the instant case: now turn to

We checkpoints sobriety are unconstitutional whether Michigan Constitution. . under the

IV years ago, Justice hundred Chief Over one "determining being helpful Both cases listed several factors as protection from affords different whether a state constitution Collins at n 39: federal constitution.” 2) constitution, 1) significant language of the the textual state parallel provisions of con- the two

textual differences between 4) 3) stitutions, history, and common-law state constitutional preexisting adoption relevant constitutional law state provision, 5) fed- the state and differences between structural 6) constitutions, peculiar state or local matters of eral interest. 443 Mich 744 Opinion op the Court construing judiciary’s Cooley set forth the task in Constitution: seeking meaning take for its real we must [I]n into consideration times circumstances formed— under which State Constitution was general spirit prevailing of the times and the among people. Every sentiments constitution history likely has a of its own which is to be more peculiar; interpreted light or less and unless in the history, express of this is liable to be made to purposes never which were within the minds of people agreeing in to it. This the court must keep upon interpret it; in mind when called duty their people is to enforce the law which the made, have and not some other law which may possibly words of the constitution made to express. [People Harding, supra v at 485.] expressed The intent of the framers as to the people Michigan was that the Constitution of represented change” "no from the Constitu- Thus, 1908. § tion of to understand what art regarding suspicionless means seizures of auto- protection mobiles, and, thus, what level of is required Michigan Constitution, under the we look interpretation previous, nearly identical, provision. A constitutional review of the cases construing 2, § Const discloses no support proposition police may for the engage suspicionless warrantless, in seizures of automobiles.

A legally required What is to seize and search an question Michigan. automobile is not a new Police of State Opinion of the Court opportu- Prohibition,15 many had this Court During necessary of cause the level to review nities or search. stop such a make 379; 190 NW Case, 220 Mich People In was a warrant (1922), determined this Court auto- of an valid search to the prerequisite not a conclusion, the Court this arriving mobile. determining role constitutional discussed its or seizure: of a search "reasonableness” an auto- seizure from of and search Whether place with- public or other upon highway mobile in its final unreasonable is a search warrant out analysis question in judicial as a to be determined which it is under the circumstances of all view at made. 389.] [Id. conclusion, took the Court arriving at this

In authority: federal from guidance in fairly stated rule is recognized generally (2d Ann Stat to Fed following annotation ed), p 354: is or a search a seizure question whether "The the Constitution language of in the unreasonable is a in question; but legislative and not a judicial not unrea- is or is determining sonable, a seizure whether it is under which circumstances all of the looked to.” made must be 388.] [Id. to this anno- lead the federal decisions

While Michigan on the binding no more were tation the Ohio than the decisions Supreme their adopt to Court, chose this Court reasoning as instructive. years explained later two on and was relied

Case help period, but be one cannot this turbulent a full review of On against arguments for and made by the similarities struck rights day the modern- to of law enforcement versus the needs of citizens driving. drug running dealing and drunken necessity with 443 Mich Opinion of the Court People Kamhout, 227 Mich 198 NW 831

in (1924). upholding automobile, of an the search the Court articulated a search and seizure stan- applied generally in future dard that came to be cases involving automobiles:16 misunderstanding part on the There must be no right of officers as to the under our search an automobile or other purpose of search and arrest holdings. right stop They have no conveyance for the ascertaining being whether is used as transporting liquor illegally unless a means of they induce in grounds suspicion have reasonable such them, pru- in any and as would induce man, being dent an honest belief that the law is . . violated. which . What we do state to be the rule is, governed if this court will be an officer, law, charged with the enforcement of the senses, acting upon from the exercise of his own information apparently received from sources so prudent person, having reliable that a due and careful others, regard rights for the would act thereon, probable has reasonable cause intoxicating liquor being unlawfully believe that transported presence, an automobile his he and, found, may if arrest offender or search for seize the contraband therein without a warrant Emphasis do so. at 187-188. [Id. added.] grounds” Kamhout’s observation that "reasonable required are Constitution before may occur, the remains unmodified or search of an seizure automobile precedent. People Roache, 215; In v 237 211 Mich NW 742 (1927), presented with, Court this was but did not directly stop, may decide, "Whether sin officer indiscriminately, highway travelers on the and produce they demand of them that a license cards is question we do not need and not determine.” Id. Krahn, (1925), People 203 NW 105 this Court applied language wagon. the Kamhout to a team and State Police . of the Court (Clark, J., dissenting).17 majority- While lack reasonable on the its decision rested automobile, for search grounds a justify needed to grounds discussed and seizure: search may promis that an officer will contend No one public highway upon the stop automobiles

cuously a sub merely as the driver’s license and demand terfuge right of the invade the constitutional against unreasonable search traveler to be secure done exactly what was Yet that is and seizure. seeing nothing a about The officer cared here. license, suspicious that says he he was but driver’s car, immedi liquor in the and almost was there him he ordered stopping the defendant ately after liquor. to search proceeded of his car and out at 222.][18] [Id. Kamhout, dismissing applying

After the officers as justifications and seizure search concluded the Court grounds, lacking reasonable it was today as appropriate warning a with 1927: of the fact judicial notice may we take While automobiles, ride rum runners and bandits their crimes and effect to commit use them notice of the judicial take escape, may we not also rum runner is one bandit or there

fact that where are thou- highway, there public passing over required: time at that driver’s license statute The tag times be carried at all license card or shall Said along operating vehicle a motor he or she licensee when public given up by him or highways state and shall of this proper by any upon officer. [1923 demand examination her for PA § 4.] stop anger used as majority’s would be the license investigative from the differs activities pretext present criminal to conduct pretext. Here, to enunciate the state has failed case. 443 Opinion of the Court law-abiding who are citizens respectable, sands of by protection afforded doing The likewise? regarded persons must be to such Constitution paramount police officer right given to be any ungrounded suspicion verify his him to

to enable that a law being is violated. possible, to thing were granting, if such a The officers, performance of powers, of over-zealous rights invade constitutional which would citizen, of law than to the enforcement more to retard would do promote it. at [Id. 224-225.] famous, opinion, or infamous Perhaps the most the relation- to discuss depending perspective, on provision the search and seizure ship between Stein, People v the automobile Michigan and (1933), the case that 610; 251 265 Mich NW 2, 10. of Const led to the amendment § amendment, anti- addition The response by proviso, was exclusionary-rule Michigan to the Stein Court’s use of the people of conviction, which rule to reverse exclusionary weapon. seized unconstitutionally relied on an casting doubt on the Stein Court’s while proviso, rule, does not invalidate exclusionary view of the stop. of the of the reasonableness analysis its The issue in Stein was "whether the arrest was upon solely the search was based lawful because suspicion speed for which was the arrest [the gesture]. a furtive The essential of the car and justi- us is whether the arrest was question before of law.” Id. 613. The Court fied as a matter Kamhout quoting from both began analysis by its Roache, the former observing full was made with the rule from case] [that in criminal appreciation of the use of automobiles carry operations, proclivity of law-breakers police weapons, to detect developed faculties of officers crime, law-abiding the attitude of citizens of State Police the Court law, and also with the enforcement toward that the constitutional of the court the realization for preserved a mandate and must be provision is citizens, although, usually is good the benefit of the case when favor court, it is invoked it reaches the of the law-breaker. on special rule of search If demand a conditions remedy is amendment

highways, [Stein, supra at Constitution. 613-615.] proof on the level The Court then focused led to the search. the arrest that for required noted: majority defendants, the officers If, arresting instead cab, persons or but

had searched defendants, that may be defendants baggage of the offi- The mistake complained. have could not cers made was had they arresting before defendants that a crime was ground to believe reasonable being by defendants. 614-615.] committed [Id. than something less that implies statement This car, of a the search might justify cause probable pro- Stein an arrest. justify less will nothing but dissents, still two of which vigorous three duced or an arrest of cause before some level required Weadock, Only Justice could be made.19 search Sharpe argued: Justice encouraged to rid in their efforts officers should be Zealous law, and, they may while of violators of their communities n alone, they may suspicion on an arrest or search not make pres- done in their from acts reasonable inferences draw all fairly done, and, ence, and the inference act be so if an prudent and careful to cause a be such as deducible therefrom violated, being may make he the law is to believe that officer an arrest to do so. of a warrant the issue and a search without at 621.] [Id. is a reasonable observing unreasonable that "[w]hat After argued: similarly judicial question,” Justice Butzel 443 Mich the Court proposition citing supra, that Case, after ques- judicial reasonable is a search is whether enough general suspicion implied tion, was expansive police activity: justify wardens, penolo- knowledge of It is the common of crime and other students gists, psychiatrists persons who community has every sizable well, support but live means of have no visible consort with criminal records who have until a society Yet must wait known criminals. quietly and They sit back crime is committed. plan. doing it. But we must not they know are We are to anticipate their move. When circumstances liking gaze gun held a man we their we into criminal, would not but whom the law knew was a permit city can cleared of Any us to hunt. hours, in 48 if the hands of the known criminals police powers if that be and the are unshackled backing support. and at assure them of will [Id. 624-625.] Lansing People Attorney ex General v rel

Municipal Judge, 410; 42 327 Mich NW2d (1950), analogous Michigan case most to the present one, down the Court struck (1st (CL Sess), PA 1948 Ex provisions of No 1948, Supp seq. 300.21 et Ann 1949 Cum § [Stat 13.1231(1) seq.]) subjecting et to search without § warrant vehicle, automobile, boat, conveyance, box, house, hunting house, fishing camp, fish fish net or coat, basket, game bag, game any or fish in receptacle, conveyance

other car or which wild that, judicial process, I the same we should restrict believe rule, the search of an automobile under circum- and case, in the instant circumstances officer, stances similar to those suspicions of a should calculated to arouse the trained restriction, however, regarded as unreasonable. Such a not be does not entitle without cause. maliciously, capriciously police officers to act or [Id. 623.] of State Police Opinion op the Court kept, transported, life be may any carried or person exercising privilege hunting, fishing cetera,, trapping, empowering or et conserva require person permit tion officers to such examine, warrant, trapping inspect officers to without any hunting, fishing all wild life and or apparatus, guns possession officer’s reasonable belief that in person’s or ammunition such merely upon or under his control person ques been, is, engaged tion has or is in in about hunting, fishing possession trapping or wild life or is apparatus, of such wild life or but with probable person out cause to believe that such has violating or been is the law .... at 425. [Id. Emphasis added.][20] States, Referencing Carroll v United the majority persons observed that entitled to the highways use right have a to free passage without intervention except upon probable believing or search cause for observing law to be violated.21 After Kamhout, Roache, and Stein all forbade the search an proba- automobile without warrant absent cause, provisions ble the Court concluded that disputed act ”are in undoubted contraven- interesting public It to note that this act struck down same this Court violative of itself forbade Const § enforcing checkpoints for the law: further, nothing shall "Provided That contained this act permit setting up operation

be deemed to or allow the or on any designated highways State of trunk line road blockade, which, act, purpose for the of this shall be deemed to halting promiscuous arbitrary of vehicular traffic for be the (North, J., inspection ing.) Emphasis 413-414. or examination.” at dissent- [Id. original.] in the 21 States, 280; In Carroll v United 267 US 45 S Ct 69 L Ed (1925), public right passage free 543 the Court held that the to on contraband, highways precluded thorizing upon seizing which suspicionless a seizure of while au- cause, is, “probable upon based that warrantless seizures belief, reasonably arising to the a out of circumstances known officer, that an automobile or other vehicle contains that subject . . . .” id. at law is to seizure and destruction See 154. 443 Mich Michigan 2, 10,” Constitution, § id.

tion of thus unreasonable. and statutory argued support of the had state inspect right and "to a conservation officer game guns, coat, shot examine” an individual’s may person automobile, 414, "that a id. at and rights against unreason- waive his constitutional strongly . .” This Court . . Id. at 426. able search responded argument and the cases to the state’s support presented it: Secretary Surtman v

Mention is made of State, (1944)]; v NW2d 471 Larr 270 [15 State, 317 Mich 121 NW2d Secretary [26 (1947)]; People Thompson, v 259 Mich NW [242 (1932)], accepting in which it was held that operate motor from the State vehicle license accept all upon public highways one must also imposed State conditions reasonable thereon, requirement stop that he such as the accidents, or he give in cases of assistance But responsibility act. financial comply with hold, yet do and it has not been these cases highways held in that use of the involves against rights unrea- waiver of one’s constitutional is not involved search. That such waiver sonable appears Kamhout, People as from such cases supra. plaintiff’s position this is Can be legislature yet has not seen solely true because the immu- require fit waiver of such constitutional nity precedent to the use of condition question glimpse To ask the is to highways? led, if, lengths one in the day to which we shall be case, "inspect require- and examine” instant upheld the- the statute are on a waiver ments of ory. at 426-427.] [Id. distinguishing today what com-

After would monly regulatory administrative called Dep’t 773 Sitz of State Police Opinion op the Court enterprises,22 searches of commercial activities and such rooming public houses, food-related estab- liquor industry, lishments, the Court and the arguments: forcefully rejected the state’s waiver in every Were we to hold that in instance which may lawfully required granting its license upon may at the same time be conditioned waiver rights against of constitutional unreasonable search, conceivably what area could remain im- reach, beyond legislative upon mune and which might operate? It guaranty the constitutional will be said that no still legislature go would so far as dry up to munity. the constitutional the entire stream of constitutional im- genius system But it of our is rights persons depend shall upon legislative efficacy for their benevolence. Rather, obligation dicated utive invasion. to breathe rights, charged the courts are with the solemn rights, in erecting adju- around those cases, legislative against or exec- barrier responsibility It is the of the courts of life into constitutional breath mandates, guaranties and limitations in the contravening, legislation. very face of [Id. 432.]

B application Following Mapp’s 1961 of the federal distinguishing in This factor was later addressed this Court Resources, 622-623; Tallman v of Natural (1984), adopted pervasively regulated when we indus NW2d try exception requirement. to the warrant Judge] might prove apposite [Lansing Municipal to the cases Court,

presently before this but for the crucial fact that violating party the state’s conservation laws accused profit. pleasure rather than for case took the state’s wildlife parties engaged pervasively Because we deal here with endeavor, Lansing Municipal Judge regulated commercial inapposite. pass question We do not here on the whether searches, probable may make warrantless absent cause dnr circumstances, exigent persons property of recre- enforcing regulations purpose which ational fishers for the [Emphasis original.] in the limit their activities. 443 Mich op the Court states, the nature to the exclusionary rule seizure dia- this search and direction of Court’s previously had Where we logue was transformed. same instructive precedent used federal in inter- any foreign precedent purposes other constitution, our own federal constitu- preting our Most began tional absorb own. precedent and the decisions of this Court Court modern relating stops have focused Appeals to automobile opinions, rather than an on federal constitutional 1, 1963, 11. For of Const art independent analysis § Whalen, 672; People v instance, Mich 213 390 (1973), leave to granted NW2d 116 this Court decide stop and

[wjhether due to the warrantless search pas- of senger, scheme was a the automobile which defendant comprehensive stop part was of a which highway all automobiles on the search Amendment —a roadblock —defendant’s Fourth right seizure had been violated. from search and to be free unreasonable [Id. 674-675.] on subsequently While the Court decided case alone, grounds specifically leaving open plain view issue,23 exclusively its was analysis roadblock Amendment, based on Fourth Const 11. § However, Michigan’s prece- own constitutional as powerful dent has done occasionally service even the Court also cited federal authority, where Parisi, In People v or standards. 393 decisions 31, 32; (1974), 222 757 a unanimous NW2d stop Court the initial of an automo- concluded that 23See id. at 683: systematic stop part of a do we decide if a all cars as [N]or would be reasonable absent similar foundation facts

roadblock stopping respecting the an individual car. reasonableness Dep’t of State Police Opinion op the Court Citing bile was without a "reasonable basis.” Mich- igan decisions, Roache, Kamhout, constitutional Lansing Municipal Judge, Stein, as well as supra, decisions, Whalen, federal constitutional Terry Ohio, 1; 1868; 20 L Ed 2d 392 US S Ct (1968), Williams, 143; and Adams v US (1972), S Ct 32 L Ed 2d the Court 'suspicious activity’ "[n]o concluded that has been any testimony providing a offered here nor reason- stopping Parisi, able basis for the automobile.” supra at 37.

V long ago justices As of this stated: guaranteed every liberty, Personal which is laws, consists of citizen under our Constitution and locomotion, right go pleases,

the of where one —to when, may to one’s and and to do that which lead pleasure, far as the only business or so restrained rights necessary it for the may of others make along may of all other citizens. travel welfare One places; in while public highways public the and orderly in and conducting themselves a decent manner, other, interfering disturbing no and with citizens, there, rights they of no other will be the protected law, persons, only the in their under the in conduct. The Constitution and but their safe public good, the laws are framed for the and citizens, highest from the to the protection of all lowest; of his lib- may and no one be restrained transgressed some erty, unless he has law. [Pinker- 573, 584; 44 579 Verberg, 78 Mich NW ton v (1889).] liberty protection was commitment to the of Our Court of demonstrated when further adopted exclusionary Michigan Í919, in rule an 443 744 Mich of the forty-two years federal mandated before was People Marxhausen, 171 NW law. v (1919). in Moreover, the cases discussed gen- part demonstrate, "historical this Court’s iv pro- power to the constitutional ... construe eral relating Nash, seizures,” to and' searches vision supra and to seizure at has been extended of search vehicles. scope power review the reasonable- of the by the of a and seizure was modified

ness search mooting anti-exclusionary rule, 1, § art analysis How- in certain cases.24 reasonableness conclusively history jurisprudence ever, the of our that, in of automobile demonstrates seizures, the context expansive protec- have extended more we in Sitz. tion to our citizens that extended than recognized right never of This Court has state, any suspicion whatsoever, level without large population detain members investigatory purposes. Nor has criminal completely acquiesced "politi- judgment determining cally rea- officials” when accountable Sitz, 453.25 in 496 US sonableness such context. Under 11:§ Const been and seizure it has determined search [O]nce amendment, occurred, in the words "outside has curtilage dwelling any house in this State” and once it has seized offered further been determined the articles among proceeding evidence in a criminal in that are those enumerated here) (both are so then the or the amendment which seizure, any search or circumstances of the arrest and of frequently prickly question or not of whether the search "unreasonable,” appear totally irrele seizure was to become Winkle, [People any phase vant of the criminal case. 551, 554; (1960).] 100 NW2d 309 1908, 2, 10, interpreting art as amended While Winkle was Const § 1, 11, 1952, 1963, provisions in 1936 and and not Const the two § Nash, supra almost See at 213. are identical. checkpoints statutory sobriety for The authorization existence questionable. certainly Legislature’s from It did not come of State Police Opinion of the Court circumstances, In these Constitution protection oilers more than the United States interpretation Court’s of the Fourth Amendment. supra Roache,

In at this Court showed a hostility marked toward the use of a license check pretext investigate activity. as a criminal Lansing Municipal Judge, supra we stressed: Driving statute,

Drunk MSA 257.625j(8); Task Force 1984 PA MCL 9.2325(10)(8),which, (prior as amended to the task force’s final report), recommended: any program The task force shall not institute that includes sobriety check lanes this state. Furthermore, 257.715(2); 9.2415(2), MCL MSA the statute relied upon by as grant authority police, the trial court to to the state if read written, broadly police engage as was would allow the federally unconstitutional behavior. 9.2415(2) 257.715(2); MCL MSA allows: department police The director of the of state shall cause

inspection highways operating public to be made of motor vehicles on the equipment to detect defective or other violations of governing public vehicles, highways by law the use of motor operators, purpose may and chauffeurs. For that the director temporary appropriate establish tions violations. A ment also with the ment of state vehicle check lanes at loca- throughout checking inadequacies the state for county, city, village, township police depart- may operate temporary check lane within its limits express depart- authorization of the director of the police supervision and under the direct of a designated representative of the director. sentence, alone, arguably The first random which could be read would allow stops Prouse, 648; in violation of Delaware v 440 US 99 S Ct (1979). Moreover, 59 L Ed 2d 660 the statute does limit scope governing authority looking of the officer’s when for "violations of law public highways by operators.” the use of ... MCL 9.2415(2). 257.715(2); plain language MSA of the statute would apparently suspicionless authorize officers at one of these roadblocks Breathalyzer workup to demand that drivers submit to a test or blood they drug. to determine if are under the influence of a forbidden ruling equal our Because extends with force to the executive and legislative more government, day branches of state we leave for another 9.2415(2). complete 257.715(2); interpretation of MCL MSA Mich Opinion of the Court go legislature far so It that no would will said up dry stream of constitutional the entire as immunity. system genius of our But it is not rights p,ersons de- shall the constitutional

that pend lence. solemn in or upon legislative efficacy benevo- their for charged Rather, with are the courts erecting rights, obligation of around those legislative adjudicated against cases, a barrier executive invasion. Michigan historically has treated Constitution investigatory for criminal and seizures

searches regulatory purposes differently those or than Judge, Municipal purposes. Lansing administrative regula- supra 427-429. These administrative at traditionally tory regarded have been searches and seizures in a sense. "reasonable” constitutional primary However, at 430. seizures with Id. enforcing generally26 goal of the criminal law have suspicion, required if that level some level of even years. has fluctuated over the suggest in that a different context we We do might not reach result under the balanc- a similar ing employed in Sitz. In- test reasonableness implic- precedent regarding deed, our automobiles incorporates balancing itly inherent test that assessing the reasonableness of warrantless pro- only and hold that searches seizures. We of vehicles for tection afforded to seizures purposes investigatory has an histor- criminal ical both justification contemporary foundation and outweighed by necessity is not advanced.27 Suspicionless investigatory seizures, criminal judgments politically extreme deference to ability police Today’s decision no doubt on of the casts apprehending purpose of individuals roadblocks for the flee conduct ing the scene of crime. note, people did Nash as we We "the they State have have believed it to corrected this when gone . . too far . have State Police Dissenting Brickley, J. contrary context, is, in this accountable officials precedent. Michigan constitutional Appeals is affirmed. of the Court of The decision JJ., Mallett, Levin, Riley, concurred with . Boyle, J.

Cavanagh, C.J., in the result. only concurred majority (dissenting). states, As the J. Brickley, recognize important this case is not to what it is majority notes, not, about the It as the about. particular person of a treatment unreasonable checkpoint. particular at 749- Ante at a detained Michigan Dep’t quoting Sitz, State Police v L 2d 2481; 110 Ed 449-450; 110 S Ct 496 US (1990). contrary However, the tenor 412 majority

opinion, the not about this case is also particular governing of a the seizure standard particular Rather, this case a reason. driver for systematic governing the the standard concerns given through passing every a vehicle seizure point sobriety given check- a a time vis-á-vis at majority program. point I Because believe authority upon inapposite line of an relies support support that "there is no its conclusion prop- history for the the constitutional engage may police in warrantless that osition and suspicionless automobiles for seizures of enforcing purpose law,” ante the criminal compels history I believe and because respectfully contrary conclusion, I dissent.

I "compelling majority Nash1 The finds "juris- the state’s test is satisfied because reason” 1 (1983). 196, 214; Nash, People Mich 341 NW2d v 443 Dissenting Opinion Brickley, J. departure compels history”

prudential from interpretation of search more narrow federal true, I be- if this were Even constraints. seizure wrong majority line of on the relies lieve that the history support conclu- in this Court’s cases it reaches. sion systematic "sei- with the this case deals

While point given passing every aat vehicle zure” given "jurisprudential majority’s his- time, tory” and their individuals cases which reflects searched and sometimes were seized automobiles example, particular For individual, reasons. People majority Kamhout, 227 on v relies (1924), and, to a lesser 172; 198 Mich extent, NW People Krahn, 528; 203 NW 230 Mich v (1925), proposition that "reasonable for the grounds” an auto- to seize and search are needed majority concludes, standard, Such a mobile. by precedent.” Ante at 766. "remains unmodified People upon opinion, majority another relies (1922), Case, 389; 190 NW 220 Mich upon depends is "reasonable” the notion that what totality and of the search of the circumstances the seizure. noted, however, cases is that these is not

What distinguishable clearly In the case at bar. from are police truck Case, an immobile the officer searched present. 220 Mich 380- the owner was while public fairgrounds parked 381. The vehicle was police part main- efforts to and was searched as fairgoers. protect 389. Like- Id. at tain order and police stationary wise, Kamhout, the searched a in parked the vehicle owner’s in front of automobile in the front seat. the owner was seated home while particularized any sus- 227 Mich 173-174. Without picion, police approached vehicle, officer wagon, up a bread reached built to resemble of State Police Dissenting Brickley, J. grabbed through carton, window, a and broken a containing whiskey. jugs Id. moonshine two found stopped police horse- And, Krahn, at 174. wagon city had noti- marshal because drawn tops police of whis- that he had seen fied the key hay through protruding bales containers wagon 529. 230 Mich carried. People upon Roache, majority v also relies (1927), People 215; 211 237 Mich NW (1933), for the 610; 251 NW 788 Stein, 265 Mich grounds proposition are least reasonable that at part stop every of a that is a automobile needed to police investigation. Roache, officer In criminal stopped occupants "the because an automobile passed, they had at him after looked back the car going than slower . . . the driver was and majority highway.” along this driven of cars pulled police Similarly, in Stein officers 222. Mich riding defendants were in which the a vehicle over because attracted attention was police officer’s] [one passengers were in which defendants to a taxicab fast,” "traveling pretty about it was

because and, a block pursued about per hour. He miles rear door” "right of the back abreast he was when reach- Stein "noticed the defendant the cab he something out and pocket as if to take ing into his tak- ... if he was him hand behind place his it on putting pocket his ing something out of motion him. Stein’s him” or behind beside the seat gave he was "the idea that police officer] [the gun away.” putting 612.] [265 upon majority deal relies sum, the cases ap- stops, least or at vehicle individualized with stationary vehicles, to sat- proaches to individual particular one suspicions Not isfy vehicles. about systematic all vehi- seizure of with case deals 443 Mich Dissenting Opinion Brickley, J. given given point passing through at a time.2 cles I upon majority therefore, relied believe, wrong support its conclusion line of cases to history” "jurisprudential the state compels finding of pursuant that some level reasonable grounds to a to seize vehicles are needed sobriety checkpoint program.

II question 1, § 11 of the whether systematic seizure of all Constitution allows the given point given passing through a at a vehicles sobriety checkpoint purposes is one of of a time for first impression Indeed, this Court for this Court. constitutionality has never considered systematic large group of vehicles or seizure of a Attorney According majority, People rel General v to the ex (1950), 410; Judge, Lansing Municipal is most 327 Mich 42 NW2d There, analogous public this Court struck down a to the case at bench. that, alia, stop officer to act inter allowed a conservation officer had reason to automobiles without a warrant where the search occupants engaged in or about to believe that the automobile’s were hunting practices. engage illegal 435. Court held in 327 Mich This only supported by when that such a search could be sustained probable cause. Id. at 425-426. Judge Lansing Municipal than its characterization of Other bench, agree being majority’s analysis analogous” I to the case at with the "most submit, however, I that the facts in of that case. Municipal Judge closely analogous roving Lansing check- are more permanent type point bench. The seizures at issue result of a in than to the more at issue the case at cases Lansing Municipal Judge are not the given systematic every hunter in a area at a seizure of contrary, given time. individual conservation officers were On any person they given 425. to seize wished. Id. at enormous discretion roving checkpoints Similarly, problem with is the unfettered See, gener- stopping individual motorists. discretion officers have ally, (1975). Ortiz, 2585; 95 S Ct 45 L Ed 2d 623 United States v US probable pursuant Just as cause is needed to seize a motorist 896-897, roving checkpoint, proper probable id. at I believe that cause is to a type Lansing for the of seizure at issue in standard However, Municipal Judge. because I believe that the factors that roving checkpoints distinguish distinguish permanent checkpoints from also more the seizures, Lansing Municipal Judge I not convinced am Lansing Judge compels requirement probable Municipal that cause in the case at bench. 783 State Police of. Opinion by Brickley, J. Dissenting Notwithstanding any reason. its individuals for Appeals opinions, however, of has the Court Sitz acknowledged constitutionality implicitly of systematic seizures. such People App 420-422; Holland, (1986), Appeals upheld of

399 NW2d possession co of the defendant’s conviction used to convict defendant caine. cocaine pocket States from his after United Customs fell boat, the defendant’s without officials boarded inspected probable cause, and certain warrant neither the state The Court held that documents.3 prohibited such conduct federal constitution nor in which the defendant’s boat because was water serving designated port entry of moored at a boundary and the United States between as Canada. easy to the access the river Consequently, due Canada, checks provides to document boaters public those same interests as thereon serve the Villamonte-Marquez, in States v present [United 2573; (1983)]. 77 L Ed 2d 22 US 103 S Ct Court, upon by that documentation As elaborated imports regulation and ex- assist in the laws laws of environmental ports and the enforcement shipping laws. omit- United States and [Citation Further, of the documentation enforcement ted.] laws detention, during requires only a which brief to a inspection only are limited visual searches plain at the official’s view. those areas within [Id. 422.] present purposes, Court’s most Holland

For 1581(a) provides pertinent part: Act of the Tariff Section go may any Any time on hoard officer of the customs place any . . any the United States . or vehicle at vessel papers .... and other documents examine the manifest 1581(a).] USC [19 Mich 744 Dissenting Brickley, J. explanation important followed this statement roving justified to a vessel the use of what amounted checking patrol docu- customs officials asystematic that such an The Court noted ments. procedure necessary the state’s to achieve was because, nature of the wa- "[d]ue to the interests checkpoints, permanent such commerce, terborne leading away type utilized on main roads as the Citing borders, Id. cannot be maintained.” from federal had a implicitly precedent,4 that, stated the Court checkpoint permanent a feasible alter- been use to allow a native, it have sustained its would inspection systematic of vessel documents. more reacknowledged Appeals the consti- of The Court permanent checkpoints tutionality in NAACP v of App 602; 434 Dearborn, 173 Mich NW2d (1989) (1988), 433 Mich lv den (Brickley, dissenting). Riley JJ., At issue and Griffin, restricting city the use ordinance that case was neighborhood parks city residents to of Dearborn’s and guests only. at 606-607. Aside from their Id. implications, the Court the race discrimination held that the ordinance violated state and federal prohibitions against unreasonable constitutional searches police any it allowed and seizures because stop produce require park user to officer to proving residency. Id. at Dearborn identification noted that 620. The Court criteria are set forth the [absolutely no neutral checkpoints, acknowledging constitutionality permanent In- the of noted that the Holland Court Martinez-Fuerte, 3074; v 428 US 96 S Ct United States [i]n (1976), upheld the author- 49 L Ed 2d 1116 patrols permanent

ity points borders, check- border to maintain federal major roadways leading away from international at may stopped questioning at which vehicles for brief though have no reason to believe that such even officials App illegal n vehicles contain aliens. 1.] [155 Sitz of State Police Brickley, J. Dissenting governmental intru- ordinance ensure that detaining personnel’s product of the sion is discretion; absolutely objective no stan- unfettered dards that the provided are in the ordinance warrant governmental product intrusion not the un- detaining personnel’s unlimited and of the guided "wish.” [Id.] Appeals Court of

Again, present purposes, for recognition that a most statement is its important checking identity procedure systematic scru- withstand constitutional park all users would naacp’s concession in acknowledging tiny. "fencing the Court noted that regard, this requiring display all users city’s parks point entry residency identification constitutionally acceptable would constitute nonresident enforcing the ordinance’s method Id. at n 4. provisions.” so, on at this Court has never done Although has im- Appeals Court of least two occasions the acknowledged constitutionality plicitly through a passing seizure of individuals systematic given authority at a time. While such given place Court, I find it upon is not this be binding highly persuasive.

III above, the only case deals with As noted this sobriety checkpoint question limited whether Michigan 11 of the Con- violates program § In the case law stitution. absence point, I believe that federal case law is on directly case question pre- on the limited this instructive sents. Court consid- Supreme the United States

When Michigan’s sobriety constitutionality ered the 443 by Dissenting Opinion Brickley, J. rejected checkpoint program, argument specifically the required proper analysis an the supported of whether the seizures were assessment suspicion probable by Sitz, cause. reasonable Instead, the because of nature 496 US 449-450. stopping systematic seizure, wit, of all given through given point passing at a vehicles time, intrusive than a traditional less the fact that such a seizure was Supreme arrest, espoused adopted balancing analysis 2637; Texas, 47; 99 S Ct 61 L Ed Brown v US (1979). Sitz, 496 US 450. 2d 357 Brown, Court ruled that In of a intrusive than an reasonableness arrest public seizure less upon depended "a balance between the right per- and the individual’s interest security arbitrary interference sonal law officers.” 443 US free from quoting Pennsylvania Mimms, 106, 109; 54 L 2d 434 US S Ct Ed (1977). reviewing words, other when weigh constitutionality seizure, of a courts must public gravity "the concerns served degree seizure, the to which the seizure advances public severity interest, and the of the inter- liberty.” 51. ference with individual 443 US More- reviewing over, the Court noted that courts should steps take "to assure that an reason- individual’s expectation privacy subject able is not to arbi- trary solely invasions at the unfettered discretion end, of officers in the field.” Id. To that requires the Fourth Amendment that a seizure specific, indicating objective must be based on that facts legitimate society’s require interests the sei- individual, particular zure of the zure must or that the sei- pursuant plan carried out to a em- explicit, bodying neutral limitations on the con- duct of individual officers. [Id.] balancing analysis I in is believe Brown State Police Sitz of Brickley, J. Dissenting Michigan requirements of the with the consistent analysis applying to the facts In this Constitution. Michigan’s sobriety case, I of this checkpoint believe program constitutional withstands scrutiny.

A gravity dispute seriously of one can No driving. drinking problems with associated year have in statistics the most recent which drugs played compiled, a role in or alcohol been occurring percent forty-five fatal accidents of all Department Michigan Michigan State of on Police, ing, Michigan: roads. (Lans Michigan Crash Facts Traffic Planning), Safety Highway Office p level as that a blood-alcohol 22. Statistics show significantly percent increases small as 0.04 level Id. at 20. At a accident. trafile likelihood likely probability is 0.06, of a crash twice involved; the level no is when alcohol than when higher; probability six times 0.10, is reaches probability 0.15, of it and, reaches when greater twenty-five if than times crash of trafile Id. the number is sober.5 While driver drugs al decreased alcohol or related to deaths most six hardly percent 1990,6 can from grave. problem disputed to be continues that the B balancing analysis re- in factor The next every reported in once average, a traffic accident was On losses in economic $3 over billion 26 seconds caused minute and Facts, p 5. in 1991. See Crash every category Indeed, Facts, p 7. 1991 saw a decrease Crash crashes, (i.e., compiled number total number statistics were which persons injured, killed, crashes, persons number of number of fatal etc.). 744 Dissenting Brickley, J. quires inquiry "degree into the to which the sei- public zure advances the interest.” 443 US 51. The Supreme quick United States Court in Sitz was point out that this factor was not meant to trans- fer from officials to the courts the decision state regarding technique which should be used to com- drinking driving problem. bat 496 US 453. The Court also noted:

Experts police might in disagree science over which of several apprehending methods of preferable drunken drivers is as an ideal. But for purposes Fourth of Amendment analysis, among choice such reasonable alternatives re- governmental mains with the unique understanding officials who have a of, for, and a responsibility resources, public limited of including a finite number

police officers. [Id. 453-454.] long words, In other as the means chosen to promote public’s "reasonable,” interest by empirical success rate that means measured outstanding. evidence need not be Empirical checkpoint data from the one con Michigan supports ducted in the view that check points reasonably public advance the in interest eradicating driving. During drunk the use of that checkpoint, passed through during 126 vehicles span just over one hour. Ante at 748. Of that driving number, two drivers were arrested for under the influence of alcohol. Id. This means that percent stopped 1.6 of all drivers or "seized” were driving. reviewing arrested for drunk a check point designed presence illegal to detect upheld aliens, the United States Court only percent.7 success rate of 0.12 On the basis of a Martinez-Fuerte, (the supra See United States v n 4 at 554 upheld illegal checkpoints, notwithstanding alien the fact one appeal, illegal of the consolidated cases considered on aliens were of State Police Brickley, J. Dissenting Opinion comparison cases, I am satisfied that these two checkpoint program Michigan’s sobriety reason discouraging public’s ably advances the interest driving. drunk C analysis requires "the sever- The final factor liberty.” ity individual of the interference with checkpoint During conducted, aver- US 51. twenty-five age delay to seconds or motorists was Again, comparing the case to United less. this illegal Supreme of alien States Court’s review slight.9 checkpoints, is intrusion on motorists Supreme reviewing checkpoints, the Court such noted: on checkpoint stops do not intrude ... Routine First, motoring potential interfer- public. the

the legitimate minimal. Motorists traffic is ence with using surprise as highways by not taken these are know, of, knowledge loca- they may or the obtain stopped checkpoints and will not be tion of the Second, ap- checkpoint operations both elsewhere. through percent passing only the 0.12 of vehicles found checkpoint). sobriety checkpoints a deterrent act as short-term The fact that against driving an more reasonable means drunk makes them even fact, combating driving problem. as testified to below drunk This witness, explanation by expert number of for the low offers some an checkpoint. Aware the increased drivers seized intoxicated risk of detection, drinking incentive to avoid motorists have new Michigan roadways. cars, patrol During inspection would a border officer the initial brought virtually visually a halt and of cars stand between inspect Most motorists oral examination line Martinez-Fuerte, occupants US 546. vehicle. way any continue on their without were allowed to inspection. Id. A small number or close visual occupants cars, however, secondary where the to a as area were directed concerning long questioned five minutes their citizen for as were ship lengthy upon Notwithstanding immigration this Id. at 546-547. status. detention, Supreme that the intrusion visited Court found checkpoint subject was Id. minimal. those to either area at 557-558. Mich 744 Bhickley, J. Dissenting by

pear actually to and involve discretionary less activity. regularized enforcement manner checkpoints operated which established are is visi- evidence, motorists, reassuring law-abiding ble stops are duly authorized and believed to public serve the checkpoint interest. The location of a fixed field, is not chosen officers in the responsible making but officials overall decisions as to the most effective allocation of limited may enforcement resources. We assume that checkpoint officials will be unlikely to locate a such arbitrarily oppres- where bears or sively on motorists as a class. And since field may stop officers checkpoint, only passing those cars

there is less room for abusive or ha- rassing stops of individuals than there was in the Moreover, roving-patrol stops. case of a operating a claim that particular exercise of locating discretion in checkpoint is subject unreasonable post-stop judicial review. States v Marti- [United nez-Fuerte, 543, 559; US 96 CtS 49 L Ed (1976).] 2d 1116 Moreover, in distinguishing checkpoints from rov- ing-patrol stops, the United States has stated: surrounding circumstances checkpoint [T]he

stop and search are far less intrusive than those attending roving-patrol stop. Roving patrols of- operate night ten at roads, on seldom-traveled and approach their may frighten motorists. At traffic checkpoints the motorist can see that other vehi- being stopped, cles are the he can see signs visible authority, officers’ and he is much likely less frightened to be annoyed by the intrusion. Ortiz, 891, 894-895; States v 422 US [United Ct S L (1975).] 45 Ed 2d 623 It is clear that the permanent more types of checkpoints impose only minimal intrusions on the motoring public. Sitz of State Police by Dissenting Opinion Brickley, J. Michigan’s checkpoint sobriety pro-

Likewise, public. upon motoring gram intrude does not checkpoint guidelines, According to the exis- widely publicized; program will be tence of not, therefore, taken sur- motorists should coming prise upon checkpoint. when Motorists checkpoints frightened by the because will not be stopped they every is can see that other vehicle present and all the are in uniform. that officers checkpoints The location of the by will not be chosen field, is on officers in the but to be based certain Depart- approved by criteria the Director person responsible Police, the ment of State determining of limited the most effective allocation Necessarily, then, field offi- enforcement resources. picking choosing cers have no discretion stop investigate; they may only rather, whom to through checkpoint.10 passing those cars resulting words, from the check- other seizures plan points pursuant embody- out to a are carried ing explicit, neutral limitations on the conduct guidelines Moreover, also individual officers. safety considerations, address concerns such briefing equipment, contact, and and de- motorist briefing checkpoint of this officers. On basis agree information, United States Su- I with the preme intrusion on motorists that sobriety checkpoints is minimal. On caused balance, I that the state’s interest am convinced eradicating problem driving drunk and the sobriety checkpoints in which reasonable manner outweighs goal the minimal intrusion further checkpoints upon motorists who visit only momentarily are stopped._ course, the unfettered discre these factors that eliminate Of distinguish police the case bench tion individual officers NAACP, Lansing Municipal Judge, supra, 2n from cases such as supra. 443 Mich by Dissenting Opinion Brickley, J.

IV compelling only I conclude that not is there no interpreta- reason to tion of search and seizure under our art on a more restrictive embark

1, 11,§ strong but there are reasons not to do so. Contrary to the thrust of "new as federalism” by majority, described there are distinct ad- vantages interpretation uniformity in provisions. search and seizure constitutional interstate flow of traffic on our intrastate and highway system argues uniformity interstate in highway safety uniformity enforcement. This departure today not enhanced our Court’s from approach interpre- the Nash tation under the to search and seizure Constitution. despite Furthermore, the criticism of the Brown analysis suspi- for its disavowal of an articulable indispensable cion standard quirement an minimum re- in limited seizures under the circum- my judgment, case, does, stances of this recognize reality of the times in which we live.

Technological advances miniaturization and development easily the concomitant concealed (not destructive devices of an automobile driven to mention the lethal force person), an intoxicated coupled increasing with levels of violence and the going terrorism, threat of international are prompt public continue to acceptance the need for and the surveillance-inspection techniques that sions as a involve minimum inconveniences and intru-

necessary personal trade-off for the safety security population large. systematic evenly Such enforced measures accepted need not erode the traditional and stan- probable suspicion dards of cause and articulable employed customary when in the criminal investi- gation context. of State Police Brickley, J. by Dissenting Opinion my

Accordingly, view, time, not, this is present circumstances, nor does this case digress Michigan from have the Constitution evolving inter- Amendment standards as Fourth Supreme preted by Court. the United States reasons, I For the believe above-stated balancing Michigan is satisfied Constitution applied analysis to this forth in set Brown Court, and not United States case suspicion proba- determination of articulable Michigan’s sobriety I hold that cause. would ble checkpoint program constitu- withstands scrutiny. therefore, would, I reverse tional Appeals. of the Court of decision J., concurred with J. Brickley, Griffin,

Case Details

Case Name: Sitz v. Department of State Police

Court Name: Michigan Supreme Court

Date Published: Sep 14, 1993

Citation: 506 N.W.2d 209

Docket Number: 93851, (Calendar No. 5)

Court Abbreviation: Mich.