Snyder v. State

961: аp- needs Commission Regulatory Utility plan to reorganization any proposed

prove Leg- Indiana company. holding form it enact need when this recognized

islature the Commission gave I.C. 8-1-2-83 ed pro- reorganization review

jurisdiction

posals. SNYDER, Appellant

Fred Below), (Defendant Indiana, Appellee

STATE (Plaintiff Below).

No. 53A04-8809-CR-295. District.

Fourth

May

CHEZEM, Judge.

Case Summary Defendant, Snyder, appeals his convic- tion for Operating a Vehicle While Intoxi- cated. We affirm.

Issues I. Whether a roadblock is an unreason- able seizure which violates thе Fourth and Fourteenth Amendments the United States Constitution when the driver has not consented but was either unable to avoid the roadblock or deemed seized because he came within a reasonable distance of the II. Whether ‍‌‌​​​‌​‌​​​​​​​​‌‌​‌​​​​​​​‌​​​‌‌​‌​‌​‌‌‌‌​​​‌‌​‍the act of a driver making a turn away from a sobriety roadblock is a specific and articulable fact which would allow police officer to draw an inference sufficient to form a reasonable suspicion that the driver may be committing a crime allowing the officer to detain the driver without a warrant.

Facts On December right sometime A.M., 1:00 the Defendant, Snyder, came a sobriety operated by the Indiana State Police. The roadblock just begun operations when Snyder approached the roadblock and it oper- ated continuously until 4:00 A.M.-execept for period of one-half hour to forty-five minutes, when the roadblock shut down due to a shortage of manpower, but subse- quently resumed. The roadblock pub- licized in conformity with State v. (1986), Ind., 500 N.E.2d 158. The area was lighted well by the Perry Township Vol- unteer Fire Department and ve- hicles had their deck lights blinking on and off. Administrative officers for Indiana State Police prepared written guidelines for the roadblock which were given to each officer assigned to the road- block. Daniel Sherman, Deputy Public Defend- guidelines provided that (5) five ve er, Bloomington, for appellant. hicles were to be stopped. Once Linley E. Pearson, Atty. Gen., Richard C. were finished with those (5) five drivers, Webster, Deputy Atty. Gen., Indianapolis, then (5) five more vehicles would be det for appellee. ained.1 An officer would request the driv- Sergeant Durnil testified that the circumstanc- instead (5) the first five and then five morе required es every automobile be detained as had originally been planned. been produce er to both registration license and arrest, perform days crew, road pay and would observe the driver signs complete $150 or program. treatment appeared intoxication. If the driver Also, suspended his license was days for 30 intoxicated the officer was to divert the restricted to to and from work driver secondary to a area where field so- and treatment for days. briety tests would be administered. If the Discussion driver sobriety tests, failed the I given breathalyzer was a test. A Blood general Asa rule automobile driv Aleohol (BAC) Concentration Score in ex- ers are not shorn of their Fourth and Four cess of subjected .10% the driver to arrest teenth protections Amendment they when Operating a Vehicle While Intoxicated. leavе their homes and enter their automo Approximately from the road biles. Delaware v. Prouse 440 U.S. Snyder block turned around in the road to 99 S.Ct. 59 L.Ed.2d 660. Police avoid the roadblock-although Snyder tes officers may only search an automobile or thought tified that he the roadblock occupants seize upon obtaining a warrant was an accident and that trying he was to or upon having probable cause to believe a avoid a delay. Trooper State Myers left crime has been committed or is being com pulled roadblock and Snyder over. The mitted by occupants of the vehicle. Id. parties stipulate that, prior to stop, Snyder committed no violations, traffic nor An exception exists when the offi he erratically. Myers testified cer has a reasonable that the sole reason he stopped Snyder was facts, and articulable and rational Snyder was apparently trying to avoid inferences from those facts that the occu the roadblock.2 pants are committing a crime or are about Upon stopping Snyder, Myers observed to Id.; commit a crime. Terry v. Ohio containers of alcohol in the vehicle and the U.S. 88 S.Ct. 20 L.Ed.2d presence of alcohol Snyder's on breath. 889. In such a case the officer may briefly Snyder also admitted that he had been detain the occupants to conduct a limited drinking that evening. Myers administered "non-invasive" search such as "pat field sobriety Snyder, tests on Sny- which down" for weapons, a license and registra der pass. did not Subsequently, Snyder check, tion sobriety field tests. was found to have a Blood Alcohol Concen- exception Another (BAC) tration Seore exists when the Snyder .15%. police are operating pursuant arrested charged plan by information with embodying explicit, neutral limitations. operating intoxicated, vehicle while Brown v. A misdemeanor, Texas Class 99 S.Ct. and operating a ve- 2637, 61 L.Ed.2d 357 and Delaware hicle with or more .10% alcohol in his blood. Prouse, supra. stops When pur are made Snyder, counsel, by filed a motion to suant plan to a that satisfies the Brown suppress the evidence obtained from the prong test, three balancing stops may arrest grounds on the it had been obtained made without cause or a rea from an "stop." unlawful The motion was sonable The test balances the denied the trial Snyder court. following: guilty found operating a vehicle while 1. gravity concerns intoxicated after a bench trial and was seizure; served sentenced to days in jail, 60 of which 2. degree to which suspended, placed and was seizure proba- on public interest; advances the tion months, for 12 on the condition he commit no further time, offenses in that the severity the interference days serve 4 jail, days liberty. individual on house Myers 2. Both supervising and his Ser- Although the roadblock. this was not a Durnil, geant testified oper- that it was standard guidelines of the written for the roadblock. ating procedure stop any attempting Thus, Garcia, supreme supra, our state a driver validity upheld the constitutional court by turning choose to avoid roadblock sobriety around, as an enforce roadblocks in become too driving, drunk so ment method combat trusive and thus become unreasonable guidelines long seizure, as roadblocks met the rendering the entire roadblock in Snyder argues in that case. Gar set forth valid. See Little v. State 300 Md. premised on the idea that their cia is (Maryland Supreme 479 A.2d 903 entry police roadblock the drivers into a validity of a state stop. "consent" to a limited While Justice ‍‌‌​​​‌​‌​​​​​​​​‌‌​‌​​​​​​​‌​​​‌‌​‌​‌​‌‌‌‌​​​‌‌​‍sobriety emphasized the fact many noted in motor that the roadblocks were Pivarnik visible and 162, fled, ists turned around and at that drivers were free to turn around and Garcia roadblock, the deci roadblock3); rather than enter Dept. Sitz v. in that case was not con sion (1988), 433, Mich.App. State Police 170 429 sent. In fact the word "consеnt" does not (Michigan Appeals N.W.2d 180 Court of Rather, appear the court at all Garacia. police struck the use of sobriety down upheld the roadblock because it satisfied checkpoints proven due to a lack of effec Brown, Prouse, requirements apprehending tiveness in drunk drivers or a (1976), United States v. Martinez-Fuerte proven deterrent value and found that the 543, 3074, 428 U.S. 96 S.Ct. 49 L.Ed.2d degree of intrusiveness was not deсreased principal sought pre The 1116. evil to be option when drivers were not alerted to an police vented in those cases was unbridled to turn around to avoid the roadblock. Id. discretion whichofficers arbitrari 436-37, Mich.App. at could 429 N.W.2d at ly capriciously decide which vehicles 184-85); People v. Scott 63 N.Y.2d would detained. Prouse 440 at be U.S. (Court 483 N.Y.S.2d 473 N.E.2d 1 661,662, at S.Ct. Appeals of New York written operating procedures which allowed inappropriate is an "Consent" officers from the roadblock to follow driv analysis type for this of seizure. Consent avoiding ers the roadblock to observe for to a warrantless search or seizure must be violations, implying traffic thus freely voluntarily given and must not U-turn, making alone, act of standing coercion, product be the of duress or ex enough not be to constitute a reason press implied. United Stаtes v. Men stopping able or that a driver 544, 557-58, denhall merely because he made a U-turn would 1870, 4878-79, S.Ct. citing L.Ed.2d 497 make the roadblock an unreasonable seizure. Schneckloth v. Bustamonte Scott, 3 N.Y.2d at 483 N.Y.S. 218, 227, 2041, 2047, U.S. 93 S.Ct. 36 L.Ed. 6 3). 2d at 473 N.E.2d at 2d 854. is Consent not like a waiver of remedies, legal where the failure to exer The cases listed above seem to indicate them cise constitutes a waiver. courts believed such a roadblock government proving has the burden of prong would the third violate of the Brown freely voluntarily giv the consent was (the severity test of the interference with totality en from the of the circumstances. liberty) individual and the Fourth and Four- Mendenhall, 446 U.S. at teenth Amendments United States protest 1878. The failure to to a search Constitution because of their intrusiveness. consent, nor, does not constitute in this However this intrusiveness must be case, failure to avoid a roadblock weighed against does public interest. mean the driver "consents" to the subse As Justice Pivarnik stated in State v. quent detention. Garcia, society grave "our has a concern in deterring however, drunk drivers may,

Consent affect apprehending the "reasonableness" of the seizure-the and that traditional methods not ef- have Md.App. 553A.2d1317. principle 3. This was later reaffirmed the Ma- ryland Court of in Brown v. State problem." fectively combatted Garcia a roadblock unreasonable seizure. that the roadblock at 162. He also noted addition, invalid, the roadblock were then employed in advanced procedure stop pursuant roadblock, made deterring interest drunk driv- this roadblock, though even outside the made ing. Id. The inclusion of a "no U-turn" stop invalid would likewise be since the strength- policy procedure into the further essentially an extension of the roadblock. degree public interest ens the to which the in- policy is advanced. While such a does II the interference with individual lib- crease The better rule is that while a driv erty, the additional burden is not unreason- approaching er a roadblock is not "seized" stop If the are able. reaching roadblock, actually until any drivers without individualized attempt driver's to avoid the "operating pursuant plan while to a around, making "specif a turn does raise a guidelines," explicit, neutral it does not fol- ic and articulable fact" which rise to only permitted low that are on the of a obediently proceed "timid"-who that the driver com through permit- are not roadblock-but mitting suspicion a crime. Such a entitles stop defy the ‍‌‌​​​‌​‌​​​​​​​​‌‌​‌​​​​​​​‌​​​‌‌​‌​‌​‌‌‌‌​​​‌‌​‍ted to the "bold"-those who to detain the driver of the ve

police by evading roadblock it. something hicle short of a full arrest to (1984), People Long Ill.App. v. investigate further whether or not 1030, 332, 123, 80 Ill.Dec. 465 N.E.2d cause exists for a search or arrest of court determined a came driver who within Ohio, Terry supra. driver. v. Such a rule (100)yards police one hundred road tacitly overtly approved has either or been reasonably block was within the area en in six other states.4 compassed by the that roadblock. It held police the driver had been "seized" and police If officers stationed at road approach were entitled to the vehicle and stop blocks were not request produce that the license driver both drivers, very police drivers seek to registration. and The court determined a flagrantly deter could avoid the roadblocks judged "reasonable distance" must be ob stops and the would lose their dеterrent upon jectively the facts and cireumstances Trooper value. Maxwell testified he of each case. pursued stopped drivers on numer sought ous occasions who to avoid road pose difficulty This rule could in some inevitably blocks drivers had sus cireumstances. The rule does not allow licenses, pended expired or or some other cases where drivers come within a "reason- 68, able distance" of the violation of the law. R. at 64. His experience gave him and articula- driver's conduct does not arouse a reason- ble facts and inferences drawn therefrom if example, able For Snyder form a reasonable of an automobile drove within one hundred committing might a crime. Such not of the roadblock and turned off always be the case when an officer sees a street, onto another the officer would be entitled to Likewise, driver even the driv- driver avoid a simply turns off the road who home er's was located on the street. Such expanded entering give view of "seizure" render the roadblock not before Miss., 149; (1987), (1984), Ga.App. v. 4. See Boches State 506 So.2d So.2d State v. Golden 254; (1988), Ark.App. (a pursue v. State car" 318 S.E.2d 693 "chase Coffman 573; (1988), Tims 26 Ark. 759 S.W.2d v. State was a drivers who avoided the roadblock (act App. 760 S.W.2d 78 of defendant of proceedure but the court still the roadblock running through gave police a roadblock a rea roadblock); validity of the him); City sonable to detain Las Fla.App., 530 So.2d 480 Green v. State Cruces v. Betancourt N.M. (even though illegal, defendant's (act running through P.2d 1161 of defendant in directions of officer was failure to follow gave a roadblock a reasonable officers give suspicion). sufficient to rise to reasоnable him); Ala., to detain Smith v. State prohibiting police officers from A rule suspicion, unless cou- rise to a reasonable articulable facts such as pled with other pursuing drivers who evade roadblocks A find- driving or traffic violations. unnecessary long erratic so as vir- experience training, has reason- suspicion must be de- tue of ing articulable facts which his by case basis. able and termined on a case mere susрicion is based-not hunches tell officers The alternative is to speculation. prevents a limitation ar- Such experience, they may spite of their bitrary capricious stops, which is the evil attempt to avoid a infer from a driver's sought prevented to be Garcia. likely driver is en roadblock that the Sny- affirm the trial court's denial of of a crime. Such We gaged in the commission Suppress Motion to and the trial a rule would seem to tell officers der's reality." In "ignore United States Cor overruling objections ad- court's his being from his 66 mission of evidence obtained tez Burger stopped wrote near the roadblock. L.Ed.2d Chief Justice following: NEAL, J., concurs. (of process drawing inferences and reasoning) not deal deductive does CONOVER, P.J., dissents with certainties, probabilities. hard but with opinion. separate Long probabilities law CONOVER, Judge, Presiding dissenting. such, prаctical people articulated as for- Although I respectfully dissent. mulated certain common-sense conclu- road behavior; jurors as sions about human legal to check for drunk drivers are blocks permitted factfinders are to do same in the mere fact a driver makes a -and so are enforcement officers. law from a not U-turn roadblock does Finally, the evidence thus collected must give rise to a "reasonable" the weighed in be seen and not terms of operating driver is that vehicle while under scholars, library analysis by but as un- intoxicating liquor the influence of so as to in derstood those versed the field of stopping warrant officer that ve law investigation, my opin hicle in enforcement. Id. at for ‍‌‌​​​‌​‌​​​​​​​​‌‌​‌​​​​​​​‌​​​‌‌​‌​‌​‌‌‌‌​​​‌‌​‍further Suspicious activity perhaps, ion. but "rea sonably" suspicious, Something more no. vein, In Judge Mayfield a similar aрpear, weaving must such as from lane to Arkansas the Court of wrote fol- driving, Terry's lane or other erratic lowing: legally suspicion" "reasonable can arise To a trained the fact warranting investigatory stop, as is the attempted a motorist that York, requirement in of cf. the state New surely in this case would excite People v. 63 N.Y.2d Scott that, at the also, N.Y.S.2d 473 N.E.2d 1. See least, drunk, driving the motorist was Maryland Little and Sitz cases from and vehicle, stolen did not have a valid driv Michigan, respectively, majority in cited license, light er's or had some car defect. opinion. These violations of the law would meet requirements A.R.Cr.P. Rule 8.1 since The difference in between facts Ter- they appropriation property ry readily involve of and the facts in this case are danger injury to other motorists. There, apparent. watched the would-be robbеrs walk to and

Therefore, agree we do not unlawful; appellant's vehicle proposed target fro in front of their 8 or 9 stopped, appellant's after he in times, window, peering in each time apparent toxicated condition was and the accomplice them talk to an saw who then left, suspicious activity ap- officers had obvious cause to other proximately minutes before hе detained arrest him. v. State Coffman 45, 47-48, Ark.App. Here, weapons. 759 S.W.2d 575 them and searched for merely -76 made a U-turn near a road- block, without more. driving- No erratic few. say To a U-turn in and of itself nothing. ery That is a far from the in facts rise to a suspicion" "reasonable Further, Terry. Snyder's U-turn is committing violated the crime of drunken driving no law under the presented. totally facts here is unwarranted, my in opinion. illegal only U-turns are on curves or nеar I am aware of our Supreme Court's re- grade the crest of a they where cannot be cent in decision State v. Garcia seen drivers of approaching vehicles Ind., 158, where, 500 N.E.2d over the dis- feet, within 750 ef. IND.CODE 9-4-1-76. sents of Justices DeBruler and Shepard, Thus, particularized in Terry caution three members Supreme our doubly appropriate here: found a roadblock as there, conducted not determining whether thе officer [I]n act- unconstitutional. There the court noted in reasonably ed cireumstances, due passing person could avoid the roadblock weight given, must be not his inchoate by turning away before reaching it. I am unparticularized equally aware I am bound Supreme our "hunch," but to the specific reasonable Court's majority decision spite my inferences which he is entitled to draw personal agreement with the dissenting from the fact in light opinions of Justices DeBruler experience. of his Shepard, I note with particularity Terry, pur- for our U.S. at 88 S.Ct. at 1883. poses Justice DeBruler's comment in his state, In this investigatory stops are not dissenting opinion in Garcia: merely upon an officer's is the requirement time-honored [It State v. Smithers there individualized, be an articulable Ind. 269 N.E.2d Supreme our suspicion of criminal intent or criminal Court sustained the trial court's granting conduct person, of a whether person of a suppress motion to evidence where his stands alone or within group, which only reason for the investigative stop was strikes the correct balance between the officer's desire to check the ve rights of groups citizens or of citizens hicle to see if occupants its juveniles government's and their interest in exer- out after curfew. This desire suf cising power to seize. justify ficient to the stop. Smithers, 256 Garcia, 500 N.E.2d Ind. 164-165. 269 N.E.2d at citing Terry, supra. Facts sufficient justify case, course, This differs significantly found Supreme our Court Broa from Garcia. Here it is not the roadblock (1986),Ind., dus v. State 487 N.E.2d 1298. itself issue, which is at Suy- whether police (1) There the information der's turning action in from the roadblock a robbery committed, (2) had been had de raises a reasonable of eriminal scriptions of the car and occupаnts, activity sufficient to warrant further inves another officer had tigation. persons seen the majority's deference to the car matching the descriptions. police officer in this case is not any "specific reasonable po inferences ... While the mere fact a U-turn is made at [the lice ... is entitled to draw from officer] point near a roadblock may give rise to a light facts in experience." his Tеrry, suspicion on experienced of an supra. It weight undue to what can police officer the be only characterized as the officer's drunk, that ‍‌‌​​​‌​‌​​​​​​​​‌‌​‌​​​​​​​‌​​​‌‌​‌​‌​‌‌‌‌​​​‌‌​‍mere fact without more does "hunch," ... "his inchoate and unparticu- not justify classifying such suspicion as suspicion." larized Terry, supra. Terry-required "reasonable." U-turns are also frequently made for perfectly innocent If we going are permit stops on no They reasons. are commonly made more than hunch, officer's we drivers who leave their keys house at their should forthrightly say private citizen offices, missed a turn intersection, at an may not invoke the Fourth Amendment's have absentmindedly left their protection wives at a whenever he drives an automo- station, gas or to congested traffic at bile danger because the to the from accident, scene of an to name but a drunk drivers private transcends constitu- unqualified I find such rights.

tional say sobering and unwarranted

statement contrary. state

the least. I would the Fourth hum more than

We must do sing tune, loudly its we must

Amendment's if it is opportunity, every available

lyrics at form. meaningful any

to survive reasons, reverse. I would

For those and Mildred V. MURPHY

William G.

Murphy, Appellants

(Plaintiffs Below), PROFES

MELLON ACCOUNTANTS

SIONAL CORPORATIO

N and Mellon, Appellees D.

Jack Below). (Defendants

No. 54A01-8809-CV-305.

First District.

23,May 30, 1989.

Rehearing Denied June

Case Details

Case Name: Snyder v. State

Court Name: Indiana Court of Appeals

Date Published: May 23, 1989

Citation: 538 N.E.2d 961

Docket Number: 53A04-8809-CR-295

Court Abbreviation: Ind. Ct. App.