STATE OF KANSAS, Appellant, v. RICK L. DESKINS, Appellee.
No. 55,845
Supreme Court of Kansas
December 2, 1983
673 P.2d 1174 | 234 Kan. 529
Frank A. Caro, Jr., assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, Gene M. Olander, district attorney, and Arthur R. Weiss, assistant district attorney, were with him on the brief for appellant.
Hal E. Des Jardins, of Topeka, argued the cause for appellee.
The opinion of the court was delivered by
HOLMES, J.: This is an interlocutory appeal, pursuant to
Defendant, Rick L. Deskins, was arrested after his automobile was stopped by police officers at a roadblock ostensibly set up for the purpose of checking drivers’ licenses. Prior to trial defendant filed a motion to suppress all evidence of DUI and the small bag of marijuana found in the automobile glove-box after defendant‘s arrest. The court found the roadblock to be an unconstitutional violation of the
At 10:00 p.m. on November 20, 1982, thirty-five to forty police officers from the Kansas State Highway Patrol, the Shawnee County Sheriff‘s Office, and the Topeka Police Department, set up a roadblock at the intersection of 45th Street and Topeka Avenue in Topeka, ostensibly to check drivers’ licenses. All vehicles proceeding both north and south on Topeka Avenue were stopped and their drivers checked to determine if they were carrying valid licenses. Mr. Deskins was driving south on Topeka Avenue around 1:20 a.m. the nеxt morning, and was stopped in the check lane. A state trooper approached the car and requested Deskins’ license which was found to be in order and at that point he had satisfied all the requirements for the license check.
The officer had not observed the defendant operate the automobile, as it was standing still in a line of stopped vehicles when the officer approached, and the officer, prior to the vehicle being stopped, had no facts or knowledge which would constitute probable cause or even a reasonable suspicion that defendant had committed, was committing, or was about to commit a violation of Kansas criminal statutes. However, from his position outside Deskins’ car, the trooper “could smell a strong odor of alcohol, some type of alcoholic beverage on [defendant‘s] breath and his eyes were kind of bloodshot and watery.” The officer asked Deskins to step out of the car to take a sobriety and coordination test. His performance was less than satisfactory to the officer and, as the officer was of the opinion defendant was under the influence of alcohol, he arrested defendant and read him the Miranda rights. The trooper moved defendant to a squad car and another officer, with defendant‘s permission, moved his car out of the check lane. While defendant remained in the police car, one of the officers searched the defendant‘s automobile and found in the glove-box a plastic bag containing marijuana.
There can be no doubt that the stopping of a motorist for the sole purpose of checking for a valid driver‘s license, let alone to seek evidence of the commission of a crime such as DUI, constitutes a “seizure” under the
“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” 141 U.S. at 251.
The Supreme Court in Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968), was faced with a
“It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 392 U.S. at 16.
In Delaware v. Prouse, 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979), the Court stated:
“The Fourth and Fourteenth Amendments are implicated in this case because stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.” 440 U.S. at 653.
In Prouse, upon which the State relies hеavily, the court stated the facts in the following manner:
“At 7:20 p.m. on November 30, 1976, a New Castle County, Del., patrolman in a police cruiser stopped the automobile occupied by respondent. The patrolman smelled marihuana smoke as he was walking toward the stopped vehicle, and he seized marihuana in plain view on the car floor. Respondent was subsequently indicted for illegal possession of a controlled substance. At a hearing on respondent‘s motion to suppress the marihuana seized as a result of the stop, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver‘s license and registration. The patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to documеnt spot checks, promulgated by either his department or the State Attorney General. Characterizing the stop as ‘routine,’ the patrolman explained, ‘I saw the car in the area and wasn‘t answering any complaints, so I decided to pull them off.’ . . . . The trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the Fourth Amendment.” pp. 650-651.
The Delaware Supreme Court affirmed the trial court and the United States Supreme Court affirmed with only Justice Rehnquist dissenting. The majority opinion, in its conclusion, stated:
“Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an autоmobile and detaining the driver in order to check his driver‘s license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.” p. 663. (Emphasis added.)
“The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents, in order ‘“to safeguard the privacy and security of individuals against arbitrary invasions. . . .“’ (Citations omitted.) Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual‘s Fourth Amendment interests against its promotion of legitimate governmental interest. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon ‘some quantum of individualized suspicion,’ other safeguards are generally relied upon to assure that the individual‘s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.” pp. 653-55.
“We have only recently considered the legality of investigative stops of automobiles where the officers making the stop have neither probable cause to believe nor reasonable suspicion that either the automobile or its occupants are subject to seizure under the applicable criminal laws. In United States v. Brignoni-Ponce, [422 U.S. 873 (1975),] Border Patrol agents conducting roving patrols in areas near the international border asserted statutory authority to stop at random any vehicle in order to determine whether it contained illegal aliens or was involved in smuggling operations. The practice was held to violate the Fourth Amendment, but the Court did not invalidate аll warrantless automobile stops upon less than probable cause. Given ‘the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border,’ 422 U.S., at 881, the Court analogized the roving-patrol stop to the on-the-street encounter addressed in Terry v. Ohio, [392 U.S. 1 (1968),] and held:
‘Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.’ 422 U.S., at 884 (footnote omitted).
Because ‘the nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators,’ id., at 883, ‘a requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference.’ Ibid.
“The constitutionality of stops by Border Patrol agents was again before the Court in United States v. Martinez-Fuerte, [428 U.S. 543 (1976),] in which we
addressed the permissibility of checkpoint operations. This practice involved slowing all oncoming traffic ‘to a virtual, if not a complete, halt,’ 428 U.S., at 546, at a highway roadblock, and referring vehicles chosen at the discretion of Border Patrol agents to an area for secondary inspection. See id., at 546, 558. Recognizing that the governmental interest involved was the same as that furthered by roving-patrol stops, the Court nonetheless sustained the constitutionality of the Border Patrol‘s checkpoint operations. The crucial distinction was the lesser intrusion upon the motorist‘s Fourth Amendment interests:
‘[The] objective intrusion — the stop itself, the questioning, and the visual inspection — also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of checkpoint stop.’ [428 U.S.] at 558.
Although not dispositive, these decisions undoubtedly provide guidance in balancing the public interest against the individual‘s
“When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations — or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered — we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the Cоurt has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973); Camara v. Municipal Court, 387 U.S., at 532-533.” p. 661
However, in Brown v. Texas, 443 U.S. 47, 61 L.Ed.2d 357, 99 S.Ct. 2637 (1979), the court relied upon part of its
“A central concern in balancing [the competing considerations of public need and individual liberty] has been to assure than an individual‘s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. (Citations omitted.) To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society‘s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown, 443 U.S. at 51.
Several states have considered the issue in connection with driver‘s license check roadblocks or in some cases more candidly described as DUI roadblocks. It is obvious, without resort to the record or otherwise, that the problem of the drunk driver is one of enormous magnitude affecting every citizen who ventures forth upon the streets and highways. There can be no doubt that there is an overwhelming public and governmental interest in рursuing methods to curtail the drunk driver. Most states, however, which have considered the validity of roadblocks to “check drivers’ licenses and auto registration” or to check for drunk drivers have found the methods used to be violative of
In State v. Olgaard, 248 N.W.2d 392 (S.D. 1976), the South Dakota Supreme Court held “that unless authorized by prior judicial warrant, the establishment of a roadblock for the purpose of investigating all motorists for possiblе liquor law violations constitutes an unconstitutional seizure within the meaning of the Fourth Amendment.” 248 N.W.2d at 395. In contrast to United States v. Martinez-Fuerte, 428 U.S. 543, 49 L.Ed.2d 1116, 96 S.Ct. 3074 (1976), the court found that the roadblock in Olgaard was not at a permanent location; there was no notice of the roadblock, “for by its very nature the roadblock was set up to stop without prior warning, and perforce by surprise, all motorists . . . .“; and, absent evidence that the decision to establish the roadblock was made by anyone other than officers in the field, “the roadblock in question had certain characteristics of a roving patrol, a type of intrusion into a motorist‘s privacy interest that was held unconstitutional in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 . . . .” 248 N.W.2d at 394-95. Although Olgaard was decided before Prouse, the South Dakota court relied heavily on the border patrol cases and recognized some of the same factors later considered in Prouse. The court was concerned with the lack of any permanent location for the roadblock resulting in what it tеrmed “certain characteristics of a roving patrol,” lack of notice and possible abuse of discretion by officers in the field.
Arizona reached the same result in State ex rel. Ekstrom v. Justice Ct. of State, 136 Ariz. 1, 663 P.2d 992 (1983). The Arizona Supreme Court said:
“[W]e cannot agree that the intrusion generated by the Kingman roadblocks was minimal. The record establishes that the Kingman checkpoints involved a not insubstantial amount of discretionary law enforcement activity and that the manner in which the roadblocks were operated was somewhat irregular. The roadblocks were set up at the discretion of a local highway patrolman and were operated without specific directions or guidelines. Officers were uncertain whether they should simply question the occupants of motor vehicles or whether they should seize the opportunity to cursorily search the vehicles for evidence of
a violation. Motorists were taken by surprise, not having had prior notice of the location and purpose of the checkpoints. We find present in the Kingman operation the grave danger that such discretion might be abused by the officer in the field, a factor which caused the Court in [Delaware] v. Prouse, supra, much concern.” p. 5.
A scholarly and well-reasoned concurring opinion in Ekstrom explored the conditions under which a roadblock checkpoint might pass constitutional scrutiny, and noted that advance warning of a roadblock by notice on the highway and publicity in the media would not only increase the efficacy of a deterrent roadblock but would also limit the resulting intrusion on individual interests, because those being stopped would anticipate and understand what was occurring.
In Commonwealth v. McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983), the facts were quite similar to those in the instant case:
“McGeoghegan was in a motor vehicle that had been stopped at a roadblock, that the police asked him for his ‘papers,’ that he showed signs of having been drinking and was taken from his vеhicle to a nearby van, where he took and failed a breathalyzer test, and that he was arrested and his vehicle was towed away. It was also agreed that the police had no cause initially to stop McGeoghegan ‘except that he was one . . . of two hundred or more motorists that were stopped as they passed the roadblock stoppoint.’
“There are additional undisputed facts. The roadblock was conducted by the Revere police department on North Shore Road and Mills Avenue in that city on the evening of January 15, 1982. This was the result of a plan formulated earlier that day by the police chief and four subordinates. The area of the roadblock was a heavily travelled highway. The main purpose of the roadblock was to detect drunk drivers.” pp. 138-39.
The court, in reaching its conclusion, relied upon findings of the trial court that “the roadblock аrea was poorly illuminated and unsafe for motorists, that the mechanics of the roadblock were left to the discretion of the officers carrying it out, that the officers used their own discretion in deciding which cars to stop, and that motorists were backed up on the highway for at least two-thirds of a mile.” 389 Mass. at 144.
The Court of Appeals of Texas in Koonce v. State, 651 S.W.2d 46 (Tex. Crim. App. 1983), found evidence recovered in the search of a car at a driver‘s license roadblock inadmissible as the State failed to show the initial stop was reasonable under the guidelines of Prouse. The court stated:
“Without evidence that an objective, non-discretionary procedure was being used, we find that the initial stop of appellant‘s automobile was unreasonable,
and thus, the fruit of that stop and subsequent search was tainted.” 651 S.W.2d at 48.
New Jersey, on the other hand, has taken an opposite position from that of a majority of the states that have confronted the issue. In State v. Coccomo, 177 N.J. Super. 575, 427 A.2d 131 (1980), the court was again faсed with a motion to suppress evidence recovered at a driver‘s license check roadblock. The roadblock was evidently conducted by township police under a written policy of the Roxbury township police department. The facts were similar to those in the other cases we have discussed except that the procedure was to stop every fifth vehicle while the roadblock was in operation. In distinguishing Prouse the court stated:
“In prohibiting random, discretionary vehicular stops the Supreme Court did not ‘preclude the [states] from developing methods for spot checks that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock type stops is one possible alternative.’ 440 U.S. at 663, 99 S.Ct. at 1041.” 177 N.J. Super. at 581.
The court went on to state:
“No one can deny the State‘s vital interest in promoting public safety upon our roads by detecting and prosecuting drunk drivers. These drivers arе a threat to other motorists, to pedestrians and to themselves. Unfit drivers should be identified and removed from the highways. However, there is obviously a competing interest to be considered. Whether the practice adopted in Roxbury Township is reasonable depends upon a balancing of the State‘s interest in promoting highway safety against the individual motorist‘s interest in his expectation of privacy.” 177 N.J. Super. at 582.
The court found that the roadblocks were operated during early morning hours when traffic was light, that the manner of stopping vehicles was done safely and was designed to reduce anxiety on the part of the motorists, that the Roxbury police were following specific, defined standards and that the system was completely objective in its operation. The court held:
“After balancing the State‘s strong interest in protecting the public from the substantial risk posed by drunk drivers with the minor inconveniencе which may be caused to every fifth motorist and the fleeting, minimal intrusion upon his privacy, the State‘s action must be considered as a reasonable infringement upon the motorist‘s expectation of privacy. Nor did the stop become overly intrusive when defendant was asked to produce his license and registration. When the initial detention is lawful as it was here, the police may require the driver to produce his driving credentials.” 177 N.J. Super. at 583-84.
“In our view, the roadblock stop of the Ford Bronco does not run afoul of the rule of Prouse. While this may not have been a ‘100% roadblock’ of the type referred to in Prouse, it is nonetheless a long way from the selective, single car stop denounced in Prouse. In the instant case, the New Mexico state police were attempting to stop all westbound traffic on an interstate highway, insofar as was humanly possible. The decision not to stop trucks was reasonable under the circumstances, because, presumably, they had all been stopped at a port of entry. The purpose of the roadblock, i.e., to check drivers’ licenses and car registrations, was a legitimate one. If, in the process of so doing, the officers saw evidence of other crimes, they had the right to take reasonable investigative steps and were not required to close their eyes. See United States v. Merryman, 630 F.2d 780, 782-85 (10th Cir. 1980). Furthermore, allowing all the stopped cars through when traffic became congested was also reasonable and, in our view, nonviolative of the rule of Prouse. In sum, the roadblock stop of the Ford Bronco was, under the described circumstances, constitutional.” pp. 856-57.
The border patrol cases, Prouse and decisions from other state and federal appellate courts make it clear that not every driver‘s license check or DUI roadblock is constitutionally impermissible. Certain principles, standards and guidelines may be gleaned from the various decisions. Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the
In applying the balancing test of the degree of governmental or public interest against the degree of intrusion upon the individual‘s constitutionally protected rights, the courts have developed a three-factor test or analysis which was stated in Brown as:
“a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, 443 U.S. at 50-51.
Numerous conditions and factors must be considered in determining whether a DUI roadblock meets the balancing test in favor of the state. Among the factors which should be considered are: (1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test. Not all of the factors need to be favorable to the State but all which are applicable to a given roadblock should be considered. Some, of course, such as unbridled discretion of the officer in the field, would run afoul of Prouse regardless of other favorable factors.
When the test enunciated in the cases and the foregoing factors
The Topeka DUI roadblock did not involve the unbridled discretion of the officer in the field which was held oppressive and subject to abuse in Prouse. When we consider the enormity of the injury and damage caused by the drinking driver and the vital interest of every citizen in being protected so far as possible upon the streets and roadways, we find that the public interest in a properly conducted DUI roadblock containing appropriate safeguards outweighs the individual‘s right to be free from unfettered intrusion upon his
Due to the seriousness of any warrantless intrusion into an individual‘s right to privacy under the
Having determined that the initial stop or seizure was not constitutionally invalid, the officer had sufficient reason and probable cause to place defendant under arrest when it appeared he was under the influence of alcohol. The arrest of the defendant being lawful, the search of the passenger compartment of his automobile was also lawful. State v. White, 230 Kan. 679, 640 P.2d 1231 (1982).
The trial court erred in its suppression of the evidence and the case is reversed and remanded for further proceedings.
PRAGER, J., dissenting: I respectfully dissent. Today‘s decision will result in the erosion of one of the basic freedoms contained in the
The majority opinion declares, without equivocation, that when a police officer accosts an individual and restricts his freedom to depart the scene, he has seized that person. Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the
The majority opinion suggests 13 specific factors to be considered in applying the balancing test. The district court considered the evidence in the light of the various factors and concluded that the warrantless search and seizure presented in this case could not be upheld. I agree with the trial court. It is important to emphasize that this is not a case involving a driver‘s license checkpoint. The police officer who testified at the hearing in district court and counsel for the State on this appeal at oral argument conceded that the primary purpose of the roadblock was to catch drunk drivers, although incidental to that purpose arrests were also made for a number of other reasons, including some involving license violations. The trial court found that the roadblock in this case was there to catch drivers under the influence of alcohol (DUI). That same conclusion is accepted by the court on this appeal.
As I see it, the basic issue is this: Does the public interest in a DUI roadblock of the type established in this case outweigh the individual‘s right to be free from intrusion on his or her right of privacy? The mаjority opinion correctly states that the burden of proof rests upon the State to prove the validity of the roadblock. As to the public interest involved, no one can seriously contest the grave concern over the public peril created by drunk drivers. It is safe to say that official efforts to discover and deter drunk drivers are, and should remain, a high priority. Certainly, the need to identify and apprehend drunken drivers is just as clear and pervasive as the need to discover illegal aliens, which was determined to be a sufficient public concern to justify the checkpoint stops in United States v. Martinez-Fuerte, 428 U.S. 543, 49 L.Ed.2d 1116, 96 S.Ct. 3074 (1976).
The most pressing question before us is the degree to which
Generally drunk drivers, through their behavior behind the wheel, manifest their presence to even lay observers. They can easily be discerned by law enforcement officers skilled in identifying the signals indicating a driver is operating the vehicle under the influence of alcohol or drugs. In this case, the trial court specifically found that there are alternative less intrusive means available to officers to identify drunk drivers, and police officials need not go to the degree of stopping all traffic at a roadblock. The record in this case shows that the roadblock was in effеct for a period of four hours from 10:00 p.m. to 2:00 a.m. The officer testified that during that period, between 2,000 and 3,000 motor vehicles were stopped at the roadblock. A total of 74 violations were discovered at the checkpoint, only 15 of which were for driving while intoxicated. During this period of time 35 police officers were on duty, which for the four-hour period involved a total of 140 man hours. Although it does not specifically appear in the record before us, it was not unreasonable for the trial court to assume that the same or greater productivity in arresting drunk drivers could have been achieved by distributing the 35 officers at various places throughout the city for the sole purpose of observing erratic driving and stopping and checking drunk drivers. In my judgment, the trial court correctly concluded that the State failed in its burden of proof in establishing that the roadblock checkpoint prоmoted the public interest in light of available less drastic alternative measures which could have been used by the officers to combat the problem, without setting up a roadblock and stopping between 2,000 and 3,000 motorists.
We should not consider the factors suggested in the majority opinion. Factor No. 1 is concerned with the degree of discretion,
Factor Nos. 2 and 3 have to do with the location designated for the roadblock and the time and duration of the roadblock. These factors have in mind the permanency of the location of the checkpoint which is considered as essential in a number of the cases discussed in the majority opinion. In the case before us, the trial court noted that the checkpoint in question had no permanency whatsoever and could have been moved to other locations. Thus it clearly appears that the checkpoint under consideration would not have the essential characteristics of permanency of location required by many of the cases.
Factor No. 6 is concerned with advance warning to the individual approaching motorist. The trial court found, and the record is сlear, that advance warning to a motorist approaching the roadblock was practically nonexistent. In his testimony, the police officer admitted that no advance warning, like signs indicating “Danger, roadblock ahead” was present. He testified that no such warning was given because, under the law, a driver‘s license checkpoint is not required to have an advance warning of any kind. At one point in his testimony, he stated that the only warning to approaching drivers at the scene was the police vehicles with their red lights operating. Four police cars with red lights were parked alongside the road near the curb. This factor of advance warning to approaching motorists is emphasized again and again in the cases. Here there was practically none.
Factor No. 12 is the degree of effectiveness of the checkpoint procedure. As noted above, during the period of four hours in which the roadblock was maintained, 2,000 to 3,000 cars were stopped and only 15 persons arrested for DUI. There was no evidence whatsoever presented by the State that the roadblock procedure had been more effective than the traditional, less intrusive method of detecting drunk drivers. The question again
I, likewise, believe that the majority of the court have failed to consider another important factor in this case. In substance, the majority opinion would seem to authorize any police agency in Kansas to set up a roadblock to discover DUI violations. If this is a proper procedure, why should not a police agency be able to maintain a roadblock to discover viоlators of other criminal statutes or city ordinances? Does the majority opinion contemplate that every individual police agency established in the state may, on its own, authorize DUI roadblocks of this type? In Kansas, we have 105 counties and 625 incorporated cities. If each of these political subdivisions decides to maintain a roadblock, we could have “Checkpoint Charley” at the boundary of every city and every county. Motorists could legally be stopped five times or even more often in driving from Wichita to Kansas City. My basic concern is that, without legislative standards and limitations, the rights of Kansas citizens to privacy and freedom from unreasonable intrusion by governmental officials would be destroyed. I cannot in good conscience accept that as a way of life in this land of freedom.
For the reasons set forth above, I would affirm the trial court, and I respectfully dissent.