Lead Opinion
Opinion by
We hold that the district court of the second circuit (the court)
I.
It is axiomatic that reasonable suspicion to justify a stop must relate to criminal activity. See, e.g., State v. Eleneki,
II.
In reaching today’s holding we do not ignore the important State interest in combating drunken driving. See Michigan Dep’t of State Police v. Sitz,
As was stated in the seminal case of Terry, “ ‘[n]o 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.’ ”
III.
Defendant was charged on August 4, 2004 with violating HRS § 291E-61 by
operating] or assuming] actual physical control of a vehicle while under the influence of an intoxicant meaning that he was under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty, and/or [by] operating] or assuming] actual physical control of a vehicle with .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant in violation of Section 291E-61 of the [HRS].
On August 11, 2004, Defendant filed a “Motion to Suppress Evidence” contending that “[s]upression is required because the stop of Defendant’s vehicle lacked probable cause or even reasonable suspicion, and therefore the nature and scope of the intrusion into Defendant’s liberty and privacy exceeded what was constitutionally permissible in light of the facts known to police at the time.” Defendant requested that “[a]ll evidence and statement [sic] garnered as a result of the stop be suppressed and the matter dismissed.”
On February 18, 2005, the court held a hearing on Defendant’s motion to suppress. At the hearing, the prosecution called Maui Police Department Officer Eric Correa (Officer Correa) as a witness. At the end of the hearing, the court orally denied the motion to suppress. That same day, Defendant entered a conditional no contest plea pursuant to HRPP Rule 11(a)(2). Following Defendant’s conditional plea, the court sentenced Defendant. On June 7, 2005, the court entered its written Findings of Fact, Conclusions of Law, and Order Denying Defendant’s Motion to Suppress Evidence (Order). On June 9, 2005, Defendant filed a Notice of Appeal.
IV.
On appeal, Defendant contends “it was error for the district court judge to find reasonable suspicion existed because it appeared to [Officer] Correa that [Defendant] was attempting to avoid the intoxication checkpoint.” In response, the prosecution maintains that “appellate jurisdiction does not exist where a notice of appeal is filed in violation of time limitations prescribed under [Hawai'i Rules of Appellate Procedure (HRAP) Rule] 4(b)” and “[e]ven assuming arguendo, this court has jurisdiction in this matter, the trial court did not err in denying [Defendant’s] Motion to Suppress Evidence.” As to the prosecution’s first response, we believe jurisdiction may be exercised in this case.
As to Defendant’s appeal and the prosecution’s second response, we vacate the court’s order denying the motion to suppress. The court’s relevant findings are as follows:
1. On June 16, 2004, at approximately 1830 Hours, [Officer Correa] was stationed as the “chase car” at an intoxication checkpoint being conducted by the Maui Police Department on Mokulele Highway just south of the intersection of Mokulele Highway and Mehameha Loop;
2. Officer Correa has been employed with the Maui Police Department for twelve years and is currently assigned the traffic division;
3. Officer Correa was formerly a member for the DUI Task Force unit for four years;
4. Officer Correa has participated in approximately 50 intoxication checkpoints;
5. Officer Correa estimated that he has been assigned the “chase ear” position approximately 20 times;
6. Officer Correa indicated that he has effected approximately ⅛0 stops 'on cars that attempted to avoid the intoxication checkpoint;
7. That in every case the individual avoiding the intoxication checkpoint was either intoxicated or was violating the law in some other way such as, not having vehicle insurance or drivers license, or having an outstanding warrant;
8. The intoxication checkpoint was in place to stop vehicle’s traveling southbound on Mokulele Highway in a numerical pattern to check for signs of intoxication;
9. Officer Correa was stationed just north of the intoxication checkpoint and, was tasked with obsening traffic and, making stops based on probable cause;
10. Drivers approaching the intoxication checkpoint were made aware of the. impending checkpoint by two four foot by four foot, fluorescent orange, diamond shaped, signs with the words “INTOXICATION CHECKPOINT” in black, block letters;
11. These signs were positioned approximately five hundred feet and two hundred and fifty feet from the checkpoint respectively and facing all southbound traffic;
12. The intoxication checkpoint itself was illuminated by a large portable lighting tower with several high powered Halo ■ gen lights illuminating the intoxication checkpoint;
*289 13. Approaching traffic was directed by a flag officer equipped "with reflective vest, white gloves, and a flashlight with a red, plastic, cone over the illuminated portion of the flashlight;
14. Officer Correa observed a 2004, silver, Ford, Mustang, convertible, bearing State of Hawai'i license Plate number MLX-761 (target vehicle) traveling southbound towards the intoxication checkpoint;
15. Officer Correa observed the target vehicle to pass the two four foot by four foot diamond shaped signs described above;
16. Officer Correa observed the target vehicle to effect a right turn onto the Mehameha Loop after it had passed both of the above described signs but before reaching the flag officer for the intoxication checkpoint;
17. Officer Correa indicated that the above mentioned tower lighting and flag officer were fully visible from the intersection of Mokulele Highway and Mehameha Loop;
18. Officer Correa indicated that he did not recall whether the [DJefendant used his Urn signal or not, that he did not observe a suspicious driving pattern as the target vehicle approached on Mokulele Highway, or thereafter, and that the turn was not effected in an illegal manner;
19. Officer Correa testified that Me-hameha Loop is approximately a quarter of a mile long which terminates with a bright yellow, pipe metal, gate blocking the roadway;
20. Mehameha Loop is surrounded on both sides by sugarcane fields;
21. Officer Correa indicated that the only structure located on Mehameha Loop is the animal shelter which was not open for business at the time of the incident;
22. Officer Correa testified that after he observed the target vehicle turn down Mehameha Loop he immediately turned down Mehameha Loop and began closing the distance between himself and the target vehicle;
23. Officer Correa indicated that he did not turn on his emergency lights and/or siren at that time;
24. Officer Correa testified that he observed Defendant to pass the entrance to the animal shelter and continue driving toward the metal gate;
25. Officer Correa testified that he could see the metal gate from his position behind the target vehicle, that there are no further structures located on the Meham-eha Loop, but that the target yehiele did not appear to be changing course or speed and continued driving toward the gate;
26. Officer Correa indicated that after the target vehicle passed the entrance to the animal shelter without maldng any attempts to turn he activated his emergency lights and effected a traffic stop;
27. Upon making the stop Officer Cor-rea observed [Defendant] to be the operator of the vehicle;
28. Officer Correa testified that he did not observe any traffic violations with regard to the target vehicle prior to the stop;
29. Officer Correa testified that the sole reason for stopping the target vehicle was that based upon his training and experience, he felt he had reasonable suspicion to stop the target vehicle because he thought it was avoiding the roadblock;
30. Officer Correa testified that he was not officially part of the roadblock as he was assigned to park before the roadblock and be a “chase car,” meaning that he was to pursue ears which tried to avoid the roadblock.
(Emphases added.)
The court’s relevant conclusions of law are as follows:
8. The stop of Defendant was conducted without the authority of a warrant.
9. The Legislature had public safety concerns in mind ivhen they [sic] enacted HRS § 291E-20 allowing police to conduct intoxication checkpoints.
10. Where intoxicated drivers are allowed to avoid checkpoints by turning around and returning the way they came that the public’s safety is still at risk and the purpose of the checkpoint is not met.*290 See State v. Forman, [351 N.C. 627 ,]527 S.E.2d 921 924 (N.C.2001).
11. When the stop occurred after Defendant passed two signs announcing the impending intoxication checkpoint, turned down an isolated, gated, dead end road surrounded by sugarcane, with only one structure to be found on the road, just prior to reaching the flag officer where Defendant might be stopped, and [Defendant passed by the only entrance to the only structure on the roadway, and based on Officer Correa’s training and experience, that the officer did have reasonably articulable facts which would warrant a man of reasonable caution to harbor a reasonable suspicion that criminal activity was afoot. See id.; State v. Thill,474 N.W.2d 86 , 87 (S.D.1991); Steinbeck v. Commonwealth,862 S.W.2d 912 , 913-14 (Ky.Ct.App.1993).
12. Based upon all the findings of fact, supra, the [c]ourt finds that the [prosecution] has met its burden of proof and shown that Officer Correa’s stop of the Defendant’s vehicle fell within one of the exceptions to the warrant requirement of the Fourth and ... Fourteenth Amendment to the United States Constitution, and Article I, Section 7 of the Hawaii State Constitution.
ACCORDINGLY, IT IS HEREBY ORDERED that the Defendant’s Motion to Suppress Evidence is denied.
(Emphasis added.) (Capitalization in original.)
VI.
The subject stop of Defendant’s vehicle violated article I, section 7 of the Hawai'i Constitution which protects “[t]he right of the people to be secure in their persons ... against unreasonable ... seizures and invasions of privacy[.]” This court has held that “[a] stop of a vehicle for an investigatory purpose constitutes a seizure within the meaning of the constitutional protection against unreasonable searches and seizures.” State v. Bolosan,
Delaware v. Prouse,
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 articula-ble basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered—ive cannot conceive of any legitimate basis upon ivhich a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other-driver. This land of standardless and unconstrained discretion is the evil the Court 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.
(Citing Almeida-Sanchez v. United States,
[WJe hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is*291 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 automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.
Id. at 663,
Subsequently, in Terry, the Court held that in order to justify an intrusion on the constitutionally protected interests of a private citizen by a police officer, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”
Prouse observed that “[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation.”
Hawai'i has adopted the Terry reasonable suspicion test on independent state constitutional grounds and applied it to traffic situations. See State v. Kim,
In regard to highway stops, then, “ ‘the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ ” Eleneki,
VII.
The findings of the court and the evidence before it conclusively established that Defendant was stopped without reasonable and articulable suspicion that he was operating a vehicle under the influence of alcohol. The totality of the circumstances, measured by an objective standard, must indicate that criminal activity is afoot. See Prendergast,
The court’s undisputed finding no. 18 is that “Officer Correa ... did not observe a suspicious driving pattern as [Defendant’s! vehicle approached [the checkpoint], or thereafter, [or] that the turn [made by Defendant] was effected in an illegal manner[.]” (Emphasis added.) The court’s undisputed finding no. 28 is that “Officer Correa testified, that he did not observe any traffic violations with 7-egard to [Defendant’s] vehicle prior to the stop.” (Emphasis added.) The court’s undisputed finding no. 29 is that “Officer Correa testified that the sole reason for stopping [Defendant’s] vehicle was that[] based, on his training and experience, he felt that he had a reasonable suspicion to stop [Defendant’s] vehicle because he thought he was avoiding a roadblock.” (Emphasis added.) In sum then, Officer Correa did not observe Defendant driving in a suspicious manner or commit any criminal or traffic violation in the; operation of his vehicle. Defendant made a legal light turn onto a paved roadway. Ap • parently the turn was not made erratically, and his headlights were on. Furthermore, even as Officer Correa followed Defendant, he did not observe Defendant driving suspiciously or in an erratic manner. Accordingly, Officer Correa had no basis to have a reasonable suspicion that criminal activity was afoot.
Viewed in its best light, then, the only suspicion Officer Correa had was that Defendant was attempting to avoid a roadblock, not that he was driving under the influence, of an intoxicant.
Manifestly, the fact that Defendant exhibited signs of intoxication after the stop does not retroactively justify the stop. See, e.g., State v. Kido,
VIII.
The stop involved herein, then, did not fall “within a well-recognized and narrowly defined exception to the warrant requirement,” Eleneki,
IX.
Indeed the majority of other jurisdictions have held, based on the facts presented, that it is not permissible to pursue and detain drivers of motor vehicles appearing to legally avoid sobriety checkpoints.
X.
Additionally, as noted previously, it has been expressed that “[t]he majority of jurisdictions which have addressed the issue of flight have held that the mere act of avoiding confrontation does not create an articulable suspicion.” Talbot,
A.
With respect to the court’s reference to Officer Correa’s experience with forty or so previous stops, the following has been stated:
The fact that [the officer’s] observation of [the motorist] gave rise to no more than an unparticularized suspicion or hunch cannot be rehabilitated by adding to the mix of considerations the general statistics advocated by the [prosecution] on time, location, and special events from which a law enforcement officer tuould draw his inferences based on his training and experience.
State v. Roberson,
This is not a case where erratic driving behavior or an infraction of a traffic rule was observed prior to the stop. Here, it is immaterial that “in every case [wherein Officer Correa effected approximately forty stops] the individual avoiding the checkpoint was
B.
The dissent proposes a multi-factor test in support of the proposition that, taken together, “the evidence establishes sufficient specific and articulable facts upon which to base a reasonable suspicion that [Defendant] avoided the checkpoint to evade arrest or detection.” Dissent at 311,
(1) the motorist’s distance from the roadblock when the turn or U-turn was made; (2) whether the motorist was able to see the roadblock before he or she took evasive action; (3) the manner in which the motorist operated his or her vehicle in making the evasive action; (4) the arresting officer’s experience; and (5) any other circumstances that would indicate the motorist was intentionally avoiding the roadblock to evade arrest or detection.
Dissent at 307-08,
1.
First, all of the cases that the dissent cites to in its factor analysis acknowledge that in some form or another, “a legal turn [before tt roadblock], by itself is not sufficient to establish a reasonable, articulable suspicion.” State v. Foreman,
In that case, where the driver executed a legal U-turn 1000 feet before the roadblock the court held that reasonable and articulable suspicion did not exist. Id. at 706. That, court also noted that “it was significant tha; the roadblock was not ‘controlled’ in thai approaching drivers could avoid the roadblock by making safe, legal U-turns.” Id Like the defendant in Binion, Defendant made a lawful turn prior to reaching a roadblock that was not “controlled” and whiel. drivers could avoid by making safe, legal turns.
2.
Briefly, with respect to factor (1), “the distance from the roadblock” is not really one; factor. Most of the cases cited by the dissent support a finding of no reasonable artic-ulable suspicion, while the cases that do nor do so are distinguishable.
As to factor (2), notice of the roadblock, it is immaterial “whether a notice was posted ... [in order to determine] a driver’s scien-ter of guilt.” Dissent at 309,
As to factor (3), the motorist’s manner in operating his or her vehicle, provides no instruction at all. If the driver were driving erratically or had committed a traffic violation there would be a justifiable basis for a stop, under established case law. If the driver was driving lawfully this factor is irrelevant. It is undisputed that Defendant was driving in a lawful manner prior to the stop. The dissent thus lists this factor without applying it.
As to factor (4), it is unclear how the arresting officer’s experience is germane to the assessment of the reasonableness of the stop. Because the legitimacy of a stop must be based on objective criteria, it is the circumstances surrounding the stop that must be judged, irrespective of the officer’s experience.
The dissent’s factor (5) is “any other circumstance [ ] that would indicate the motorist was intentionally avoiding [a] roadblock to evade arrest or detection.” Dissent at 308,
3.
Finally, as to all five factors, the dissent adopts the view that avoiding a roadblock is a sufficient basis for a stop.
XI.
This court has upheld DUI automobile stops but only upon a totality of circumstances which support a reasonable suspicion that the driver was intoxicated. See, e.g., State v. Kaleohano, 99 Hawai’i 370, 378,
On the other hand, a seizure and evidence therefrom have been invalidated in the absence of objective facts indicating that criminal activity was afoot. See, e.g., Eleneki,
XII.
Assuming, arguendo, any doubt as to the application of the reasonable suspicion standard, this case is resolved by article I, section 7 of the Hawaii Constitution. Though that section is like the Fourth Amendment, it has been established that “as the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawaii Constitution, [the Hawaii Supreme Court is] free to give broader privacy protection than that given by the federal constitution.” State v. Kam,
Significantly, this court has declared that, compared to the Fourth Amendment, article I, section 7 of the Hawaii Constitution guarantees persons in Hawaii a “more extensive right of privacy!.]” State v. Navas,
XIII.
The logical corollary to the dissent’s rule, which penalizes a motorist for not going through a roadblock, is that motorists may be coerced lawfully into passing through one—a proposition inimical to our constitution’s protection of the right of privacy—to be free of individual suspicionless, and thus, unreasonable seizures. See also State v. Endo,
The violative nature of the procedure followed by the police becomes apparent in the consequences resulting from these stops as evidenced by finding no. 7. As mentioned before, in finding no. 7 the court found that in Officer Correa’s forty stops, “the individual avoiding the checkpoint was either intoxicated or was violating the law in some other ivay such as[ ] not having a vehicle insurance or [a] driver[’]s license or having an outstanding warrant.” (Emphases added.) In cases where there was a violation “in some other way,” such violation would only become apparent after the stop, confirming that in such instances the stops were made without reasonable suspicion or probable cause of criminal activity, absent inculpatory pre-stop facts. Further, based on finding 7, it is evident that in such “other” cases, the drivers were not operating their vehicles under the influence of an intoxicant. Yet they were subjected to a stop that was not warranted under the constitution and under HRS §§ 291E-19 and -20. See infra. In effect, the police in this case set up an unauthorized checkpoint at which suspicionless stops were made in advance of the statutory roadblocks—a patent disregard of HRS 291E-20 (see the court’s conclusion no. 9) and the heightened right of privacy protected by the Hawai'i Constitution.
As noted previously, the stop also violated HRS §§ 291E-19 and -20. Those statutes do not authorize, as part of a roadblock procedure, a stop of a vehicle operated lawfully that turns in advance of the actual checkpoint. The Prouse Court noted that its holding, implicitly approving roadblocks, did “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” and that “[questioning of all oncoming traffic at roadblock-type stops is one possible alternative.”
In Sitz, the Court ruled that sobriety checkpoints established at pre-determined sites wherein all vehicles were stopped and the drivers examined for signs of intoxication for a brief period were reasonable.
A.
In Hawai'i, the legislature has addressed the need to reduce the intrusiveness of a roadblock by prescribing under HRS chapter 291E, certain procedures in effecting roadblocks. HRS § 291E-19 mandates that “[t]he chief of police in any county establishing an intoxicant control roadblock ... specify the procedures to be followed [in the creation of such roadblock] ... provided that the procedtvres shall be in conformity with and not more intrusive than the standards and guidelines described in [HRS § ]291E-20.” (Emphasis added.) HRS § 291E-20 contains the “[m]inimum standards for roadblock procedures,” in the following manner:
(a) Every intoxicant control roadblock program shall:
(1) Require that all vehicles approaching roadblocks be stopped or that certain vehicles be stopped by selecting vehicles in a specified numerical sequence or pattern;
(2) Require that roadblocks be located at fixed locations for a maximum three-hour period;
(3) Provide for the following minimum safety precautions at every roadblock:
(A) Proper illumination;
(B) Off-road or otherwise safe and secure holding areas for vehicles involved in any roadblock stop;
(C) Uniformed law enforcement officers carrying proper identification; .
(D) Adequate advance warning of the fact and purpose of the roadblocks, either by sign posts, flares, or other alternative methods;
(E) Termination of roadblocks at the discretion of the law enforcement officer in charge where traffic congestion would otherwise result; and
(4) Provide for a sufficient quantity and visibility of uniformed officers and official vehicles to ensure speedy compliance with the purpose of the roadblocks and to move traffic with a minimum of inconvenience.
(b) Nothing in this section shall prohibit the establishment of procedures to make roadblock programs less intrusive than required by the minimum standards provided in this section.
(Emphases added.) Hence, under HRS § 291E-20, any other procedure established by law enforcement officials in effectuating a roadblock must be “less intrusive than required by the minimum standard.”
B.
It is undisputed that Defendant was stopped in relation to a perceived evasion of a roadblock. Officer Correa was responsible for watching southbound vehicles that (1) “pull off the road and shut down [their] lights on the shoulder to avoid detection,” (2) “whip[ ] a U-turn before getting to the ... eheckpoint[,]” and (3) “turn[] off onto Me-hameha Loop or another side [road]” “just north” of the checkpoint. HRS § 291E-20 does not authorize law enforcement officers conducting sobriety checkpoints to pursue and detain drivers of motor vehicles appearing to avoid the sobriety checkpoints in a lawful manner. Permitting officers to do so is beyond the express scope of the statutory procedures and, therefore, “more intrusive than the standards and guidelines described in [HRS § ]291E-20” and violative of HRS § 291E-19.
Thus HRS §§ 291E-19 and -20 are directly related and germane to the reasonableness of the sobriety checkpoint procedures in this case. State v. Fedak,
Adherence to these guidelines ... assures that a roadblock seizure is the result of a plan embodying explicit, neutral limitations on the conduct of individual officers. Conducting roadblocks in accordance with such neutral criteria minimizes the risk that the individual’s reasonable expecta*302 tion of privacy will be subject to the discretion of the official in the field. Adherence to the guidelines’ requirements also assures that the surprise, fear, and inconvenience to—and therefore the intrusion on—the—motoring public is minimized.
(Emphasis added.) (Internal citations, quotation marks, and brackets omitted.)
Fedak considered the guidelines under HRS § 286-162.6 (1985 & Supp.1991). In enacting HRS § 286-162.6, the Committee on Judiciary explained that constitutional restrictions against intrusion into an individual’s privacy rights were recognized as “well founded and proper” in authorizing roadblocks:
(4) In analysis of legislation of this type, concern over constitutional implications is well-founded and proper. Cognizant of fundamental Fourth Amendment protection against unreasonable searches and seizures, legislation authorizing the establishment of intoxication contr-ol roadblocks must provide minimum standards which limit officer discretion and the level of intrusion on individual rights.
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(6) The minimum standards for intoxication control roadblock standards should generally be provided for by statute, with specific procedures to be established by rules and regulations adopted pursuant to [HRS] [chapter 91.
Hse. Stand. Comm. Rep. No. 418-84, in 1984 House Journal, at 1033 (emphasis added). As observed in Claunch,
XV.
Consistent with HRS chapter 291E, the Guide, promulgated by the NHTSA in November 1990 with the help of numerous law enforcement officers and agencies from various states, supports the view that a lawful turn, in apparent avoidance of a sobriety checkpoint, is not a valid basis for a stop.
operational procedures that police administrators may want to consider in order to ensure that sobriety checkpoints are used legally, effectively and safely. These points are consistent with those specified in recent court decisions, including the United States Supreme Court ruling in ... Sitz, upholding the constitutionality of sobriety checkpoints.
Id. at 2.
When a driver chooses to avoid a sobriety checkpoint, the Guide specifically states that
[a] motorist who wishes to avoid the checkpoint by legally turning before entering the checkpoint area should be allowed to do so unless a traffic violation(s) is observed or probable cause exists to take other action. The act of avoiding a sobriety checkpoint does not constitute grounds for a stop.
Id. at 7 (emphasis added). Other jurisdictions have observed that, pursuant to similar guidelines, a motorist should not be penalized for avoiding a sobriety checkpoint. See Little,
XVI.
The argument that Defendant failed to raise on appeal HRS §§ 291E-19 and -20, and the exclusion of the Guide into evidence, is misplaced. Any exposition of the case law in our jurisdiction and from other jurisdictions would be incomplete and misleading without a contextual reference to the roadblock statutes and the Guide, which have their genesis in the constitutional text prohibiting unreasonable seizures.
A.
It would be disingenuous in this case to perform an analysis of the reasonableness of the stop disengaged from consideration of HRS §§ 291E-19 and -20. Defendant’s stop arose because of the roadblock, and that roadblock was subject to the directives of HRS § 291E-20. Hence, the court’s undisputed conclusion no. 9 states that “[t]he Legislature had public safety concerns in mind when [it] enacted H.R.S. § 291E-20 allowing police to conduct intoxication checkpoints.” The court’s undisputed finding no. 8 states that “the intoxication checkpoint was in place to stop vehicle[ ]s traveling southbound on Mokulele Highway in a numerical pattern to check for signs of intoxication.” Relatedly, the court determined in undisputed finding no. 9, that “Officer Correa was stationed just noHh of the intoxication checkpoint and was tasked with observing traffic and making stops based upon probable causef]” (Emphasis added.) The stop, then, was clearly made in connection with the roadblock, and in aid of that roadblock.
B.
The record indicates that the court, in determining the relevancy of the Guide, instructed Defendant’s counsel that “yen', may submit it as argument, it’s not the law.” (Emphasis added.) Hence, although ultimately excluded, the Guide was considered in the case. Also, consideration of the Guide on appeal, like HRS §§ 291E-19 and -20, is germane to the reasonableness of the stop in this case by virtue of the principles in Prouso and Sitz. Like HRS § 291E-20, the Guido, incorporates procedures designed to minimize the intrusion on a motorist’s privacy when conducting a sobriety checkpoint.
We must note that the guidelines governing the roadblocks held constitutionally firm in Sitz and Manuel had ‘provisions p7-ohibiting officers from apprehending motorists who made safe u-tums or turnoffs to avoid the roadblock. No such condition is in Department of Safety General Order 410, and it may be that the lack of such a condition renders any roadblock conducted pursuant to the Order tmconsti-tutional. We find it unnecessary to address the issue in this opinion.
Binion,
XVII.
The stop in this case violated the precepts under article I, section 7 of the Hawai'i Constitution and the statutory guidelines of HRS chapter 291E. For the reasons stated, the court’s June 7, 2005 order denying Defendant’s motion to suppress is vacated and the case is remanded to the court with instructions to enter an order granting Defendant’s motion to suppress and to allow Defendant to withdraw his plea pursuant to HRPP Rule 11(a)(2). See Kealailci,
Notes
. The Honorable Barclay E. MacDonald presided.
. Article I, section 7 of the Hawai'i Constitution is identical to the Fourth Amendment to the United States Constitution. In relevant part, article I, section 7 provides that "[t]he right of the people to be secure in their persons ... against unreasonable ... seizures and invasions of privacy shall not be violated!.]” The Fourth Amendment to the United States Constitution states that "[t]he right of the people to be secure in their persons ... against unreasonable ... seizures, shall not be violated.”
. Hawaii Revised Statutes (HRS) § 291E-61 (Supp.2005), entitled "Operating a vehicle under the influence of an intoxicant," provides in relevant part:
(a) A verson commits the offense of operating a vehicle wider the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person’s normal mental faculties or ability to care for the person and guard against casualty;
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(3) With .08 or more grams of alcohol per two hundred ten liters of breath; or
(4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.
(Emphasis added.) Defendant asserts that he entered a conditional plea under HRS § 291E-61 (a)(3). Plaintiff-Appellee State of Hawai'i (the prosecution), however, slates that Defendant was charged with violating HRS § 29IE-61(a)(4) and does not specify under which section Defendant entered his conditional plea.
HRS § 291E-61 criminalizes operating a vehicle under the influence of the requisite amount of alcohol, not evading an intoxication checkpoint. As such, an officer must have specific and articu-lable facts that would lead a person of reasonable caution to believe that the defendant was operating a vehicle under the influence of alcohol.
. The relevant provisions of HRS §§ 291E-19 and -20 are reproduced infra.
. Hence, the dissent’s reference to a bright-line rule that abrogates the State’s interest in combating intoxicated motorists is a misstatement of the case law and of our adherence to the rule of law. As is apparent, this case addresses intoxication checkpoints and not “some involvement in [unspecified] criminal activity,’’ dissenting at 306,
. In district court criminal cases, "[a]ppeals upon the record shall be allowed from all final
The “Notice of Entry of Judgment” filed by the district court clerk on February 18, 2005 constitutes the written judgment on Defendant's conviction that is appealable pursuant to HRS § 641-12. The denial of the motion to suppress evidence is reviewable on appeal from the February 18, 2005 judgment pursuant to HRPP 11(a)(2).
The notice of appeal filed by counsel on June 9, 2005 was filed more than thirty days after entry of the February 18, 2005 judgment and was untimely. However, in criminal cases governed by HRAP 4(b)(1), we have made exceptions to the requirement that the notice of appeal be timely filed. One recognized exception that we apply here excuses the failure to timely file a notice of appeal when untimely filing was the result of counsel's failure to competently pursue the defendant’s first appeal from a criminal conviction. State v. Knight,
The prosecution argues on appeal that because' Defendant failed to properly perfect his notice o ' appeal when he indicated that he was appealing from a March 18, 2005 “Notice of Entry o' Judgment and/or Order and Plea/Judgment” instead of the February 18, 2005 “Notice of Entry of Judgment,” and incorrectly stated that his appeal was brought pursuant to HRS § 641-11 (1993) which pertains to criminal appeals from a circuit court, this court lacks jurisdiction. We have stated that “a mistake in designating the. judgment ... should not result in loss of the appeal as long as the intent to appeal from c. specific judgment can be fairly inferred from the notice and the appellee is not misled by the mis take." State v. Bohannon,
. Accordingly, the analysis in this opinion is grounded in article I, section 7 of the Hawai'i Constitution. See Michigan v. Long,
. Defendant argued that he is not from Maui and was driving a rental car, and that Officer Correa testified that Defendant informed him that Defendant was lost.
. Because the dissent cites to Murphy v. Commonwealth,
. The dissent cites to State v. Thill,
Notwithstanding the general freedom to avoid police confrontation, we find the avoidance of the police roadblock in this instance was sufficient to create an articulable and reasonable suspicion of criminal activity. Automobiles and their use on state roads are the subject of significant state regulation (e.g.[,] licensing, registration). This fact distinguishes the cases relied upon in [State v. Talbot,792 P.2d 489 (Utah Ct.App.1990) ], the majority of which involved pedestrians. And while people are not shorn of their Fourth Amendment protection when they step from the sidewalks into their automobiles, Prouse,440 U.S. at 663 [,99 S.Ct. 1391 ,] their actions on the road become subject to increased state regulation and restriction. Consequently, actions taken on the road, the character of which would be innocent in another context, may well give rise to an articulable and reasonable suspicion of a violation of the law respecting the use or ownership of an automobile.
. The dissent states that there is a "split on whether avoiding a roadblock or checkpoint alone creates sufficient reason for a traffic stop.” Dissent at 307,
In Smith, Snyder, Steinbeck, Thill, and Stroud, there were facts in addition to the avoidance of the roadblock or checkpoint which gave rise to reasonable suspicion for the stop. See Smith,
It would be inaccurate to say that the remaining two cases cited to by the Oughton court, Coffman and Boches, are sufficient to support a "majority rule.” Accordingly, we reject the conclusion in Oughton that "[t]he majority position appears to be that such avoidance can provide the sole basis for such a stop."
. The dissent’s totality of the circumstances analysis, see dissent at 311,
. See also Pooler v. Motor Vehicles Div.,
. See State v. Powell,
. The dissent points to Steinbeck,
. The dissent qualifies its position by characterizing Defendant’s acts as “intentionally evading arrest or detection” and, thus, the dissent assumes the very fact in issue. See e.g., dissent at 307-08,
. See Dissent at 308-11,
. The dissent quotes Foreman,
The question of whether a standard based on when "drivers will become aware of a roadblock's presence” gives rise to unconstrained discretion aside, Hester would run afoul of our State constitutional protection against unreasonable seizures; the requirement that a vehicle stop be premised on reasonable suspicion indicates such a stop is not a "minimal intrusion” as the dissent contends. Dissent at 311-12,
.In support of its "minimal intrusion” argument, the dissent cites to three cases, dissent at 311-12,
State v. Johnson,
McCloskey v. Honolulu Police Dep't, 71 Haw. 568,
. The dissent's contention that roadblock procedures are not germane and that it declines to address such procedures is first belied by the court’s own findings 11, 29, and 30, and conclu sions 9, 10, and 11, see supra, and second, by the dissent’s citations to cases which have analyzed the reasonableness of the stop in conjunction with the relevant roadblock procedure. See e.g., Steinbeck,
Therefore, the dissent implicitly concedes that stops in aid of roadblocks do implicate roadblock procedures such as those in HRS §§ 291E-19 and -20. The deterrent value of roadblocks and stops the dissent advocates for, dissent at 311-12,
. In the Guide, the NI-ITSA acknowledged the contributions of individuals from the
Dayton Police Department, Dayton, Ohio; ... Franklin County Sheriff's Department, Columbus, Ohio; ... Indiana State Police; Maryland Slate Police; ... Metropolitan Police Department, Washington, D.C.; ... Michigan State Police; ... New York Slate Police; ... Palm Beach Counly Sheriff's Department, West Palm Beach, Florida; ... Redding Police Department, Redding, California!;] the International Association of Chiefs of Police (IACP) and the National Sheriffs' Association.
. Hence, we do not concur with the dissent's contention that Defendant "does not challenge ... the propriety of the police establishing roadblocks [under the relevant statutes].” Dissent at 313,
. Manuel was an unpublished disposition by the Tennessee Court of Criminal Appeals upholding the constitutionality of a sobriety roadblock in light of the governmental interest served by a roadblock and the minimal intrusion upon motorists’ privacy rights as evaluated under guidelines designed by the Tennessee Highway Patrol.
.Contraiy to the dissent’s objection that Defendant "does not challenge per se the propriety of the police establishing roadblocks under HRS §§ 29IE-19 and-20,” dissent at 313,
The Supreme Court it's my understanding has reviewed 291E-20, and has found that roadblocks are permissible if you—if the statutory scheme is strictly followed. That that [sic] would be—because the Legislature has found that there is a danger to the public of intoxicated drivers that a—a—a limited infraction on*304 the Constitutional rights of all citizens is permitted if a strict procedure is followed. That procedure is set forth in 291E-20.
(Emphases added.)
. Contrary to the dissent's position, it is of no consequence that only the reasonable suspicion aspect of the investigatory stop was challenged at the suppression hearing. Dissent at 313,
The dissent also cites to Binion,
In Binion, the court held "that the action of a motorist, under the circumstances of this case, in making a lawful turn 1,000 feet before a roadblock does not give rise to a reasonable suspicion of criminal activity unless the driver's turn or action is coupled with other articulable facts.”
Accordingly, it was unnecessary for both the Binion court and the Murphy court to reach the propriety of the roadblock procedure inasmuch as the officer's lack of reasonable suspicion was dispositive of the defendant's claim. Here, that Officer Correa lacked reasonable suspicion to stop Defendant would be dispositive as well.
. Of course, pursuant to Hawai'i Rules of Evidence (HRE) Rule 201, an appellate court may take judicial notice of acts of an executive agency. See, e.g., Armbruster v. Nip,
Dissenting Opinion
Dissenting Opinion by
I disagree with the plurality’s conclusion that the District Court of the Second Circuit erred in determining that the arresting police officer had reasonable suspicion to effect an investigatory stop based on the police officer’s belief that defendant-appellant Raymond J. Heapy was intentionally avoiding an
Preliminarily, I note that Heapy’s sole contention on appeal centers on whether the district court erred in denying his motion to suppress evidence (motion to suppress) by determining that Officer Ericlee Correa had reasonable suspicion to effect an investigatory stop based on his belief that Heapy was intentionally avoiding the intoxication checkpoint to evade arrest or detection. Plaintiff-appellee State of Hawaii (the prosecution) contends that the district court did not err in denying Heapy’s motion to suppress inasmuch as “Officer Correa’s investigative stop of Heapy was lawful.” Specifically, the prosecution asserts that:
Heapy’s turn down Mehameha Loop after passing two large signs which read “INTOXICATION CHECKPOINT AHEAD” initially raised Officer Correa’s suspicions. While stationed at Ids post for nearly tivo hours, Officer Correa did not see any other velvkie['l other than Heapy’s turn down Mehameha Loop. In fact, as Officer Cor-rea testified, Mehameha Loop was blocked off' by a metal gate and was not open to through traffic; and the public was not allowed to travel on the adjacent canejield roads. Other than the animal shelter, there was nothing else on Mehameha Loop except canefields. Moreover, although Officer Correa followed Heapy down Meham-eha Loop, Officer Correa did not activate his blue lights until after Heapy passed the entrance to the closed animal shelter. Thus, it was even more obvious that Heapy was not going to the closed animal shelter, but instead, as Officer Correa reasonably suspected, was actually attempting to avoid being stopped at the intoxication checkpoint.
Thus, all of these facts known to Officer Correa, considered in conjunction with the reasonable inferences arising from the totality of the circumstances, including Officer Correa’s training and experience, would warrant a man of reasonable caution in believing that Heapy avoided the intoxication checkpoint due to some type of involvement in criminal activity, i.e., driving under the influence.
(Emphases added.) I agree.
Both article I, section 7 of the Hawaii Constitution
To justify an investigative stop, short of an arrest based on probable cause, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The ultimate test in these situations must be whether from these facts, measured by an objective standard, a man of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate.
Id. at 338,
Until today, this court had yet to address whether avoidance of an intoxication checkpoint or roadblock by making a lawful turn or U-turn to evade arrest or detection creates reasonable suspicion to effect an investigatory stop on a vehicle. Contrary to the plurality’s position that “the majority of other jurisdictions have held, based on the facts presented, that it is not permissible to pursue and detain drivers of motor vehicles appearing to legally avoid sobriety checkpoints,” plurality at 293,
As to the first factor, relating to the distance from the roadblock, “the rule seems to be the farther away a motorist is from the roadblock, the less objectively reasonable i; is to infer that the turn was made out of a consciousness of guilt.” United States v. Lester,
As to the second factor, pertaining to notice of the roadblock, the issue “whether a notice was posted is relevant to the assessment of a driver’s scienter or guilt.” Lester,
As to the third factor, regarding the motorist’s manner in operating his or her vehicle, “unsafe, erratic driving is thought to militate towards a finding of reasonable suspicion.” Lester,
As to the fourth factor, relating to the arresting officer’s experience, other jurisdictions “give weight to an officer’s inference based on his experience.” Lester,
If police officers stationed at roadblocks were not permitted to stop such [evasive] drivers, the very drivers the police seek to deter could flagrantly avoid the roadblocks and the stops would lose their deterrent value. Trooper Maxwell testified that he had pursued and stopped drivers on numerous occasions who sought to avoid roadblocks and inevitably those drivers had suspended or expired licenses, or some other violation of the law. His experience gave him specific and articulable facts and inferences drawn therefrom to form a reasonable suspicion that [the defendant] was committing a crime. Such might not always be the case when an officer sees a driver avoid a police roadblock. Likewise, a driver who simply turns off the road before entering the roadblock may not give rise to a reasonable suspicion, unless coupled with other articulable facts such as erratic driving or traffic violations. A finding of a reasonable suspicion must be determined on a case by case basis.
The alternative is to tell police officers that[,] in spite of their experience, they may not infer from, a driver’s attempt to avoid a roadblock that the driver is very likely engaged in the commission of a crime. Such a rule would seem to tell police officers to “ignore reality.”
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A rule prohibiting police officers from pursuing drivers who evade roadblocks is unnecessary so long as the officer, by virtue of experience and training, has reason*310 able and articulable facts upon which his suspicion is based—not mere hunches or speculation.
Snyder,
Finally, as previously stated, any other circumstances that would indicate the motorist was intentionally avoiding a roadblock to evade arrest or detection may be considered in determining whether an officer had reasonable suspicion to effect an investigatory stop on a vehicle. Binion,
On appeal, the defendant contended that the trial court erred by failing to suppress the evidence seized inasmuch as the “arresting officer had no articulable and reasonable suspicion that [he] had violated the law prior to the stop.” Id. at 912-13. The defendant argued, and it appeared to be conceded by the Commonwealth of Kentucky (the Commonwealth) that “he was not weaving in the roadway, speeding, or in any other way violating a traffic law.” Id. at 913. The only ground claimed by Cooper “for the pursuit and stop of [the defendant] was his belief that [the defendant] was attempting to avoid the checkpoint due to intoxication.” Id. Although the defendant asserted that “the fact that a car turns in a manner to avoid a roadblock, standing alone, is insufficient to create a reasonable suspicion to justify a stop,” id. (citations omitted), the Commonwealth countered “that there were reasons in addition to the mere turning prior to the checkpoint which created an articulable and reasonable suspicion of criminal activity.” Id. Specifically, after testifying that he had set up several checkpoints at the same location, Cooper testified that, in his experience as a deputy sheriff, he has noticed vehicles turning onto East Cairo Landing Road before and that those vehicles turned off onto the road in order to “avoid coming through the road check[.]” Id, Cooper further testified that “every road check [he has] been involved[,] every vehicle that turns there[, ie., the East Cairo Landing Road,] the driver has been drinking alcohol[.]” Id. In addition to Cooper’s past experience, the Commonwealth argued that “the existence of a reasonable suspicion is supported by the uninhabited and unpaved road onto which [the defendant] turned and the early morning hour at which time the incident occurred.” Id, The Kentucky Court of Appeals (the court of appeals) agreed with the Commonwealth, holding that the defendant’s
turn away from the sobriety checkpoint, coupled with [Cooper]’s experience in similar instances, the time of day, and the nature of the roadway onto which [the defendant] turned[ ] constitute specific, reasonable, and articulable facts which allowed the police officer to draw an inference sufficient to form a reasonable*311 suspicion that the driver might have been engaging in criminal activity.
Id. at 914. Moreover, the court of appeals relied on the Indiana Court of Appeal’s decision in Snyder for the proposition that the effectiveness of intoxication checkpoints would be reduced if motorists are permitted to avoid them: “If police officers stationed at roadblocks were not permitted to stop such [evading] drivers, the very drivers the police seek to deter could flagrantly avoid the roadblocks and the stops would lose their deterrent value.” Id. (citation omitted).
On the other hand, in Murphy, the police were operating a permit and decal checkpoint in the 1800 block of Belt Boulevard in Richmond, Virginia.
On appeal, the Virginia Court of Appeals (the appellate court) reversed, concluding that “the act of a driver in making a lawful right turn 350 feet before a roadblock does not give rise to a reasonable suspicion of criminal activity unless the driver’s turn or action is coupled with other articulable facts, such as erratic driving, a traffic violation, ra-sóme behavior which independently raises suspicion of criminal activity.” Id. at 128 (citations omitted). The appellate court apparently determined that there were no “other articulable facts” from the record and, therefore, reversed the conviction and dismissed the charges. Id. at 128-29. Similarly, in Rocket, the New York Justice Court held that a defendant’s lawful right-hand turn onto a road with residences and businesses prior to reaching an intoxication checkpoint, in and of itself, did not provide police with an articulable reason for an investigatory stop.
Considering the totality of the circumstances in the instant case, I believe that the evidence establishes sufficient specific and articulable facts upon which to base a reasonable suspicion that Heapy avoided the checkpoint to evade arrest or detection. It is undisputed that Heapy passed the second sign warning motorists of an impending intoxication checkpoint, which was situated 250 feet from the checkpoint area itself. As such, it is clear that Heapy was less than 250 feet away from the checkpoint when he made his right turn onto Mehameha Loop. Moreover, it is undisputed that two four-foot-by-four-foot fluorescent orange signs provided notice of the impending checkpoint to southbound motorists on Mokulele Highway and that Heapy passed both signs prior to making his turn. And, the district court’s unchallenged finding indicates that the large lighting tower illuminating the checkpoint and the flag officer were fully visible from the intersection of Mokulele Highway and Mehameha Loop. Finding of Fact (FOF) No. 17.
Although Officer Correa did not observe a “suspicious driving pattern” and Heapy’s “turn was not effected in an illegal manner,” FOF No. 18, other circumstances, namely, the nature of Mehameha Loop and the surrounding area, reasonably indicated that Heapy was intentionally avoiding the roadblock to evade arrest or detection. Speeifi-
Finally, I believe Officer Correa’s experience also “gave him specific and articulable facts and inferences drawn therefrom to form a reasonable suspicion that [Heapy] was committing a crime.” Snyder,
2. Officer Correa has been employed with the Maui Police Department [ (MPD) ] for twelve years and is currently assigned [to] the traffic division[.]
3. Officer Correa was formerly a member for the DUI Task Force unit for four years[.]
4. Officer Correa has participated in approximately 50 intoxication checkpoints.
5. Officer Correa estimated that he has been assigned the “chase car” position approximately 20 times[.]
6. Officer Correa indicated that he has effected approximately 40 stops on earn that attempted to avoid the intoxication checkpoint!.]
7. That in every case the individual avoiding the checkpoint was either intoxicated or was violating the law in some other way such as[ ] not having vehicle insurance or [a] driver[’]s license! ] or having an outstanding warranty]
(Bold and underscored emphases added.) Consequently, I believe that Officer Correa’s experience is more closely akin to Trooper Maxwell’s and Deputy Sheriff Cooper’s experience as described in Snyder and Steinbeck, respectively, as opposed to Officer Katz’s experience as set forth in Murphy.
In this case, the evidence was that in two hours of moderate traffic the only vehicle that turned onto Mehameha Loop was [Heapy’s] vehicle. That, again, there was no reason to turn onto that Meham-eha Loop. It went into a canefield. There was no good reason to him on it. And if someone was lost they could have simply stopped and asked the police officers who were there under considerable lighting where they were.
It seems to me that there is reasonable grounds for suspicion on the part of the officer that Mr. Heapy was indeed avoiding the roadblock, and that, therefore, he had the—right to stop Mr. Heapy and investigate further. He did not execute any stop of—of Mr. Heapy until it was clear that he was—had gone pas[t] the [a]nimal [s]helter and. that he was just turning into a cane-field. That he was not just turning around.
(Emphases added.)
Notwithstanding the logic behind the district court’s ruling, the plurality devotes a significant portion of its opinion to the proposition that, “in stopping vehicles turning in advance of the checkpoint, the procedure [instituted by MPD in this ease] exceeded the authority granted to the police to establish roadblocks under HRS §§ 291E-19 and -20 (Supp.2005).” Plurality at 286,
[HEAPY’S COUNSEL]: [TJhere’s been no evidence in this case that the State was in compliance with [HRS § ] 291E-20.
THE COURT: Okay. I understand.
[THE PROSECUTION]: There’s no-no evidence to the contrary either, your Honor.
THE COURT: Yeah. Yeah.
[THE PROSECUTION]: That was not an issue.
(Emphasis added.) Thus, under the circumstances of this appeal, I would decline to consider any theories not advanced by Heapy. See Pulawa v. GTE Hawaiian Tel,
Moreover, the plurality relies on the National Highway Traffic Safety Administration [NHTSA]’s “Guide,” entitled “The Use of Sobriety Checkpoints for Impaired Driving Enforcement” [hereinafter, the Guide]. Plurality at 302-05,
The plurality also relies on State v. Talbot,
Notwithstanding the general freedom to avoid police confrontation, we find the avoidance of the police roadblock in this instance was sufficient to create an articu-lable and reasonable suspicion of criminal activity. Automobiles and their use on state roads are the subject of significant state regulation (e.g. [,] licensing, registration) .... And while people are not shorn of their Fourth Amendment protection when they step ... into their automobiles, [Delaware v.] Prouse, 440 U.S. [648,] 663[,99 S.Ct. 1391 ,59 L.Ed.2d 660 (1979)], their actions on the road become subject to increased state regulation and restriction. Consequently, actions taken on the road, the character of which would be innocent in another context, may well give rise to an articulable and reasonable suspicion of a violation of the law respecting the use or ownership of an automobile.
Thill,
Lastly, I must reiterate that the effectiveness of intoxication checkpoints would be reduced if motorists are permitted to avoid them. As previously mentioned,
[i]f police officers stationed at roadblocks were not permitted to stop such [evasive] drivers, the very drivers the police seek to deter could flagrantly avoid the roadblocks and the stops would lose their deterrent value....
The alternative is to tell police officers that[,] in spite of their experience, they may not infer from a driver’s attempt to avoid a roadblock that the driver is very likely engaged in the commission of a crime. Such a rule would seem to tell police officers to “ignore reality.”
Snyder,
[i]t is obvious that a law-enforcement agency cannot make impaired driving checks of drivers of vehicles on highways unless such vehicles can be stopped. Certainly, the purpose of any checkpoint and [statutes governing the establishment, organization,*315 and management of impaired driving-checkpoints] would be defeated if drivers had the option to legally avoid, ignore or circumvent the checkpoint by either electing to drive through without stopping or by turning away upon entering the checkpoint’s perimeters. Further, it is clear that the perimeters of the checkpoint or the area in which checks are conducted ‘would, include the area within which drivers may become aware of its presence by observation of any sign marking or giving notice of the checkpoint. Therefore, we hold that it is reasonable and permissible for an officer to monitor a checkpoint’s entrance for vehicles whose drivers may be attempting to avoid the checkpoint, and it necessarily follows that an officer, in light of and pursuant to the totality of the circumstances or the checkpoint plan, may pursue and stop a vehicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away.
Our state’s interest in combating intoxicated drivers outweighs the minimal intrusion that an investigatory stop may impose upon a motorist under these circumstances.
Foreman,
. Article I, section 7 of the Hawaii Constitution provides in relevant part:
The right of the people to be secure in their persons ... against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted.
. The fourth amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
. I note that the plurality itself cites to Murphy’s conclusion that "the act of a driver in making a lawful right turn 350 feet before a roadblock does not give rise to a reasonable suspicion of criminal activity unless the driver's turn or action is coupled with other articulable facts, such as ... some behavior which independently raises suspicion of criminal activity.” Plurality at 292 n. 9,
. The plurality, however, states that "[Ljhe argument that [Heapy] failed to raise on appeal HRS §§ 291E-19 and -20, and the exclusion of the Guide into evidence, is misplaced.” Plurality at 303,
rajny exposition of the case law in our jurisdiction and from other jurisdictions would be incomplete and misleading without a contextual reference to the roadblock statutes and the Guide, which have their genesis in the constitutional text prohibiting unreasonable seizures.
Plurality at 303,
Concurrence Opinion
Concurring Opinion by
in which NAKAYAMA, J., Joins.
Considering the totality of the circumstances reflected in the record on appeal— including the time of day, the proximity of the defendant-appellant Raymond J. Heapy’s vehicle to the Mokulele Highway intoxication checkpoint, the characteristics of Mehameha Loop, and Officer Correa’s prior “experience”—, I believe that Officer Correa could reasonably have suspected no more than that Heapy was intentionally attempting to avoid the checkpoint when Officer Correa seized Heapy for constitutional purposes via the use of his “chase car” after observing Heapy’s vehicle lawfully execute a right-hand turn onto Mehameha Loop. In my view, the search-and-seizure jurisprudence of this state, grounded in the Hawai'i Constitution, stands squarely for the proposition that the foregoing was insufficient as a matter of law to give rise to reasonable suspicion (much less probable cause) on Officer Correa’s part to believe that criminal activity was afoot. That being the case, Officer Correa’s seizure of Heapy contravened the protections afforded by article I, section 7 of the Hawai'i Constitution.
Because I would vacate the district court’s March 18, 2005 judgment and remand with instructions to grant Heapy’s motion to suppress, I concur in the judgment announced by the plurality opinion.