STATE of Maine v. Orville PATTERSON, Jr.
Supreme Judicial Court of Maine
Decided Nov. 28, 1990.
582 A.2d 1204
John D. Clifford (orally), Huston & Clifford, Freeport, for defendant.
Before McKUSICK, C.J., and WATHEN, GLASSMAN, COLLINS and BRODY, JJ.
McKUSICK, Chief Justice.
The Superior Court (Penobscot County, Smith J.) entered judgment on defendant Orville Patterson‘s conditional plea of guilty to the charge of operating a motor vehicle while an habitual offender,
In the early afternoon of Saturday, September 30, 1989, on Route 178 in Eddington, Maine State Police Officer Barry Curtis conducted a roadblock for the purpose of checking vehicle safety. The uniformed officer parked his plainly marked cruiser in the middle of the road and stopped all cars coming from both directions. At approximately 1:50 p.m., the officer saw a pickup truck stop and change drivers about 100 yards from the roadblock. The driver, defendant Orville Patterson, slid over to the passenger seat, while his passenger, Harold Spann, got out and walked into the trees along the side of the road. When Spann returned to the truck, he got into the driver‘s seat. The officer stopped the truck when it came up to his cruiser. He asked both men for licenses, but defendant refused to surrender one, saying that he did not have to because he was not driving.
We first addressed the constitutionality of a police roadblock in State v. Cloukey, 486 A.2d 143 (Me.1985), which involved as does this case a roadblock designed to check traffic safety features. There we distinguished the fixed roadblock from the roving stop held unconstitutional by the United States Supreme Court in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In Cloukey, 486 A.2d at 145, our analysis “beg[an] with the fundamental question whether the action of the police officers in conducting the roadblock was ‘reasonable’ under the Fourth Amendment.” In finding the safety check roadblock at issue in Cloukey reasonable, we adopted the test set forth in Delaware v. Prouse:
“[T]he 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 interests.”
State v. Cloukey, 486 A.2d at 145 (quoting Delaware v. Prouse, 440 U.S. at 654, 99 S.Ct. at 1396). All of our subsequent roadblock cases have continued to apply a flexible balancing test between the magnitude of the intrusion and the state interest advanced. See State v. Sherburne, 571 A.2d 1181, 1184 (Me.1990) (fish and wildlife roadblock); State v. McMahon, 557 A.2d 1324, 1325 (Me.1989) (vehicle safety and OUI roadblock); State v. Leighton, 551 A.2d 116, 117 (Me.1988) (OUI roadblock).
We are confirmed in our approach by the United States Supreme Court‘s decision within the year in Michigan Dep‘t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), which affirmed the constitutionality of “sobriety checkpoints” or OUI roadblocks conducted by Michigan‘s state police. Sitz, 110 S.Ct. at 2485, applied the balancing test developed in Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979), that involves 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. The Brown test differs from the two-pronged test in Delaware v. Prouse, 440 U.S. at 654, 99 S.Ct. at 1396, that we have traditionally applied to roadblocks, only by considering the prong of “promotion of legitimate governmental interests” in two parts rather than one. For ease of analysis, Brown looks at the “gravity” of the public interest as a measure of its legitimacy and at the extent the seizure “advances” the interest as a measure of its promotion. Brown v. Texas, 443 U.S. at 51, 99 S.Ct. at 2640. Consequently, on our review of the Superior Court‘s ruling, we will apply the three-pronged balancing test of Brown to the circumstances of the safety check roadblock here at issue. The checklist of thirteen items quoted in Cloukey, 486 A.2d at 146, from State v. Deskins, 234 Kan. 529, 541, 673 P.2d 1174, 1185 (1983), is nothing more than an identification of factual circumstances that may in varying degrees have bearing on making that balance in a particular case. Consideration of all the circumstances of the roadblock involved in this case persuades us that it passes constitutional muster.
In weighing the gravity of the public concern served by a roadblock and the degree to which it advances the public interest, we examine “the societal interest in dealing with the issue effectively, the availability of less intrusive means to accomplish the objective and the efficacy of the method chosen.” State v. Sherburne, 571 A.2d at 1184. Our cases have consistently emphasized that the State‘s vital interest in the health, safety, and welfare of its citizens justifies roadblocks designed to enforce motor vehicle safety laws and to prevent traffic accidents. See id. at 1188. The public is best served by a regime that deters drivers from traveling in unsafe vehicles and identifies safety defects before vehicles are involved in accidents. See State v. Cloukey, 486 A.2d at 146-47. We have never required the State to show conclusively that the means the police choose
Defendant has not demonstrated that the minimal discretion exercised by this officer in conducting a roadblock at which drivers were not asked to show their licenses or registrations was a severe interference with the motorists’ liberty interest that automatically tipped the balance against its reasonableness. The officer‘s safety check took only 1 1/2 to 2 minutes. If the line grew to seven or eight vehicles, he waved all of them through. If he found a vehicle that had a faulty headlight or needed air in its tires, the officer merely warned the driver of the problem and did not issue a citation. The officer also testified that he had conducted this kind of safety roadblock for the four years he had been on the force and that he knew that other state police officers conducted the same type of roadblock in other parts of the state. Without endorsing the proposition that the historical fact of an established police practice always demonstrates its reasonableness, we cannot find that the state police policy of allowing individual officers to conduct this sort of minimally intrusive safety check is unreasonable. The known procedure for conducting these checks worked as a limit on Officer Curtis‘s discretion. In these circumstances the absence of supervisory personnel in the planning of this specific safety check does not render the limited operation unreasonable. See State v. Cloukey, 486 A.2d at 146.
The court‘s “determination that the roadblock was conducted reasonably was based on competent evidence and does not amount to clear error.” State v. Sherburne, 571 A.2d at 1185 (citing State v. Reeves, 499 A.2d 130, 132 (Me.1985)). Based on the uncontradicted testimony of Officer Curtis, the court was justified in finding that this safety check roadblock effectively promoted the important public interest of highway safety and outweighed the minimal intrusion on individual liberty. See State v. Cloukey, 486 A.2d at 147.
Since the safety check roadblock was constitutionally reasonable, there is no question that the officer was justified in stopping defendant‘s truck and asking him for his license. The officer reasonably inferred from the switch in drivers within sight of the roadblock that the original driver was either intoxicated or under suspension and did not want to risk being caught by the police he saw ahead. In the circumstances, the change of drivers objectively suggests defendant‘s consciousness of guilt. Defendant‘s action in relinquishing the wheel in advance of a legal roadblock gave rise to a reasonable, articulable suspicion of criminal conduct that amply justified the investigative stop. See State v. Griffin, 459 A.2d 1086, 1090 (Me.1983).
The entry is:
Judgment affirmed.
WATHEN, COLLINS and BRODY, JJ., concurring.
GLASSMAN, Justice, dissenting.
Because I conclude that the stop in the instant case was an unreasonable search and seizure, both under federal constitutional law and this court‘s precedents, I must respectfully dissent. The constitutional validity of the roadblock is the pivotal issue in this case. Absent some reasonable, articulable suspicion or neutral, objective standard, Curtis could not have stopped Patterson. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);
Focusing on the validity of the roadblock, the court‘s opinion properly attempts to balance the relevant state interest against the magnitude of the particular intrusion on the reasonable privacy expectations of those drivers subjected to the roadblock. We have previously recognized that the State has a vital interest in the enforcement of its highway safety laws. See, e.g., State v. Cloukey, 486 A.2d 143, 146 (Me.1985). Where the court seriously departs from our previous decisions is in its analysis of the corresponding “reasonableness” of the intrusion posed by the roadblock. Recognizing that reasonableness must be measured against an “objective standard,” Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979), the court asserts that the thirteen factors enumerated in Cloukey2 are merely factual circumstances to be considered, but that the absence of one or more of these factors will not necessarily invalidate the roadblock. See also State v. Leighton, 551 A.2d 116, 119 (Me.1988). While this may be an accurate statement of the Cloukey test, the amount of discretion allowed the police officer in the field is the crucial underlying criterion behind the determination of reasonableness. See Michigan Dep‘t of State Police v. Sitz, 110 S.Ct. 2481 (1990). The factors listed in the Cloukey decision lose their significance if left to the unsu-
First, neither current federal constitutional law nor our prior decisions support the validity of a roadblock absent some minimal overall showing that the police officer‘s discretion in the field was effectively limited. The court‘s opinion seeks indirect support from the United States Supreme Court‘s recent decision in Michigan Dep‘t of State Police v. Sitz, 110 S.Ct. 2481 (1990), but, in this regard, that decision offers no such confirmation. Although Sitz certainly upheld the constitutionality of a sobriety checkpoint, the Court did not depart from the basic tenet that such stops be conducted in conformity with certain pre-established guidelines. Id., 110 S.Ct. at 2487 (“[h]ere, checkpoints are selected pursuant to the guidelines.“).3 Further, our prior decisions dealing with roadblocks have never presented us with a case that disclosed such a total lack of supervision of a police officer in the field.4 While it is true that we have never required that such guidelines be written, this court has always required some evidence of a neutral standard, evidence noticeably absent from the present record.
Second, the unfettered discretion exercised by Officer Curtis and the inadequate procedures that actually resulted from that exercise in this case illustrate the wisdom of a policy that requires some minimal pre-established guidelines or supervision for a roadblock. Officer Curtis apparently chose the location of the roadblock at random, without any prior approval from or notification of a supervisor, without any indica-
Third, the absence of such minimal guidelines or supervision converts the present roadblock into the functional equivalent of a “roving stop.” The presence of an explicit, neutral policy or supervision is designed in part to prevent an individual police officer from creating some pretext to stop automobiles without an individualized suspicion. While it is true that explicit, neutral guidelines or supervision will not always prevent a pretextual roadblock, without guidelines or supervision such a “subterfuge” remains largely undetectable and the roadblock is virtually impervious to any challenge to its legality. If a single police officer decides the purpose of a roadblock and where to locate and how to conduct it, the subsequent procedures used are tainted by the arbitrariness of that initial decision. On the other hand, when there is evidence of explicit, neutral guidelines or supervision, the factors enumerated in Cloukey come into play to measure whether those policies or orders, and the execution of them by the officers in the field, were indeed objectively reasonable. Without any means to determine the objective reasonableness of this roadblock, it is impossible to distinguish this roadblock from the so-called “roving stop,” except that the police officer is in a fixed position while awaiting the target automobile.
In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the Court held that the police officer making a stop must either have an independent articulable suspicion or follow a substantial and objective standard or rule, pursuant to “previously specified ‘neutral criteria.‘” Id. at 661, 99 S.Ct. at 1400. A roadblock stop, not based on any individualized suspicion, must therefore be conducted pursuant to a previous guideline. The balancing test set out in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), even in light of the Sitz decision, is premised on the “individual‘s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977); see also Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) (“[t]he essential purpose in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the discretion by government officials, including law enforcement agents, in order ‘to safeguard the privacy and security of indi-
Notes
(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 public at large; (6) advance warning to individual approaching motorist; (7) maintenance of public safety; (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.
State v. Cloukey, 486 A.2d at 146 (citing State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983)). In the instant case, Curtis‘s roadblock arguably runs afoul of factors 1, 4, 5, 6, 7, and 10.