We are here required to decide whether a police roadblock designed to detect and deter drunk driving is constitutionally permissible where the police have failed to obtain a judicial warrant, have no probable cause to believe the automobile driver is engaged in criminal wrongdoing, and lack legislative authority to establish a roadblock. The issue is whether the warrantless search is prohibited by the Idaho constitutional prohibition against unreasonable searches and seizures. In light of the individual's right of freedom from arbitrary governmental intrusion, and the questionable efficacy of roadblocks, we conclude that such roadblocks cannot withstand constitutional scrutiny. We reverse.
A. FACTUAL AND PROCEDURAL BACKGROUND
On appeal from a judgment of conviction for driving while under the influence of alcohol (DUI), David Henderson contends that the roadblock at which he was stopped and subsequently arrested was an unreasonable search and seizure in violation of both the United States Constitution and the Idaho Constitution. Henderson moved to suppress all evidence of his intoxicated condition obtained during the stop on the basis that the evidence resulted from an unlawful seizure. Following a denial of that motion by the magistrate, Henderson entered a conditional plea of guilty. The district court, acting in an appellate capacity, affirmed the magistrate's judgment and sentence. Henderson now brings this appeal.
During Memorial Day weekend, the Boise City Police Department conducted a DUI roadblock on Main Street at its intersection with 29th Street, between midnight and two a.m. on Saturday, May 25, 1985. The chief of police approved the roadblock.
For the first five to ten minutes every vehicle was stopped. However, the resulting congestion prompted the roadblock commander either to stop vehicles on a sequence basis or to allow all vehicles to pass until the backup subsided. All drivers were given a pamphlet describing the purpose of the roadblock. By distributing the pamphlet, the officers could induce the driver to open his window and observe each driver for signs of intoxication, check for open containers, and signal the appropriate officer if a driver was believed to be intoxicated. If the particular car was not in the diverting pattern, but was believed to present a direct threat to the safety of those operating the roadblock, the car could be diverted.
Twenty-one uniformed police officers participated in the operation. Of the 942 drivers passing through the roadblock, 293 were diverted to an evaluation point. Eleven people, including David Henderson, were arrested for driving while intoxicated.
B. CONSTITUTIONAL STANDARDS
Article 1, § 17 of the Idaho Constitution provides:
The language of the fourth amendment to the United States Constitution is virtually identical.
445 U.S. 573, at 483-485, 100 S.Ct. 1371 at 1378-1379 (footnotes omitted). Warrantless searches are deemed "unreasonable" per se, "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Zapp, 108 Idaho 723, 726, 701 P.2d 671, 674 (Ct.App. 1985). The court stated in Zapp that there are three categories of encounters between citizens and the police. First is the arrest — a full scale seizure of the person, which the fourth amendment requires to be supported by probable cause. 108 Idaho at 726-727, 701 P.2d at 674-675. Second is the investigative detention — a seizure of limited duration which, when supported by a reasonable suspicion of criminal activity, falls within a judicially created exception to the fourth amendment. Id. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Third is voluntary contact, an encounter free of restraint or coercion outside the fourth amendment. Zapp, 108 Idaho at 727, 701 P.2d at 675. See e.g., Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). When a vehicle is stopped by a police officer and its occupants are detained, a seizure within the fourth amendment of the United States Constitution and art. 1, § 17 of the Idaho Constitution has occurred, even if the purpose of the stop is limited and the resulting detention is quite brief. Delaware v. Prouse, supra, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). United States v. Martinez-Fuerte, 428 U.S. 543, 556-558, 96 S.Ct. 3074, 3082-3083, 49 L.Ed.2d 1116 (1976). Thus, at a minimum, precedent suggests that police have individualized suspicion of criminal wrongdoing prior to stopping the driver of an automobile. Prouse, supra. Significantly, all exceptions to the warrant requirement, including a limited Terry stop, require individualized suspicion.
In Terry v. Ohio, supra, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, the Court stated that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure." The constitutionality of warrantless roadblocks is a question of first impression in Idaho. Neither this Court nor the Supreme Court of the United States has had occasion to determine whether police use of roadblocks constitutionally justifies recognition of a novel exception to the warrant requirement.
C. THE TRAVESTY OF THE DRUNK DRIVER
Without question, the drunk driver is one of society's greatest concerns. In 1986, the last year for which information is available, there were 2,584 alcohol related accidents, which comprised 19.2 percent of all accidents which resulted in fatalities or injuries requiring hospitalization.
Memorandum Decision, pp. 23-24.
In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Supreme Court of the United States commented on the gravity of the public concern in the following words:
Neville, 459 U.S. at 558-59, 102 S.Ct. at 919-20.
As public concern over the drunk driver has grown recently, measures have been taken to strengthen laws against drunk driving. A decade ago, in many jurisdictions, driving under the influence was merely considered a petty traffic violation. The law today has increased the penalties for driving under the influence of alcohol. In Idaho, the convicted drunk driver is subject to up to six months imprisonment and a $1,000 fine, and is automatically stripped of his or her license to drive. I.C. § 18-8005. Quite simply, the state's interest can be characterized as compelling. Protecting citizens from life-threatening danger is a paramount concern.
D. ROADBLOCKS ARE NOT AN EFFICIENT MEANS OF DETECTING OR DETERRING DRUNK DRIVING.
Although the state interest in limiting drunk driving is great, the efficacy of roadblocks is questionable. Boise Chief of Police Jim Montgomery stated that his general experience was that the same number of officers on patrol would make more DUI arrests than the same number of officers engaged in a roadblock. Tr., p. 75-76. Lieutenant Spears, the roadblock commander, acknowledged that it is more efficient to have well-trained officers on patrol for DUI than at a roadblock. Tr., p. 95. When asked if he could expect more arrests by
Lieutenant Spears testified that one of the purposes of the roadblock was to raise public awareness, so that drivers are deterred from driving while intoxicated. R., p. 98. However, if there were no arrests by the police, only "warnings," citizens would not be deterred from driving while drunk. People fear the loss of their license, jail, shame, and attorney fees, which result from the penal nature of the DUI offense. A roadblock is not an administrative search merely designed to raise awareness of the DUI problem. It is carried out by police — not OSHA or Health and Welfare officials — and if convictions are sustained, it has penal consequences. As the New Hampshire Supreme Court stated in holding a roadblock unconstitutional: "[T]here is nothing in this record, nor in decisions from other jurisdictions, to indicate that a roadblock program has any greater deterrent value than a well-publicized program of highly visible roving patrols." State v. Koppel, 127 N.H. 286, 499 A.2d 977, 982 (1985). A contrary view is stated by the Supreme Court of Virginia in Lowe v. Commonwealth of Virginia, 230 Va. 346, 337 S.E.2d 273 (1985), cert. denied 475 U.S. 1084, 106 S.Ct. 1464, 89 L.Ed.2d 720 (1986):
337 S.E.2d at 277. We cannot fairly conclude that the deterrent effect of sobriety roadblocks is negligible. Nevertheless, although the government interest in reducing alcohol related accidents is great, that end is not necessarily best served by a warrantless roadblock search, which yields fewer DUI arrests than does the usual procedure which first detects criminal wrongdoing.
E. THE ABSENCE OF LEGISLATIVE AUTHORITY TO ESTABLISH A ROADBLOCK
For constitutional purposes, the action of an individual law enforcement officer is the action of the state itself. Ex parte Virginia, 100 U.S. (10 Otto) 339, 346-347, 25 L.Ed. 676 (1880). The roadblock in the instant case, however, was not conducted pursuant to authority granted by the Idaho legislature. If anything, the legislature disapproves of roadblocks conducted without evidence of criminal wrongdoing. In 1984 the legislature promulgated a "Report of the Joint Subcommittee on DUI," regarding the evidentiary test embodied in I.C. 18-8002. The report states:
Idaho Senate Journal, Feb. 22, 1984, p. 96 (emphasis added).
Idaho Code § 19-621, which grants authority to establish roadblocks, does so only where it is reasonably believed that persons have broken the law. The statute provides:
F. THE LACK OF SUSPICION OF CRIMINAL WRONGDOING
Perhaps the most important attribute of our way of life in Idaho is individual liberty. A citizen is free to stroll the streets, hike the mountains, and float the rivers of this state without interference from the government. That is, police treat you as a criminal only if your actions correspond. Such is not the case with roadblocks. As the Court stated in Commonwealth v. Tarbert, [348 Pa.Super. 306] 502 A.2d 221 (1985):
502 A.2d at 225-26. Of the states addressing the issue, 15 have suppressed evidence resulting from DUI roadblocks:
743 P.2d at 712.
Similarly, the Oklahoma court in State v. Smith, 674 P.2d 562 (Okl.App. 1984), stated:
674 P.2d at 564-65.
The states of Oregon, Oklahoma, and Washington have adopted per se rules which provide that drunk driver roadblocks are unconstitutional under any circumstance. See State v. Boyanovsky, supra, 304 Or. 131, 743 P.2d 711 (1987); State v. Smith, supra, 674 P.2d 562 (Okl.App. 1984); and City of Seattle v. Mesiani, supra, 110 Wn.2d 454, 755 P.2d 775 (1988) (en banc). However, we decline to adopt such a rigid rule.
The Idaho legislature has not provided police with statutory authority to establish roadblocks, nor has the legislature promulgated rules of procedures under which a magistrate or district judge can issue a warrant to authorize the police to conduct a roadblock designed to apprehend drunk drivers. Legislators elsewhere have utilized such an approach. For example, in New Hampshire a trial court must make an affirmative finding that the intrusion upon individualized rights of privacy is outweighed by the public interest prior to authorizing a roadblock to apprehend intoxicated drivers. See Opinion of the Justices, note 3 supra, 128 N.H. 14, 509 A.2d 744 (1986). However, such facts are not now before us. We therefore express no view as to the constitutionality of roadblocks established with prior judicial authorization pursuant to legislative authority.
Accordingly, we hold that where police lack express legislative authority, particularized suspicion of criminal wrongdoing and prior judicial approval, roadblocks established to apprehend drunk drivers cannot withstand constitutional scrutiny. Although the United States Supreme Court has not yet decided whether warrantless roadblocks violate the federal constitution, we base our decision today solely on art. 1, § 17 of the Idaho Constitution. The Idaho Constitution can, where appropriate, grant more protection than its federal counterpart. See Gibson v. State, 110 Idaho 631, 635, 718 P.2d 283, 287 (1986); State v. Johnson, 110 Idaho 516, 520 n. 1, 716 P.2d 1288, 1292 n. 1 (1986); State v. Newman,
Because the evidence used to convict the appellant was unconstitutionally obtained pursuant to a warrantless search, prior to which the police lacked individualized suspicion of criminal wrongdoing and authority to establish a roadblock, the magistrate erred in denying appellant's motion to suppress. Accordingly, the judgment of conviction is reversed.
No costs on appeal.
BISTLINE, J., and McFADDEN, J. Pro Tem., concur.
WALTERS, Judge Pro Tem., dissenting.
With all due respect, I dissent from the foregoing opinion. The sole, dispositive issue in this case is whether the sobriety checkpoint was constitutionally permissible. I believe that it was.
For a clearer understanding of my approach to this case, a more detailed recital of the facts developed below is necessary. The undisputed facts show that the Boise City Police Department established a sobriety checkpoint on Main Street at its intersection with 29th Street, between midnight and two a.m. on Saturday, May 25, 1985. This roadblock was the culmination of several months of study by the police department. The officers at the checkpoint followed written standards that had been formulated by supervisory personnel. The chief of police approved the preconceived plan. Advance announcement of the date, but not the exact location of the intended roadblock, was publicized for several weeks in the local news media. The site was selected because it was in an area having an established history of alcohol-related traffic violations, was on a street with heavy traffic volume, was readily visible to the general public, and insured the safety of the motorists and officers involved. The roadblock was visible for a number of blocks on Main Street, starting at about 18th Street. The street was well lighted with artificial illumination at night. Two marked police cars with flashing overhead lights were positioned at the beginning of the roadblock to warn motorists of the oncoming obstacle. Three other marked police cars with flashing overhead lights were at the location. In addition, large flashing signs displaying the word "roadblock" were positioned near the entrance of the checkpoint. A flashing arrow, merge signs, reflectorized barrels and traffic-control cones marked the area which funneled vehicles from five lanes into one. An adjacent parking lot was used for administering field-sobriety tests. Motorists could turn off Main Street and avoid the roadblock until 25th Street. Motorists could also park their cars and walk away up to the entry point around 27th Street. No motorists were stopped for avoiding the roadblock.
For the first five to ten minutes every vehicle was stopped, however, the resulting congestion prompted the roadblock commander to either stop vehicles on a sequence basis or to allow all vehicles to pass until the backup subsided. All drivers were given a pamphlet describing the purpose of the roadblock. By distributing the pamphlet, the officers could observe each driver for signs of intoxication, check for open containers, and signal the appropriate officer if a driver was believed to be a hazard. If the particular car was not in the diverting pattern, but was believed to present a direct threat to the safety of those operating the roadblock, the car could be diverted. Most motorists, those who were not evaluated, generally passed through the roadblock within twenty seconds to two minutes.
Twenty-one uniformed police officers participated in the operation. Of the 942 drivers passing through the roadblock, 293 were diverted to an evaluation point. Eleven
The purpose of the roadblock was explained by the following testimony at the hearing on Henderson's motion to suppress. In sum, the purpose was primarily to promote public safety by deterring drunk driving rather than to discover evidence of criminal activity.
The efficacy of the roadblock in terms of DUI arrests was in dispute. One officer testified that a roadblock was a more efficient method of detecting drunk drivers because in less than two hours, eleven drunk drivers were detected. Two others testified that officers on patrol would make more DUI arrests than the same number of officers engaged in a roadblock. However, efficiency of DUI arrests was not the primary consideration of the roadblock according to Lieutenant Spears. Sergeant Thompson testified that there were no fatalities involving drinking drivers in Boise during that weekend.
At the time of the roadblock stop, there was no probable cause to believe that David Henderson, the appellant in this case, was driving while intoxicated. Henderson's vehicle was not stopped based upon his driving pattern or upon other objective physical observations for purposes of I.C. § 18-8002, Idaho's DUI statute. After being stopped, an officer trained in DUI detection gave Henderson a standard speech with words to the effect: "Good evening. This is the Boise Police Department roadblock. We are testing all drivers for being under the influence. Would you mind taking the gaze nystagmus test?"
Henderson asserts that DUI roadblocks are per se unconstitutional. He contends that sobriety checkpoints are an unreasonable interference with individual liberties, considering that there are less intrusive ways to combat the problem of drunk drivers. On the other side, the state argues that properly conducted DUI roadblocks are constitutionally permissible because the compelling state interest in highway traffic safety outweighs the minor intrusion by brief, nonarbitrary and systematic inspections.
As noted in the majority opinion, the United States Supreme Court has not yet ruled on the constitutionality of the DUI roadblock. However, that Court has considered the legality of an investigative stop where the officer did not have probable cause or reasonable suspicion to believe criminal activity was under way. In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574 (1975), the Supreme Court invalidated roving border-patrol stops made without probable cause to believe that the occupants were violating immigration laws. The seizure was held to be unreasonable because of the broad discretion left to officers in the field and the frightening aspect of a random nighttime stop. The following year, in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Supreme Court upheld warrantless stops at permanent checkpoints for the purpose of discovering immigration law violators. The Court balanced the reasonableness of physical and procedural factors against the public interest served by the minimal intrusion. The crucial distinction between the stop in Brignoni-Ponce and the stop in Martinez-Fuerte, was the lesser intrusion upon the motorist's fourth amendment interests. "At traffic checkpoints the motorists can see that the other vehicles are being stopped, he can see visible signs of the officer's authority, and he is much less likely to be frightened or annoyed by the intrusion." United States v. Ortiz, 422 U.S. 891, 894, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975), quoted in Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083.
In a subsequent case, Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Supreme Court invalidated a Texas statute which made it a crime to refuse to identify oneself to a police officer upon request, in part because the risk of arbitrary and abusive police practices exceeded tolerable limits. Finally, in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the Supreme Court denounced selective, single-car stops for checking licenses and registrations but opined that states could develop means less intrusive than random stops, such as roadblocks for permissible, warrantless spot checks. The Court's conclusion in Prouse is often cited by state courts holding that DUI roadblocks are permissible if they meet certain criteria:
Id. at 663, 99 S.Ct. at 1401. These Supreme Court cases provide a framework for the analysis of the constitutionality of the DUI roadblock in question, to which I now turn.
The premise to the constitutional challenge is the fourth amendment to the United States Constitution which guarantees "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures" and that "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." Article 1, § 17 of the Idaho Constitution is almost identical in language and exactly identical in purpose to the fourth amendment. State v. Arregui, 44 Idaho 43, 254 P. 788 (1927). While federal law establishes minimal constitutional protections, the state has the power to impose higher standards on searches and seizures than those required of the United States Constitution. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). However, the Idaho Supreme Court has construed art. 1, § 17 of the Idaho Constitution in pari materia or as the functional equivalent of the fourth amendment. Therefore consideration of the conduct in question — a DUI roadblock — under construction of the fourth amendment by case law is instructive and highly persuasive, if not controlling. Cf. State v. Cowen, 104 Idaho 649, 662 P.2d 230 (1983); State v. Oropeza, 97 Idaho 387, 545 P.2d 475 (1976); State v. Peterson, 81 Idaho 233, 340 P.2d 444 (1959); Arregui, supra. In this same vein, the Pennsylvania Supreme Court recently noted:
Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035, 1038 (Pa. 1987). The pivotal point of the inquiry, then, is whether the conduct in question was reasonable, for it would be a curious result indeed — and perhaps an unwise judicial policy — to hold the conduct unreasonable under the Idaho Constitution if the same conduct appeared clearly to pass muster under the federal constitution, in light of the similarity in the language of the two constitutional provisions.
The essence of the prohibition against unreasonable searches and seizures is to "safeguard the privacy and security of individuals against arbitrary invasions of governmental officials." Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967); Prouse, 440 U.S. at 653, 99 S.Ct. at 1395. The fourth amendment does not forbid all searches and seizures, but rather unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446 (1960). There is no ready test for determining reasonableness of a search and seizure other than by balancing the need to search or seize against the invasion which the search or seizure entails. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Camara, 387 U.S. at 534-537, 87 S.Ct. at 1735. The Supreme Court articulated a balancing test in Brown, supra:
443 U.S. at 50-51, 99 S.Ct. at 2640.
Clearly, stopping a vehicle and detaining its passengers constitutes a "seizure" within the ambit of the fourth amendment even though the investigatory stop is brief and limited in purpose. Prouse, 440 U.S. at 655, 99 S.Ct. at 1396; Martinez-Fuerte, 428 U.S. at 556-558, 96 S.Ct. at 3082-83; Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. at 2578. In California, a sobriety checkpoint program recently was challenged on the ground that there was no individualized suspicion of wrongdoing evident, preceding the vehicular stops. The California Supreme Court, in response to that argument, said:
Ingersoll v. Palmer, 43 Cal.3d 1321, 241 Cal.Rptr. 42, 47, 743 P.2d 1299, 1303-04 (Cal. 1987). Because the checkpoint was primarily for the regulatory purpose of keeping intoxicated drivers off the highways, to the end of enhancing public safety, the court likened the roadblock to an airport search. The court said:
Id. at 49-50, 743 P.2d at 1306.
As stated above in Brown, the reasonableness of the seizure is determined by balancing the legitimate governmental interest and the degree to which the seizure advances that interest against the severity of the intrusion on the individual's fourth amendment rights. In the case at hand, the need of society to reduce the frightening slaughter on our highways caused by drunk drivers should be balanced against the rights of citizens to move freely about on the highways. Thus, I turn next to a discussion of the Brown factors and the balancing test.
1. Governmental Interest. The state has a vital interest in promoting public safety by reducing alcohol-related traffic accidents and by ensuring the fitness of drivers behind the wheel. As aptly stated by the district court below in its memorandum decision:
In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Supreme Court commented about the gravity of the public concern in the following words:
Id. 459 U.S. at 558-59, 103 S.Ct. at 919-20.
Quite simply, the state's interest can be characterized as compelling. Protecting citizens from life-threatening dangers is a paramount concern.
2. Individual Interests. The right to operate a motor vehicle on a public road in Idaho is not a natural or unrestricted right, but a privilege granted by the state subject to revocation, cancellation or suspension under certain conditions. Gordon v. State, 108 Idaho 178, 697 P.2d 1192 (Ct.App. 1985). The enjoyment of the privilege is subject to reasonable regulations by the state to ensure safety, good order and the public welfare. As such, the State of Idaho requires vehicle registration, I.C. §§ 49-101 to 49-158; liability insurance, I.C. § 49-233; driver's licenses, I.C. §§ 49-301 to 49-358; obedience to traffic rules, I.C. §§ 49-601 to 49-761A; and safe equipment, I.C. §§ 49-801 to 49-849. This statutory scheme is for the purpose of protecting citizens from incompetent drivers, negligent vehicle operation, financially irresponsible drivers, and unsafe vehicles. Operating a motor vehicle is a highly regulated activity, therefore the driver accepts the regulatory burden along with the benefit of using the public roads.
Further, the Oregon Supreme Court said in State v. Tourtillott, 289 Or. 845, 618 P.2d 423 (1980):
Id. 618 P.2d at 432-33.
Clearly, a person has a reduced expectation of privacy in an automobile because of its mobility, visibility and regulation. Once a person operates such a dangerous instrumentality on a public road, that person impliedly consents to reasonable law enforcement techniques to assure compliance with appropriate highway safety standards. See I.C. § 18-8002.
Here, the intrusion of the individual's right to travel freely was momentarily impeded at a fixed point in a systematic way, unless the driver was impaired. The purpose was not to search the vehicle for contraband, but rather to check the competency of the driver. The motorist was not taken by undue surprise nor subjected to arbitrary, abusive or harassing police behavior. For the most part the inconvenience appears to have been slight, and could easily have been avoided altogether. The reasonableness of the procedures followed by the Boise Police Department (discussed below), also made the intrusion minimal.
3. Advancement of the Public Interest. The degree to which the DUI roadblock advanced the public interest was disputed in the proceedings below. In terms of public awareness, the message of "don't drink and drive" was perhaps a success, although empirical data is scarce. No alcohol-related traffic fatalities occurred during the weekend. I surmise that the prior notice deterred some persons from driving while intoxicated. In terms of apprehending drunk drivers, the same number of officers on patrol would probably make more DUI arrests than those officers involved in the roadblock. However, detection was secondary to the goal of educating the public about the problems and consequences of driving while intoxicated. The California Supreme Court has noted that the number of arrests does not necessarily measure the effectiveness of the sobriety checkpoint. "If the checkpoint is properly serving its function — deterrence — it may result in no arrests at all." Ingersoll v. Palmer, 43 Cal.3d 1321, 241 Cal.Rptr. 42, 55, 743 P.2d 1299, 1311 (1987).
As the court said in State v. Garcia, 500 N.E.2d 158 (Ind. 1986):
Id. at 162.
Id. 519 A.2d at 990-991.
4. Balancing Test. As to the balancing test itself, the Kansas Supreme Court identified 13 factors to consider in determining whether a sobriety checkpoint is a reasonable accommodation of the public's interest in highway safety with the individual's right to travel freely without governmental intrusion. The court stated:
From my review of the decisions in other jurisdictions upholding sobriety checkpoints or roadblocks as reasonable under the fourth amendment, I believe Deskins sets forth the most thorough statement of the factors to be considered in deciding whether a roadblock is reasonable. I thus turn to the roadblock at issue and examine the logistical and procedural facts using the Deskins factors.
The roadblock was well identified as a police checkpoint. Road signs, marked official vehicles with flashing overhead lights, and the presence of 21 uniformed officers warned approaching motorists of the police authority conducting the roadblock. Advance notice in the news media, including radio, television and newspaper coverage, of the date of the intended roadblock, had the virtue of reducing the public's fear, surprise, and inconvenience of the proposed police activity. Administrative officers planned the roadblock in advance, selecting the location, time and procedures pursuant to carefully formulated standards and neutral criteria. Selection of motor vehicles to be stopped was not arbitrary or random. Safety was assured by a well-lighted area, unobstructed view, and a wide roadway. Approaching motorists were timely informed of the nature of the impending intrusion by pamphlet and courteous introductory remarks by the police officers. Motorists who were not impaired were detained for as short a time as possible. The average motorist waited two minutes or less. The roadblock occurred in the early morning hours when traffic was lighter, and lasted two hours. The site was selected because it was the highest accident location where alcohol was involved in 1984, and the second highest in 1983 in the jurisdiction of Boise City.
The availability of less intrusive methods for combating the problem of drunk drivers was discussed by Justice Feldman in his concurring opinion in State ex rel. Ekstrom v. Justice Ct. of State of Arizona, 136 Ariz. 1, 663 P.2d 992 (1983):
Id. 663 P.2d at 999-1000.
On balance, the highly important state interest in preventing alcohol-related automobile accidents and fatalities before they occur by deterring the drunk driver outweighs the minimal intrusion on an individual's right to freely travel upon a public roadway. The scales tip in favor of the public welfare, and hence justify the systematic, nondiscretionary and brief stop to check the sobriety of the driver. I therefore conclude that the DUI roadblock in this case passes constitutional scrutiny. The actions of the Boise Police Department were lawful, and it follows that the evidence obtained by the stop was admissible. The trial court did not err in denying the motion to suppress the evidence.
Henderson poses the alternative argument — accepted by the Court in its lead opinion — that the legislature of the State of Idaho disapproves the DUI roadblock, as it has not statutorily permitted such roadblocks for the express purpose of checking sobriety. Henderson supports this argument by citing a statement included in a "Report of the Joint Subcommittee on DUI" regarding implied consent on the part of motor vehicle operators to an evidentiary test for the presence of alcohol or drugs, I.C. § 18-8002. The report states: "The committee has chosen to include probable cause to stop and request that the exam be taken to discourage such practices as roadblocks which are strictly allowable only in certain situations as provided in I.C. § 19-621."
Just this year, our legislature announced a position reflecting public policy toward the problem of intoxicated drivers, although not in the context of specifically addressing sobriety roadblocks. The legislature recently adopted a program for electronic monitoring of drivers who have received convictions or withheld judgments for violation of the DUI statutes, by allowing the driver — as a condition of probation — to operate a vehicle upon restricted driving privileges where the operator's vehicle is equipped with an "ignition interlock device." In its enactment, the legislature made an expression of intent. It said: "The legislature finds and declares: (1) There is a need to reduce the incidence of drivers on the highways and roads of this state who, because of their use or consumption of alcohol, pose a danger to the health and safety of other drivers; ...." 1988 Idaho Sess. Laws, ch. 339, § 1. The legislature's expressed concern is relevant to the instant case and should not be ignored.
I readily concede that the people of Idaho most often speak through their legislature on matters of public policy. Consequently, if the legislature were to adopt a statute prohibiting sobriety checkpoints, then such legislation would be a clear expression of public policy in Idaho. Compare Commonwealth v. Tarbert ___ Pa. ___, 535 A.2d 1035 (Pa. 1987). Absent such a declaration reflecting the will of the electorate,
I am also not persuaded that the propriety and legality of the roadblock in this case turns on the existence of prior approval by the Legislature, as postulated by the majority's opinion. The sole question before us is whether a sobriety checkpoint is constitutionally permissible. If it is not, then any action by the Legislature with regard to sobriety roadblocks is superfluous. Legislative authorization does not per se render a police activity constitutional. To the contrary, such legislation itself may be unconstitutional. However, we are not called upon here to review the constitutionality of legislation; instead, we are presented only with a review — within the confines of the constitutions — of the police activity. As stated, I have concluded the roadblock conducted in the instant case is not violative of any pertinent constitutional provision.
The order refusing to suppress evidence, and Henderson's judgment of conviction for driving while under the influence, should be affirmed.
BAKES, J., concurs.
The following chart shows the same statistics between 1982 and 1986:
Percentage of Accidents Resulting in Fatality or Number of Alcohol Related Serious Injury That DUI Arrests: Year: Accidents: Were Alcohol Related: 1982 2,967 21.7 11,637 1983 2,857 20.4 12,096 1984 2,671 18.3 11,646 1985 2,401 17.4 11,047 1986 2,584 19.3 11,611
Cases from nineteen jurisdictions upholding sobriety checkpoints include: State v. Superior Court in and for County of Pima, 143 Ariz. 45, 691 P.2d 1073 (1984); Ingersoll v. Palmer, 43 Cal.3d 1321, 241 Cal.Rptr. 42, 743 P.2d 1299 (1987); State v. Abelson, 485 So.2d 861 (Fla.App. 1986); State v. Golden, 171 Ga.App. 27, 318 S.E.2d 693 (1984); Illinois v. Bartley, 109 Ill.2d 273, 93 Ill.Dec. 347, 486 N.E.2d 880 (1985); State v. Garcia, 500 N.E.2d 158 (Ind. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1987); State v. Riley, 377 N.W.2d 242 (Iowa App. 1985); State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); Kinslow v. Commonwealth, 660 S.W.2d 677 (Ky.App. 1983); State v. Cloukey, 486 A.2d 143 (Me. 1985); Little v. State, 300 Md. 485, 479 A.2d 903 (1984); Commonwealth v. Trumble, 396 Mass. 81, 483 N.E.2d 1102 (1985); Stark v. Perpich, 590 F.Supp. 1057 (D.Minn. 1984); Opinion of the Justices, 128 N.H. 14, 509 A.2d 744 (1986); State v. Coccomo, 177 N.J.Super. 575, 427 A.2d 131 (1980); City of Las Cruces v. Betancourt, 105 N.M. 655, 735 P.2d 1161 (N.M.App. 1987); People v. Scott, 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1 (1984); People v. Torres, 125 Misc.2d 78, 478 N.Y.S.2d 771 (1984); People v. Peil, 122 Misc.2d 617, 471 N.Y.S.2d 532 (1984); State v. Alexander, 22 Ohio Misc.2d 34, 489 N.E.2d 1093 (Ohio Mun. 1985); State v. Goines, 16 Ohio App.3d 168, 474 N.E.2d 1219 (Ohio App. 1984); Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985), cert. denied, 475 U.S. 1084, 106 S.Ct. 1464, 89 L.Ed.2d 720 (1986).
In the following cases, sobriety checkpoint stops have been held invalid — not on the basis that such stops were per se unconstitutional — but because the particular circumstances of each of the stops were not such that the court could conclude the roadblock under review was a reasonable seizure: State ex rel. Ekstrom v. Justice Court of State, 136 Ariz. 1, 663 P.2d 992 (1983); State v. Jones, 483 So.2d 433 (Fla. 1986); State v. McLaughlin, 471 N.E.2d 1125 (Ind. App. 1984); Commonwealth v. Amaral, 398 Mass. 98, 495 N.E.2d 276 (1986); Commonwealth v. McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983); State v. Muzik, 379 N.W.2d 599 (Minn. App. 1985); State v. Crom, 222 Neb. 273, 383 N.W.2d 461 (1986); State v. Koppel, 127 N.H. 286, 499 A.2d 977 (1985); State v. Egan, 213 N.J.Super. 133, 516 A.2d 1115 (1986); State v. Kirk, 202 N.J.Super. 28, 493 A.2d 1271 (1985); State v. Olgaard, 248 N.W.2d 392 (S.D. 1976); Webb v. State, 695 S.W.2d 676 (Tex. App. 1985); State v. Martin, 145 Vt. 562, 496 A.2d 442 (1985).
Finally, in Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (Pa. 1987), the Pennsylvania Supreme Court recently held that although a sobriety checkpoint may be constitutionally acceptable by the manner in which it is managed and conducted, and the Pennsylvania legislature apparently had authorized such roadblocks beginning in 1985, the court found that the two checkpoints under review in Tarbert had occurred prior to 1985, during a time when such roadblocks were prohibited by statute.
This statute, enacted in 1957, is directed toward the apprehension of persons "wanted" for law violations. It does not, by its terms, prohibit checkpoints for other legitimate purposes such as deterring intoxicated drivers from operating motor vehicles on public highways.