Summary
In State v. Blackburn, 63 Ohio Misc.2d 211, 620 N.E.2d 319, 324 (Mun. 1993), an Ohio municipal court held that, "[i]n the absence of any substantial justification," sobriety checkpoints were unlawful under the state constitution.
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No. 92TRC14942.
Decided August 11, 1993.
Kathryn A. Reckley, Assistant Springfield City Prosecutor, for plaintiff. Shawn Thomas, for defendant.
These charges of operating a motor vehicle while under the influence of alcohol and with a prohibited concentration of alcohol in violation of R.C. 4511.19(A)(1) and (A)(3) were before the court on November 20, 1992 upon the motion of the defendant, Shelly J. Blackburn, to suppress all testimony of the officers' observations and to suppress testimony about the administration and results of a breath-alcohol concentration test of Blackburn. Blackburn alleges that authorities lacked reasonable, articulable suspicion to stop her, thereby violating her Fourth and Fourteenth Amendment rights to the United States Constitution and her rights under Sections 14 and 16, Article I of the Ohio Constitution. The matter was also before the court on the motion of the state to overrule the motion to suppress without hearing for lack of particularity under Crim.R. 47, and upon Blackburn's reply to that motion. The state was represented by Kathryn Reckley and Blackburn by Shawn Thomas.
For the reasons set forth below, the state's motion to overrule without hearing is denied, and Blackburn's motion to suppress is granted.
The motion to suppress filed October 22, 1992 states that there was no reasonable, articulable suspicion to stop Blackburn based upon the Fourth Amendment to the United States Constitution and on Section 14, Article I of the Ohio Constitution. The stop here was at a sobriety checkpoint. Municipal Court Statement (short, yellow paper). This is acknowledged by the state in its memorandum in support of its motion to overrule without hearing. Since the grounds for the constitutional challenge are that there was no reasonable articulable suspicion to stop at the roadblock, the pleadings have given the state adequate notice of the issue, and the motion to overrule for lack of specificity was denied. Blackburn's motion to suppress proceeded to hearing.
Based upon the testimony and evidence presented, the court makes the following findings of fact:
1. A roadblock was set up near the junction of U.S. Route 40 and Ohio Route 68 on the outskirts of the city of Springfield by the Ohio State Highway Patrol.
2. The checkpoint was from approximately 9:00 p.m., Friday, September 18, 1992 to 3:00 a.m., Saturday, September 19, 1992.
3. Orange barrels funnelled traffic into one lane, and a driver proceeded approximately seventy-five feet in this single lane prior to the stop of the vehicle.
4. The checkpoint was staffed by twenty to twenty-five officers.
5. All seven hundred four vehicles which traveled U.S. 40 were stopped at the checkpoint by uniformed officers.
6. Three arrests were made.
7. Each initial detention was a minimum of two minutes and a maximum of five minutes.
8. Officers asked for the driver's license and vehicle's registration. Officers also looked for signs of intoxication.
9. If a driver did not have a valid license or could not produce a valid license or registration, or if there was an odor of alcohol or other signs of intoxication, then the driver was instructed to pull to the side of the checkpoint area where the drivers were further detained.
10. As Blackburn came through the checkpoint, several officers yelled at her to stop. Sergeant Eric Widmeyer checked her license, which was valid, and noted an odor of alcohol. Blackburn's passenger, the car's owner, had not yet located the vehicle's registration. For these reasons, Widmeyer instructed Blackburn to pull over for further detention.
11. Blackburn's stop was a seizure.
12. Blackburn was arrested without a warrant for OMVI. Prior to the stop, no violations of the law were observed. There was no erratic driving.
13. A solo officer on routine patrol would normally make two or three arrests for OMVI during a weekend night shift.
14. There was no evidence presented as to guidelines governing checkpoint operation, site selection, and publicity.
Blackburn argues that her stop is impermissible under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. Constitutional guarantees against unreasonable seizures apply to automobile stops. United States v. Martinez-Fuerte (1976), 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116, 1127. Vehicles may be stopped on less than probable cause where there is reasonable, articulable suspicion of wrong doing. United States v. Brignoni-Ponce (1975), 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (holding that the Terry v. Ohio standard to stop an individual applies to automobiles).
In regard to the Fourth Amendment challenge, there is an exception to the Terry v. Ohio requirement of reasonable, articulable suspicion to stop at sobriety checkpoints where a balancing test applies to determine the constitutionality of the stop. Michigan v. Sitz (1990), 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412. Under Sitz, the government's interest in eliminating the drunk-driving problem and the effectiveness of the sobriety checkpoint outweighed the intrusion on the individual's right to be free from unreasonable searches and seizures where the checkpoint was operated under guidelines established for operation, site selection, and publicity, where all vehicles were stopped briefly and drivers observed for signs of intoxication, and where the intrusion upon motorists was not substantial. In Sitz, one hundred twenty-six vehicles were stopped in seventy-five minutes for about twenty-five seconds each, and two arrests were made.
Here, the state bears the burden of proof that the requirements of Sitz were met. The state offered no evidence regarding any guidelines that were adopted or followed in regard to site selection, operation, or publicity as required by Sitz. The state chose to rest its case on the merits of its motion to overrule for lack of specificity. Cross-examination revealed that the initial seizures were a minimum of two minutes and a maximum of five minutes, contrasted to the twenty-five second detentions in Sitz. Of the seven hundred four vehicles stopped by twenty to twenty-five officers over approximately six hours, three drivers were arrested for operating a motor vehicle while under the influence of alcohol. Each of these officers would normally make three arrests while patrolling alone on a weekend night shift. Not only were drivers examined for signs of intoxication, their licenses and registrations were also reviewed.
Although a roadblock may have value as an educational tool, the state did not establish that any guidelines for site selection and publicity were established and followed, or that the seizures were sufficiently time limited. Absent such evidence, the state has failed to sustain the burden of proof, and the motion to suppress upon Fourth Amendment grounds is well taken.
In regard to the Ohio constitutional challenge, Blackburn argues that Section 14, Article I requires that there be reasonable, articulable suspicion of criminal activity for her stop. To adopt this position is to invalidate all roadblocks, which this court is unwilling to do. On the facts of this case, however, Blackburn's challenge is sustained.
This state does not assert that the stop is not a seizure. Seizures are permitted based upon reasonable articulable suspicion of wrongdoing for purposes limited to the scope of the basis for the original seizure which, if not pretextual, may provide the basis for further investigation and detention. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.
Here, there was no individualized suspicion of wrongdoing. Sgt. Eric Widmeyer testified that he did not see Blackburn until the car she was driving was funnelled into one lane by orange barrels. He saw no violations of any law. All seven hundred four vehicles, including hers, were stopped.
This challenge to the roadblock on independent state constitutional grounds is a case of first impression in Ohio. In State v. Alexander (1985), 22 Ohio Misc.2d 34, 22 OBR 342, 489 N.E.2d 1093, the municipal court found the roadblock under scrutiny there constitutional, noted the correspondence of the state and federal search and seizure provisions and assumed, without specifically saying, that the outcome would be the same under both provisions. The court thus made only passing reference to Section 14, Article I of the Ohio Constitution and, in a prescient decision, set forth reasoning strikingly similar to that articulated five years later in Michigan v. Sitz (1990), 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412.
Here, however, this court is squarely confronted with the validity of the roadblock under separate state grounds. For guidance, this court looks to fundamental principles of constitutional construction and to the intent of the framers and the people, and then to recent decisions of this state's high court as controlling authority. The decisions of other state high courts are considered persuasive.
The federal Constitution establishes a minimum level of protection to citizens of all the states. Oregon v. Hass (1975), 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570. States interpreting their own constitutions may afford their citizens greater rights than those deemed minimal under federal law. Cooper v. California (1967), 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.
Where states have decided the roadblock issue under independent state grounds, the majority has found them to be violative of their constitutions. E.g., Sitz v. Dept. of State Police (1992), 193 Mich. App. 690, 485 N.W.2d 135; contra Ingersoll v. Palmer (1987), 43 Cal.3d 1321, 241 Cal.Rptr. 42, 743 P.2d 1299 .
This analysis begins with the fundamental principle of constitutional construction to determine the intent of the framers of the documents and of the people in adopting them. The Constitution of 1802 provided:
"That the people shall be secure in their persons, houses, papers and possessions, from unwarrantable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without probable evidence of the fact committed, or to seize any person or persons not named, whose offenses are not particularly described, and without oath or affirmation, are dangerous to liberty, and shall not be granted." Section 5, Article VIII.
This section prohibited any search or seizure without a warrant; it further required that warrants be issued on probable cause supported by oath. Two types of police-citizen contact were permissible, seizure by warrant or contact where participation by the citizen was voluntary. This provision is a strong statement of the framers' belief in the security of the person and the right to be left alone without justifiable intrusion.
When the Ohio Constitution's language was changed in 1852 to comport with the Fourth Amendment, delegates reaffirmed the importance of individual freedom in stating:
"Resolved, that the (bill of rights) of the constitution of this state, embracing the well-settled principle of self-government against encroachments of power, and securing to all the largest liberty, * * * accords, in its principle, with the cherished sentiments of the people of Ohio, and ought * * * to be continued without material alteration as their bill of rights." I Smith, Debates of the Ohio Convention (1851, reprinted 1933), at 69-70.
The importance of the guarantees of personal freedom from unjustified intrusion was further underscored by moving the Bill of Rights to Article I of the revised document. From this review, the commitment of the framers of the Ohio Constitution and of the people in adopting it to freedom from unsanctioned governmental seizures is unmistakable.
Research has revealed two recent cases of this state's Supreme Court discussing constitutional issues on independent state grounds. The first is State v. Brown (1992), 63 Ohio St.3d 349, 352, 588 N.E.2d 113, 115, where the court held that "a police officer may [not] conduct a detailed search of an automobile solely because he has arrested one of its occupants, on any charge." (Emphasis deleted.) Brown notes that state constitutions may impose greater restraints on police conduct than does the federal Constitution. Id. at 352, 588 N.E.2d at 115, fn. 3. The second is State v. Storch (1993), 66 Ohio St.3d 280, 612 N.E.2d 305, where, after an extensive discussion of cases applicable to the Confrontation Clause of the Sixth Amendment and Section 10, Article I of the Ohio Constitution, the court concluded that the express words of the Ohio Constitution do provide greater rights of confrontation than under current United States Supreme Court interpretation of the federal Confrontation Clause. Thus, this state's Supreme Court has utilized its authority to make independent analysis of questions raised on state constitutional grounds, and has found greater limitations on governmental power and broader protections for Ohio citizens than those provided by current interpretation of the federal Constitution.
Finally, this court turns to the decisions of other state high courts for instruction. In Sitz, on remand from the United States Supreme Court, the Michigan Court of Appeals decided, based upon constitutional construction and state constitution and common-law history, that individuals may not be indiscriminately stopped without some reasonable grounds or some suspicion that criminal activity is afoot. Sitz v. Dept. of State Police (1992), 193 Mich. App. 690, 697, 485 N.W.2d 135, 139. State v. Henderson (1988), 114 Idaho 293, 756 P.2d 1057, held that "a police roadblock designed to detect and deter drunk driving is not constitutionally permissible where police have failed to obtain a judicial warrant, and have no probable cause to believe an automobile driver is engaged in criminal wrongdoing * * *." Pimental v. Dept. of Transp. (R.I. 1989), 561 A.2d 1348, refused to dilute guarantees of individual freedom and privacy on the speculative chance that one or two may be violating the law when other less intrusive means — stops based upon reasonable suspicion — are available. A minority view is found in Ingersoll v. Palmer (1987), 43 Cal.3d 1321, 241 Cal.Rptr. 42, 743 P.2d 1299, which focused on the purpose of the seizure and said that where the primary purpose is to promote public safety and not to discover evidence of a crime, a standard of less than reasonable articulable suspicion is acceptable because constitutional protections are not required. This ends-justifies-the-means approach does not find support under the Ohio Constitution's search and seizure provision, which is nearly identical to those of Michigan, Rhode Island, and Idaho.
Daily the court is reminded of the pain and agony caused by the crimes of driving under the influence, driving with a prohibited concentration of alcohol, and by other prohibited conduct such as child abuse, domestic violence, drug abuse, theft, robbery and many others. Although prevention of these crimes is a valid state objective, here, there was no evidence as to the necessity for the roadblock over the traditional method of law enforcement: routine patrol. There was also no evidence that other new, creative non-traditional methods of enforcement such as DUI repeat offender hit lists and telephone tip hot lines are unproductive. The evidence did reveal that this roadblock resulted in significantly fewer arrests than the traditional method of roving patrols seizing citizens based upon reasonable, articulable suspicion of driving under the influence or with a prohibited concentration of alcohol.
The court notes that the substantive outcome of this case is interwoven with its procedural posture. The state bears the burden of proof by a preponderance of the evidence when a constitutional challenge is raised. The state relied upon its motion to overrule without hearing, and consistent with this position, presented limited evidence on the roadblock issue.
The intent of the framers of the Ohio Constitution, and the intent of the people in adopting it, the guidance offered by Ohio common law dealing with constitutional questions on independent state grounds, and the majority views of other state supreme courts that have interpreted their constitutions all uphold the sanctity of individual freedom and the limitations placed upon the power of government to intrude upon that freedom. In the absence of any substantial justification for a checkpoint over other, less intrusive, methods of law enforcement, the roadblock is impermissible under Section 14, Article I of the Ohio Constitution under the facts presented here.
Judgment accordingly.