Snyder v. State

CONOVER, Presiding Judge,

dissenting.

I respectfully dissent. Although roadblocks to check for drunk drivers are legal in Indiana, the mere fact a driver makes a U-turn 100 yards from a roadblock does not give rise to a "reasonable" suspicion the driver is operating that vehicle while under the influence of intoxicating liquor so as to warrant a police officer stopping that vehicle for further investigation, in my opinion. Suspicious activity perhaps, but "reasonably" suspicious, no. Something more must appear, such as weaving from lane to lane or other erratic driving, before Terry's "reasonable suspicion" can legally arise warranting an investigatory stop, as is the requirement in the state of New York, cf. People v. Scott (1984), 63 N.Y.2d 518 , 483 N.Y.S.2d 649 , 473 N.E.2d 1 . See also, the Little and Sitz cases from Maryland and Michigan, respectively, cited in the majority opinion.

The difference between the facts in Terry and the facts in this case are readily apparent. There, the police officer watched the would-be robbers walk to and fro in front of their proposed target 8 or 9 times, each time peering in the window, saw them talk to an accomplice who then left, and other suspicious activity for approximately 20 minutes before he detained them and searched for weapons. Here, the driver merely made a U-turn near a road *967 block, without more. No erratic driving-nothing. That is a far ery from the facts in Terry. Further, Snyder's U-turn violated no law under the facts here presented. U-turns are illegal only on curves or near the crest of a grade where they cannot be seen by drivers of vehicles approaching within 750 feet, ef. IND.CODE 9-4-1-76. Thus, the particularized caution in Terry is doubly appropriate here:

[I]n determining whether the officer acted reasonably in such cireumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the fact in light of his experience.

Terry, 392 U.S. at 27, 88 S.Ct. at 1883.

In this state, investigatory stops are not permitted based merely upon an officer's suspicion. In State v. Smithers (1971), 256 Ind. 512 , 269 N.E.2d 874 , our Supreme Court sustained the trial court's granting of a motion to suppress evidence where his only reason for the investigative stop was the police officer's desire to check the vehicle to see if its occupants were juveniles out after curfew. This desire was not sufficient to justify the stop. Smithers, 256 Ind. at 517 , 269 N.E.2d at 877 , citing Terry, supra. Facts sufficient to justify a stop were found by our Supreme Court in Broadus v. State (1986), Ind., 487 N.E.2d 1298 . There the police (1) had specific information a robbery had been committed, (2) had descriptions of the car and occupants, and (8) another officer had seen the persons and car matching the descriptions.

While the mere fact a U-turn is made at a point near a roadblock may give rise to a suspicion on the part of an experienced police officer the driver may be driving drunk, that mere fact without more does not justify classifying such suspicion as Terry-required "reasonable." U-turns are also frequently made for perfectly innocent reasons. They are commonly made by drivers who leave their house keys at their offices, missed a turn at an intersection, have absentmindedly left their wives at a gas station, or to avoid congested traffic at the scene of an accident, to name but a few. To say a U-turn in and of itself gives rise to a "reasonable suspicion" the driver is committing the crime of drunken driving is totally unwarranted, in my opinion.

I am aware of our Supreme Court's recent decision in State v. Garcia (1986), Ind., 500 N.E.2d 158 , where, over the dissents of Justices DeBruler and Shepard, three members of our Supreme Court found a roadblock as conducted there, not unconstitutional. There the court noted in passing a person could avoid the roadblock by turning away before reaching it. I am equally aware I am bound by our Supreme Court's majority decision in spite of my personal agreement with the dissenting opinions of Justices DeBruler and Shepard, but I note with particularity for our purposes Justice DeBruler's comment in his dissenting opinion in Garcia:

[It is the time-honored requirement that there be an individualized, articulable suspicion of criminal intent or criminal conduct of a person, whether that person stands alone or within a group, which strikes the correct balance between the rights of citizens or groups of citizens and their government's interest in exercising the power to seize.

Garcia, 500 N.E.2d 164 -165.

This case, of course, differs significantly from Garcia. Here it is not the roadblock itself which is at issue, but whether Suy-der's action in turning from the roadblock raises a reasonable suspicion of eriminal activity sufficient to warrant further investigation. The majority's deference to the police officer in this case is not to any "specific reasonable inferences ... [the police officer] ... is entitled to draw from the facts in light of his experience." Terry, supra. It gives undue weight to what can be characterized only as the police officer's "hunch," ... "his inchoate and unparticu-larized suspicion." Terry, supra.

If we are going to permit stops on no more than a police officer's hunch, we should forthrightly say a private citizen may not invoke the Fourth Amendment's protection whenever he drives an automobile because the danger to the public from drunk drivers transcends private constitu *968 tional rights. I find such an unqualified statement sobering and unwarranted to say the least. I would state to the contrary. We must do more than hum the Fourth Amendment's tune, we must loudly sing its lyrics at every available opportunity, if it is to survive in any meaningful form.

For those reasons, I would reverse.