# State v. Sherburne

> Supreme Judicial Court of Maine · March 2, 1990 · 571 A.2d 1181

URL: https://www.frixlaw.com/law-library/cases/9700780

## Case

- **Full name:** STATE of Maine v. Donald SHERBURNE and Gary Sherburne
- **Court:** Supreme Judicial Court of Maine
- **Decided:** March 2, 1990
- **Citations:** 571 A.2d 1181; 87 A.L.R. 4th 965; 1990 Me. LEXIS 63
- **Precedential status:** Published
- **Opinion:** Dissent by Glassman
- **Judges:** McKusick, Wathen, Glassman, Clifford, Hornby, Collins
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9700780

## How later opinions describe it (automated extraction)

- reasoning that because fish and game officers are responsible for enforcing fish and game laws with limited numbers of personnel over a wide territory, much of which is uninhabited, fish and game checkpoints are a justified method of enforcement
- holding that even though game wardens failed to comply with their own department’s policy directive on checkpoints, the checkpoint was nonetheless conducted reasonably and therefore was constitutional
- concluding that inspection at a fish and wildlife roadblock was not discretionary
- noting the “important conservation purpose furthered by a roadblock” set up to enforce fishing laws

## Opinion text

GLASSMAN, Justice,
dissenting.
Though cloaked in the same analytical guise, the court’s opinion in fact departs from previous cases addressing regulatory stops made without individualized suspicion. The court ignores salient state statutory law and rationalizes the result by a faulty analysis of federal constitutional law. Because I cannot agree that the court’s opinion is a correct statement of the law, I must respectfully dissent.
Rules governing the validity of vehicular stops for regulatory inquiry or investigation reduce the probable cause requirement normally adhering to criminal seizures pursuant to the fourth and fourteenth amendments to the United States Constitution. The paternity of such stops may be found in a twin line of United States Supreme Court decisions. One such line of cases derives from Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968), which established policies governing street encounters between police officers and persons who piqued an officer’s suspicion short of the probable cause necessary for an arrest. The Court held that brief detentions and cursory searches for weapons did not violate the fourth amendment when the deten *1187 tion and search was based upon a reasonable and individualized suspicion that the person was armed. While it is true that these decisions primarily analyzed the legality of the search itself, logic dictates that they should also be understood to mean that the actual stop must be based upon these same grounds.
The second line of cases reducing the strict requirements of probable cause deal with administrative or regulatory inquiries or inspections. These cases deal with the requirements for obtaining access to buildings for housing code or safety inspections, Camara v. Municipal Court, 387 U.S. 523 , 87 S.Ct. 1727 , 18 L.Ed.2d 930 (1967), or agency inspections of highly regulated businesses. See, e.g., Colonnade Catering Corp. v. United States, 397 U.S. 72 , 90 S.Ct. 774 , 25 L.Ed.2d 60 (1970) (liquor dealers); United States v. Biswell, 406 U.S. 311 , 92 S.Ct. 1593 , 32 L.Ed.2d 87 (1972) (firearms). The Court made clear that certain inspections based upon lowered probable cause did not offend the fourth amendment because the objectives of the inspections were regulatory, not penal, and because such inspections were based upon regularized administrative procedures that carefully circumscribed any discretion given to officers in the field. 1 Such inquiries are allowed in carefully articulated programs designed to prevent or correct an existing condition. While criminal penalties do sometimes attach under these circumstances, they are never the focus of the administrative inquiry.
The two lines merged when the Court subsequently applied the logic of administrative inspections of premises to vehicular stops that serve preventive purposes. In United States v. Martinez-Fuerte, 428 U.S. 543 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976), the Court held that permanent checkpoint inspections conducted without individualized grounds for suspicion did not violate the fourth amendment when balanced against the overriding need to prevent illegal immigration. Later commentators rightly categorized such stops as administrative or regulatory, see 1 K. Davis, Administrative Law Treatise 262 (2d ed.1978); 3 W. LaFave, Search and Seizure § 10.5, at 710 (2d ed.1987), and only incidentally related to criminal enforcement. This distinction is crucial when analyzing stops the State claims are regulatory in nature. For if the method and result of the “regulatory” stop is really penal, then nothing remains of the carefully drawn distinction between ordinary law enforcement seizures requiring individualized suspicion, and preventive and corrective administrative stops that do not.
The Court in Martinez-Fuerte also set forth other factors that tipped the balance in favor of the validity of such an administrative program. The Court carefully noted that it confined its decision to permanent vehicular checkpoints. Martinez-Fuerte, 428 U.S. at 566 n. 19, 96 S.Ct. at 3087 n. 19. The Court observed that a permanent checkpoint eliminated the danger of discretionary enforcement because “[t]he location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources.” Id. at 559 , 96 S.Ct. at 3083 . Finally, this type of regulatory practice was justified by the overwhelming problem of illegal immigration, a problem that the Court described in considerable detail. Id. at 551-53 , 96 S.Ct. at 3080-81 . These factors, and the intrusion they represent, are carefully balanced against the privacy interests inherent in the fourth amendment.
*1188 The court in the instant case is correct when it states that regulatory roadblocks “must be tested ... by ‘balancing [the] intrusion on the individual’s Fourth Amendment interests against [the] promotion of legitimate governmental interests.’ ” State v. Leighton, 551 A.2d 116, 117 (Me.1988) (quoting Delaware v. Prouse, 440 U.S. 648, 654 , 99 S.Ct. 1391, 1396 , 59 L.Ed.2d 660 (1979)). The court, however, fails to analyze whether this particular roadblock is really regulatory in nature, and if so, whether the cases the court cites permit the “balance” struck.
First, the court incorrectly treats the Co-rinna roadblock as a “regulatory” stop. As I have previously noted, regulatory intrusions on fourth amendment privacy interests are primarily designed to prevent or correct an existing condition. Such existing conditions directly and immediately affect the health, safety and welfare of the citizenry. Accordingly, we have upheld roadblocks designed to discover motor vehicle violations. State v. McMahon, 557 A.2d 1324 (Me.1989); drivers operating under the influence, State v. Leighton, 551 A.2d 116 (Me.1988); and vehicle safety violations, State v. Cloukey, 486 A.2d 143 (Me.1985). In view of the mayhem on our highways, no one can seriously question the need to enforce highway laws and the tragic consequences that can imminently follow the failure to do so. By contrast, violations of sport fishing laws do not generate any comparable threat to human health, safety or welfare justifying such an intrusion. Nor does the stop prevent or correct an existing condition: The fish in question were, after all, dead when seized at the Corinna checkpoint. There was no attempt to instruct or advise fishermen before or while they fished. The stop of those leaving a large and nebulous target area was for the sole purpose of imposing a penalty.
Second, and closely related to the first point, the court’s attempt to balance governmental interests against the demands of the fourth amendment is also found wanting in several important respects. Although pervasive legislation by itself does not create an interest sufficient to justify the intrusion, the court attempts to magnify the governmental interest involved by stating that the “pervasive legislation” “designed to protect and preserve fish and game reflects] their great importance to the state.” Yet this foundational premise is disposed of in one perfunctory paragraph. In United, States v. Martinez-Fuerte, relied upon by the court, the United States Supreme Court carefully analyzed the problem of implementing the long and well-established national policy to limit immigration into the United States and convincingly demonstrated the urgency of the government's interest in adopting the least invasive means of implementing this national policy.
The court also ignores salient statutory law governing the legality of fish and game stops. The provision in force in May, 1988, stated that a warden could make a stop if he “[has] reason to believe” that such a violation has occurred. 12 M.R.S.A. § 7053(2)(D) (1981). We held that this language merely incorporates the same requirement of individualized suspicion as do Terry criminal stops. State v. Hillock, 384 A.2d 437, 440-41 (Me.1978). 2 By P.L.1989, ch. 170, the Legislature repealed section 7053(2)(D) and by P.L.1989, ch. 493, §§ 5, 6, effective June 29, 1989, replaced it by 12 M.R.S.A. § 7053(2)(D-1) (Supp.1989) which states that a uniformed game warden may stop “a motor vehicle or other conveyance, or its operator or occupant” if the warden has a “reasonable and articulable suspicion” that the vehicle or occupant “is or has been involved in” a violation of the fish and game laws. By its terms, this statute demands the usual quantum of individualized suspicion normally applied to stops for criminal law enforcement purposes. Examination of the cases and legislative history *1189 reveals that section 7053(2)(D-1) simply makes specific our previous decision that stops for the purpose of finding fish and game violators are measured by the same standard as any other stop that is criminal in nature. The court fails, however, to address either the new statute or the old. I believe that 12 M.R.S.A. § 7053(2)(D) is, by itself, dispositive and should have been applied by the court.
Third, in view of the subject matter of this stop, the department policy governing the Corinna checkpoint invests excessive discretion in the field officers carrying out the policy. As noted previously, the “ ‘grave danger’ of abuse of discretion” always looms in the background of a regulatory stop. Delaware v. Prouse, 440 U.S. 648, 662 , 99 S.Ct. 1391, 1399 , 59 L.Ed.2d 660 (1979) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 559 , 96 S.Ct. 3074, 3083 , 49 L.Ed.2d 1116 (1976). In Martinez-Fuerte , this danger was alleviated because the checkpoints were permanent, and not chosen by field officers and because of the “regularized manner in which [the] established checkpoints are op-erated_” Martinez-Fuerte, 428 U.S. at 559 , 96 S.Ct. at 3083 . The San Clemente checkpoint had been operated for 24 years, so it is not difficult to see how such “regularized manners” were developed. See id. at 566 n. 19, 96 S.Ct. at 3087 n. 19.
In the present case, the checkpoint was not permanent, and its location was established based upon the discretion of one field officer, and not as the result of considered and thoughtful administrative policy. Department Policy # 17, which governs such checkpoints, is contradictory, stating on the one hand that “[a]ll vehicles shall be stopped and inspected” and on the other hand granting field officers discretion to inspect only selected vehicles. 3 This confusion in policy, resolved by officers in the field, does not “reassure[ ] ... law-abiding motorists, that the stops are duly authorized and believed to serve the public interest.” Id. at 559 , 96 S.Ct. at 3083 .
In summary, therefore, the court fails to distinguish between stops for regulatory purposes and those that are purely penal in character, and misapplies the balancing tests normally used to determine the validity of regulatory intrusions. The court ignores controlling statutory law and blurs carefully formulated distinctions while claiming to stand squarely upon established jurisprudence. Accordingly, I would vacate the judgments and remand to the Superior Court for entry of judgments of acquittal for the defendants.
. Indeed, the Camara court stressed these two themes. The Court stated that" ‘probable cause’ to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied." 387 U.S. at 538 , 87 S.Ct. at 1736 , and emphasized that the inspections were by nature preventive and therefore different in kind from ordinary criminal searches. Id. at 534-36 , 87 S.Ct. at 1733-35 . In another case dealing with safety inspections, the Court distinguished the concept of probable cause “in the criminal law sense” from the sense of following the “reasonable legislative or administrative standards” mandated by Camara. Marshall v. Barlow’s, Inc., 436 U.S. 307, 320 , 98 S.Ct. 1816, 1824 , 56 L.Ed.2d 305 (1978).
. In Hillock , we addressed the predecessor statute to section 7053(2)(D), which also stated that a warden must have "reason to believe that a violation” of the fish and game laws has occurred before making a stop. 12 M.R.S.A. § 3051(1) (1974), repealed by P.L.1979, ch. 420, § 5, and replaced by 12 M.R.S.A. § 7053(2)(D). P.L.1979, ch. 420, § 1. Section 7053(2)(D) was repealed by P.L.1989, ch. 170, and replaced by section 7053(2)(D-1). P.L.1989, ch. 493, § 5.
. While it is true that such two-stage inquiries were approved by the Supreme Court in Martinez-Fuerte , this technique was practiced according to clearly defined and longstanding policy, and not "in the breach” as here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9700780. Public record. Not legal advice.