State v. Patterson

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); *1207 State v. Pinkham, 565 A.2d 318 (Me.1989). If removed from the context of the roadblock, Patterson’s behavior, as described by Curtis at the motion hearing, could not rise to the level of the furtive or suspicious conduct necessary for a Terry stop. Cf. State v. Griffin, 459 A.2d 1086, 1090 (Me.1983). According to Curtis’s testimony, he observed a ear come to a stop at the side of the road, the passenger leave the vehicle and walk into the woods, the driver slide over into the passenger seat, and the passenger return to the driver’s seat and drive up to the roadblock. These acts were allegedly undertaken as a direct result of Patterson’s intent to evade detection by the police at the upcoming roadblock. Had Curtis stopped the vehicle because he had observed the same conduct while traveling the road or while parked by the roadside, this court would presumably find that the officer acted without reasonable suspicion for such a “roving stop” because the driver’s actions were neither a violation of the law nor did they suggest underlying criminal activity. See State v. Pinkham, 565 A.2d at 320 . For this reason, the reasonableness of the suspicions articulated by Curtis before the trial court depends directly on the reasonableness of the roadblock. Because a police officer cannot unreasonably create a context to justify his own suspicions regarding an otherwise innocuous act, both the roadblock and the subsequent Terry stop were constitutionally unfounded.

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). 1 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 Cloukey 2 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, — U.S. -, 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990). The factors listed in the Cloukey decision lose their significance if left to the unsu *1208 pervised whim of one police officer in the field. Cf. Delaware v. Prouse, 440 U.S. 648, 655 , 99 S.Ct. 1391, 1396 , 59 L.Ed.2d 660 (1979); Camara v. Municipal Court, 387 U.S. 523, 532 , 87 S.Ct. 1727, 1732 , 18 L.Ed.2d 930 (1967). Indeed, this is the first case before this court where there is no indication that the police officer’s discretion was limited in any actual or quantifiable manner. Officer Curtis testified that he did not follow a written or oral department policy and that no supervisor pre-approved or monitored this roadblock. Instead, Curtis could only point to some ill-defined past police practices. This record raises three problems that the court’s opinion does not adequately address.

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, — U.S. -, 110 S.Ct. 2481 , 110 L.Ed.2d 412 (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-estab-lished 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 *1209 tion that the targeted area was known for an unusual number of safety violations, and without any prior consideration of the potential danger of placing a roadblock on this two-lane road. Curtis failed to mark the area with cones to warn approaching cars of the roadblock or otherwise to set up an area where detained vehicles could be safely parked. The only indication of the roadblock was one police cruiser with flashing lights; from a distance, an approaching driver could reasonably have concluded that the police officer was making a routine one-car traffic stop. Nor was this a fixed, permanent checkpoint, such as those approved to prevent illegal immigration, that gives the public at large prior notice of its existence. Cf. United States v. Martinez-Fuerte, 428 U.S. 543 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976). 5 Finally, Curtis testified that when it appeared to him that the traffic had accumulated at the roadblock, he would wave the cars through without an inspection. Although this procedure was presumably used to limit the intrusiveness and inconvenience of the roadblock, no pre-determined guideline mandated how many cars could accumulate in line before Curtis waved them through the roadblock. The facts of this case illustrate the practical consequences of this type of unfettered, spontaneous discretion.

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 *1210 viduals against arbitrary invasions.’ ”). Although the level of intrusion experienced by a driver in a capricious roadblock may be less than that experienced in a “roving stop,” this fact alone cannot excuse the circumvention of the general principle that a police officer cannot stop an automobile without a reasonable, articulable suspicion or without some previously specified objective criteria governing the reasonableness of that stop. In the instant case, because the determination regarding the reasonableness of the roadblock was clearly erroneous, Officer Curtis may not take advantage of the unreasonable roadblock to provide a contextual framework for his claim that he had a reasonable, articulable suspicion to believe that Patterson’s intent in switching seats with his passenger was to avoid detection at the roadblock. “When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.” Cf. Brown v. Texas, 443 U.S. 47, 52 , 99 S.Ct. 2637, 2641 , 61 L.Ed.2d 357 (1979). Because it is precisely the function of this court to define such limits, I would vacate the judgment.

. In employing this balancing test, however, some state interests may be more compelling than others. For example, the state interest in the prevention of drunk driving, which was the linchpin of the recent decision in Michigan Dep't of State Police v. Sitz, - U.S. -, 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990) (upholding trial court’s finding that state interest was "grave and legitimate”), is arguably greater than the state’s interest in inspecting automobiles for safety violations. This fact becomes significant when a court is forced to measure the reasonableness of the stop on the other side of the balance, since a less compelling state interest may necessitate a greater showing of "reasonable” police action. See id., 110 S.Ct. at 2485-86 .

. The Cloukey court listed the following factors as an example of the type of objective standard attempted by courts in other jurisdictions:

(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 superi- or 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.

. In Sitz , the state police director had appointed a Sobriety Checkpoint Advisory Committee that consisted of representatives of the police force, state prosecutors, and the academic community. This committee then promulgated guidelines for these sobriety checkpoints “setting forth procedures governing checkpoint operations, site selection, and publicity.” Michigan Dep't of State Police v. Sitz, 110 S.Ct. at 2483-84 . The importance attached to these guidelines by the Court, even in the face of the compelling state interest in the detection of drunk drivers, argues for their increased necessity when the state interest is arguably less overriding. Later in the Sitz decision, when analyzing the effectiveness of the procedures used, the Court held that "Brown [v. Texas] was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger." Id., 110 S.Ct. at 2487 (emphasis added). It follows from this statement that even the Sitz Court contemplated that the neutral guidelines would be implemented by elected government officials accountable to public sentiment and not by police officers in the field.

. We have previously held that a written policy and supervision were "preferable," but not "essential" to a determination that a roadblock was constitutionally valid. State v. Cloukey, 486 A.2d at 147 . However, in Cloukey , the record revealed some evidence of supervision, both as to the existence of the roadblock and advance approval of its location. See id. at 144 . Similarly, in State v. Leighton, 551 A.2d 116 (Me.1988), the officers conducted the sobriety checkpoint under oral procedures provided by the sheriffs department, and the sheriff directly supervised the operation of the roadblock. Id. at 117 (“[t]he procedure used at this roadblock was in accordance with guidelines established in advance by supervisory personnel"). In State v. McMahon, 557 A.2d 1324 (Me.1989), the roadblock “followed unwritten procedures established by the Chief of Police and verbally communicated to all involved officers," which included a procedure whereby the first four cars would be directed into a coned-off area and no other cars could be stopped until those four had been checked and waved through. Id. at 1325 . In State v. Sherburne, 571 A.2d 1181 (Me.1990), the roadblock was conducted pursuant to a written directive on highway checkpoints and inspections and was approved by a superior officer. In the instant case, the record fails to disclose how the past police practice regarding roadblocks alluded to by Curtis in any way limited his discretion regarding site location or procedures.

. The Court has approved stops at fixed checkpoints because they prevent any unfair surprise to drivers. Similarly, the Sitz Court had before it an appeal from a declaratory judgment, instituted before the sobriety checkpoints at issue had taken place. See Michigan Dep’t of State Police v. Sitz, - U.S. - , -, 110 S.Ct. 2481, 2498-99 , 110 L.Ed.2d 412 (1990) (Stevens, J., dissenting). The checkpoints, conducted pursuant to stringent guidelines, had been extensively prepublicized in the media. In fact, the state police welcomed this publicity for its deterrent effect in keeping drunk drivers off the roads. For this reason, the Sitz decision offers little guidance regarding the issue of proper notice to drivers in cases dealing with unpublicized roadblocks.