# State v. Damask > Supreme Court of Missouri · December 17, 1996 · 936 S.W.2d 565 URL: https://www.frixlaw.com/law-library/cases/9773836 ## Case - **Full name:** STATE of Missouri, Appellant, v. Richard J. DAMASK, Respondent; STATE of Missouri, Appellant, v. Linda ALVAREZ and Maximo Garcia, Respondents - **Court:** Supreme Court of Missouri - **Decided:** December 17, 1996 - **Citations:** 936 S.W.2d 565; 1996 Mo. LEXIS 91; 1996 WL 724576 - **Precedential status:** Published - **Opinion:** Dissent by White - **Judges:** Benton, Covington, Holstein, Limbaugh, Price, Robertson, White - **Cited by:** 28 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/9773836 ## How later opinions describe it (automated extraction) - finding that the checkpoint satisfied the second prong of Brown where it was modeled after a successful checkpoint employed in another jurisdiction, and where the highway on which the checkpoint was established was “known as a popular route for the transport of narcotics” - holding that state may validly conduct a checkpoint to apprehend drug traffickers ## Opinion text WHITE, Judge, dissenting. I do not disagree with everything in the majority opinion. First, I concur completely that trafficking in illegal drugs is a national problem of the most severe kind. And I reject the contention that checkpoints to interdict drug smugglers may never be constitutionally permissible. But ad hoc attempts by local sheriffs to trick highway travelers into leaving the highway in the middle of the night, so that they can be interrogated in remote areas by armed, camouflage-clad men with dogs, do not meet the test of reasonableness established by the United States Supreme Court for seizures without individualized suspicion. Thus, respectfully, I dissent. Standard of Review In suppression hearings this Court has been unwilling to question the factual basis upon which the conclusions of the hearing court are based. In a checkpoint case where the trial court refused to suppress evidence, the Court held that “[o]n review, the appellate court considers the facts and the reasonable inferences of those facts in light most favorable to the trial court’s ruling.” 1 Additionally, since a checkpoint stop, like a Terry stop, is made without probable cause or a warrant, indeed is made without even the reasonable suspicion that Terry requires, 2 the burden of proof must be on the State to demonstrate the facts justifying a warrant- *576 less seizure. 3 Yet the majority opinion ré-peatedly characterizes the evidence in favor of the State, and against the rulings of the suppression courts. 4 For instance, the majority concludes that “all of the evidence indicates that the plan” in Franklin County contained specific, concrete guidelines to eliminate the discretion of officers, was disseminated to them and had received the approval of responsible officials, and was “conducted in concordance with those criteria.” 5 A more balanced look at the evidence would suggest that the plan was not formalized or approved by high-ranking personnel until after the seizure at issue here, that officers may have deviated from the plan by treating local motorists differently from out-of-state motorists, and that uniformed personnel and marked ears may not have been visible to detainees. And certainly, a view of the facts which is, as ours must be, slanted towards suppression cannot support the legal conclusions reached by the majority. Reasonableness As I note above, I endorse the majority’s conclusion that drug trafficking is an important national problem. The State’s interest here is at least as great as in checkpoints approved by the United States Supreme Court. 6 As to the effectiveness and intrusiveness of these seizures, however, I find that they are much closer to the discretionary investigatory stops forbidden in Delaware v. Prouse 7 than the well-planned, well-controlled, non-threatening checkpoints approved in Sitz and Martinez-Fuerte. As the majority notes, one factor that must be considered in evaluating the reasonableness of a suspicionless seizure is “the degree to which the seizure advances the public interest[J” 8 I am not unmindful of the Sitz Court’s admonition that “[t]his passage from Brown 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.” 9 The Sitz Court clearly envisioned an articulated and accountable decision-making process. In the Franklin County checkpoint the evidence does no more than demonstrate that two low-level officers (a deputy and a corporal) heard about a checkpoint program in a nearby county and decided to organize and implement their own version. At the suppression hearing, no evidence appeared to show that any “[ejxperts in police science” or “governmental officials who have a unique understanding of, and a responsibility for, limited public resources” decided that this was a reasonable means to stop drug trafficking. 10 In fact, no evidence was presented to show that this operation was approved by “politically accountable” officials until after the arrest at issue here was made. The after the fact rationalizations the majority attempts to supply are insufficient. Without questioning the Court’s expertise in this area, the fact that it was willing to take *577 judicial notice, without mentioning any factual basis, that Interstate 44 was a “notorious route used by drug traffickers” in 1988 11 does not amount to empirical evidence to support an abridgment of fundamental rights. I suppose the majority opinion will now be cited as a conclusive determination that Highway 60 is a known alternative drug corridor. But this finding is based upon nothing more than the hearsay report of a drug courier. If the Court is to put such weight on this “evidence,” must we not also believe that Interstate 44 is no longer a drug corridor, since we have such an authoritative report that drug couriers now avoid it? The State has not demonstrated that the suppression courts could not have found that it presented no credible, empirical evidence to show the effectiveness of checkpoints like these. Of more grave concern is the intrusiveness of these stops to law-abiding citizens. The Prouse Court found that the circumstances surrounding the stops, rather than the intrusiveness of the interrogation itself, were the critical difference between allowable seizures and forbidden ones: The crucial distinction was the lesser intrusion upon the motorist’s Fourth Amendment interests: “[The] objective intrusion — the stop itself, the questioning, and the visual inspection — also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of a checkpoint stop.” 12 At roadblock checkpoints “all vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police power of the community.... ‘[T]he motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.’ ” 13 It is difficult to envision a scenario more likely to engender fright or confusion in an innocent highway traveler than the Franklin County checkpoint. At 4 a.m., following the appearance of an obviously temporary, poorly-illuminated sign warning of a checkpoint in a totally isolated area, an exiting motorist finds himself accosted, in a different location, by two armed men in camouflage fatigues, one with a dog. It was disputed whether a uniformed officer always stopped the cars, and marked cars may or may not have been visible to the motorist. Officers also testified that they shined a flashlight into the faces of detainees, possibly making it difficult for them to evaluate the situation. There is no testimony that many of the detainees saw other motorists had been stopped, and a very small fraction of the drivers on the interstate were detained. This is much closer to the too-intrusive seizures described in Prouse, which “generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority. Both [discretionary license and registration checks and roving border patrol stops] interfere with freedom of movement, are inconvenient, and consume time. Both may create substantial anxiety.” 14 Viewing the facts in the light most favorable to the trial courts’ rulings, the intrusiveness of the stops the Court approves today is greater than that in stops rejected by the United States Supreme Court. In testing for reasonableness, the Court’s chief aim is “to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” 15 The testimony of the Franklin County officers indicates that the men who operated the checkpoint were responsible for organizing the operation and developing the plan for officer conduct. It is not clear that high-ranking officials were involved in the imple *578 mentation of the plan at all. The United States Supreme Court does not trust the judgment of field officers in such matters: “the Fourth Amendment requires that a seizure ... must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” 16 Even assuming that the written plan meets this high standard, it was not reduced to writing for approval by the sheriff until after the seizure occurred. The evidence that explicit, neutral controls were in place to channel police conduct, and these controls were followed, consisted solely of the contradictory testimony of the field officers who carried out the checkpoint, and who designed the plan in the first place. Given that the Court is bound to consider the facts in the light most favorable to suppression, I cannot find that controls sufficient to channel officer discretion were established and were observed. Conclusion While I do not think that drug-smuggling checkpoints are inherently unconstitutional, the checkpoints the Court sanctions today are designed in such a way as to engender fright and concern in law-abiding motorists. Also, the facts, viewed in the light most favorable to the trial courts’ rulings, demonstrate neither empirical evidence of checkpoint effectiveness, nor that explicit, neutral guidelines for police conduct were issued and followed. The trial courts had sufficient evidence to hold that the checkpoints were conducted in an unreasonable fashion, and therefore, in violation of the Fourth Amendment. . State v. Rodriguez, 877 S.W.2d 106, 110 (Mo. banc 1994). . Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). . See State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995). . See, e.g. Op. at 573-574 (holding that "evidence demonstrates that the checkpoints were modeled after the successful program in Phelps County!,]" that "evidence shows that the particular checkpoints at issue here were planned in such a way as to increase the likelihood of actually capturing drug traffickers[,]” that "[e]vidence also demonstrated that Phelps County law enforcement officials, who helped Texas County officials operate the checkpoint, had been told by drug couriers that they had been warned to avoid 1-44. A quick glance at a Missouri road map reveals that U.S. 60 is the other major west-to-east roadway across southern Missouri.”); Op. at 575 (holding that there is "no evidence that officers deviated from the guidelines,” that "checkpoint locations were not arbitrarily chosen but rather selected because they were along known or suspected drug routes,” and that "[w]hen drivers used the exits, they were met at the stop sign by a uniformed police officer and law enforcement vehicles were visible.”). . Op. at 574 n. 35. . See United States v. Martinez-Fuerte, 428 U.S. 543 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976); Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990). . 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979). . Brown v. Texas, 443 U.S. 47, 51 , 99 S.Ct. 2637, 2640 , 61 L.Ed.2d 357 (1979). . Sitz, 496 U.S at 453, 110 S.Ct. at 2487 . . Id. at 453-54 , 110 S.Ct. at 2487 . . State v. Burkhardt, 795 S.W.2d 399, 405 (Mo. banc 1990). . Prouse, 440 U.S at 656, 99 S.Ct. at 1397 (quoting Martinez-Fuerte, 428 U.S. at 558 , 96 S.Ct. at 3083 ). . Id. at 657 , 99 S.Ct. at 1398 (quoting United States v. Ortiz, 422 U.S. 891, 894-95 , 95 S.Ct. 2585, 2588 , 45 L.Ed.2d 623 (1975)). . Id. . Brown, 443 U.S. at 51 , 99 S.Ct. at 2640. . Id. at 51, 99 S.Ct. at 2640. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773836. Public record. Not legal advice.