Ingersoll v. Palmer

BROUSSARD, J.

I dissent. The majority uphold drunk driving 1 roadblocks on the theory that they are administrative inspections, not subject to the usual rule that any detention be justified by reasonable suspicion of individual wrongdoing. In my opinion, when uniformed law enforcement officers stop motorists to check them for intoxication, shine a light in the car to look for open containers of alcohol or other evidence of intoxication, with special officers ready to administer blood-alcohol tests and booking officers and police vans ready to take offenders to jail, it is not an administrative inspection but an ordinary police detention, which must be justified on the same grounds as any other detention for the purpose of law enforcement.

Administrative Search Doctrine

The majority concede that if the primary purpose of the roadblock were to detect crime, the detention of a driver without individualized suspicion that the driver had engaged in criminal activity would be unconstitutional. In fact, the roadblock has two purposes: detection of drunk drivers and collection of evidence. The majority maintain, however, that the primary purpose of these roadblocks is to promote public safety by deterring drunk driving. The majority assert that this is a regulatory or administrative purpose, and conclude that detention without individualized suspicion is permissible by analogy to the administrative search doctrine we adopted in People v. Hyde (1974) 12 Cal.3d 158 [ 115 Cal.Rptr. 358 , 524 P.2d 830 ].

In Hyde , we permitted predeparture screening of airline passengers, without individualized suspicion of wrongdoing. Our theory was that the screening was a central part of a general regulatory scheme in furtherance of an *1351 administrative purpose, not an effort to seize contraband or evidence of crime. (People v. Hyde, supra, 12 Cal.3d at p. 166 .)

Hyde does not bring the drunk driving roadblock into the administrative search doctrine. First of all, the Vehicle Code provisions prohibiting drunk driving are not a “regulatory scheme.” In Hyde , we used federal cases approving warrantless inspection of the firearms and liquor industry as examples of pervasively regulated activities in which a warrantless inspection was permissible. (People v. Hyde, supra, 12 Cal.3d 158, 165 , citing United States v. Biswell (1972) 406 U.S. 311 [ 32 L.Ed.2d 87 , 92 S.Ct. 1593 ]; Colonnade Corp. v. United States (1970) 397 U.S. 72 [ 25 L.Ed.2d 60 , 90 S.Ct. 774 ].) The rationale of those cases is that a person engaging in the pervasively regulated industry is on notice that he has a limited expectation of privacy because the regulations provide for effective inspection. (United States v. Biswell, supra, 406 U.S. 311, 316 [ 32 L.Ed.2d 87, 92 ], see also Marshall v. Barlow’s, Inc. (1978) 436 U.S. 307, 313 [ 56 L.Ed.2d 305, 311-312 , 98 S.Ct. 1816 ].) No such “regulatory scheme” puts California drivers on notice that they are subject to detention without reasonable suspicion to determine whether they are driving under the influence of alcohol or drugs. Drivers do not “impliedly consent” to being inspected for alcohol on their breath.

The United States Supreme Court has rejected the Colonnade/Biswell analogy for automobile inspections on the ground that motorists have a considerable and legitimate expectation of privacy in the automobile, including an expectation of freedom of movement. (Delaware v. Prouse (1979) 440 U.S. 648, 662-663 [ 59 L.Ed.2d 660, 673 , 99 S.Ct. 1391 ].) The Supreme Court also has rejected the argument that driving is a pervasively regulated activity subjecting motorists to suspicionless roving immigration stops. (Almeida-Sanchez v. United States (1973) 413 U.S. 266 [ 37 L.Ed.2d 596 , 93 S.Ct. 2535 ].) The court has explained that a roving stop of a motorist to check for illegal aliens was unreasonable; the driver was not in the same position as the gun manufacturer or liquor distributor who had in effect consented to inspection by entering a heavily regulated industry. (Id. at pp. 271-272 [ 37 L.Ed.2d at p. 602 ].)

A drunk driving roadblock also differs from the usual administrative or regulatory inspection because there is no “regulatory” agency to enforce the drunk driving prohibitions other than the police and the criminal courts. 2 The clear purpose of these laws is not to regulate, but to detect and punish criminal drunk driving. Nothing distinguishes this crime from any other serious one.

*1352 The majority suggest that as long as the purpose of a drunk driving roadblock is to deter rather than detect crime, the roadblock is “regulatory.” But we certainly did not hold in Hyde, supra, 12 Cal.3d 158 , as the majority suggest, that if the purpose of a detention is to deter rather than detect crime, it may be justified as an administrative search. Criminal law enforcement encompasses both detection and deterrence. If we allowed detentions without individualized suspicion to deter crime, we would allow preventive detentions in high crime areas. But we do not allow such practices. (See People v. Loewen (1983) 35 Cal.3d 117, 124 [ 196 Cal.Rptr. 846 , 672 P.2d 436 ].) What distinguishes the permissible administrative inspection from other searches is not that they are only intended to deter, but that they carry out an administrative scheme that is not part of the penal system. There is no such administrative scheme here. In fact, the majority would permit roadblocks carried out without uniform regulation, without statewide oversight, in a Balkanized system varying from jurisdiction to jurisdiction.

The majority also rely on dictum in Delaware v. Prouse, supra, 440 U.S. 648 , another case involving random stops of automobiles. There the high court disapproved a roving patrol stop conducted without individualized suspicion to check for current license and vehicle registration. The court said that its holding did not mean that police could not try other methods to enforce license and registration laws, such as a permanent roadblock to inspect for license and registration violations. But the Prouse dictum is inapposite. A roadblock inspection for license and vehicle registration is an administrative inspection, since these aspects of motoring are closely regulated. Since license and registration violations do not involve criminal sanctions primarily, the inspections themselves are less intrusive for the average motorist. A request to look at one’s license is far less accusatory than an inspection for red, watery eyes, slurred speech, alcohol on the breath, open containers in the car, and the other signs of intoxication. It does not follow that, because a roadblock may be permissible to check for drivers’ licenses, it must be permissible to check for drunk driving.

To call a drunk driving roadblock an administrative inspection ignores its true purpose —apprehension of drunk drivers. The fact is that the apparatus of the law enforcement system is moved to the scene of the roadblock — with breathalyzers ready to take evidence for introduction at a criminal trial, police officers ready to arrest offenders, and police vans ready to take suspects away. If we call the Burlingame roadblock an administrative inspection, then a detention to investigate any crime could be deemed an administrative inspection. The Constitution cannot, and should not, be stretched so far.

*1353 Application of the Balancing Test

The propriety of an administrative search is judged under a balancing test in which the invasion of individual liberty is weighed against the necessity for the invasion and its effectiveness in achieving the state’s goal. (See Camara v. Municipal Court (1967) 387 U.S. 523, 536-537 [ 18 L.Ed.2d 930, 940 , 87 S.Ct. 1727 ]; People v. Hyde, supra, 12 Cal.3d 158, 166 .) Even assuming that the analogy to administrative searches is proper, and that we should abandon individualized suspicion in favor of a balancing test, I would conclude that roadblocks are neither necessary nor effective enough to warrant the intrusion on the individual that they cause.

We all agree that the government has a profound interest in deterring and punishing drunk driving. We have recently lamented the “. . . horrific risk posed [to public safety] by those who drink and drive.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [ 198 Cal.Rptr. 145 , 673 P.2d 732 ].) Yet the necessity for and effectiveness of drunk driving roadblocks remains to be demonstrated. And the intrusion is far from minimal.

In the federal cases allowing detentions and other intrusions without individualized reasonable suspicion that wrongdoing was taking place, there was little alternative available to the state, and this entered into the balance in determining whether the stop was reasonable. In those cases, the suspicionless intrusions were literally necessary, since the transgressions to be detected could not be observed unless the inspectors entered the premises; there were no objective indicators visible from the outside upon which an official could form a reasonable suspicion. (See United States v. Biswell, supra, 406 U.S. 311, 316 [ 32 L.Ed.2d 87, 92 ]; Colonnade Corp. v. United States, supra, 397 U.S. 72, 74, 76-77 [ 25 L.Ed.2d 60, 64 ]; Camara v. Municipal Court, supra, 387 U.S. 523, 537 [ 18 L.Ed.2d 930, 940 ]; cf. United States v. Martinez-Fuerte (1976) 428 U.S. 543, 557 [ 49 L.Ed.2d 1116, 1128 , 96 S.Ct. 3074 ].) By contrast, drunk drivers are conspicuous. We have all observed drunks weaving down the road, speeding up and slowing down, straddling lanes, and ignoring traffic and traffic signs. It is preposterous to claim that police have no way other than a roadblock to detect or deter drunk drivers.

The majority suggest that roadblocks are necessary because existing enforcement techniques have not eradicated the problem of drunk driving. If this were a proper consideration, the Fourth Amendment would have little meaning. Existing enforcement techniques have not eradicated the scourge of crime in our society, yet no one would seriously propose that the Constitution therefore permits the police to make unprecedented invasions of personal liberty. If we allow mass detentions through the means of roadblocks merely because the police claim that they may be more effective and *1354 helpful to law enforcement, we have gone a long way towards abandoning the protection of the Fourth Amendment.

The majority find that the deterrent effect of drunk driving roadblocks weighs heavily in the balance. (The majority concede that roadblocks do not produce nearly as many arrests per officer hour as patrols in which drivers are stopped for cause.) 3 This assertion is based on anecdotal evidence and flawed logic. Some states justify roadblocks by comparing accident rates in counties having roadblocks with others having none, but to conclude that it was the roadblock that caused the difference is the rankest speculation. 4 The California Highway Patrol concedes that such evidence is inconclusive. In fact, some studies indicate that whatever deterrent effect a roadblock may have is entirely the result of its novelty and the waywardness of publicity. For example, as European drivers became accustomed to roadblocks and the publicity about them died down, their deterrent effect disappeared. (See ABA, Assessment of Effectiveness, supra, at p. 3.)

The majority admit that the deterrent effect of drunk driving roadblocks is not established and that “[t]he experience both in California and in other states with sobriety checkpoints has been very limited, and no definitive statistics are yet available.” (Maj. opn., ante, at p. 1339.) Yet, the majority insist that “[i]t would be presumptuous in the extreme for this court to prohibit the use of an otherwise permissible and potentially effective procedure merely because its effectiveness is at the present time largely untested.” (Ibid.) This distorts the balancing test and makes it possible for any law enforcement method to pass constitutional muster as long as a plausible argument can be made that it might turn out to be effective. If this is the balancing test, it is not a test but a rubber stamp.

We also must weigh the intrusion of the roadblock on the individual. There can be no question of the reasonableness of the motorist’s expectation of privacy. Though the expectation of privacy in the automobile is not as great as in the home, it is clear from Almeida-Sanchez, supra, 413 U.S. 266 , *1355 and Delaware v. Prouse, supra, 440 U.S. 648 , that motorists do retain a reasonable expectation of considerable privacy in the automobile. The invasiveness of a drunk driving roadblock is far greater than the invasion that the high court has characterized as minimal in the immigration checkpoint. (See United States v. Martinez-Fuerte, supra, 448 U.S. 543 , 559 [ 49 L.Ed.2d 1116, 1129 ].) In the immigration checkpoint, the immigration agent’s primary purpose is not to make arrests. But at a drunk driving roadblock, officers stop individuals with the purpose of determining if they are then committing the crime of drunk driving —a crime now involving considerable public stigma, to say nothing of the substantial criminal penalties that now result from a drunk driving conviction. The United States Supreme Court has repeatedly distinguished the minimal invasion of the administrative inspection from the necessarily hostile, threatening, and frightening intrusion of an investigation for crime. (See, e.g., Camara v. Municipal Court, supra, 387 U.S. 523 at pp. 530, 537 [ 18 L.Ed.2d 930 at pp. 936, 940 ].) Moreover, the detention at a drunk driving roadblock is necessarily experienced as personally intrusive, since unlike in the license inspection or immigration checkpoint, the officer’s object is to inspect the interior of the vehicle for evidence of crime and to examine the present mental and physical condition of the driver to determine if he or she should be arrested.

The majority seem to suggest that as long as a neutral plan assures that the roadblock is run safely and without arbitrariness, the individual’s interest in being free from police detention does not weigh in the balance at all. This antiseptic approach denies the unavoidable invasion of privacy which occurs when a citizen is confronted by the police and his demeanor inspected for evidence that he is committing a crime. Furthermore, the protection of the neutral plan is illusory. What recourse does any driver have if the neutral plan was not being followed when he or she was stopped? In the Burlingame example, the plan provided that motorists who refused to stop would be allowed to proceed. Yet one of the participating officers said he would have pursued any motorist who refused to stop. As there is apparently no remedy for violations of the neutral plan, the plan is no protection against arbitrariness.

The pervasiveness of the invasion also must be considered. Take one example. The New York City police used 100 officers to operate a series of drunk driving roadblocks from May 27 to June 26, 1983. The police stopped 184,828 cars. There were 222 arrests for drunk driving. (N.Y. Times (June 27, 1983) at p. Bl, col. 2, described in Grossman, Sobriety Checkpoints: Roadblocks to Fourth Amendment Protections, supra, 12 Am. J. Crim. L. 123 , 157.) 5 During a one-month period, 184,606 people who *1356 turned out to be innocent were detained by the police. For every arrest there were 831 innocent drivers whose privacy was infringed. We certainly would be concerned about the propriety of detaining the same number of citizens on our streets for “inspection” for drug abuse or other crimes. It is one thing to invade personal privacy in order to apprehend dangerous criminals, but when the purported object is deterrence, such mass detentions are a very high price to pay when the effectiveness of such detentions is questionable at best.

The invasion of privacy occasioned by these roadblocks also may become pervasive in the sense that the roadblocks will be everywhere. If we approve drunk driving roadblocks, they may appear in every community. This could mean 20 or 30 or more roadblocks in any urban area on any given night. Omnipresent police blockades at each community’s border would be not only inconvenient for motorists, but also would be a contradiction of our values as an open and free society.

The Fourth Amendment is highly inexpedient to law enforcement, yet to date we have not allowed mass detentions on the theory that these might prove useful in combatting crime. I see no basis for distinguishing a drunk driving roadblock from any other mass detention established to prevent crime or apprehend wrongdoers. While drunk driving is a revolting crime, it is not the only one which the community abhors. If we abandon constitutional protections to combat every abhorrent crime which has captured the public’s attention, we will find ourselves naked and unprotected in a hurry.

Conclusion

Since I regard a drunk driving roadblock under which a motorist is stopped with no reasonable suspicion that he is intoxicated inconsistent with the federal and state Constitutions, I would reverse the decision of the Court of Appeal and order the issuance of a peremptory writ.

Mosk, J., and Panelli, J., concurred.

For the purpose of this opinion, the term “drunk driving” includes driving under the influence of alcohol or drugs. (See Veh. Code, § 23152 et seq.)

Although the Department of Motor Vehicles administers the license and registration provisions of the Vehicle Code, it has no agents enforcing the prohibition against drunk driving.

The majority do maintain that roadblocks may be effective in detecting the drunk driver with a low blood-alcohol level whose driving would not give objective signs that he is drunk. While this may be trae, I fail to see the point of dedicating twice as many officer hours to arrest a mildly intoxicated driver as would be employed to arrest a seriously intoxicated driver. Police resources being limited, it is obviously more effective to use them to apprehend the more dangerous offender.

This point is made in great detail in Grossman, Sobriety Checkpoints: Ineffective and Intrusive in American Bar Association, Criminal Justice Section, Drunk Driving Laws and Enforcement, an Assessment of Effectiveness (1986) 15, 17 (hereafter ABA, Assessment of Effectiveness), and in Grossman, Sobriety Checkpoints: Roadblocks to Fourth Amendment Protections (1984) 12 Am. J. Crim. L. 123 , 162-165. See also Jacobs & Strossen, Mass Investigations Without Individualized Suspicion: A Constitutional and Policy Critique of Drunk Driving Roadblocks (1985) 18 U.C.Davis L.Rev. 595, 640-641.

A similar example is the experience of Missouri. In a 12-month period, there were 83 roadblocks; 23,934 cars were stopped. There were 181 arrests for drunk driving and 34 for drug-related offenses. (See ABA, Assessment of Effectiveness, supra, at p. 9.)