Petition for Writ of Certiorari — Richard T. v. California

Supreme Court brief1988

Ask Donna

What actually matters in this document.

Text

= -« Supreme Court, U.S,

EILED

No. 88-__ AUG 10 1988

gOSEPH F, SPANION, JR,

CLERK

Supreme Court of the United States

October Term, 1988

RICHARD T.,

Petitioner,

vs.

CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

RONALD Y. BuTLER, PuBLIC DEFENDER

County oF ORANGE, STATE OF CALIFORNIA

Cari C. Homes

Cuier Deputy PusLtic DEFENDER

THomMaAS HAVLENA

Deputy Pusiic DEFENDER

SUPERVISING ATTORNEY

Writs AND APPEALS

RONALD E. Kiar, Deputy PusLic DEFENDER

COUNSEL OF RECORD

901 Civic Center Drive West, Suite 200

Santa Ana, CA 92703

(714) 834-2144

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED*

WHETHER THE USE OF ROADBLOCKS TO DETECT

INTOXICATED DRIVERS IS AN UNCONSTITUTIONAL

INFRINGEMENT UPON A PERSON’S RIGHT TO BE

FREE FROM UNREASONABLE SEARCHES AND SEI-

ZURES UNDER THE FOURTH AMENDMENT?

WHETHER IN THE ABSENCE OF SPECIFIC JUDICIAL

AUTHORIZATION OR LEGISLATIVE ACTION OR

ADMINISTRATIVE DELEGATION POLICE MAY ON

THEIR OWN ESTABLISH ROADBLOCKS FOR ENFORC-

ING PARTICULAR CRIMINAL STATUTES, LIKE THE

DRIVING UNDER THE INFLUENCE STATUTE HERE?

All parties to the proceeding in the lower court are listed in

the caption.

TABLE OF CONTENTS

Questions Presembell. a... «i 1408shudeeeeoenwewes

Opinianas Getew .....6. 3.545 ceicdendeatenss wwenen aoe

Feeripectiet: . . wc. sk SES oh bad eee eee eee eee

Constitutional and Statutory Provisions and Regula-

toms ENVOROGE oo... 6 cncuss css cneeeRen bee eenes

Statement OF Tine GOOG. oiscccacinncusecueensebeees

Reasons Why The Petition Should Be Granted .....

Reasons Why The Writ Should Be Granted ........

1. THE CALIFORNIA SUPREME COURT’S AND

APPELLATE COURT’S INTERPRETATION OF

CALIFORNIA AND UNITED STATES SUPREME

COURT LAW ON THE USE OF ROADBLOCKS

TO SPECIFICALLY COMBAT DRUNK DRIVING

GOES AGAINST THE GRAIN OF THE FOURTH

AMENDMENT THAT SEIZURES BE REASON-

ABLE .....56cisunee ctu

A. The Use Of A Roadblock To Detect Intoxi-

cated Drivers Absent Particularized Suspicion Is

An Unconstitutional Infringement Upon A Per-

son’s Right To Be Free From Unreasonable

Searches And Seizures Under The Fourth

AMONG oan 05 5 can eR eee ene ee co

B. Sobriety Checkpoints Conducted For The

Purpose Of Detecting Drunk Drivers Do Not Fall

Within One Of The Established Exceptions To

The Fourth Amendment’s Warrant Requirement

C. The Court Improperly Applied The Perma-

nent Checkpoint Analysis Formulated By The

United States Supreme Court in United States v.

Martinez-Fuerte, 428 U.S. 543 (1976), To The Tem-

porary Checkpoint Used In The Case Here.....

ili

TABLE OF CONTENTS-Continued

Page

2. ANY CHECKPOINT CANNOT BE CONDUCTED

BY POLICE OFFICERS ABSENT SPECIFIC JUDI-

CIAL OR LEGISLATIVE AUTHORIZATION OR

ADMINISTRATIVE DELEGATION.............. 25

ee ua Swe oe Cus bab eaes wees 27

TABLE OF AUTHORITIES

Page

Cases

Almeida-Sanchez v. United States, 413 U.S. 266

| ATT er rep Poe Pre TONS Py errr ry rt fee 10, 12, 16

Brown v. Texas, 443 U.S. 47 (1979)............ 10, 13, 14

Camara v. Municipal Court, (1967) 387 U.S. 523....... 20

Carroll v. United States, 267 U.S. 132 (1924)...... 15, 26

Delaware v. Prouse, 440 U.S. 648 (1979) .......... passim

FS te SP errr fy 2 er eer re 1, 3, 8

In re Tony C., 21 Cal.3d 888, 148 Cal.Rptr. 366, 522

eB PROP re se errr ey ry ore T ee 14

Ingersol v. Palmer, 43 Cal.3d 1321, __ Cal.Rptr.

cceaath sitagg NOE dines CUED Aa cee neneeessncsce 1, 3, 8, 11

People v. Bower, 24 Cal.3d 638 (1979) .............45. 21

People v. De La Torre, 257 Cal.App.2d 162 (1967)..... 21

People v. Dickinson, 104 Cal.App.3d 505 (1980)....... 21

People v. Gale, 46 Cal.2d 253 (1956)...........+22000. 15

People v. Horton, 14 Cal.App.3d 930 (1971)........... 16

People v. Hyde, 12 Cal.3d 158 (1974).......... 19, 20, 21

People v. Loewen, 35 Cal.3d 117 (1983)............... 21

People v. Teresinski, 30 Cal.3d 882 (1982)............. 13

Pipoly v. Benson, 20 Cal.2d 366 (1942) ............... 25

Terry @. CURe, Fee US. Fee oecc cca nctcdenss 13, 14

United States v. Brignoni-Ponce, 422 U.S. 873 (1975)

PEP Eee el oe err eo re ea ee 10, 12, 13, 17, 24

TABLE OF AUTHORITIES-Continued

Page

United States v. Davis, 482 F.2d 893 (9th Cir. 1973) ....20

United States v. Martinez-Fuerte, 428 U.S. 542 (1976)

PPP I eee Men re I EW at (ot 10, 13, 17, 19, 23, 24

United States v. Ortiz, 422 U.S. 891 (1975) ....10, 13, 17

Wirin v. Horrall, 85 Cal.App.2d 497 (1948)....15, 19, 26

CONSTITUTIONS

United States Constitution

POU FMI oo onc ccc scveccseseceas passim

Fourteenth Amendment ..............ssceseees passim

California Constitution

BIE Ri Oe 6c nce kn need nnnnnndesscanduvnsreun 4, 13

CopeEs

California Vehicle Code

Sica v birds Padaen ¥aluvsdedecteacibeauenceeeale 25

iS ED ck dcon copacbdndenedeadiinncesec dunn cose 4

SD PE ces indaaeas cdscovadeetan ses sdeedaeneceue 4

California Welfare and Institutions Code

OS FOS cies kw ck ghnvasiessasdeseetekdpakeast eee 4

MISCELLANEOUS

6160 4H) oa oe 3

No. 88-___

-—

In The

Supreme Court of the United States

October Term, 1988

RICHARD T.,

Petitioner,

vs.

CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

-—

Petitioner, Richard T., respectfully petitions this Hon-

orable Court to issue a Writ of Certiorari to review the

action of the California Supreme Court and judgment and

second opinion of the California Court of Appeal, Fourth

District, Division Three in a decision entitled In re Richard

T., per the order of the California Supreme Court trans-

ferring the matter back thereto with directions to vacate

its prior opinion and to reconsider in light of Ingersol v.

Palmer, 43 Cal.3d 1321, __ Cal.Rptr. _, ___ P.2d __

(1987). The Court of Appeal, in light of the California

Supreme Court’s directions, followed Ingersol in deter-

mining that within certain limitations a sobriety check-

point may be operated in a manner consistent with the

Federal and the State Constitutions. Those limitations are

that the decision to establish a checkpoint should be

made by supervisory law enforcement personnel; a neu-

tral formula of stopping every third, fourth or

tenth ... driver should be employed; proper lighting and

warning signals should be utilized; good judgment need

be used in setting the time and duration of the check-

point; each person stopped should be detained briefly

enough for the officer to question and determine if indi-

cia of intoxication is present; and advance publicity is

necessary. The Court of Appeal, again following Ingersol,

thus determined the proper standard to test the intrusive-

ness of the checkpoint was that applicable to investiga-

tive detentions and inspections conducted as part of a

regulatory scheme in furtherance of an administrative

purpose, specifically a balancing test, and not that of

individualized suspicion of wrongdoing. The court held

sobriety checkpoints were not operated for the primary

purpose of discovering evidence of crime or arresting

lawbreakers, but primarily for the regulatory purpose of

keeping intoxicated drivers off the roads to the end of

enhancing public safety. In essence, the court simply

categorized the police action as an administrative one.

The court rejected the contention that sobriety check-

points were impermissible in the absence of specific legis-

lative or judicial authorization or administrative

delegation, as is the situation here. The court rejected the

notion the legislature is the body that should take steps

to implement any sobriety checkpoint administrative

search program. Petitioner asserts the court and law

enforcement cannot simply categorize a particular crime

as threatening, thus permitting the implementation of a

roadblock under the guise of an “administrative” search

label absent legislative or judicial authorization.

OPINIONS BELOW

The opinion of the California Supreme Court in

Ingersol v. Palmer, which was directed to be followed by

the Court of Appeal, is published at 43 Cal.3d 1321

(1987). The opinion of the California Court of Appeal,

Fourth District, Division Three, was originally published

as In re Richard T., but the new decision using the prior

opinion as its basis is not published. (Both opinions by

the court of appeal are attached in Appendix A.)

Ly.

JURISDICTION

The judgment of the California Court of Appeal,

Fourth District, Division Three, affirming conviction, was

entered on March 10, 1988. A new Petition for Review

was filed with the California Supreme Court on April 19,

1988. The judgment of the California Supreme Court

denying review was entered on June 29, 1988.

This Petition filed within 60 days of the June 29, 1988

judgment denying review is timely. The jurisdiction of

this court is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND

REGULATIONS INVOLVED

This case involves the Fourth and Fourteenth

Amendments toe the United States Constitution and Arti-

cle I, section 13 of the California Constitution. Such are

set forth in pertinent part in Appendix B.

STATEMENT OF THE CASE

A petition was filed in the Superior Court of Califor-

nia for the County of Orange, sitting as the Juvenile

Court, requesting that Richard T. be declared a ward of

the Juvenile Court. The petition alleged he had driven a

vehicle under the influence of alcohol and had driven a

vehicle while having .10 or more of alcohol in his blood,

both misdemeanor violations of the California Vehicle

Code (sections 23152(a) and 23152(b) respectively.)

On june 6, 1985, at the jurisdictional hearing before

Commissioner Gale Hickman of the Orange County

Superior Court, sitting as the Juvenile Court, Richard T.

moved, pursuant to California Welfare and Institutions

Code section 700.1, to suppress evidence obtained as a

result of his detention at an Anaheim, California Sobriety

Checkpoint Roadblock, claiming he had been detained in

violation of his rights under the Fourth Amendment to

the United States Constitution. Testimony at the motion

to suppress evidence revealed that Richard T. was

arrested in the early morning hours of New Years Day,

1985, after he was stopped by police in a “sobriety

checkpoint” (roadblock) in the City of Anaheim R.T.,

5, 69.1 Anaheim Police Sergeant Ronald Lovejoy was

charged with the development and operation of the

checkpoints in that city for the 1985 holiday season R.T.,

5. In preparation for this assignment he observed another

city’s police department operate its own checkpoint and

read several publications on the subject, including a

recent opinion of the Attorney General (67 Ops. Cal. Atty.

Gen 471 (1984) R.T., 5. (The opinion in this case from the

California Court of Appeal indicates this opinion of the

Attorney General was given in response to an inquiry

from the Commission of the California Highway Patrol

and has been, apparently, along with certain language

appearing in the United States Supreme Court’s Delaware

v. Prouse, 440 U.S. 648 (1979) decision, the inspiration for

the recent roadblock revival in this state.)

As a result of his study, Sergeant Lovejoy and several

other officers developed a set of procedures to be fol-

lowed called the “Anaheim Sobriety Checkpoint Guide-

lines” R.T., 7. This document, a press release announcing

the holiday checkpoints, and a later police memorandum

summarizing the cost and effectiveness of the operation

were received in evidence R.T., 7.

Sergeant Lovejoy described the purposes of the

checkpoints as education and deterrence, to make the

public more aware of the dangers of drinking and driving

and to specifically discourage it, particularly in Anaheim.

The checkpoints, consequently, were widely publicized,

1 “R.T.” refers to the Reporter’s Transcript of the proceed-

ings in the juvenile court, by page number.

although their locations were not disclosed R.T., 10; 24;

50.

Richard T. was ensnared in a checkpoint on Knott

Boulevard near Lincoln. The geographical selection was

based on the high relative incidence of fatal accidents and

arrests for driving under the influence of alcohol in that

area R.T., 20; 39.

The operational procedure described in the guide-

lines provided for all vehicles to be diverted into two

lanes where they were halted at stop signs and the driver

questioned briefly concerning the origin and destination

of their journey. The officers were to scrutinize the opera-

tors for signs of intoxication and the interior of the vehi-

cles for evidence of ingestion of alcohol. This was

considered the primary checkpoint. A motorist display-

ing symptoms would be taken to the secondary check-

point for field sobriety tests. Although the sergeant stated

a driver who failed to roll down his window at the

request of an officer was to be simply waved on, the

officer who confronted Richard T. testified such noncoop-

eration would result in back-up officers being sent to stop

the recalcitrant subject R.T., 15; 16; 19; 23-33; 44; 82. In

fact, one person was “chased down” on the evening in

question R.T., 43.

This particular checkpoint at issue was operated

from 9:00 p.m. on December 31, 1984, to 3:30 a.m. on

January 1, 1985 R.T. 15. Between 9:00 and 11:00 p.m.

every other vehicle was stopped for processing at the

primary checkpoint; after 11:00 p.m. they all were

stopped because, according to Sergeant Lovejoy, the per-

centage of intoxicated drivers increases as the hour grows

later R.T., 14; 15. If traffic had become too congested, he

would have returned to the system used earlier, however

R.T., 14.

The sergeant further testified the time of each

encounter at the primary checkpoint was about 20.3 sec-

onds, although the average motorist also had to wait

some 90 seconds behind other vehicles R.T., 17; 46. On the

evening of the arrest of Richard T., nineteen persons were

apprehended for driving under the influence at the

checkpoint. There were 6,934 contacts and 44 arrests for

the offense in the one-week period the program was in

effect. The cost to the city was $10,931, plus the use of

thirteen officers in a sector usually patrolled by five R.T.,

34; 53; 54.

The officer who encountered Richard T., officer

Coovert, testified that when questioning him he smelled

an odor of alcohol and asked the minor further where he

had come from. Richard T. responded “from a party”

R.T., 69; 70. He was then escorted to the secondary check-

point where he failed a field sobriety test and was

arrested R.T., 70-78.

At the conclusion of testimony the minor’s motion to

suppress was denied, and the petition was sustained after

the case was submitted by stipulation on the blood alco-

hol result (0.12% w/v) and the police report.

Thereafter, Richard T. filed a timely notice of appeal.

On appeal, the California Court of Appeal, Fourth Dis-

trict, Division Three held that sobriety roadblocks or

checkpoints, and particularly this checkpoint, were not

akin to fixed checkpoints, thus were in violation of the

Fourth Amendment and therefore unlawful, and reversed

the trial court. The Attorney General then petitioned the

California Supreme Court to review the decision of the

Court of Appeal, and review was granted. A companion

roadblock case named Ingersol v. Palmer, supra, had been

pending in the California Supreme Court at the time

review was granted in Richard T. After holding road-

blocks constitutional within certain guidelines in the

Ingersol case, the California Supreme Court, on March 3,

1988, vacated the former opinion of the California Court

of Appeal reversing the trial court and returned the mat-

ter to them for reconsideration in light of Ingersol v.

Palmer. The Court of Appeal thus found the use of sobri-

ety checkpoints constitutional following the holding in

Ingersol and affirmed the trial court’s denial of the

minor’s motion to suppress. Counsel for Richard T. then

filed a petition for review of the Court of Appeal’s new

decision in the California Supreme Court on April 26,

1988. Review was denied on June 29, 1988. This court is

now being petitioned in the matter.

REASONS WHY THE PETITION SHOULD

BE GRANTED

In In re Richard T., the California Court of Appeal and

California Supreme Court have condoned the use of

sobriety checkpoint roadblocks, although within certain

guidelines, to detain the citizenry absent any partic-

ularized suspicion of criminality or wrongdoing. The

lower court’s analysis of the constitutionality of sobriety

checkpoints permits police intrusion into the daily lives

of numerous people traveling our roads absent any such

suspicion because that standard is not applicable to these

roadblocks since these detentions are, according to the

court, conducted as part of a regulatory scheme in fur-

therance of an administrative purpose. Thus, a balancing

test on the intrusiveness, rather than a particularized

suspicion standard, was deemed applicable even though

no judicial or legislative authorization or administrative

delegation existed to support the notion a regulatory

scheme was involved. The court simply categorized the

police action as administrative in nature as part of a

regulatory scheme which was not specifically legislated.

In practice, this decision would limit use and enjoyment

of public roads and permit arbitrary detentions of people

driving vehicles absent any suspicion of wrongdoing ina

manner that offends the Fourth Amendment and tradi-

tional notions of due process and equal protection of the

law.

By allowing sobriety checkpoints and the random

detention of drivers, absent specific and articulable facts

from which an officer may reasonably suspect that a

driver of a vehicle is under the influence of alcohol (and/

or drugs), California has chosen to afford no Fourth

Amendment protection to drivers of vehicles, while

others in society are clearly afforded such protection.

Thus, greater Fourth Amendment protection has been

afforded the non-driver. The danger here is that Califor-

nia can set up future citizen checkpoints or vehicle road-

blocks in a high crime area for, not only drunk driving,

but any crime offensive to public safety and simply cate-

gorize the action as a regulatory scheme in the fur-

therance of an administrative purpose, even absent

administrative or legislative authority for such a scheme,

as was the case here. In ruling in this manner the court

has disregarded decisions of this court, including United

States v. Brignoni-Ponce, 422 U.S. 873 (1975), Brown v.

Texas, 443 U.S. 47 (1979), Almeida-Sanchez v. United States,

413 U.S. 266 (1973), United States v. Ortiz, 422 U.S. 891

(1975) and United States v. Martinez-Fuerte, 428 U.S. 543

(1976), which stand for the proposition that such roving

detentions or checkpoint detentions require some partic-

ularized suspicion. Thus, the lower court would permit

police in the field to initiate a variety of sobriety check-

points to detain drivers on any given day, differing in

time and location on each occasion, to investigate, absent

particularized suspicion, if drivers are under the influ-

ence of alcohol, contrary to the principles set forth in

Delaware v. Prouse, 440 U.S. 648 (1979) and other Supreme

Court decisions.

This petition should be granted so that this Court

may protect the reasonable expectation of privacy that

persons who are in vehicles have when travelling the

public roadways. If this Court does not remedy Califor-

nia’s disregard for, and misapplication of Supreme Court

precedent, the Fourth Amendment will have no force and

effect for anyone utilizing the roadways, maybe not only

as to the crime of driving under the influence, but addi-

tional crime threatening the public the police may wish to

extend their action to envelop. Finally, in this case Peti-

tioner, Richard T., will have been deprived of his right to

enjoy that same use of the public roadways, free from

unwarranted and indiscriminate police interference.

REASONS WHY WRIT SHOULD BE GRANTED

THE CALIFORNIA SUPREME COURT’S AND

APPELLATE COURT’S INTERPRETATION OF

CALIFORNIA AND UNITED STATES SUPREME

COURT LAW ON THE USE OF ROADBLOCKS, TO

SPECIFICALLY COMBAT DRUNK DRIVING,

GOES AGAINST THE GRAIN OF THE FOURTH

AMENDMENT THAT SEIZURES BE

REASONABLE.

A. THE USE OF A ROADBLOCK TO DETECT

INTOXICATED DRIVERS ABSENT PARTIC-

ULARIZED SUSPICION IS AN UNCONSTITU-

TIONAL INFRINGEMENT UPON A PERSON’S

RIGHT TO BE FREE FROM UNREASONABLE

SEARCHES AND SEIZURES UNDER THE

FOURTH AMENDMENT.

The California Supreme Court recently decided a

sobriety checkpoint/ roadblock case of first impression in

California named Ingersol v. Palmer, 43 Cal.3d 1321 (1987).

This case was the basis for the decision in the case at bar

as the California Supreme Court ordered the pending (at

that time) Richard T. case be reconsidered in light of

Ingersol.2

The reasoning used to support the Richard T. deci-

sion upholding the constitutionality of the use of road-

blocks as long as within limited guidelines, set forth

above, is violative of sound United States Supreme Court

2 A review of the 26 jurisdictions that have dealt with the

question of the constitutionality of roadblocks aimed at drivers

under the influence show that 18 of these states have upheld

their constitutionality, 7 have declared such unconstitutional

and one state split on the issue.

case law and California case law interpreting the Fourth

Amendment.

Determining that under such circumstances no par-

ticularized suspicion of wrongdoing is necessary to sup-

port such detentions violates the Fourth and Fourteenth

Amendments to the United States Constitution. Such con-

flicts in principle and reasoning to Delaware v. Prouse,

supra, 440 U.S. 648, Almeida-Sanchez v. United States, supra,

413 U.S. 266, United States v. Brignoni-Ponce, supra, 422

U.S. 873 and other United States Supreme Court and

California decisions.

The court simply did away with requiring individu-

alized suspicion finding that the proper standard to test

such police action was that applicable to investigative

detentions and inspections conducted as part of a regula-

tory scheme in furtherance of an administrative purpose.

Thus, the court found, a simple balancing test of the

competing interests, privacy versus governmental inter-

ests, was the standard applicable. However, no specific

legislative, judicial or administrative authorization exis-

ted to support such roadblocks. No comprehensive regu-

latory scheme or program was available so as to apply

that standard and be consistent with the dicta in Delaware

v. Prouse, supra, indicating the need for articulable suspi-

cion in support of traffic stops absent such a regulatory

scheme, with a specific regulatory purpose, if a check-

point is to be considered constitutionally sound. Absent

such in the case at hand, articulable particularized suspi-

cion is required to stop a vehicle. Yet the court here

dispensed with such a long standing requirement.

In order to assure that an individual’s reasonable

expectation of privacy is not subject to arbitrary inter-

ference by law officers, seizures “must be based on spe-

cific, objective facts indicating that society’s legitimate

interests require the seizure of the particular individ-

ual... .” Brown v. Texas, 443 U.S. 47, 51 (1979); Terry v.

Ohio, 392 U.S. 1 (1968). Moreover, it is clearly well-estab-

lished that the stopping of a vehicle through a show of

authority by a police officer constitutes a “seizure”

within the meaning of the California and Federal Consti-

tutions. People v. Teresinski, 30 Cal.3d 882 (1982); Delaware

v. Prouse, supra, 440 U.S. 648, 653. Additionally, “It is

agreed that checkpoint stops are ‘seizures’ within the

meaning of the Fourth Amendment.” United States v.

Martinez-Fuerte, 428 U.S. 543, 556 (1976). Stopping an

automobile and detaining its occupants constitutes a

“seizure” even though the purpose of the stop is limited

and the resulting detention is brief. Delaware v. Prouse,

supra, 440 U.S. 648. Particularized suspicion has been the

necessary standard to be employed in numerous such

checkpoint situations United States v. Ortiz, 422 U.S. 891

(1975), Delaware v. Prouse, supra, 440 U.S. 648, United

States v. Martinez-Fuerte, supra, 428 U.S. 543. Yet the lower

court’s lack of application of these well-settled principles

to the state’s interest in combating driving under the

influence is an aberration of Fourth Amendment jurispru-

dence, violative of both the United States and California

Constitutions.

The California Constitution, article I, section 13 and

the Fourth Amendment protect citizens from arbitrary

government intrusion in their privacy by imposing a

standard of reasonableness upon the exercise of discre-

tion by government officials. Dispensing with individu-

alized suspicion as a precondition to traffic detentions

where, as here, the government officers monitoring traffic

exercise general law enforcement powers, upsets the bal-

ance of interests implicit in the reasonableness require-

ment of the Fourth Amendment.

The essential proscription of the Fourth Amendment

is to impose a standard of “reasonableness” upon the

exercise of discretion by government officials including

law enforcement agents, in order to safeguard the privacy

and security of individuals against arbitrary invasions.

Delaware v. Prouse, supra, at 653-654. The permissibility of

a particular law enforcement practice is judged by bal-

ancing its intrusion on the individual’s Fourth Amend-

ment interests against its promotion of legitimate

government interests. The reasonableness test requires

the facts upon which the intrusion is based be capable of

measurement against an objective standard.

The California standard for determining the permis-

sibility of detentions of persons for criminal investigation

is no different than that of the federal standard set forth

in Terry v. Ohio, supra, 392 U.S. 1, and Brown v. Texas,

supra, 443 U.S. 47, 51; In re Tony C., 21 Cal.3d 888, 148

Cal.Rptr. 366, 522 P.2d 957 (1978). What is necessary to

sustain an investigative stop or detention are specific and

articulable facts known to the officer causing him to

believe some activity relating to crime has taken place or

is occurring or about to occur and the person he stops is

involved in such activity. In re Tony C., supra, 21 Cal.3d

888.

a eC Mir

The decision below characterizing the investigative

detention as limited and brief and regulatory ignores

such a standard and the potential consequences of

repeated and unwarranted intrusions of vehicles on the

roadways not only for the purpose of combating drunk

driving, but any other crime which is a nuisance to the

public that the police deem warrants cleansing.

California precedents have consistently forbidden

general searches and seizures similar to the sobriety

checkpoints. Wirin v. Horrall, 85 Cal.App.2d 497 (1948),

involved a police procedure of “blocking off designated

areas of the City of Los Angeles and stopping all persons

and automobiles entering or leaving such areas and

searching them without first obtaining search warrants.”

Id., at p. 499. Associate Justice Marshall McComb, writing

for the court, reviewed the constitutional history of the

Fourth Amendment and its cognate provision in the Cali-

fornia Constitution, and held that such procedures are

unconstitutional, Id., at p. 502.

The California Supreme Court ruled roadblock stops

and searches illegal several years later in People v. Gale, 46

Cal.2d 253 (1956). Gale involved a Sheriff's Department

checkstation in San Diego County in which officers were

stopping and searching cars “to curb the juvenile prob-

lem and also check for . . . anything that looked sus-

picious.” Id., at p. 255. Justice Traynor, writing for the

court quoted Carroll v. United States, 267 U.S. 132, 153-154

(1924) which held that:

“It would be intolerable and unreasonable if a

prohibition agent were authorized to stop every

automobile on the chance of finding liquor and thus

subject all persons lawfully using the highways to

the inconvenience and indignity of such a search.”

Id., at 256.

Accordingly, the court held that the “possibility that-

... Cars were being used to further criminal ventures . . .

cannot justify stopping and searching all automobiles

being lawfully used on the highways in the hope that

some criminals will be found.” Id., at 256. Police searches

and seizures must be predicated on cause which sepa-

rates the person searched or seized from all other persons

lawfully using public highways. “ . . . [T]he right of the

citizen to drive on a public street with freedom from

police interference, unless he is engaged in suspicious

conduct associated in some manner with criminality, is a

fundamental constitutional right which must be protected

by the courts.” People v. Horton, 14 Cal.App.3d 930, 934

(1971) (holding indiscriminate detentions of juvenile

motorists unconstitutional).

Nothing in this court’s more recent decisions indi-

cates any relaxation of the requirement that a police

officer have a particular suspicion before detaining a per-

son even for a brief investigation.

In a series of cases involving the border patrol, the

U.S. Supreme Court has applied the Fourth Amendment's

reasonableness requirement to vehicle stops. Almeida-San-

chez v. United States, 413 U.S. 266 (1973) involved the stop

of the defendant 25 miles north of the Mexican border by

a roving division of the U.S. Border Patrol. The Supreme

Court held that, absent consent or probable cause that the

defendant's car contained illegal aliens, the search was

invalid.

Cas. evs

ee ee ge eg NENee, Soe) Ee Pie ee

;

‘

United States v. Ortiz, 422 U.S. 891 (1975) involved a

routine checkpoint 60 miles north of the Mexican border.

The court held that consent or probable cause was

required before an auto could be searched at a traffic

checkpoint. Because not all cars were stopped and not all

those stopped were searched, the checkpoint searches

were just as random and discretionary as the searches

conducted by roving patrols.

United States v. Brignoni-Ponce, 422 U.S. 873 (1975)

involved the stop of a vehicle by a roving patrol where

the occupants appeared to be of Mexican ancestry. The

court held that, except at the border and its functional

equivalents, roving patrols may stop vehicles only if they

have a reasonable suspicion that a particular auto con-

tains illegal aliens.

The seminal case of United States v. Martinez-Fuerte,

428 U.S. 543 (1976) involved the use of permanent check-

points by the border patrol. Unlike the previous border

patrol cases, the court allowed vehicle stops without

requiring an articulated objective standard. The court

held that there need be no individualized suspicion

because the intrusion on personal privacy is minimal and

law enforcement agents have less discretion. The stops

analyzed by the Martinez-Fuerte court were unique

because the checkpoints were permanent and adequately

evidenced the police power of the state. Such stops were,

therefore, less likely to worry or frighten motorists than

stops conducted by roving patrols.

In the instant case, the roadblocks were not perma-

nent. They moved from night to night to different loca-

tions. Further, discretion was clearly left to officers in the

aia

field on the actions to be taken R.T. 16:1-26; 48:13-16.

Also, the actual locations of the roadblocks were not

given to the public in advance R.T. 24:9-12. Thus, the

checkpoint was just as likely to cause concern or startle

motorists as roving patrols which have been condemned

by the court.

Although the Court has not specifically discussed

“sobriety checkpoints,” it did discuss traffic checkpoints

by way of dicta in Delaware v. Prouse, supra. Prouse

involved the use of roving patrols to spot-check driver’s

licenses and vehicle registration. The court held that

except where there is an articulable basis amounting to

reasonable suspicion that the driver is unlicensed or the

vehicle unregistered, a patrolman could not stop a partic-

ular driver. “This kind of standardless and unconstrained

discretion is the evil the court has discerned when in

previous cases it has insisted that the discretion of the

official in the field be circumscribed, at least to some

extent.” Delaware v. Prouse, supra, at 661. Such is why the

roadblock in the case at bar cannot withstand constitu-

tional scrutiny.

B. SOBRIETY CHECKPOINTS CONDUCTED

FOR THE PURPOSE OF DETECTING DRIVERS

UNDER THE INFLUENCE DO NOT FALL WITHIN

ONE OF THE ESTABLISHED EXCEPTIONS TO

THE FOURTH AMENDMENT’S WARRANT

REQUIREMENT.

Sobriety checkpoint roadblocks do not fall within one

of the recognized exceptions to the Fourth Amendment

requirement that a detention, however brief, must be

oe ee Pes

based upon at least a reasonable suspicion that the indi-

vidual detained is involved in criminal activity.

It is true that the United States Supreme Court has

upheld inspections of vehicles at fixed checkpoints near

the international border for the purpose of interdicting

illegal alien traffic. United States v. Martinez-Fuerte, 428

U.S. 543 (1976). The rationale for relaxation of the partic-

ularity requirement in that case flows principally from

the impracticality of using any other means to interdict

illegal alien traffic, which does not normally exhibit indi-

cia of illegal behavior. See 428 U.S. at p. 557. Therefore,

brief inspection of traffic as a means of detecting aliens is

not matched by any other detection methods, such as

observing the visible behavior of the driver. The court

also stressed its view that the intrusion itself was mini-

mal in light of certain safeguards which restrain the

discretion of the officer in the field and give some warn-

ing of the officer’s authority to motorists.

Similarly, in Delaware v. Prouse, 440 U.S. 468 (1979),

the court indicated in dicta that checkpoint procedures

for detecting vehicles for license violations and other

regulatory matters might be lawful provided that drivers

are not stopped arbitrarily. However, it did hold that

random stops without cause are illegal. Both Martinez-

Fuerte and Delaware v. Prouse deal with regulatory matters

rather than a direct detection of crime. Where criminal

investigations are undertaken “California courts have

consistently rejected such a blunderbuss approach since

Wirin v. Horrall, supra, insisted upon Fourth Amendment

protection for highway travelers.” People v. Hyde, 12

Cal.3d 158, 164 (1974).

Relaxation of the particularity requirement is only

permissible in connection with “searches conducted as

part of a general regulatory scheme in furtherance of an

administrative purpose, rather than as part of a criminal

investigation to secure evidence of crime.” People v. Hyde,

supra, at 165, quoting United States v. Davis, 482 F.2d 893,

908 (9th Cir. 1973).

If the particularity requirement is abandoned when

the rate of crime is high “there appears no discernible

limitation to an extension permitting the whole-

sale . . . [invasions of privacy] of the general public

whenever a serious threat of crime emerges.” Id., at p.

164. Indeed, the exception for administrative regulatory

inspections has its origins in Camara v. Municipal Court,

387 U.S. 523 (1967). Camara involved health and safety

inspections of homes without probable cause. In Camara,

the court stated: “[b]ecause the inspections are neither

personal in nature nor aimed at the discovery of evidence of

crime, they involve a relatively limited invasion of the

urban citizen’s privacy.” Id., 387 U.S. 537; (emphasis

added). By way of contrast, a police officer’s detention of

a driver at night and an inspection of the driver’s breath

and deportment is about as personal an inspection as one

can imagine, as well as being directly aimed at the dis-

covery of evidence of crime.

Additionally, this state’s agricultural inspection sta-

tions have been upheld against a Fourth Amendment

challenge on the ground that they are regulatory rather

than intended for the purpose of crime detection. “The

motorists are not taken into custody if they possess

offending plants for that is not in itself a crime. The

quarantine officers are looking for offending plants, not

enn,

attest | ie emet ie —,

TD ee ee ee

ih Ah Malt eet,

people.” People v. Dickinson, 104 Cal.App.3d 505, 510 Cf.

(1980), People v. De La Torre, 257 Cal.App.2d 162 (1967).

Similarly, the airport magnetometer searches which

the court upheld in People v. Hyde, supra, are both regula-

tory in nature and present a de minimus intrusion as

compared to the stopping of a vehicle by uniformed

officers at night.

While certain safeguards might be employed in the

search for drivers under the influence, such safeguards

do not put roadblocks for the purpose of detecting crimi-

nal activity on a par with magnetometers, or roadblocks

instituted for the purpose of detecting regulatory viola-

tions. Thus, having police agencies “select the times of

operation and locations of checkpoints, based on empiri-

cal evidence of high driver under the influence activity or

alcohol related crashes” is merely another way of stating

the “high crime area” rationale which has previously

been rejected as justification for an indiscriminate deten-

tion in People v. Loewen, 35 Cal.3d 117 (1983) and People v.

Bower, 24 Cal.3d 638 (1979). Checkpoint sites, flashing

lights, flares, police vehicles and the presence of uni-

formed officers simply increases the level of apprehen-

sion, fear, and indicia of overwhelming police presence

which makes the intrusion significant, intensive, and far

different from an agricultural inspection, an airport

checkpoint, an administrative search for housing code

violations, or a checkpoint to detect licensing or registra-

tion violations. Police officers stopping every car or using

a nonbiased formula to decide which cars to stop may

reduce the discretion of the officer in the field but it does

not resolve the fact that stops are nonetheless indiscrimi-

nate and unsupported by particularized suspicion.

Requesting motorists to produce driver’s license or vehi-

cle registration and asking questions while looking for

alcohol impairment puts the police officer into the situa-

tion of intensively inspecting and interrogating the

motorist, effectively requiring the motorist to justify his

or her presence on the highway.? This sort of questioning,

as compared with checkpoints for regulatory infractions,

is intrusive and the surveillance of the motorist’s man-

ners and attitude is a direct intrusion on privacy and

personal security. None of the foregoing “safeguards”

significantly reduce the affront to Fourth Amendment

principles caused by roadblock sobriety checkpoints.

A review of the case authority grappling with the

exceptions to the requirement that a stop must be based

upon a reasonable suspicion of criminal activity reveals

that the vehicle stops in the situations where the excep-

tion applied were for a regulatory purpose as opposed to

criminal in nature. Thus, absent criminal overtones or

connotations the stop was permissible. Further in each of

those instances there existed no less intrusive means to

detect the regulatory violations and fulfill the govern-

ment’s legitimate purpose.

In the case at bar, the vehicle stop is frought with

criminal overtones. Based on the circumstances sur-

rounding the entire course of action by police here no

other conclusion is rational. Yet no reasonable suspicion

to any degree is evident to support such action and this is

3 As indicated in the present case by officer Coovert’s

questioning of the petitioner, i.e., “Where are you coming

from.” (RT:69:21-22.)

Sd I.

Aa Tag ieip cea ital aeLiala eA

PSI T Ore cia

in contravention of the Fourth Amendment and the

expectation of privacy it so fervently seeks to protect.

C. THE COURT IMPROPERLY APPLIED THE

PERMANENT CHECKPOINT ANALYSIS FORMU-

LATED BY THE UNITED STATES SUPREME

COURT IN UNITED STATES V. MARTINEZ-

FUERTE, 428 U.S. 543 (1976), TO THE TEMPORARY

CHECKPOINT USED IN THE CASE HERE.

In the instant case, the trial court, in upholding the

police action, referred to this sobriety checkpoint as a

“temporary but fixed” one R.T., 133. Further, the court

believed that this pai cicular checkpoint was not “perman-

ent” in nature like that in Martinez-Fuerte R.T., 133. °

However, the latter cases analysis was utilized by the

trial court, and thus the higher court in affirming the

decision, to determine the police action legal. Yet the

above case authority is just what lends power to peti-

tioner’s contentions regarding these temporary

roadblocks.

The Martinez-Fuerte court specifically upheld perma-

nent border checkpoints operated pursuant to federal

statutory authorizations. The court held that the intrusion

involved in a checkpoint stop for the purpose of detect-

ing illegal aliens, was minimal since it involved only

visual screening, brief questioning or the production of

documents. Further, it was held that the procedure was

necessary since illegal alien status did not give rise to

observable facts upon which reasonable suspicion could

be based. The Martinez-Fuerte court also took note of the

broad powers usually accorded the Federal Government

in the area of immigration regulation.

The factors considered crucial by the court in Mar-

tinez-Fuerte establish that the sobriety checkpoint used in

this case is an unreasonable law enforcement procedure.

The intrusion occasioned by a stop to detect drivers

under the influence of alcohol is highly personal in

nature, as it involves highly intrusive procedures aimed

at the discovery of criminal evidence. The procedure

involves much more than visual inspection and the brief

production of documents required in a checkpoint stop to

determine alien status. A motorist who is stopped at a

sobriety checkpoint is subject to eye, speech and breath

inspections along with the performance of coordination

tests.

The Martinez-Fuerte court found that a permanent

checkpoint is less intrusive than a roving patrol specifi-

cally because of the permanency factor. Also, this court

specifically limited the holding to “the type of stops

described in this opinion. Any further detention . . . must

be based on consent or probable cause,” pp. 566-567. The

court also stated “Our holding today, approving routine

stops for brief questioning . . . is confined to permanent

checkpoints ... ,” p. 567, footnote 19.

The stop(s) in the case at hand, not having that

permanency nature, thus necessitate some particularized

suspicion. The checkpoint is clearly analogous to a roving

patrol, as that in Brignoni-Ponce, although a slower mov-

ing one (i.e., changing night to night).

ANY CHECKPOINT CANNOT BE CONDUCTED

BY POLICE OFFICERS ABSENT SPECIFIC JUDI-

CIAL OR LEGISLATIVE AUTHORIZATION OR

ADMINISTRATIVE DELEGATION.

In the case at hand, no specific legislative, judicial or

administrative authority exists so as to support the

notion the police action is pursuant to a regulatory sche-

matic in furtherance of an administrative purpose, thus

doing away with the need for particularized suspicion.

Although the Legislature has criminalized driving

while intoxicated, it has not established rules requiring

motorists to submit to roadside checkpoints and sobriety

tests in the absence of suspicion that he is intoxicated.

Vehicle Code section 21 prohibits enactment of ordi-

nances on matters covered by the Vehicle Code without

express authorization from the Legislature. Pipoly v. Ben-

son, 20 Cal.2d 366 (1942). The Anaheim sobriety check-

point does not have the status of an ordinance since the

requirement has not been approved by any legislative

body. The police are in effect creating their,own rules for

drivers.

A sobriety roadblock is such a pervasive investiga-

tion technique that its use requires the thoughtful consid-

eration of the State Legislature and the adoption of an

appropriate statute.

Any reliance on Delaware v. Prouse, 440 U.S. 649

(1979), is misleading in that procedures for detecting

vehicles for license violations and other regulatory mat-

ters, according to the People, might be lawful provided

that drivers are not stopped arbitrarily. However, random

stops without cause are illegal. Prouse does not cast doubt

on the law of California. It deals with regulatory matters

rather than a direct detection of crime. Where criminal

investigations are undertaken, California courts have

consistently rejected such a shotgun approach since Wirin

v. Horrall, 85 Cal.App.2d 497 (1948), insisted upon Fourth

Amendment protection for highway travelers. In Wirin,

the court held that blockades violated the Fourth Amend-

ment. Quoting from Carroll v. United States, supra, 267

Us. tae

“Persons lawfully within the United States of

America are entitled to use the public highways and

have the right to free passage thereon without inter-

ruption or search, unless a public officer authorized

to search knows of probable cause for believing that

the vehicle is carrying contraband or that the occu-

pants thereof have violated some law.” (Id., at 149.)

To simply permit the court and law enforcement in

the case at bar to categorize an action as a regulatory

scheme in furtherance of an administrative purpose,

absent legislative or judicial authorization or administra-

tive delegation, because of the difficulty the driver under

the influence creates, would plainly open the door to the

categorizing of all serious crime creating public safety

problems pursuant to such a scheme also, thus doing

away with particularized suspicion and reasonableness,

and in effect the Fourth Amendment entirely.

That reasonableness or particularized articulable sus-

picion must be present and applied to vehicle stops

absent such authorization. Absent any statute legitimiz-

ing such police power to stop and detain in a roadblock

es a SY

Tee Sgt ee oe ae oe ee

ieee’

setting the action is simply illegal. Even with such autho-

rization the constitutionality of deployed reasonable sus-

picion is questionable let alone absent any at all from any

branch of government.

CONCLUSION

Accordingly, for all the aforementioned reasons, Peti-

tioner respectfully urges this court to grant his petition

and reverse the decision of the California Court of

Appeal.

Respectfully submitted,

RONALD Y. BUTLER

Public Defender

Cart C. Hoimes

Chief Deputy Public Defender

THOMAS HAVLENA

Deputy Public Defender

Supervising Attorney

Writs & Appeals

RONALD E. KLar

Deputy Public Defender

Counsel of Record

APPENDIX A

App. 1

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re RICHARD T., a Person )

Coming Under the Juvenile )

Court Law. ) G0002987

) (Super. Ct. No. J-109712)

THE PEOPLE OF THE

STATE OF CALIFIORNIA, _ ) OPINION

Plaintiff and Respondent, ) (Filed Mar. 10, 1988)

Vv. )

RICHARD T., )

Defendant and Appellant. )

Appeal from a judgment of the Superior Court of

Orange County, Gale P. Hickman, Temporary Judge. (Pur-

suant to Cal. Const., art. VI, § 21.) Affirmed.

Ronald Y. Butler, Public Defender (Orange), Carl C.

Holmes and Frank Scanlon, Assistant Public Defenders,

Lindsey Fenimore, Sharon Petrosino and Mark A. Rakich,

Deputy Public Defenders, for Defendant and Appellant.

ACLU Foundation of Southern California, Paul Hoff-

man, Mark D. Rosenbaum and Joan Howarth as Amici

Curiae on behalf of Defendant and Appellant.

Amitai Schwartz as Amicus Curiae on behalf of

Defendant and Appellant.

ACLU Foundation of Northern California, Margaret

C. Crosby, Alan L. Schlosser and Edward Chen as Amici

Curiae on behalf of Defendant and Appellant.

John K. Van de Kamp, Attorney General, John W.

Carney and Jay M. Bloom, Deputy Attorneys General, for

Plaintiff and Respondent.

App. 2

Ira Reiner, District Attorney (Los Angeles), Harry B.

Sondheim and Richard Sullivan, Deputy District Attor-

neys, as Amici Curiae on behalf of Plaintiff and

Respondent.

* * *

On March 3, 1988, the Supreme Court vacated our

former opinion and returned the matter to this court for

reconsideration in light of Ingersol v. Palmer (1987) 43

Cal.3d 1321. We incorporate the facts from our earlier

opinion, which is attached as an appendix.

The only issues raised, the constitutionality of sobri-

ety checkpoints and whether the Anaheim Police Depart-

ment employed appropriate criteria for their

implementation, were resolved contrary to appellant’s

arguments in Ingersoll. Our facts are not legally distin-

guishable, either on the constitutional issue or the issue

raised with respect to the operation of the Anaheim

checkpoint (see, id. at pp. 1341-1347). Accordingly, we are

now compelled to affirm.

Judgment affirmed.*

Crosby, Acting P.J.

1 CONCUR:

Wallin, J.

*Former Presiding Justice Trotter, who was a member of

the panel previously, has since retired.

App. 3

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re RICHARD T., a Person )

Coming Under the Juvenile )

Court Law. ) G0002987

(Super. Ct. No. J-109712)

THE PEOPLE OF THE

STATE OF CALIFIORNIA, _ ) OPINION

Plaintiff and Respondent, ) (Filed Sep. 19, 1986)

‘ )

RICHARD T., )

Defendant and Appellant. )

Appeal from a judgment of the Superior Court of

Orange County, Gale P. Hickman, Temporary Judge. (Pur-

suant to Cal. Const., art. VI, § 21.) Reversed.

Ronald Y. Butler, Public Defender (Orange), Carl C.

Holmes and Frank Scanlon, Assistant Public Defenders,

Lindsey Fenimore, Sharon Petrosino and Mark A. Rakich,

Deputy Public Defenders, for Defendant and Appellant.

ACLU Foundation of Southern California, Paul Hoff-

man, Mark D. Rosenbaum and Joan Howarth as Amici

Curiae on behalf of Defendant and Appellant.

Amitai Schwartz as Amicus Curiae on behalf of

Defendant and Appellant.

ACLU Foundation of Northern California, Margaret

C. Crosby, Alan L. Schlosser and Edward Chen as Amici

Curiae on behalf of Defendant and Appellant.

John K. Van de Kamp, Attorney General, John W.

Carney and Jay M. Bloom, Deputy Attorneys General, for

Plaintiff and Respondent.

App. 4

Ira Reiner, District Attorney (Los Angeles), Harry B.

Sondheim and Richard Sullivan, Deputy District Attor-

neys, as Amici Curiae on behalf of Plaintiff and

Respondent.

* * iad

Are warrantless temporary roadblocks established to

combat drunk driving lawful? No.

Richard T. was arrested in the early morning hours of

New Years Day, 1985, after he was stopped in a so-called

“sobriety checkpoint” in the City of Anaheim. He moved

to suppress the evidence against him, all of which was

alleged to be the product of an illegal detention. He

argued the officers had no particularized suspicion suffi-

cient to stop his vehicle, no exception to the warrant

requirement of the Fourth Amendment for sobriety

checkpoints exists, and the establishment of the check-

points is not authorized by statute.

Anaheim Police Sergeant Ronald Lovejoy was

charged with the development and operation of the

checkpoints in that city for the 1985 holiday season. In

preparation for this assignment he observed the River-

side Police Department operate its own checkpoint and

read several publications on the subject, including a

recent opinion of the Attorney General (67

Ops.Cal.Atty.Gen. 471 (1984)). That opinion was given in

response to an inquiry from the Commissioner of the

California Highway Patrol and has been, apparently,

along with certain language appearing in the United

States Supreme Court’s Delaware v. Prouse (1979) 440 U.S.

App. 5

648 decision, the inspiration for the recent roadblock

revival in this state.

As a result of his study, Lovejoy and several other

officers developed a set of procedures to be followed

called the “Anaheim Sobriety Checkpoint Guidelines.”

This document, a press release announcing the holiday

checkpoints, and a later police memorandum summariz-

ing the cost and effectiveness of the operation were

received in evidence.

Lovejoy described the purposes of the checkpoints as

education and deterrence, to make the public more aware

of the dangers of drinking and driving and to specifically

discourage it, particularly in Anaheim. The checkpoints,

consequently, were widely publicized, although their

locations were not disclosed.

Richard T. was ensnared in a checkpoint on Knott

Boulevard near Lincoln. The geographical selection was

based on the high relative incidence of fatal accidents and

arrests for driving under the influence of alcohol in that

area.

The operational procedure described in the guide-

lines provided for all vehicles to be diverted into two

lanes where they were halted at stop signs and the

drivers questioned briefly concerning the origin and des-

tination of their journey. The officers were to scrutinize

the operators for signs of intoxication and the interiors of

the vehicles for evidence of ingestion of alcohol. This was

yclept the primary checkpoint. A motorist displaying

symptoms would be taken to the secondary checkpoint

for field sobriety tests. Although Lovejoy stated a driver

who failed to roll down his window at the request of an

officer was to be simply waved on, the officer who

App. 6

confronted Richard T, testified such noncooperation

would result in backup officers being sent to stop the

recalcitrant subject.

This particular checkpoint was operated from 9 p.m.

on December 31, 1984, to 3:30 a.m. on January 1, 1985.

Between 9 and 11 p.m. every other vehicle was stopped

for processing at the primary checkpoint; after 11 p.m.

they all were because, according to Lovejoy, the percent-

age of intoxicated drivers increases as the hour grows

later. If traffic had become too congested, he would have

returned to the system used earlier, however.

Lovejoy testified the time of each encounter at the

primary checkpoint was about 20.3 seconds, although the

average motorist also had to wait some 90 seconds

behind other vehicles. On the evening of this minor’s

arrest, nineteen persons were apprehended for driving

under the influence at the checkpoint. There were 6,934

contacts and 44 arrests for that offense in the one-week

period the program was in effect. The cost to the city was

$10,931, plus the use of thirteen officers in a sector usu-

ally patrolled by five.

The officer who encountered Richard T. testified he

smelled the odor of alcohol and asked the minor from

whence he had come. In an honest but damning response,

he replied, “From a party.” He was escorted to the sec-

ondary checkpoint where he failed a field sobriety test

and was arrested. The minor’s motion to suppress was

denied, and the petition was sustained after the case was

submitted by stipulation on the blood alcohol result

(0.12% w/v) and the police report.

App. 7

In the words of our Supreme Court, “[t]he drunk

driver cuts a wide swath of death, pain, grief, and untold

physical and emotional injury across the roads of Califor-

nia and the nation.” (Burg v. Municipal Court (1983) 35

Cal.3d 257, 262, cert. den. (1984) 466 U.S. 967.) The court

noted in the years 1976 to 1980 many more Californians

were injured in alcohol related accidents than members of

the whole Union Army during the Civil War and more

were killed than in the deadliest year of the Vietnam War.

(Ibid.) The United States Supreme Court has spoken on

the subject in similar terms: “The increasing slaughter on

our highways, most of which should be avoidable, now

reaches the astounding figures only heard of on the bat-

tlefield.” (Breithaupt v. Abram (1957) 352 U.S. 432, 439.)

Nevertheless, the ardor of Californians for the unfet-

tered use of the open road finds protection in both the

state and federal Constitutions. The stop and detention of

a citizen or a vehicle and its occupants is a “seizure”

within the meaning of the Fourth Amendment (Delaware

v. Prouse, supra, 440 U.S. 648, 653) and article I, section 13

of the California Constitution. (Formerly art. I, § 19; see

People v. Triggs (1973) 8 Cal.3d 884, 891-892, fn. 5, disap-

proved on another point in People v. Lilienthal (1978) 22

Cal.3d 891, 896 fn. 1.)

Consequently, a vehicle stop is constitutionally per-

missible only if an appropriate search or arrest warrant

has first been obtained or if one of four recognized excep-

tions to the warrant requirement exists:! consent; exigent

1 The definition of an “appropriate” search warrant is

another question. We imply nothing on that subject at this

juncture.

App. 8

circumstances; reasonable suspicion of wrongdoing; or

when carried out at fixed locations, such as border immi-

gration checkpoints, weigh stations, and airport metal

detector checkpoints. (Ybarra v. Illinois (1979) 444 U.S. 85,

96, fn. 11; Brown v. Texas (1979) 443 U.S. 47; United States

v. Martinez-Fuerte (1976) 428 U.S. 543; United States v.

Brigqnoni-Ponce (1975) 422 U.S. 873; People v. Loewen (1983)

35 Cal.3d 117; In re Tony C. (1978) 21 Cal.3d 888; People v.

Hyde (1974) 12 Cal.3d 158.) The United States Supreme

Court has specifically rejected a fifth possible exception,

roving regulatory vehicle stops (Delaware v. Prouse, supra;

Almeida-Sanchez v. United States (1973) 413 U.S. 266), and

has yet to directly consider the impact of the type of

vehicle stop involved in this case, temporary roadblocks.

Does the Anaheim sobriety checkpoint, operated

without benefit of a warrant, fit one of the recognized

exceptions? We quickly eliminate the first three possi-

bilities: There is no claim Richard T. consented to the stop

of his vehicle or the detention of his person. The Legisla-

ture has created an implied consent law in the context of

blood alcohol testing for motorists arrested for drunk

driving (Veh. Code, §§ 13353 et seq., 23157), but Califor-

nia has no law implying submission to sobriety check-

points by the mere act of driving.2 And a statute so

providing would be of dubious constitutionality. (See

Delaware v. Prouse, supra, 440 U.S. at p. 662 and People v.

Hyde, supra, 12 Cal.3d at p. 162, fn. 2.)

2 Implied consent to be sued in this state is also presumed

of nonresident motorists who use our highways. (Veh. Code,

§ 17450 et seq.)

App. 9

Similarly, there is no claim that Richard T. was

stopped based on any particularized, reasonable suspi-

cion or that exigent circumstances, at least as tradi-

tionally understood, were involved. (See e.g., Tamborino v.

Superior Court (1986) 41 Cal. 3d 919; compare People v.

Glover (1979) 93 Cal.App.3d and United States v. Williams

(D.S.D. 1974) 372 F.Supp. 65.) Nor do we believe the

menace of drunk driving conjures up a special emergency

comparable to the danger of an airliner hijacking, the

rationale our Supreme Court used in approving airport

metal detectors at fixed checkpoints in People v. Hyde,

supra, 12 Cal.3d 158. One hijacking presents a threat to

life and property many hundreds of times greater than

that posed by a drunk driver. Moreover, as our discussion

will reveal, the special emergency notion is no longer

essential to the result in Hyde in light of more recent

United States Supreme Court decisions approving fixed

checkpoints per se.

We are left with a single possible justification for the

temporary roadblock used in this case: the relatively

newly recognized fixed checkpoint exception to the war-

rant requirement. But are temporary sobriety check-

points? the constitutional equivalent of fixed

checkpoints? Or, are they akin to impermissible roving

patrol stops?

3 We note most courts in other jurisdictions refrain from

the “Newspeak” used by police in this state and frankly

describe these artifical traffic jams in plain English as road-

blocks. (Orwell, Nineteen Eighty-Four (1949).)

App. 10

One leading case disapproving roving automobile

stops for regulatory purposes is United States v. Brignoni-

Ponce, supra, 422 U.S. 873. There, the court held, “We are

unwilling to let the Border Patrol dispense entirely with

the requirement that officers must have a reasonable sus-

picion to justify roving-patrol stops.” (Id. at p. 882.) This

passage was footnoted: “Because the stop in this case was

made without a warrant and the officers made no effort

to obtain one, we have no occasion to decide whether a

warrant could be issued to stop cars in a designated area

on the basis of conditions in the area as a whole and in

the absence of reason to suspect that any particular car is

carrying aliens. See Almeida-Sanchez, 413 US, at 275, 37

LEd2d 596, 93 SCt 2535 (Powell, J., concurring); Camara

v. Municipal Court, 387 US 523, 18 LEd2d 930, 87 SCt

1727 (1967).” (Id., at p. 882, fn. 7.) Thus, roving stops for

the purpose of regulatory enforcement are not lawful in

the absence of probable cause or reasonable suspicion.

Several years later, the court took an entirely differ-

ent view of warrantless regulatory seizures at fixed

checkpoints. Although the specific checkpoint considered

in United States v. Martinez-Fuerte, supra, 428 U.S. 543 was

for immigration purposes, the court strongly hinted the

rules will be the same for other checkpoints, at least those

of a permanent nature: “Stops for questioning, not dis-

similar from those involved here, are used widely at state

and local levels to enforce laws regarding drivers’

licenses, safety requirements, weight limits, and similar

matters. The fact that the purpose of such laws is said to

be administrative is of limited relevance in weighing

their intrusiveness on one’s right to travel; and the logic

iil

App. 11

of the defendants’ position, if realistically pursued, might

prevent enforcement officials from stopping motorists for

questioning on these matters in the absense of reasonable

suspicion that a law was being violated. As such laws are

not before us, we intimate no view respecting them other

than to note that this practice of stopping automobiles

briefly for questioning has a long history evidencing its

utility and is accepted by motorists as incident to high-

way use.” (Id., at p. 560, fn. 14.)

The court also distinguished its earlier decision con-

cerning roving patrol stops: “We concluded [in Brignoni-

Ponce] that random roving-patrol stops could not be toler-

ated because they ‘would subject the residents of .. .

[border] areas to potentially unlimited interference with

their use of the highways, solely at the discretion of

Border Patrol officers . . . [They could stop motorists at

random for questioning, day or night, anywhere within

100 air miles of the 2,000 mile border, on a city street, a

busy highway, or a desert road. . . .’ [Citation.] There also

was a grave danger that such unreviewable discretion

would be abused by some officers in the field. [Citation.]”

(Id., at pp. 558-559.)

The court added, “Routine [fixed] checkpoint stops

do not intrude similarly on the motoring public. First, the

potential interference with legitimate traffic is minimal.

Motorists using these highways are not taken by surprise

as they know, or may obtain knowledge of, the location of

the checkpoints and will not be stopped elsewhere. Sec-

ond, checkpoint operations both appear to and actually

involve less discretionary enforcement activity. The regu-

larized manner in which the established checkpoints are

operated is visible evidence, reassuring to law-abiding

App. 12

motorists, that the stops are duly authorized and believed

to serve the public interest. The location of a fixed check-

point is not choser 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 p. 559.)

In considering whether an administrative warrant

was constitutionally mandated in the case of fixed check-

points, the court observed, “A warrant require-

ment . . . draws some support from Camara, where the

Court held that, absent consent, an ‘area’ warrant was

required to make a building code inspection, even though

the search could be conducted absent cause to believe

that there were violations in the building searched.” (Id.,

at p. 564, fn. omitted.) The court distinguished Camara on

the following grounds, however: (1) Stronger Fourth

Amendment interests are involved when private resi-

dences are to be searched. (2) An occupant of a residence

has no way of knowing the lawful scope of the inspec-

tor’s authority to search or whether he is authorized at

law, but “the visible manifestations of the field officers’

authority at a checkpoint provide substantially the same

assurances. .. .” (Id., at p. 565.) (3) Warrants prevent

hindsight evaluation of the reasonableness of a search;

but in the context of fixed checkpoints, “reas-

onableness . . . turns on factors such as the location and

method of operation of the checkpoint, factors that are

not susceptible to the distortion of hindsight, and there-

fore will be open to post-stop review. . . .” (Ibid.) And (4)

there is no great need to substitute the judgment of a

magistrate for the searching officer because “the decision

to ‘seize’ is not entirely in the hands of the officer in the

App. 13

field, and deference is to be given to the administrative

decisions of higher ranking officials.” (Id., at p. 566.)

The Supreme Court's latest consideration of roving

car stops came in Delaware v. Prouse, supra, 440 U.S.

648. The issue framed by the court was “whether it is an

unreasonable seizure under the Fourth and Fourteenth

Amendments to stop an automobile, being driven on a

public highway, for the purpose of checking the driving

license of the operator and the registration of the car,

where there is neither probable cause to believe nor rea-

sonable suspicion that the car is being driven contrary to

the laws governing the operation of motor vehicles or

that either the car or any of its occupants is subject to

seizure or detention in connection with the violation of

any other applicable law.” (Id., at p. 650.)

The court rejected a possible implied consent justi-

fication for roving drivers license checks: “There are cer-

tain ‘relatively unique circumstances’ [citation] in which

consent to regulatory restrictions is presumptively con-

current with participation in the regulated enterprise.

[Citing cases involving federal regulation of firearms and

liquor.] Otherwise, regulatory inspections unaccom-

panied by any quantum of individualized, articulable

suspicion must be undertaken pursuant to previously

specified ‘neutral criteria.’ [Citation.}” (Id., at p. 662, fn.

given, infra.)

Does the presence of “neutral criteria” dispense with

the warrant requirement? The court’s message on that

point may be found in the footnote to the previously

quoted passage. It reads, “Cf. Marshall v. Barlow’s Inc.

436 US 307, 56 LEd2d 305, 98 SCt 1816 (1978) (warrant

App. 14

required for federal inspection under interstate commerce

power of health and safety of workplace); See v. Seattle,

387 US 541, 18 LEd2d 943, 87 SCt 1737 (1967) (warrant

required for inspection of warehouse for municipal fire

code violations); Camara v. Municipal Court, 387 US 523,

18 LEd2d 930, 87 SCt 1727 (1967) (warrant required for

inspection of residence or municipal fire code viola-

tions).” (Delaware v. Prouse, supra, 440 US at p. 662, fn. 25.)

Consequently, while roving patrols are constitutional for

administrative puroses in heavily regulated industries

without a warrant based on an implied consent theory,

the same is not true in other areas less heavily regulated,

such as traffic safety enforcement.

Thus, the court concluded discretionary spot checks

of motorists violated the Fourth Amendment. But in a

famous dictum it added, “This holding does not preclude

the State of Delaware or other States from developing

methods for spot checks that involve less intrusion or

that do not involve the unconstrained exercise of discre-

tion. Questioning of all oncoming traffic at roadblock-type

stops is one possible alternative.” (Delaware v. Prouse, supra,

440 U.S. at p. 663, fn. omitted, emphasis added.) The

highlighted passage provided a2 powerful boost to the

proponents of sobriety checkpoints; but it does not, of

course, suggest the procedure for the implementation of

these roadblocks, specifically whether they would be

lawful in the absence of prior judicial authorization.

The resolution of that question depends on a compar-

ison of the mechanics of fixed and temporary check-

points. We find little similarity. Fixed checkpoints are

generally accompanied by government buildings, perma-

nent signs and traffic control devices, a clear warning of

App. 15

purpose, and are visible by day. Agricultural inspection

stations, weigh stations, immigration checks, and airport

security systems do not surprise. Their locations are

widely known, and they may be easily avoided. (See

People v. Hyde, supra, 12 Cal.3d 158, 175-176 (conc. opn. of

Wright, C.J.).)

In our view, temporary checkpoints, like roving

patrol stops, do not quite meet these criteria: They do

take the motorist by surprise; and because they utilize

such devices as flares, cones, and flashing lights and

virtually always appear by night, they do not provide

“visible evidence” of a “regularized manner” of opera-

tion which would reassure motorists. Instead, they take

on the appearance of an emergency situation more likely

to engender excitement and apprehension in the motor-

ing public. (See State v. Koppel (N.H. 1985) 499 A.2d 977,

983.)

Also, hindsight evaluation of temporary checkpoints,

both with respect to location and administration, presents

problems fixed checkpoints do not. Worse, they require

repeated redetermination on a case by case basis, a pro-

cedure largely unnecessary when considering fixed

checkpoints.

Finally, we suspect a police sergeant who, as in this

case, not only chose the site for the ‘emporary roadblock

but also commanded the field operaticn, would not meet

the Supreme Court's definition of a higher ranking offi-

cial entitled to judicial deference in the selection of a

roadblock location. Fixed checkpoints must obviously be

approved at very high levels of the executive branch and

App. 16

funded by the Legislature; roadblocks are simply not

comparable in this respect.

Based on an examination of these cases, the conclu-

sion appears compelled that warrantless temporary road-

blocks, like roving patrol stops, are unlawful. Other

courts have so held. For example, the Supreme Court of

South Dakota found warrantless temporary sobriety

checkpoints unconstitutional precisely because of their

transitory nature, noting “[nJjeither the defendants in the

instant case nor other motorists had prior knowledge of

the roadblock in question and presumably could not have

acquired such knowledge, for by its very nature the road-

block was set up to stop without prior warning, and

perforce by surprise, all motorists who happened to pass

that particular point on the night in question.” (State v.

Olgaard (S.D. 1976) 248 N.W.2d 392, 394.) The court con-

cluded, “We hold only that unless authorized by prior

judicial warrant, the establishment of a roadblock for the

purpose of investigating all motorists for [drunk driving]

constitutes an unconstitutional seizure... .” (Id., at p.

395.)

5 To the extent that hunting and fishing roadblocks are

comparable to sobriety checkpoints, and there are several

obvious distinctions, South Dakota has been inconsistent. in

State v. Halverson (S.D. 1979) 277 N.W.2d 723, the appellant was

stopped on two occasions at a temporary game checkpoint and

cited for driving with an expired vehicle safety inspection

sticker. The South Dakota Supreme Court determined the war-

rantless checkpoint was constitutional nonetheless and upheld

the convictions. The court reasoned those obtaining a hunting

license had “tacitly consent[ed]” to the inspection. As to the

(Continued on following page)

PS ye ee ¥

Spee sy ced aN Sons ts acai Bais Baw tts

App. 17

Mere implementation of neutral criteria without a

warrant will not suffice. As the Texas Court of Appeals

has stated, “It is apparent that the [police] in this case

acted with restraint. Yet the inescapable fact is that this

restraint was imposed by the [police] themselves, not by

a judicial officer. A search has never been sustained by

the United States Supreme Court upon the sole ground

that the officers reasonable expected to find evidence of a

particular crime and voluntarily confined their activities

to the least intrusive means consistent with that end.

[Citation.]” (Webb v. State (Tex.App.5 Dist 1985) 695

S.W.2d at p. 683.)

One recent law review analysis goes further: “If

widely approved, sobriety checkpoints could be set up at

shifting locations all over the country. Neither Border

Patrol checkpoint stops nor any other types of suspicion-

less investigations that the Supreme Court has authorized

(Continued from previous page)

appellant and other nonhunting motorists, the court simply

observed, “The intrusion into [their] right . . . to the uninter-

upted use of the highways [was] slight and greatly outweighed

by the public interest in the management and conservation of

wildlife in [the] state.” (Id., at p. 725.) The continuing validity

of this opinion, rendered three weeks after Delaware v. Prouse,

supra, 440 U.S. 648, is, of course, debatable. Noteworthy to our

discussion is the view of Professor LaFave with respect to

hunting and fishing checkpoints. He would require an area

search warrant in order that “a magistrate could circumscribe

in advance a warden’s authority . . . imposing limits as to time

and areas and, perhaps, factors which at least would support a

likelihood that any person stopped has been engaged in hunt-

ing or fishing.” (3 LaFave, Search and Seizure (1986 pocket pt.)

§ 10.8, p. 194.)

App. 18

have touched the lives of so many citizens or been aimed

at criminal law enforcement. The acceptance of drunk

driving roadblocks could pave the way for other dragnet

searches and seizures to enforce other criminal laws.

“While submission to sobriety checkpoint investiga-

tions might seem a small price to pay for an alleged

‘solution’ to the serious drunk driving problem, similar

‘solutions’ could be offered for every crime problem. This

Article has pointed out that the effectiveness of drunk

driving roadblocks has not been demonstrated and that

enforcement strategies consistent with the probable cause

or reasonable suspicion standard are at least productive.

The Article has also shown that, notwithstanding

Supreme Court decisions approving other types of suspi-

cionless searches and seizures, there are strong constitu-

tional reasons to reject drunk driving roadblocks.

“Routine roadblocks call to mind the way police and

soldiers are deployed in authoritarian societies. Even if

they were conducted in a uniform and ‘friendly’ manner,

they would be inconsistent with American constitutional

and political traditions. .. .” (Jacobs & Strossen, Mass

Investigations Without Individualized Suspicion: A Constitu-

tional and Policy Critique of Drunk Driving Roadblocks

(1985) 18 U.C. Davis L.Rev. 595, 679-680, fn. omitted.)®

6 Several courts and commentators have expressed similar

sentiments. For example, the Oklahoma Court of Criminal

Appeals warned, “The roadblocks in the present case could

well act, and most likely did act, as a total surprise to those

passing through. The fear factor involved in this case is height-

ened by the presence of at least ten officers, chemical testing

(Continued on following page)

eal

App. 19

(Continued from previous page)

equipment, and mobile booking and jail vans actually on the

scene. To the individual approaching such a roadblock, it is not

unlikely that he would reasonably perceive the officers as

being desirous of arresting criminals and that anyone passing

through could easily be arrested. The United States Supreme

Court has never stretched its permanent roadblock exception

to the point that such an intrusion can be tolerated under the

Fourth Amendment. The subjective [] intrusion, i.e., fear and

apprehension, potentially imposed upon the individual inno-

cent of misconduct is simply too great. [§] The Court finds

such activities by law enforcement authorities, while com-

mendable in their ultimate goal of removing DUI offenders

from the public highways, draw dangerously close to what

may be refered to as a police state.” (State v. mith (Okla.Cr.

1984) 674 P.2d 562, 564; see also State v. Marchand (1985) 104

Wash.2d 434, 706 P.2d 225; State v. Koppel, supra, 499 A.2d 977;

Webb v. State (Tex.App.5 Dist. 1985) 695 S.W.2d 676; and com-

monwealth v. Tarbert (Pa. Super. 1985) 502 A.2d 221.)

Even nationally syndicated columnist Andy Rooney has

addressed the subject: “ ‘If you aren’t doing anything wrong,

what have you got to worry about?’ That’s the argument you

hear [in support of drunk driving roadblocks and warrantless

searches in general for that matter]. [§] Well, I haven’t done

anything wrong. I don’t drink when I drive and I’m plenty

worried. If the police can stop us anytime in our cars, why

can’t they stop us on the street and check us over for counter-

feit $20 bills or weapons? They could question us on any

criminal activity down by the supermarket. [§] The police in

this country have a tough enough time maintaining their

image as friendly protectors of law-abiding citizens without

the burden of this kind of police-state work.” (Rooney, Giving

Up Some Liberty in Exchange for Security, The Orange County

App. 20

Nothing in our review of California authority per-

suades us, in light of the more recent decisions of the

United States Supreme Court, that warrantless road-

blocks are constitutional.? Warrantless roadblocks to

detain motorists without particularized suspicion for the

purpose of combating juvenile delinquency or general

criminal activity were held unconstitutional in People v.

Gale (1956) 46 Cal.2d 253 and Wirin v. Horrall (1948) 85

Cal.App.2d 497. But in People v. De La Torre (1967) 257

Cal.App.2d 162, the court approved temporary check-

points for vehicle safety inspections pursuant to Vehicle

Code section 2814.

It is not clear from the opinion whether the check-

point in De La Torre was permanent or temporary, but the

statute would apparently authorize either. It reads in

part, “Every driver of a passenger vehicle shall stop and

submit the vehicle to an inspection of the mechanical

condition and equipment of the vehicle at any location

where members of the California Highway Patrol are

conducting tests and inspections of passenger vehicles

and when signs are displayed requiring such stop.” Vehi-

cle Code section 2814 goes on to provide for the pro-

mulgation of regulations by the Commissioner of the

California Highway Patrol to implement its purpose.

Whether De La Torre remains sound law after more

recent United States Supreme Court cases, particularly

Brown v. Texas, supra, 443 U.S. 47, is highly debatable; and

? Our Supreme Court has granted review in a case pre-

senting the issue we consider here (Ingersoll v. Palmer (1986)

175 Cal.App.3d 1028, review granted April 3, 1986 (S.F. 25001)).

App. 21

we believe not. For example, De La Torre relied in part on

the holding of People v. Weger (1967) 251 Cal.App.2d 584,

certiorari denied sub nom. Weger v. California (1968) 389

U.S. 1047, which approved a stop and identify statute

similar to that struck down in Brown. Citing Weger, the De

La Torre court stated, “ ‘The duty of a motorist to stop and

submit to a routine check is similar to that of a person

abroad at night to stop and identify himself.’ ” (People v.

De La Torre, supra, 257 Cal.App.2d at p. 166.) Thus, to the

extent they are similar, De La Torre was severly wounded

by Brown. Whether it is moribund after Prouse and the

Supreme Court immigration and administration warrant

cases is, of course, the essence of the issue before us.

Temporary drivers license control checkpoints were

upheld in People v. Washburn (1968) 265 Cal.App.2d 665,

670; but this holding is also of dubious precedential

value. Washburn solely and uncritically relied on two

roving stop decisions, People v. Porter (1961) 196

Cal.App.2d 684 and Lipton v. United States (9th Cir. 1965)

348 F.2d 591; and both cases were clearly nullified by

Delaware v. Prouse, supra, 440 U.S. 648. Thus, Washburn,

like De La Torre, is legally obsolete.

In People v. Hyde, supra, 12 Cal.3d 158, our Supreme

Court upheld the use of airport metal detectors as admin-

istrative searches justified by an “ongoing emergency.”

(Id., at p. 168.) Three justices concurred on the basis the

searches were reasonable and could be simply avoided by

the election to use other forms of travel. But the rationale

of Hyde has been relegated to legal history by the reason-

ing of United States v. Martinex-Fuerte, supra, 428 U.S. 543.

Martinez-Fuerte appears to have eliminated the warrant

requirement for any properly authorized permanent

App. 22

checkpoint, the fixed aspect of the checkpoint itself ful-

filling the function of a warrant according to the court.

This checkpoint was not fixed; nor, as we previously

explained, can it be reasonably defended on an ongoing

emergency theory. Thus, although it is necessary to

acknowledge that the weight of authority in other juris-

dictions is contrary to our analysis,2 we must conclude

8 For example, the Supreme Court of Florida, while

invalidating the arrest in the case before it, gave its approval to

future roadblocks where the law enforcement agency could

make a favorable showing under the Brown balancing test

using criteria listed by the Supreme Court of Kansas in State v.

Deskins (1983) 234 Kan. 529, 673 P.2d 1174: “(a) degree of

discretion left to field officers; (b) location, time and duration

of the roadblock; (c) standards set by superior officers; (d)

advance notice to [the] public; (e) warning to approaching

motorists; (f) degree of fear or anxiety caused; (g) length of

detention of each motorist; (h) safety conditions; (i) physical

factors of the method of operation; (j) availability of less intru-

sive methods for combating the problem; (k) effectiveness of

the procedure; (1) any other relevant circumstances.” (State v.

Jones (Fla. 1986) 483 So.2d 433, 437.) (See also State v. Martin

(1985) 145 Vt. 562, 496 A.2d 442, 448; Commonwealth v.

McGeoghegan (1983) 389 Mass. 137, 449 N.W.2d 349.)

Although approving the roadblock it examined, the Kan-

sas Supreme Court in Deskins stated, “It might well be advis-

able that minimum uniform standards for the operation of

vehicular roadblocks be adopted and established by the legis-

lature or attorney general. . . .” (State v. Deskins, supra, 673 P.2d

at pp. 1185-1186.) A dissenting justice retorted, “My basic

concern is that, without legislative standards and limitations,

the rights of Kansas citizens to privacy and freedom from

unreasonable intrusion by governmental officials would be

destroyed. I cannot in good conscience accept that as a way of

(Continued on following page)

App. 23

that the warrantless roadblock used to detain this minor was

unlawful and reverse accordingly.

(Continued from previous page)

life in this land of freedom.” (Id., at p. 1188 (dis. opn. of Prager,

J.).)

In People v. Bartley (Ill. 1985) 486 N.E.2d 880, certiorari

denied sub nom. Bartley v. Illinois (1986) ___ U.S. ___, 89 L.Ed.2d

608, 106 S.Ct. 1384, the Supreme Court of Illinois made an

important distinction: “Since we deal here only with the type

of roadblock which can and should be planned in advance, our

appraisal of the roadblock established in this case is not

intended to address the validity of an emergency roadblock,

for example, a ‘dragnet’ established to trap a dangerous crimi-

nal before he can flee the jurisdiction.” (Id., at p. 885; but see

People v. Glover, supra, 93 Cal.App.3d 376.) The court went on to

find that although the drivers license check roadblock before it

might have been designed as a subterfuge to apprehend drunk

drivers, it met the Deskins criteria and was consequently

constitutional.

Other courts have upheld drunk driving roadblocks, at

least in principle, under similar, although sometimes less

extensive, analyses. (Lowe v. Commonwealth (Va. 1985) 337

S.E.2d 273, cert. den. sub nom. Lowe v. Virginia (1986) _____ U.S.

__, 89 L.Ed.2d 720, 106 S.Ct. 1464; Commonwealth v. Trumble

(1985) 396 Mass. 81, 483 N.E.2d 1102; State v. Superior Court

(Simmons) (1984) 143 Ariz. 45, 691 P.2d 1073; People v. Scott

(1984) 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.W.2d 1; Little v.

State (1984) 300 Md. 485, 479 A.2d 903; State v. Garcia

(Ind.App.iDist. 1986) 489 N.E.2d 168; State v. Golden (Ga.App.

1984) 318 S.W.2d 693; Kinslow v. Commonwealth (Ky.App. 1983)

660 S.W.2d 677, cert. den. sub nom. Kinslow v. Kentucky (1984)

465 U.S. 1105; State v. Coccomo (1980) 177 N.J.Super.L. 575, 427

A.2d 131. Several other courts have upheld roadblocks in

analogous circumstances. (State v. Cloukey (Me. 1985) 486 A.2d

143 [drivers license and vehicle equipment checkpoint]; State v.

Tourtillott (1980) 289 Or. 845, 618 P.2d. 423, cert. denied sub nom.

Tourtillott v. Oregon (1981) 451 U.S. 972 [game checkpoint].)

App. 24

Judgement reversed.

Crosby, J.

I Concur.

Trotter, P.J.

I concur in the result only.

Wallin, J.

Crosby J., concurring.

In today’s ruling we conclude warrantless temporary

roadblocks designed to deter driving under the influence

are unlawful. My colleagues are unwilling to accept the

corollary, however: that they would be constitutional if

authorized by an administrative area search warrant.

Although it is generally a wiser course to withhold pro-

nouncements not essential to a particular decision, there

are exceptions. This is such a case.

The clear implication to be derived from the United

States Supreme Court decisions discussed in the lead

opinion is that temporary roadblocks authorized by an

area warrant would be constitutional, but lower courts

have simply failed to take note. In view of this state’s

strong public policy to discourage the tipsy motorist and

the general failure of judicial opinions across the country

on both sides of the issue to recognize the possibility of

legitimizing roadblocks by means of area search war-

rants. I believe we have a responsibility, here and now, to

explain how and why such warrants would be constitu-

tional and the proper legislative steps to implement them.

ae. eee ee Uw, UO Oe

seitieal

App. 25

Moreover, | believe a tentative endorsement of judi-

cially authorized roadblocks is necessary to our holding.

To be logically consistent, we must declare the positive as

a necessary implication of a statement of the negative. If a

warrant authorizing sobriety checkpoints is not possible,

the motoring public may be stranded in the clutches of

the rather imprecise balancing formula of Brown v. Texas

(1979) 443 U.S. 47. A warrant procedure would be far

preferable.

In Brown officers stopped the appellant, a pedestrian,

in an area of narcotics trafficking because they had never

seen him before and he appeared “suspicious.” He was

then arrested for refusing to identify himself in violation

of a statute which permitted officers to stop individuals

without probable cause or reasonable suspicion to require

identification.

Somewhat ironically, although the warrantless stop

in Brown was held to be invalid, a fundamental misap-

plication of that opinion has substantially contributed to

the acceptance of warrantless roadblocks in a number of

jurisdictions. Many courts have simply assumed the pro-

priety of a balancing test in roadblock cases without

discussion of the lack of a warrant.? Brown itself does not

mention warrants, but for good reason. It was an obvious

given that the street encounter in Brown provided no

opportunity to obtain one.

° To paraphrase our Supreme Court in another context, the

error lies in placing the balancing cart before the warrant

horse. (See Williams v. State of California (1984) 34 Cal.3d 18.

App. 26

The same is not necessarily true of roadblocks; they

are usually planned weeks or months in advance. None-

theless, the following language from the Brown opinion

has served as a common analytical springboard for many

of the drunk driving roadblock cases: “The reasonable-

ness of seizures that are less intrusive than a traditional

arrest [citations] depends ‘ “on a balance between the

public interest and the individual’s right to personal

security free from arbitrary interference by law offi-

cers.” ’ [Citations.] Consideration of the constitutionality

of such seizures involves a weighing of the gravity of the

public concerns served by the seizure, the degree to

which the seizure advances the public interest, and the

severity of the interference with individual liberty. [Cita-

tion.]” (/d., at pp. 50-51.)

A good example of the misuse of the Brown balancing

test may be found in an otherwise very thorough and

thoughtful opinion of the Attorney General (67

Ops.Cal.Atty.Gen. 471 (1984)). Substantially based on the

logic of the cases from other jurisdictions which simply

assume the applicability of Brown to drunk driving road-

blocks without consideration of the warrant question (see

maj. opn., at p. __, fn. 8 [slip opn. pp. 22-24]), the

opinion concludes, “California curts have already upheld

the constitutionality of checkpoint stops without individ-

ualized suspicion (1) to inspect the mechanical condition

and equipment of vehicles for traffic safety purposes; (2)

to search prospective airplane passengers for weapons

and explosives as an air safety measure; and (3) to inspect

vehicles entering the state for agricultural pests to protect

California agriculture. It seems likely they would also

approve the use of sobriety checkpoints conducted with

lll."

App. 27

safeguards minimizing the intrusion on motorists to

reduce the carnage on our highways caused by intoxi-

cated drivers. We therefore conclude the California law

enforcement agencies may lawfully utilize checkpoints in

the detection and apprehension of persons driving under

the influence of intoxicating substances if sufficient safe-

guards are taken to minimize the intrusion on motorists.”

(Id. at p. 487)

As explained in the lead opinion, however, the fixed

checkpoint cases do not perforce support the use of tem-

porary sobriety checkpoints; and the Washburn and De La

Torre courts’ approval of drivers license and vehicle

safety inspection stops may be legally obsolete. (People v.

Washburn (1968) 265 Cal.App.2d 665; People v. De La Torre

(1967) 257 Cal.App.2d 162.) Nevertheless, the Attorney

General’s opinion does set forth neutral criteria based on

sobriety checkpoint cases from other jurisdictions which

would be useful in the preparation of an area search

warrant.

These are the suggested guidelines:

1. The decision to establish a roadblock and its loca-

tion must be made by “policy-making officials, rather

than by officers in the field.” And the locations chosen

should be areas of a statistically provable high incidence

of drunk driving and alcohol related accidents. (67

Ops.Cal.Atty.Gen., at pp. 479, 486, supra.)

2. The time and duration of operation should coin-

cide with times that drunk drivers would be expected to

be on the road, e.g., closing times of taverns. (/d., at pp.

479-480.)

App. 28

3. The discretion of the officers must be limited and

the intrusion on motorists minimized. (/d., at pp. 480,

486.)

4. The existence of the checkpoint should be pub-

licized in advance, although not necessarily its location.

(id.at p. 481.)

5. Roadside signs giving advance warning of the

checkpoint should be used. (Id., at pp. 481-482.)

6. Fear and anxiety of approaching motorists should

be minimized. (Id., at p. 482.)

7. The safety of motorists must be a prime considera-

tion. Checkpoints should not be installed in heavy traffic,

and traffic should not be allowed to build up. (/d., at pp.

482, 486.)

8. The period of detention must be minimized. (Id.,

at p. 483.)

9. The field officers should be briefed in advance by

supervisory personne! and thoroughly instructed in

appropriate procedures. (/d., at p. 483.)

10. Records should be maintained in order to evalu-

ate the effectiveness of the checkpoint. (/d., at pp. 484,

486.)

The recitation concludes, “It is readily apparent that

the factors discussed above interrelate with one another.

The location, timing and method of operation of sobriety

checkpoints all affect safety, anxiety and fear generated,

and their effectiveness. By enumerating the factors we do

not mean to suggest that each in indispensable or that

App. 29

each will carry the same weight in the Fourth Amend-

ment balancing process.” (Id., at p. 486.)

Although entirely skeptical of the usefulness and

legality of sobriety checkpoints in any case, the authors

of a comprehensive current examination of the subject

suggest they should only be permitted, if at all, by area

warrants based on similar substantive criteria: “The

potentially useful role that warrants can play in limiting

field officer discretion was summarized by the Supreme

Court in a recent Occupational Safety and Health Act

inspection case: [{] ‘A warrant...would provide assur-

ances from a neutral officer that the inspection is reason-

able under the Constitution, is authorized by statute, and

is pursuant to an administrative plan containing specific

neutral criteria. Also, a warrant would then and there

advise the [individual whose property was being

searched] of the scope and objects of the search, beyond

which limits the inspector is not expected to proceed.’ [{]

To obtain a warrant authorizing a sobriety checkpoint,

the agency should be required to demonstrate that a

serious drunk driving problem exists in the vicinity of the

requested checkpoint; that the proposed timing of the

checkpoint’s operation is consistent with the goals of

detection and deterrence; and that the proposed site is

consistent with considerations of nondiscrimination,

safety, and convenience. The magistrate should not renew

the warrant after expiration of a reasonable tiine period

unless the law enforcement agency can demonstrate the

checkpoint’s productivity in terms of either increased

drunk driving arrests or decreased alcohol-related

crashes.” (Jacobs & Strossen, Mass Investigations Without

App. 30

Individualized Suspicion: A Constitutional and Policy Cri-

tique of Drunk Driving Roadblocks (1985) 18 U.C. Davis

L.Rev. 595, 679-680, fn. omitted.)

Of course, many of the discomfiting aspects of tem-

porary roadblocks, such as the fear and apprehension

they potentially engender, cannot be entirely removed

merely because a judicial officer reviews the neutral crite-

ria in advance. Yet public knowledge that the roadblock

must have been judicially authorized with rules, limits,

and uniform procedures would provide some assurance

to the motorist; and indeed, this is one instance when

publication of the affidavit and warrant in advance

would be of positive benefit.1°

Moreover, as a representative of an impartial branch

of government with responsibilities to the public as a

whole, a magistrate can act to prevent the misuse of

raodblocks by particular municipalities and to check their

overuse in contiguous areas. For example, the officer in

this case testified the goal of the roadblock was to deter

drunk driving, particularly in Anaheim. What message

does this send to surounding communities? Must they

retaliate, in effect, by setting up barriers on their own

borders to contain Anaheim violators? California has

numerous metropolitan areas of contiguous munici-

palities; many citizens live in one city, work in another,

and have daily business in numerous others. Must they

be subjected to an uncontrolled and uncoordinated series

of sobriety checkpoints at a period in our history when

10 Although, of course, the exact location of the roadblock

might be deleted.

App. 31

traffic, even at night, approaches gridlock dimensions in

many parts of the state?

Roadblocks, if permitted at all, must be subject to

prior judicial authorization in the form of an administra-

tive area search warrant based on neutral criteria of the

sort suggested by the Attorney General.!! And one of

those criteria must be a consideration of the effect on the

particular community where the roadblock is to be

located, as well as surrounding areas and traffic patterns,

taking all other porposed and approved checkpoints into

account. To this end, and to avoid “judge shopping,” only

one magistrate in each county, perhaps to be appointed

by the presiding judge of the superior court, should be

authorized to issue roadblock warrants.

11 Administrative search warrants are creatures of statute,

and California has such a scheme (Code Civ. Proc., § 1822.50 et

seq.). May it be reasonably interpreted, as currently written, to

encompass ,all vehicles passing through as particular area?

Probably not. A cursory review of the statutes would suggest

that they are presently drawn too narrowly for the purpose.

Code of Civil Procedure section 1822.50 permits the issu-

ance of inspection warrants “to conduct any inspection

required or authorized by state or local law or regulation

relating to...safety....” The Legislature could, of course, create

an enabling inspection statute. And while section 1822.54 spe-

cifically includes vehicles within the class of places permitted

to be searched, it also requires that the warrant “particularly”

describe the vehicle. That is clearly not possible in the case of

temporary sobriety checkpoints, but the statute could be

amended to provide for temporary seizures of vehicles within

a particular area for the purpose of removing those operated

by impaired individuals.

App. 32

This is not to say that such warrants would be avail-

able in other contexts for the general purpose of criminal

law enforcement, e.g., for searches of all the shoppers in a

mall to apprehend and deter petty thieves. The usual

Penal Code search warrant provisions could obviously

not be adapted to that end (Pen. Code, § 1524 et seq.).

More importantly, petty thieves are not licensed and their

activities not regulated. Neither are they required to reg-

ister the implements of their trade and maintain them in

a safe condition according to strict standards.

Driving under the influence, on the other hand, is not

merely a crime. It also is, and perhaps primarily ought to

be viewed as, a matter of traffic safety regulation. The

impaired driver’s vehicle is a hazard on the road compa-

rable to one with worn tires or defective steering or

brakes. Just as the health and vision of motorists are

legitimate subjects of inquiry by the Department of Motor

Vehicles, so is the sobriety of those actually on the road to

the agencies responsible for enforcing the regulations

applicable to unsafe vehicles and impaired drivers. While

as a legislator I might find tightened regulations for

ordinary motorists approaching those now in place for

pilots, truckers, and ship captains to be intolerable, as a

judge I cannot find they would be constitutionally infirm.

I am aware our Supreme Court specifically consid-

ered, and rejected, the potential use of search warrants in

People v. Hyde (1974) 12 Cal.3d 158, the airport metal

detector case. The court held no warrant was required in

that situation because “Airport searches are singularly

unsuited to the warrant procedure. Every day through

airport terminals nationwide pass thousands of airline

travellers, each of whom must be screened for weapons

rare aD

OS eee

App. 33

or explosives. The result is a form of ongoing emergency

rendering it impracticable, if not impossible, for airline

officials to seek a search warrant for individual pas-

sengers.” (Id., at pp. 168-169.)

But Hyde appeared before United States v. Brigoni-

Ponce (1975) 422 U.S. 873 and its rather pointed hint that

area search warrants authorizing roving border patrols

would be constitutional under appropriate conditions.

(id., at p. 882, fn. 7.) The California Supreme Court in

Hyde obviously did not contemplate that prospect and,

after the decision in Martinez-Fuerte approving warrant-

less fixed checkpoints, has had no reason to reconsider.

Moreover, the purpose of airport metal detectors is

largely criminal law enforcement, i.e., to apprehend ter-

rorists and hijackers. Thus, the type of warrant contem-

plated in the Hyde discussion was that traditionally used

in criminal enforcement, not a warrant for regulatory

purposes.

Drunk driving roadblocks are substantially different,

however. Potential offenders are not generally devoted

criminals bent on destroying the social fabric, but other-

wise valued citizens who merely combine two lawful

acts, drinking and then driving, to an intolerable degree.

The officer testified in this case that the object of the

roadblock was to educate the public and deter driving

under the influence, goals entirely appropriate to a regu-

latory setting. Any future regulatory scheme based on

roadblocks should primarily aim to ensure the safe opera-

tion by licensees of their licensed and registered vehicles,

not to make a single arrest necessarily.

App. 34

Accordingly, I conclude temporary roadblocks for the

purpose of deterring and removing those who are under

the influence from driving on our streets and highways

would be lawful where authorized by an administrative

area search warrant based on neutral criteria. To require

anything less than prior judicial scrutiny, however, would

be to sacrifice freedoms of the many, without the slightest

pretense of legal process, to the indubitably important

and well-intentioned task of deterring the few. If the

sacrifice must be made, let it be so in accordance with the

Constitution -- not naked police fiat. The warrant pro-

cedure would add little to the burdens of those planning

an otherwise proper roadblock but could do much to

protect and assure the innocent motorist.

Crosby, J.

Trotter, P.J.

I concur. On the facts before us, the minor motorist’s

motion to suppress evidence secured as a result of an

illegal seizure should have been granted.

I recognize and deplore the terrible toll of death,

destruction, and injury drunk drivers have wrought on

our highways. I further understand and applaud the

Herculean efforts of our police departments to combat

this senseless slaughter. However, no matter how well

intentioned the purpose or socially desirable the intended

result, the methods used must not violate constitutional

guarantees of freedom of movement as well as protection

from unreasonable searches and seizures. As pointed out

in the lead opinion, “ [t]he stop and detention of a citizen

App. 35

or a vehicle and its occupants is a ‘seizure’ within the

meaning of the Fourth Amendment (Delaware v. Prouse,

supra, 440 U.S. 648, 653) and article I, section 13 of the

California Constitution. (Formerly art. I, § 19; see People v.

Triggs (1973) 8 Cal.3d 884, 891-892, fn. 5, disapproved on

another point in People v. Lilienthal (1978) 22 Cal.3d

891,896, fn.1.) [4] Consequently, a vehicle stop is constitu-

tionally permissible only if an appropriate search or

arrest warrant has first been obtained or if one of four

recognized exceptions to the warrant requirement exists:

consent; exigent circumstances; reasonable suspicion of

wrongdoing; or when carried out at fixed locations, such

as border immigration checkpoints, weigh stations, and

airport metal detector checkpoints. (Ybarra v. Illinois

(1979) 444 U.S. 85, 96, fn. 11; Brown v. Texas (1979) 443

U.S. 47; United States v. Martinez-Fuerte (1976) 428 U.S.

543; United States v. Brignoni-Ponce (1975) 422 U.S. 873;

People v. Loewen (1983) 35 Cal.3d 117; In re Tony C. (1978)

21 Cal.3d 888; People v. Hydes (1974) 12 Cal.3d 158.)” (Fn.

omitted.) None of the circumstances found to be constitu-

tionally necessary to support such a seizure are present in

the case before us.

I write separately because, after correctly deciding

the case before us, the lead opinion postulates on what

might be. I cannot agree that in some future case as yet

unknown, a seizure, similar to that before us, pursuant to

an administrative warrant will be valid. Quite the con-

trary. I am unable to divine a situation which will allow

transitory, temporary roadblock stops, searches and sei-

zures of our citizens based upon an administrative

warrant.

App. 36

Temporary roadblocks at night with barricades,

flashing lights, police everywhere, lines of stopped cars

full of wide-eyed innocent people! conjure up visions of

totalitarian societies where the citizen has no right to

move about freely.

* * *

While recognizing the Supreme Court has held dis-

cretionary stops of automobiles for regulatory purposes

to be a violation of the Fourth Amendment (Delaware v.

Prouse (1979) 440 U.S. 648; Almeida-Sanchez v. United States

(1973) 413 U.S. 266), the lead opinion nevertheless holds

out the promise of constitutional sanction if an adminis-

trative search warrant is first obtained. Justification for

this stark break from traditional Fourth Amendment

analysis is premised on “regulation.” Justice Crosby, in a

concurring opinion, further expands on the regulatory

concept involved. Such reasoning is mere sophistry and

result oriented. I strongly disagree.

I perceive the proposed regulatory scheme to be a

substitute for criminal law enforcement, a concept abhor-

rent to our traditional constitutional freedoms. Conceiva-

bly, the temporary roadblock may prove a solution

(though there appears to be no evidence to suport the

premise, see fn. 1. supra) to a serious crime problem: to

wit, drunk driving. However, if condoned, is it not a

' As pointed out in the majority opinion, 6,934 vehicles

were stopped; 44 arrests were made, thus 99.4% of the people

who drove through the roadblock were presumably not in

violation of anything. Add to that the number of passengers in

the vehicles stopped and the percentage of innocent citizens

“detained” at a “regulatory” roadblock increases.

App. 37

short step to “regulate” another serious crime problem,

illegal narcotics traffic? An administrative search warrant

for all people on the street at night in an area of known

drug use might well increase the number of drug related

arrests. Also if we sanction bianket searches of homes in

wealthy areas, we undoubtedly would uncover signifi-

cant drug use since statistics show wealthy people are

more prone to use certain drugs.

Unfortunately such tactics would do serious harm to

our constitutional guarantees and protections. I, as much

as anyone, long to see a society purged of alcohol and

drug-related crime. Yet, | am not willing to destroy the

basic concepts of our constitutional freedoms in an

attempt to achieve it. Other methods compatible with our

traditional concepts of individual rights must be devised

in this area. While we fight the “war” against these

terrible societal problems, let us not cause the Bill of

Rights to be one of its victims.

For however desirable it may be to live in a society

safe from drunk drivers or drug pushers, such security

must not be obtained by destruction of, or even intrusion

upon, those individual freedoms which make our country

and society unique in the world.

Trotter/s/

TROTTER, P.J.

I Concur:

Wallin/s/

WALLIN, J.

App. 38

APPENDIX B

CONSTITUTIONAL AND STATUTORY

PROVISIONS INCLUDED

1. The Fourth Amendment to the United States Consti-

tution provides in relevant part:

“The right of the People to be secure in their

persons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be

violated =. . ”

2. The Fourteenth Amendment to the United States

Constitution provides in relavant part:

. . nor shall any State deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws... ”

3. California Vehicle Code section 21 states:

“Except as otherwise expressly provided, the provi-

sions of this code are applicable and uniform

throughout the State and in all counties and munici-

palities therein, and no local authority shall enact or

enforce any ordinance on the matters covered by this

code unless expressly authorized herein.”

4. Article I, section 13 of the California Constitution

states in relevant part:

“The right of the people to be secure in their

persons, houses, papers, and effects against unrea-

sonable seizures and searches may not be violated;

and a warrant may not issue except on probable

cause, supported by oath or affirmation, particularly

describing the place to be searched and the persons

and things to be seized.”

App. 39

5. Welfare and Institutions Code section 700.1 provides

in relevant part:

“Any motion to suppress as evidence any tang-

ible or intangible thing obtained as a result of an

unlawful search or seizure shall be heard prior to the

attachment of jeopardy and shall be heard at least

five judicial days after receipt of notice by the people

unless the people are willing to waive a portion of

this time.

If the court grants a motion to suppress prior to

the attachment of jeopardy over the objection of the

people, the court shall enter a judgment of dismissal

as to all counts of the petition except those counts on

which the prosecuting attorney elects to proceed pur-

suant to Section 701.

If, prior to the attachment of jeopardy, oppor-

tunity for this motion did not exist or the person

alleged to come within the provisions of the juvenile

court law was not aware of the grounds for the

motion, that person shall have the right to make this

motion during the course of the proceeding under

Section 701. Leg.H. 1980 ch. 1095.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.