Opposition Brief — Richard T. v. California

A eS

¢ ys Supreme Court, U8.

No. 88-318 FILED

3 NOV 3 1988

R.

CLARK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

RICHARD T.,

Petitioner,

¥.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI

JOHN K. VAN DE KAMP,

Attorney General of the

State of California

STEVE WHITE,

Chief Assistant Attorney

General

HARLEY D. MAYFIELD,

Assistant Attorney General

PAT ZAHAROPOULOS,

Supervising Deputy

Attorney General

JAY M. BLOOM,

Deputy Attorney General

110 West A Street, Suite 700

San Diego, California 92101

Telephone: (619) 237-7750

Attorneys for Respondent

i

QUESTIONS PRESENTED

1. Whether use of a checkpoint without

prior judicial authorization or

particularized suspicion to detect

intoxicated drivers, create public

awareness of the dangers inherent in

mixing drinking and driving, and to deter

persons from driving under the influence

is an unreasonable search or seizure

within the meaning of the Fourth

Amendment.

a. Whether prior judicial or

legislative authorization is needed

before law enforcement officials may set

up a checkpoint for detecting intoxicated

drivers, for creating public awareness

concerning drinking and driving, and to

deter persons from driving while under

the influence of alcohol.

|

TABLE OF CONTENTS

Page

Questions Presented i

Response To Petition For

Writ of Certiorari 1

Jurisdiction 2

Constitutional And Statutory >

Provisions Involved 2

Statement Of The Case 2

Statement Of The Facts 3

Summary Of Argument 9

Argument 11

SOBRIETY CHECKPOINTS ARE

CONSTITUTIONAL 11

A. Lack Of Particular Suspicion 12

B. Temporary Nature Of The

Checkpoint 31

C. Statutory Or Legislative

Authorization 34

Conclusion 36

ee ee ee

:

’

iii

TABLE OF AUTHORITIES

Page

Cases

Brown v. Texas

(1979) 443 U.S. 47 14

Burg v. Municipal Court

(1983) 35 Cal.3d 257 14

City of Las Cruces v. Betancourt

(N.M.App. 1987) 735 P.2d 1161 30

Colonnade Catering Corp. v. United States

(1970) 397 U.S. 72 a0, 27

Com. v. Trumble

(Mass. 1985) 483 N.E.2d 1102 29

Delaware v. Prouse

(1979) 440 U.S. 648 10, 12-14, 18, 28,

31, 32, 34

Donovan v. Dewey

(1981) 452 U.S. 594 17

Ingersoll v. Palmer -

(1987). 43 Cal.3d 1321 10, ii, 16,

22-25, 27, 35

Jones v. State

(Fla. App.2 Dist. 1984) 459 So.2d 1068

26

Kinslow v. Com.

(Ky.App. 1983) 660 S.W.2d 677 29

iv

TABLE OF AUTHORITIES (Coun't.)

Page

Cases

Little v. State

(Md. 1984) 479 A.2d 903 29, 32

Lowe v. Com.

(Va. 1985) 337 S.E.2d 273 30

People v. Bartley

(Ill. 1985) 486 N.E.2d 880 29, 34

People v. De la Torre

(1967) 257 Cal.App.2d 162 30

People v. Dickinson

(1980) 104 Cal.App.3d 505 30

People v. Hyde

(1974) 12 Cal.3d 158 22, 23, 25

People v. Scott

(Ct. App. 1984) 483 N.Y.S.2d 649 30, 34

South Dakota v. Neville

(1983) 459 U.S. 553 14

South Dakota v. Opperman

(1976) 428 U.S. 364 15

State ex rel. Ekstrom v. Justice Court

(Ariz. 1983) 663 P.2d 992 22

State v. Alexander

(Ohio Mun. 1985) 489 N.E.2d 1093 30

State v. Coccomo

(1980) 427 A.2d 131 30

ee eo

Vv

TABLE OF AUTHORITIES (Coun‘t.)

Page

Cases

State v. Cloukey

(Me. 1985) 486 A.2d 143 29

State v. Deskins

(Kan. 1983) 673 P.2d 1174 al, 24, a4

29, 33

State v. Garcia

(Ind. 1986) 500 N.E.2d 158 29

State v. Golden

(Ga.App. 1984) 318 S.E.2d 693 29

State v. Jones

(Fla. 1986) 483 So.2d 433 26, 29

State v. Martin

(Vt. 1985) 496 A.2d 442 30

State v. Riley

(Iowa App. 1985) 377 N.W.2d 242 29

State v. Superior Court

(Ariz. 1984) 691 P.2d 1073 19, 29

State v. Welch -

(Mo. App. 1988) 755 S.W.2d 624 30

U.S. v. Venegas-Sapien

(Sth Cir. 1985) 762 F.2d 417 34

United States v. Biswell

(1972) 406 U.S. 311 fe &

vi

TABLE OF AUTHORITIES (Coun‘t.)

Page

Cases

United States v. Hernandez

(9th Cir. 1984) 739 F.2d 484 23, 3

United States v. Martinez-Fuerte

(1976) 428 U.S. 543 EG, A754 O02 242

Be, gh of

United States v. Sharpe

(1985) 470 U.S. 675 28

Wyman v. James

(1971) 400 U.S. 309 16

Constitutional Provisions

Fourth Amendment 9-13, 16, 18-20, 27,

ZG, Ske 3D

Statutes

Veh. Code § 2400 36

§ 2814 30

Gov. Code § 26600 - 36

§ 26601 36

Other Authorities

CURBING THE DRUNK DRIVER UNDER THE FOURTH

AMENDMENT: THE CONSTITUTIONALITY OF

ROADBLOCK SEIZURES

71 Georgetown L.J. 1457 15

SEARCH AND SEIZURE--ROUTINE ROADBLOCKS

37 A.L.R.4th 10 33

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

RICHARD T.,

Petitioner,

Vv.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI

OPINION BELOW

The California Court of Appeal,

Fourth Appellate District, Division

Three, reversed the conviction ina

published opinion filed on

September 19, 1986 (Pet., App. A.) The

Court of Appeal issued a second opinion

that was unpublished, affirming the

~~.

conviction on March 10, 1988. (Petition

Appendix A.)

JURISDICTION

This Court has jurisdiction to

consider this case pursuant to 28 U.S.C.

1257, subdivision 3.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The applicable statutory and

constitutional provisions involved are

set forth in Appendix B of the petition.

STATEMENT OF THE CASE

A petition filed in the Orange

County juvenile court charged petitioner

in count one with driving while under the

combined influence cf an alcoholic

beverage and drug (Veh. Code § 23152a),

and in count two with driving a vehicle

while having .10 or more of alcohol in

his blood (Veh. Code § 23152b). (CT 1.)

Petitioner’s motion to suppress

evidence was heard and denied.

— oe

(RT 148-149.) The case was submitted on

the police reports and the court

sustained the allegation in count one of

the petition. Petitioner was ordered to

pay a fine. (CT 34.) He appealed.

(CF 32.)

The Court of Appeal, Fourth

Appellate District, Division Three,

reversed the conviction in a published

opinion filed on September 19, 1986.

(Pet., App. A.)

The California Supreme Court granted

respondent’s petition for review and

remanded the case in light of Ingersoll

v. Palmer (1983) 43 Calv3d 1321.

The Court of Appeal upheid the

conviction in light of the Ingersoll

decision in an unpublished opinion issued

on March 10, 1988. (Pet., App. A.)

The California Supreme Court denied

petitioner's request for review on

June 29, 1988. (Pet., p. 3.)

= =

STATEMENT OF FACTS

A hearing was held in the juvenile

court concerning the procedures used in

setting up and maintaining a sobriety

checkpoint as petitioner was arrested

after being stopped at a sobriety

checkpoint on Knott Avenue in Anaheim,

California. (RT 63-70.)

According to Anaheim Police Sergeant

Lovejoy, checkpoints were set up after

police spoke with the city attorney, read

an opinion by the California Attorney

General on the issue, and several legal

articles. Police also observed a

checkpoint that had been set up in

Riverside, California. (RT 5.)

Thereafter, written procedures were set

up for the use of sobriety checkpoints.

(RT 5.) Sergeant Lovejoy then briefed

other officers who were to be involved

with the checkpoints. (RT 10.)

OOO EEE ooo

e § «

The purpose of the checkpoint was to

increase public awareness and education

regarding drinking and driving. (RT 10.)

Lovejoy supervised the setting up of the

checkpoint on Knott Avenue on New Year's

Eve, supervised the officers operating

the checkpoint, and decided at what

interval cars would be stopped based on

traffic. He also made sure there was no

deviation from written guidelines.

(RT 13-14.)

Under present guidelines, they were

to stop every other car prior to 11:00

p.m. and every car after 11:00 p.m.

(RT 14-15, 32.) Officers were also told

that the stop was not to take more than

15 to 25 seconds. (RT 15.) During the

period officers contacted motorists, they

were looking for signs of intoxication.

If they found evidence of intoxication

they were to ask for the license of the

driver and pull the driver over to the

erential

o 6 «

side. If there was no evidence of

intoxication, they were to wave the

driver on. (RT 16.) They also passed

out an informational booklet to the

drivers. (RT 17.) The average stop took

about 20.3 seconds. (RT 17.)

Officers at the checkpoint had no

discretion as to who could be stopped.

(RT 18.) The checkpoint locations were

picked based upon the number of driving

under the influence arrests over a six

week period before commencement of the

program and the number of fatal

accidents involving drivers who drove

under the influence of alcohol during

the two years before the checkpoint

program. (RT 19.) The location of the

checkpoint on Knott Avenue was based on a

decision by Lovejoy and two other

officers after evaluation of these

factors. (RT 20.)

a

Generally, the Knott Avenue

checkpoint and other checkpoints ran from

9:00 p.m. until between 2:30 or 3:30 a.m.

The checkpoints were to be used on Friday

and Saturday nights as well as Christmas

and New Years Eve. (RT 20-21.)

There were press releases about two

weeks before the first checkpoint was set

up. There was newspaper coverage in the

Los Angeles Times and other newspapers,

radio coverage, and coverage by all three

major television networks and two

independent stations.

Publicity did not describe the

location of the checkpoints, but just

told of the checkpoints, times, and dates

when the checkpoints would be held.

(RT 24, 50.)

Motorists had advance warning of the

checkpoints. There were two large,

diamond shaped, 36 inch by 36 inch orange

signs with black lettering indicating the

~~

checkpoint was ahead. The signs were

mounted on stands with three red flags

across the top and flares. This warning

was 2/10 of a mile from the checkpoint.

(RT 25.)

Next, there were signs indicating

reduced speeds were required and telling

motorists to prepare to stop. There were

signs warning motorists that no turns

were permitted when the cones started

before the checkpoint. The checkpoint

had stop signs. (RT 25-27.)

Drivers were allowed to turn off

before the cone pattern began in front of

the checkpoint. (RT 27.) Between 5% and

10% of the drivers chose to turn off

before the checkpoint. (RT 28.)

Also, if occupants of the cars

approaching the checkpoint refused to

roll their window down, officers were

instructed to let the drivers proceed.

(RT 33.) During the 1984 period when the

— 2

checkpoint was in operation, there was a

.34% decrease in accidents caused by

those driving under the influence.

Driving under the influence arrests were

also up over the previous year. (RT 35-

36.)

SUMMARY OF ARGUMENT

The petition for writ of certiorari

should be denied as use by law

enforcement of a sobriety checkpoint

without prior judicial authorization or

particularized suspicion to detain ‘

drivers is reasonable under the Fourth

Amendment.

Prior decisions of this Court have

applied a balancing of interests test.

In this test the interests of the state

are balanced against the interests of the

individual to determine whether a

warrantless search or seizure without

particular suspicion is reasonable.

+S

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

653-654. Given the serious safety and

social problems presented by drunk

drivers and the minimal intrusion to

privacy caused by momentary detentions at

a sobriety checkpoint set up with limits

placed on law enforcement discretion,

use of these checkpoints is reasonable.

Neither the temporary or permanent

nature of the checkpoint nor the

existence of judicial or legislative

approval affects the overall

reasonableness of these checkpoints under

the Fourth Amendment.

As petitioner's detention and the

seizure of any evidence occurred at a

checkpoint in California that passed

constitutional muster and was upheld by

the California Supreme Court (Ingersoll

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

petitioner is not entitled to any relief

from this Court.

a ths

ARGUMENT

SOBRIETY CHECKPOINTS ARE CONSTITUTIONAL

Petitioner asks this Court to grant

certiorari because he contends stopping

vehicles at sobriety checkpoints

constitutes an unreasonable search and

seizure under the Fourth Amendment. The

sobriety checkpoint in this case was

upheld by the California Court of Appeal

in light of the decision of the

California Supreme Court in Ingersoll v.

Palmer, (1987) 43 Cal.3d 1321 which

upheld the constitutionality of such

checkpoints. Petitioner, thus, is asking

this Court to indirectly review the

decision of the California Supreme Court

in Ingersoll. However, Ingersoll was

properly decided. Thus, there are no

grounds justifying a grant of certiorari

in the instant case.

» 12 «

A. Lack Of Particular Suspicion.

Petitioner first argues the use of a

sobriety checkpoint by the Anaheim

Police Department to stop vehicles

without any warrant and without any

specific cause to check on the sobriety

of drivers within that city is violative

of the Fourth Amendment. No so. The

checkpoint set up by the Anaheim Police

Department was consistent with the

mandate of the Fourth Amendment.

The Fourth Amendment is implicated

because stopping an automobile and

detaining its occupants constitutes a

seizure within the meaning of the Fourth

Amendment even though the purpose of the

stop is limited and the resulting

detention is brief. Delaware v. Prouse

(1979) 440 U.S. 648, 653.

The essential purpose of the

proscriptions in the Fourth Amendment is

to impose a standard of reasonableness

Daeseetninneeanneaeelll

a 13 «

upon the exercise of discretion by law

enforcement and other governmental

officials. (Delaware v. Prouse, supra,

440 U.S. 648, 653-654.)

Accordingly, the permissibility of a

particular law enforcement practice must

be judged py balancing the intrusion on

the individual’s Fourth Amendment rights

against the legitimate interests of the

government. (Id., at p. 654.)

In this balancing equation it must

also be noted that indivualized suspicion

is not a prerequisite to a constitutional

seizure of an automobile which is carried

out pursuant to a plan émbodying

explicit, neutral limitations on the

conduct of individual officers.

- 14 -«~

(See United States v. Martinez-Fuerte

(1976) 428 U.S. 543, 558-562; Delaware v.

Prouse, supra, 440 U.S. 648, 654-655;

Brown v. Texas (1979) 443 U.S. 47, 50.)

The importance of the governmental

interest in sobriety checkpoints is now

well established. Both this Court and

the California Supreme Court have

remarked on the death and destruction

wreaked upon innocent victims by

intoxicated drivers. (South Dakota v.

Neville (1983) 459 U.S. 553, 558-562;

Burg v. Municipal Court (1983) 35 Cal.3d

257, 262.)

The sobriety checkpoint serves three

purposes in the fight against drunk

driving. First, it assists in the

apprehension of drunk drivers. Moreover,

it serves two other purposes which are

perhaps more important as they have a

greater impact on the public. The

checkpoint and the related publicity

- 23 =

deter persons who drink from driving and

also enhance public awareness of the

dangers inherent in mixing driving and

drinking. (See Curbing the Drunk Driver

Under the Fourth Amendment: The

Constitutionality of Roadblock Seizures,

71 Georgetown L.J. 1457, 1458, fn. 3.)

Thus, there is a substantial state

interest in regulating, by use of the

sobriety checkpoint, individuals who

drive while under the influence. This

interest is furthered by the fact this

Court has determined there is a lesser

expectation of privacy in an automobile

than in a residence or business

establishment. (South Dakota v. Opperman

(1976) 428 U.S. 364, 367-368.)

Moreover, this Court has upheld

searches conducted where officials did

not have specific information regarding

criminal activity. In many cases, for

example, this Court has recognized that

i

= 2

searches conducted as part of a general

regulatory scheme in furtherance of an

administrative purpose rather than as a

part of a criminal investigation to

secure evidence of crime, may be

permissible under the Soueth Amendment

though not supported by a showing of

probable cause directed to a particular

place or person. (See United States v.

Biswell (1972) 406 U.S. 311; Wyman v.

James (1971) 400 U.S. 309; Colonnade

Catering Corp. v. United States (1970)

397 U.S. 72; Ingersoll v. Palmer, supra,

43 Cal.3d 1321, 1330; and cases cited

therein. ) 7

Based on these decisions, the

California Supreme Court upheld the use

of sobriety checkpoints in California

finding this Court would uphold stops and

inspections and sobriety checkpoints

undertaken pursuant to predetermined

he iil saameseeeeaai ena ieieteiiins ——

— >

neutral criteria. (Ingersoll v. Palmer,

supra, 43 Cal.3d 1321, 1335.)

In addition, this Court has upheld

government inspection without notice,

warrant, or individualized suspicion of

wrongdoing in certain heavily regulated

industries. (Donovan v. Dewey (1981) 452

U.S. 594 (mines); United States v.

Biswell, supra, 406 U.S. 311 (firearms);

Colonnade Catering Corp. v. United

States, supra, 397 U.S. 72 (liquor).)

This Court has also upheld

inspections and stops in the absence of

individualized suspicion of wrongdoing in

border patrol checkpoint inspections.

(United States v. Martinez-Fuerte, supra,

428 U.S. 543.) This Court concluded

that, with respect to immigration

checkpoints, neither a warrant nor

individualized suspicion was required.

The court upheld the constitutionality of

an immigration stop without

» 30 «@

particularized suspicion at a checkpoint

away from the border by balancing the

governmental interests served against the

intrusion on the Fourth Amendment

interests. If a checkpoint designed to

protect economic interests by limiting

the entry of aliens into the country is

valid, then certainly a checkpoint to

limit drunk drivers, who could kill or

maim innocent victims, is valid.

This Court has also indicated in

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

that a neutrally operated checkpoint

would be permissible.

“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

discretion. Questioning of

all oncoming traffic at a

roadblock-type stop is one

possible alternative.”

(Id., at p. 663.)

o 19 «

Thus, there is no reason to conclude

the Fourth Amendment requires there be

some sort of suspicion in all cases to

justify an intrusion by the government

into an individuals’ right to privacy.

(See State v. Superior Court (Ariz. 1984)

691 P.2d 1073, 1076.)

In addition, in light of the

specific procedures devised and used in

this case, it is evident there was no

intrusion on petitioner’s rights to any

degree which outweighed the interests of

the state in limiting the slaughter on

the highways by drunk drivers.

Various factors have been

articulated for determining whether a

sobriety checkpoint meets the balancing

test so that the interests of the state

outweigh the intrusion on the privacy of

the individual and the intrusion can be

deemed reasonable within the context of

the Fourth Amendment. Among the factors

eo

o 26 «

to be considered are: (1) the degree of

discretion, if any, left to the officer

in the field; (2) the location designated

for the roadblock; (3) the time and

duration of the roadblock; (4) whether

standards are set by superior officers;

(5) the amount of advance warning to the

public at large; (6) the amount of

advance warning to the individual

approaching motorist; (7) maintenance of

safety conditions; (8) the degree of fear

or anxiety generated by the manner of

operation; (9) the duration of the

detention; (10) method of operation;

(11) availability of alternative methods;

(12) the effectiveness of the procedure;

and (13) any other relevant

circumstances.

Not all the factors need be

favorable to the state but all which are

applicable should be considered. Some,

of course, such as unbridled discretion

» St =

of the officer in the field, would run

afoul of the Fourth Amendment regardless

of other favorable factors.

(State v. Deskins (Kan. 1983) 673 P.2d

1174, 1185.)

Turning first to the amount of

discretion given to the officers, it is

clear the officers manning the checkpoint

in this case had little, if any,

discretion. Basic guidelines had been

set down by senior officials in the

police force. However, the officers

actually manning the checkpoint had no

discretion. (RT 13-17.) Under the

guidelines they were permitted to stop

every other care before 11:00 p.m. and

every car thereafter. (RT 14, 32.) The

number of cars stopped was in accord with

the preset guidelines. (RT 14, 32.)

The lack of discretion given to the

officers at the checkpoints minimized the

chance for arbitrary and capricious

~ 2S a

conduct and certainly weighs in favor of

the validity of the checkpoints here.

(Ingersoll v. Palmer, supra, 43 Cal.3d

1321, 1342; States v. Deskins, supra, 673

P.2d 1174, 1185; see also People v. Hyde

(1974) 12 Cal.3d 158, 169 (because all

passengers are required to undergo a

screening as a condition to boarding the

airplane, there is no danger as there was

in Camara that the decision to search a

particular individual will be subject to

the discretion of the official in the

field; cf. State ex rel. Ekstrom v.

Justice Court (Ariz. 1983) 663 P.2d 992,

996 [checkpoint invalid where no

guidelines for officers and they were

given too much discretion]. )

The next factor to consider is the

location of the checkpoint. Here the

checkpoint was selected after studies of

accidents and drunk driving arrests.

(RT 19-20.)

a + en

Thus, the checkpoint was established

in an area where the objective of dealing

with drunk drivers could be effectively

met. (Ingersol v. Palmer, supra, 43

Cal.3d 1321, 1343; People v. Hyde, supra,

12Z Cal.3d 158, 167.)

In addition, it must be noted the

checkpoint was not chosen by an officer

in the field, but was chosen by senior

officials of the police department based

on public policy needs and not some whim

Or caprice. (RT 20.)

It must also be noted the checkpoint

was not an ongoing operation, but was set

up in late December, at night, when the

greatest incidence of drunk driving and

accidents were likely to occur. Thus,

the time and duration of the checkpoint

also weighs in favor of its use here.

This is particularly true as a major

consideration was the Christmas holiday

oe

season when drunk drivers generally take

their largest toll. (RT 20-21.)

In addition, as noted earlier, the

standard for the operation of the

checkpoint was not left to officers at

the scene, but were based upon police

policy set by senior officers. This

factor also weighs in favor of the

checkpoint’s use here. (Ingersoll v.

Palmer, supra, 43 Cal.3d 1321, 1341-

1342; State v. Deskins, supra, 673 P.2d

1174, 1185.)

Also, it must be noted there was

advance warning to the public as

information concerning the checkpoint was

made available to the media by the police

department. Indeed, articles appeared in

newspapers about the checkpoint and radio

and television spots apparently were also

done by the police to inform the public

about the checkpoint. (RT 24, 50.)

Advance publicity certainly enhances the

= 38 «

deterrent effect of the checkpoint,

reduces surprise, fear and anxiety, and

lends legitimacy to the checkpoint. This

factor also weighs in favor of the use of

the checkpoint here.

Another important factor is that the

public had advance warning of the

checkpoint while driving as there were

warning signs and lights as the drivers

approached the checkpoint. (RT 25-27;

Ingersoll v. Palmer, supra, 43 Cal.3d

1321, 1346.)

Advance warnings have been a

Significant factor considered by courts

in upholding fixed checkpoints.

(Ingersoll v. Palmer, supra, 43 Cal.3d

1321, 1346; United States v. Martines-

Fuerte, supra, 12 Cal.3d 543; see too the

concurring opinion in People v. Hyde,

Supra, 12 Cal.3d 158, 175-176.)

Indeed, because of the advance

notice many motorists were able to turn

os 28 «@

off the street and avoid the checkpoint

or change positions with another

passenger to avoid arrest or detention.

(RT 27.)

There was also no problem with

safety of the motorist as the site was

well lit and maintained and police

considered traffic problems in

maintaining the checkpoint. (RT 25-27.)

Fear and anxiety of the motorists

were not a problem. Testimony indicated

motorists could and did avoid the

checkpoint by turning off the street

before the checkpoint. However, 90% of

the people stopped appafently favored the

concept of a sobriety checkpoint as they

proceeded through it. (RT 27.) It has

also been noted that fair warning of the

checkpoint, as occurred here, reduces

this anxiety. (Jones v. State (Fla.

App.2 Dist. 1984) 459 So.2d 1068, 1080;

» 237 «

affirmed in State v. Jones (Fla. 1986)

483 So.2d 433, 439.)

Duration of the detention was also

not a problem as the detentions were

kept between 15 to 25 seconds. (RT 15-

17.) The short duration of the detention

and limited nature of the intrusion is

another factor which weighs in favor of

the use of the checkpoint in this case.

(United States v. Martinez-Fuerte, supra,

428 U.S. 543, 547; Ingersoll v. Palmer,

Supra, 43 Cal.3d 1321, 1346.)

The facts also show the checkpoint

was operated in a safe, well-organized

manner, traffic safety was considered,

and, as a whole, the intrusion was kept

to a minimum so as to not interfere with

motorist’s Fourth Amendment rights while

reaching the goals of the checkpoint.

Testimony also considered the

checkpoint process to be effective.

— =

(RT 31-36.) Moreover, there is nothing

to indicate there was any less intrusive

manner of stopping motorists to deal with

the drunk driving problem In any event,

this is not crucial as the conduct of the

police was reasonable. (United States v.

Sharpe (1985) 470 U.S. 675, 685.)

All these factors clearly point to

the reasonable nature of the sobriety

checkpoint here. It was designed to deal

with the major problems caused by drunk

drivers, but the intrusion was kept at a

minimum consistent with the demands of

the Fourth Amendment.

Thus, the hitetety tinibelnk, in

this case, would pass constitutional

muster. (See Delaware v. Prouse, supra,

440 U.S. 648, 663-664 [inspection

checkpoints at which some vehicles may be

subject to further detention for safety

and regulatory inspection are

permissible]; United States v. Martines-

~ 2© -

Fuerte, supra, 428 U.S. 543 [fixed

checkpoint for immigration checks without

specific suspicion valid};

United States v. Hernandez (9th Cir.

1984) 739 F.2d 484 [fixed temporary

checkpoint upheld]. ) |

State courts that have upheld

sobriety checkpoints similar to the one

at issue here include Arizona (State v.

Superior Court, supra, 691 P.2d 1073);

Florida (State v. Jones, (Fla. 1986) 483

So.2d 433); Georgia (State v. Golden

(Ga.App. 1984) 318 S.E.2d 693); Illinois

(People v. Bartley (Ill. 1985) 486 N.E.2d

880); Indiana (State v. Garcia (Ind.

1986) 500 N.E.2d 158); Iowa (State v.

Riley (Iowa App. 1985) 377 N.W.2d 242);

Kentucky (Kinslow v. Com. (Ky.App. 1983)

660 S.W.2d 677); Kansas (State v.

Deskins (Kan. 1983) 673 P.2d 1174); Maine

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

143);

— =e

Maryland (Little v. State (Md. 1984) 479

A.2d 903); Massachusetts (Com. v. Trumble

(Mass. 1985) 483 N.E.2d 1102) ;Missouri

(State v. Welch (Mo. App. 1988) 755

S.W.2d 624); New Jersey (State v. Coccomo

(1980) 427 A.2d 131); New York (People v.

Scott (Ct. App. 1984) 483 N.Y.S. 2d 649);

Ohio (State v. Alexander (Ohio Mun. 1985)

489 N.E.2d 1093); Vermont (State v.

Martin (Vt. 1985) 496 A.2d 442); Virginia

(Lowe v. Com. (Va. 1985) 337 S.E.2d 273);

New Mexico (City of Las Cruces v.

Betancourt (N.M.App. 1987) 735 P.2d

1161).

As there is a strong public policy

in favor of deterring and limiting drunk

driving on the highways, there is a

strong basis for upholding the sobriety

checkpoint. (Veh. Code, § 2814; People

v. De la Torre (1967) 257 Cal.App.2d 162

[vehicle inspection checkpoint

constitutional].) This is particularly

« 5 no

true as agricultural checkpoints have

been upheld. (People v. Dickinson

(1980) 104 Cal.App.3d 505.) There is

just as great an interest in limiting

drunk drivers as there has been found in

limiting agricultural pests. By

contrast, the intrusion on the privacy of

the individual stopped at a checkpoint

such as the one involved in this case is

minimal.

Thus, on balance, the need for the

checkpoint outweighs the minimal privacy

interests impinged here. Consequently,

the checkpoint as used in California is

an example of peniinniabte police conduct

within the meaning of the Fourth

Amendment. (Delaware v. Prouse, supra,

440 U.S. 648, 654.)

B. Temporary Nature Of The Checkpoint.

Petitioner also makes much of the

fact the trial court relied on the

decision of the Supreme Court in United

— .

States v. Martinez-Fuerte, supra, 482

U.S. 543 in evaluating the checkpoint

here. He claims this was error as that

case involved a permanent checkpoint

while the checkpoint here was temporary

but fixed. (Pet., p. 23.)

This argument misses the point. The

key factor of the Martines-Fuerte, supra,

482 U.S. 543 decision and decisions such

as Delaware v. Prouse, supra, 440 U.S.

648, was that courts should undertake a

balancing of the rights of the individual

and the state in determining whether any

given checkpoint which allows the

stopping of vehicles without cause is

valid. The issue in the case was not the

permanency or lack of permanency of the

checkpoint. (Little v. State, supra, 479

A.2d 903, 914.)

Thus, there was nothing improper

about the court relying on Martinez-

Fuerte to balance the interest of the

« 23 «

state and the individual in determining

the validity of the checkpoint at issue

here. (State v. Deskins, supra, 673 P.2d

1174.)

Indeed, in an article on roadblocks

in 37 A.L.R.4th 10, Search and Seizure--

Routine Roadblocks, it is noted that

where the validity of a particular

roadblock has been challenged, the courts

have generally relied upon the

constitutional analysis set forth in this

Court‘s cases ruling on the validity of

fixed checkpoints and random roving

stops. In such cases the courts balance

the interest of the neti in regulation

against the interest of the individual.

One of the footnotes to this discussion

refers directly to the Martinez-Fuerte

case, (fn. 7). Thus, the trial court

properly relied on the Martinez-Fuerte

decision. Decisions from other courts

support respondent’s position here and

» 236 «=

have upheld fixed, but temporary

checkpoints.

(People v. Scott, supra, 483 N.Y.S.2d

649, 653; People v. Bartley, supra, 486

N.E.2d 880, 884-887; U.S. v. Eernandez,

Supra, 735 F.2d 484; U.S. v. Venegas-

Sapien (5th Cir. 1985) 762 F.2d 417.)

Moreover, Delaware v. Prouse, supra, 440

P.2d 1174, at page 663, suggests spot

checks under certain circumstances would

be valid. The term “spot check” suggests

something less than a permanent

checkpoint with buildings, would pass

constitutional muster.

Consequently, the temporary nature

of sobriety checkpoint does not affect

the constitutional validity of the

checkpoint as used in California.

C. Statutory Or Legislative

Authorization.

Petitioner finally makes much of the

fact the checkpoint was not authorized by

« $5 «

state statute or legislation. (Pet.,

p. 25.) This is not an issue of

constitutional dimensions but one of

state law. The only issue properly

before this Court is whether use of the

checkpoint is reasonable under the Fourth

Amendment. Furthermore, respondent is

unaware of any rule of law that measures

the validity of a checkpoint by statutory

or legislative authorization.

As noted, the question is one of

reasonableness under the Fourth

Amendment. In any event, the California

Supreme Court has concluded there is

statutory authority for_law enforcement

to establish sobriety checkpoints under

California law. The authority is

implicit in law enforcement’s statutory

authority to enforce criminal laws

generally or traffic laws specifically.

—* a

(Veh. Code, § 2400; Gov. Code, § 26600;

Gov. Code, § 26601; Ingersoll v. Palmer,

supra, 43 Cal.3d 1321, 1348-1349.).

a) ae

CONCLUSION

As it is evident detention of

drivers at a sobriety checkpoint is a

reasonable search and seizure within the

meaning of the Fourth Amendment, the

detention of petitioner and subsequent

seizure of any evidence was lawful.

Accordingly, petitioner's request this

Court grant certiorari should be denied.

Respectfully submitted,

JOHN K. VAN DE KAMP,

Attorney General of the

State of California

STEVE WHITE,

Chief Assistant Attorney

General

HARLEY D. MAYEIELD,

Assistant Attorney General

PAT ZAHAROPOULOS,

Supervising Deputy

Attorney General

fa GI), xen —

AY| M. BLOOM,

puty Attorney General

JMB: bjr

11/2/88

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