# Opposition Brief — Richard T. v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 986

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0016%3A2. Public record. Not legal advice.