Amicus Curiae Brief — Michigan Department of State Police v. Sitz

Supreme Court, U.S.

FILED

No. 88-1897 ~ MY ON? ~

JOSEPH F.SPANICL, JR,

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1989

MICHIGAN DEPARTMENT OF STATE POLICE

and COL. R.T. DAVIS, Director of the

Michigan Dept. of State Police,

Petitioners,

Vv.

RICK SITZ, JOSEPH F. YOUNG, SR.

DOMINIC J JACOBETTL DICK ALLEN

KEITH MUXLOW AND JACK WELBORN,

Respondents.

ON WRIT OF CERTIORARI TO THE

MICHIGAN COURT OF APPEALS

BRIEF AMICI CURIAE IN SUPPORT OF

PETITIONER BY THE STATES OF CALIFORNIA,

FLORIDA, NORTH CAROLINA AND

THE COMMO TH OF MASSACHUSETTS

JOHN K. VAN DE KAMP

Attorney General

RI B. IGLEHART

Chief Assistant Attorney General

JOHN H. SUGIYAMA

Senior Assistant Attorney General

MS SAT AnoneyGene

upervis uty Attorney Gene

RONALD E. ‘

Deputy Attorney General

350 McAllister Street, Room 6000

San Francisco, California 94102

Telephone: (415) 557-2653

ATTORNEY GENERALS JOINING IN THIS BRIEF

ROBERT A. BUTTERWORTH

Attorney General of Florida

State Capitol

Tallahassee, Florida 32301

(904) 488-9535

LACY H. THORNBURG '

Attorney General of North Carolina

Department of Justice

Two East Morgan Street

Raleigh, N.C. 27602

(919) 733-3377

JAMES M. SHANNON

Attorney General of Massachusetts

One Ashburton Place - 20th Floor

Boston, Mass. 02108

(617) 727-2200

QUESTION PRESENTED

Does the use of sobriety checkpoints by the State of

Michigan violate the Fourth Amendment because the

brevity of their use as a deterrent technique may have

limited empirical proof of their effectiveness?

a

i.

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

THE USE OF SOBRIETY

CONCLUSION

51

TABLE OF AUTHORITIES

Bell v. Wolfish

441 US. (1979)

Brown v. Texas

443 U.S. 47 (1979)

Burg v. Municipal Court

35 Cal 3d 257, 673 P.2d 732 (1983)

Cady v. Dombrowski

413 U.S. 441 (1973)

California v. Ca

calfone 386 (1988)

Camara v. Municipal Court

387 U.S. 523 (1967)

Cardwell v. Lewis

417 U.S. 583 (1974)

cy of Las Cruces v. Betancourt

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

Cit of Seattle v. Mesiani

11 ash.2d 454, 755 P.2d 775 (1988)

Coffman v. State

26 Ark.App. 45, 759 S.W.2d 573 (1988)

Colonnade Corp. v. United States

397 U.S. 72 (1970)

Colorado v. Bertine

479 U.S. 367 (1987)

Commonwealth v. Tarbert

517 Pa. 277 (1987)

Commonwealth v. Trumble

396 Mass. 81, 483 N.E.2d 1102 (1985)

Delaware v. Prouse

440 U.S. 648 (1979)

TABLE OF AUTHORITIES

Page

Donovan v. ett

452 U.S. 594 (1981) 16

Griffin v. Wisconsin

ree ie S. 868 (1987) 9

Illinois v. e

462 USS. 640 (1983) 32

Ingersoll v. Palmer

43 Cal.3d 1321, 743 P.2d 1299 (1987) 3

INS v. ‘e.%;

466 US. 210 (1984) 8

Kinslow v. Commonwealth

660 S.W.2d 677 (Ky.App. 1983), 460 U.S. 1005 (1984) 41

Little v. State

300 Md. 485, 479 A.2d 903 (1984) 41

Lowe v. Commonwealth

230 Va. 346, 475 U.S. 1084 (1985) 42

Mapp v. Ohio

367 US. 643 (1961) 40

Marshall v. Barlow’s, Inc.

436 U.S. 307 (1978) 16

Michigan v. Chesternut

pl! US. __, 108 S.Ct. 1975 (1988) 8

Miller v. State

373 So.2d 1004 (Miss. 1979) 42

National Treasury Employees Union v.

Von Raab

___ US. __, 109 S.Ct. 1384 (1989) 9

Nelson v. Lane County

304 Or. 97, 743 P.2d 692 (1987) 42

iv.

TABLE OF AUTHORITIES

New Jersey v. T.L.O.

469 U.S. 325 (1985)

New York v. Wil

482 U.S. 691 (1987)

New York v. Class

475 U.S. 106 (1986)

O’Connor v.

480 USS. 709 (1986)

P lvania v. Mimms

434 U.S. 106 (1977)

= . Bartley

Ill.2d 273, 486 N.E.2d 880 (1985),

475 US. 1068 (1986)

65 NY 3d 318 518, 473 N.E.2d 1 (1984)

Rakas v. Illinois

439 U.S. 128 (1978)

See v. C

387 U SH oes

Segura v. United States

468 US. 796 (1984)

Skinner v. Railway Labor Executives Ass’n

___ US. __, 109 S.Ct. 1402 (1989)

South Dakota v. Neville

459 U.S. 553 (1983)

South Dakota v.

428 U.S. 364 (197

State ex rel. Ekstrom v. Justice Court

136 Ariz 1, 668 P.2d 992 (1983)

18

39

Vv.

TABLE OF AUTHORITIES

State v. Abelson

485 So. 861 (Fla.App. 1986)

State v. Alexander

22 Ohio Misc.2d 34, 489 N.E.2d 1093 (1985)

State v. Church

538 So.2d 993 (La. 1989)

State v. Crom

222 Neb. 273, 383 N.W.2d (1986)

State v. Deskins

234 Kan. 102, 673 P.2d 1174 (1983)

State v. Garcia

500 N.E.2d 158 (Ind. 1986), 481 U.S. 1014 (1987)

State v. Golden

171 Ga.App. 27, 318 S.E.2d 693 (1984)

State v. Jones

483 So.2d 433 (Fla. 1986)

State v. Kirk

202 N.J. 7 ee. &

493 A.2d 1171 (App.Div. 1985)

State v. Koppel

127 N.H. (1985)

State v.

551 A.2d 1 % (Me. 1988)

State v. Martin

145 Vt. 562, 496 A.2d 442 (1985)

State v. O.

248 N.W.2d 382 (S.D. 1976)

State v.

STF NW 2d 242 (Ia.App. 1985)

42

41

State v. Smith

674 P.2d 562 (Okla.Ct.Crim.App. 1984)

State v.

Court

143 Ariz. 45, 691 P.2d 1073 (1984)

Terry v. Ohio

392 US. 1 (1968)

Texas v. Brown

460 U.S. 730 (1983)

United States v. Biswell

406 U.S. 311 (1972)

United States v. Bri i-Ponce

422 US. 873 (1975)

United States v. Chackwick

433 US. 1 (1977)

United States v. Jacobsen

466 U.S. 109 (1984)

United States v. Karo

468 U.S. 706 (1984)

United States v. Knotts

460 U.S. 276 (1983)

United States v. Leon

468 U.S. 897 (1984)

United States v. Martinez-Fuerte

428 U.S. 543 (1976)

United States v. Ortiz

422 U.S. 891 (1975)

United States v. Place

462 US. 696 (1983)

vi.

TABLE OF AUTHORITIES

50

31

12

TABLE OF AUTHORITIES

Page

United States v. United States District Court

407 US. 297 (1972) 13

United States v. Villamonte-Marquez

462 U.S. 579 (1983) 10

Webb v. State

739 S.W.2d 802 (Tex.Cr.App. 1987) 42

Wolf v. Colorado

338 U.S. 25 (1949) 40

an v. James

U.S. 309 (1971) 16

STATUTES AND OTHER AUTHORITIES

Page

4 La Fave, Search and Seizure:

A Treatise on the Fourth Amendment (2d Ed. 1987) 21

No. 88-1897

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1989

MICHIGAN DEPARTMENT OF STATE POLICE

and COL. R.T. DA Director of the

Michigan Dept. of State Police,

Petitioners,

Vv.

RICK SITZ, JOSEPH F. YOUNG

DOMINIC J. UNS DICK

KEITH MUXLOW JACK WELBORN,

Respondents.

ON WRIT OF CERTIORARI TO THE

MICHIGAN COURT OF APPEALS

BRIEF AMICI CURIAE IN SUPPORT OF

PETITIONER BY THE STATES OF CALIFO

FLORIDA, NORTH Sanciina” AND

THE COMMO TH OF MASSACHUSETTS

INTEREST OF AMICI CURIAE

Each year tens of thousands of people die on our

nation’s roads. About one-half of them have been killed

by drunk drivers. It is difficult to identify and apprehend

2.

an intoxicated driver before he injures or kills. Reliable

estimates show that only one of 2000 drunk drivers is

actually apprehended, often as a result of an accident or

injury which he has caused. Because of the growth of this

menace and the ineffectiveness of conventional law

enforcement techniques in combatting it, over one-half of

the States, California among them, have addressed the

problem by using sobriety checkpoints. Typically, policy-

making Officials of a law enforcement agency devise a

comprehensive plan identifying the dates and locations for

a checkpoint. The plan also provides for procedures to

implement the program, including: the number of officers,

including supervisory personnel; the percentage of vehicles

ot stopped; the length of the detention; the questions

to be asked of the motorist; the lighting and safety

features of the checkpoint; and the extent of the advance

3.

publicity which identifies the location of the checkpoints.

The purposes of these programs are to apprehend, deter,

and educate. The California Supreme Court has upheld

the constitutionality of sobriety checkpoints in the nation’s

largest state in terms of population and motor vehicles.

Ingersoll v. Palmer, 43 Cal.3d 1321, 743 P.2¢ 1299 (1987).

Empirical evidence in California indicates that a

checkpoint, carefully designed and implemented to

minimize the intrusion into the privacy of the motorists,

effectively deters drunk driving. Our interest in using this

life-saving procedure brings the People of the States of

California, Florida, North Carolina and the Commonwealth

of Massachusetts before this Court as Amici Curiae.

om

SUMMARY OF ARGUMENT

Ordinarily a search or seizure is invalid unless

supported by a warrant issued upon probable cause.

Those requirements yield when special needs, beyond the

need for law enforcement, make the warrant and probable

cause requirement impracticable. When the State

demonstrates a valid noncriminal purpose, the validity of

the search is determined by balancing the need to search

against the privacy invasion which the search entails. The

warrant requirement is inapplicable if the affected activity

is heavily regulated and the requirement of a warrant

thwarts the purpose of the search. Individualized

suspicion is not required if it, too, defeats tle reason for

the search.

The State of Michigan has a compelling noncriminal

need to use sobriety checkpoints: the safety of its

.

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5.

motorists. The intrusion is almost trivial: a 30-second

detention which involves no search of the car or its

occupants. The checkpoint program is implemented with

predetermined criteria that upper-echelon law enforcement

personnel have drafted. Consequently, the discretion

vested in the in-field officers is minimal, a factor which

correspondingly reduces any intrusion.

A warrant is unnecessary to justify the checkpoint

program because driving is so heavily regulated an activity

that motorists enjoy a reduced expectation of privacy. A

walrant requirement does not serve the traditional

purposes advanced for its applicability because the

Statutory or regulatory authorization for checkpoints both

advises the motorists of the reason for the stop and limits

the field officers’ discretion in conducting the detention.

6.

‘

Requiring either probable cause or individualized

suspicion frustrates the purpose of the checkpoint

program. Application of these requirements results in the

detection of only one drunk driver for every 2000 who are

on the road. The safety of motorists requires more

effective deterrence and, consequently, the dispensation

with individualized suspicion at the checkpoints.

Finally, California’s experience with sobmety

checkpoints in the past five years furnishes unmistakable

evidence of their effectiveness. If this Court accepts that

evidence, it must then determine whether a human life is

worth 30 seconds of a motorist’s time. We earnestly

submit that the answer is "yes" and the sobriety

checkpoints deserves this Court’s constitutional imprimatur.

7.

ARGUMENT

THE USE OF SOBRIETY CHECKPOINTS TO

PROMOTE HIGHWAY SAFETY IS

CONSTITUTIONAL UNDER THE FOURTH

AMENDMENT.

The State of Michigan contends that its use of sobriety

checkpoints to deter and identify drunk drivers is

reasonable under the Fourth Amendment. Amici curiae

emphatically support that position. We argue that the

safety of highway motorists, thousands of whom are

Slaughtered each year by drunk drivers, justifies the

minimal intrusion of a less than 30-second delay at a

checkpoint. We further contend that it is reasonable to

believe that the program is effective, but that its

constitutionality does not depend upon proof that it is the

most effective way to combat the menace of the drunk

driver. Finally, we argue that it is not constitutionally

necessary to obtain a warrant to implement

a sobriety checkpoint. For these reasons, we submit that

that the Michigan sobriety checkpoint program does not

offend the Fourth Amendment.

-A-

We begin by acknowledging that the detention of a

motorist by law enforcement personne] at a checkpoint,

even for a few seconds, is a seizure within the meaning

of the Fourth Amendment. Delaware v. Prouse, 440 U.S.

648, 653 (1979); United States v. Martinez-Fuerte, 428 U.S.

543, 556-558 (1976); United States v. Brignoni-Ponce, 422

U.S. 873, 878 (1975); cf. Michigan v. Chestemut, __ US.

___, 108 S.Ct. 1975, 1979 (1988); INS v. Delgado, 466 U.S.

210, 215 (1984). The issue here is whether that seizure is

reasonable within the meaning of the Fourth Amendment.

This Court’s decisions teach that a search (or, as here,

a seizure) must be supported by a warrant issued upon

- 9.

probable cause. See, e.g, National Treasury Employees

Union v. Von Raab, ___ US. __, 109 S.Ct. 1384, 1390

(1989); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987);

United States v. Karo, 468 U.S. 706, 717 (1984). But the

requirements of probable cause and the issuance of a

warrant may both yield when “special needs, beyond the

normal need for law enforcement, make the warrant and

probable-cause requirement impracticable.” Skinner v.

Railway Labor Executives Ass'n, _ U.S. __, 109 S.Ct.

1402, 1414 (1989), quoting New Jersey v. T.L.O., 469 U.S.

325, 351 (1985) (Blackman, J., concurring); accord, Griffin

v. Wisconsin, supra, 483 U.S. at p. 873. When confronted

with such "special needs," this Court has dispensed with

both probable cause and the warrant requirement. See,

e.g., Skinner v. Railway Labor Executives Ass’n, supra;

National Treasury Employees Union v. Von Raab, supra;

10.

Griffin v. Wisconsin, supra; New York v. Burger, 482 U.S. ~

691 (1987); O’Connor v. Ortega, 480 U.S. 709 (1987); New

Jersey v. T.L.O., supra; Bell v. Wolfish, 441 U.S. 520 (1979).

This Court then determines the reasonableness of the

search or seizure by balancing the legitimate governmental

interests that the search or seizure promotes against the

nature and extent of the intrusion into personal privacy

that the search or seizure entails. Skinner v. Railway

Labor Executives Ass'n, supra, 109 S.Ct. at p. 1414; New

Jersey v. T.L.O., supra, 469 U.S. at p. 337; United States v.

Villamonte-Marquez, 462 U.S. 579, 588 (1983); Delaware v.

Prouse, supra, 440 U.S. at p. 654; United States v. Martinez-

Fuerte, 428 U.S. 543, 555 (1976); United States v. Brignoni-

Ponce, supra, 422 U.S. at p. 878; Terry v. Ohio, 392 US. 1,

20-21 (1968); Camara v. Municipal Court, 387 U.S. 523,

536-537 (1967).

* % (ad Gas

11.

This balancing process requires an assessment of the

extent to which the challenged governmental conduct

advances that stated public interest (Brown v. Texas, 443

U.S. 47, 50-51 [1979]; United States v. Martinez-Fuerte,

supra, 428 U.S. at p. 562; United States v. Brignoni-Ponce,

supra, 422 U.S. at pp. 878-883), and the degree to which

a person’s reasonable expectation of privacy is subject to

arbitrary invasions solely at the unfettered discretion of

officers in the field. See Delaware v. Prouse, supra, 440

US. at pp. 654-655; United States v. Brignoni-Ponce, supra,

422 US. at p. 882. The less discretion exercised by the

officer, the less government intrudes into the rights of the

citizens. "To this end, the Fourth Amendment requires

that a seizure must be based on specific, objective facts

indicating that society’s legitimate interests require the

seizure of the particular individual, or that the seizure

Brown v. Texas, supra, 443 U.S. at p. 51 (emphasis added);

cf. Colorado v. Bertine, 479 U.S. 367 (1987).

-B-

This Court’s decisions place the- burden upon the

government to establish the existence of special needs

which outweigh the search warrant and probable cause

requirements. The need to enforce a penal statute

generally is not considered sufficient to justify dispensing

with those requirements. Thus, in most criminal cases,

this Court "strike[s] the balance in favor of the procedures

described by the Warrant Clause of the Fourth

Amendment." Skinner v. Railway Labor Executives Ass’n,

supra, 109 S.Ct. at p. 1402; United States v. Place, 462 US.

13.

696, 701 & n.2 (1983); United States v. United States

District Court, 407 U.S. 297, 315 (1972).

Sobriety checkpoints are intended to do far more than

apprehend the intoxicated drivers of motor vehicles who

happen to be committing a public offense. One of the

stated goals of the Michigan sobriety checkpoint program

is to “deter drunk driving, thereby reducing the death,

injury, and property damage caused by alcohol- and drug-

related traffic accidents." App. to Pet. for Cert. 146a. A

second objective is to “assure the safety of the general

public as well as law enforcement officers involved." Jd.

at 147a. Thus, as is true of the California sobriety

checkpoint program (Ingersoll v. Palmer, 43 Cal.3d 1321,

743 P.2d 1299 [1987}),

"the sobriety checkpoint here was operated not for the

primary purpose of discovering or preserving evidence of

crime or arresting lawbreakers, but primarily for the

regulatory purpose of keeping intoxicated drivers off the

14.

highways~ to the end of enhancing public safety.

Analytically it is much the same as an immigration

checkpoint or a checkpoint to inspect for the safety of

equipment or compliance with agricultural regulations.

The threat to public safety is at least as great and the

intrusion into Fourth Amendment interests is no greater

here than in those other regulatory checkpoint inspections

which have invariably been held constitutionally

permissible." Jd. at 1335, 743 P.2d at p. 1313.

The operation of a motor vehicle while intoxicated is

a public offense, but that does not alter the administrative

character of the checkpoint progam. "[A] State can

address a major social problem both by way of an

administrative scheme and through penal sanctions.

Administrative statutes and penal laws may have the same

ultimate purpose of remedying the social problem, but

they have different subsidiary purposes and prescribe

different methods of addressing the problem." New York

v. Burger, supra, 482 U.S. at p. 712. Laws prohibiting

drunk driving are intended to deter and punish those who

:

|

|

15.

operate a motor vehicle while under the influence of

alcohol or drugs. The sobriety checkpoint program is

designed to protect the lives and property of motorists

whom the drunk driver threatens. This Court has

recognized the vital and noncriminal interest "in ensuring

the safety of the traveling public" by prohibiting the use of

drugs or alcohol by those using the Nation’s transportation

system. Skinner v. Railroad Labor Executives Ass’n, supra,

109 S.Ct. at p. 1415. This Court’s cases plainly teach that

a sobriety checkpoint has an administrative purpose that

is distinct from the penal goal of apprehending intoxicated

motorists.

-C-

We submit that this Court’s administrative search

precedents support the conclusion that the Michigan

16.

sobriety checkpoint program is constitutional under the

Fourth Amendment. .

Beginning with See v. City of Seattle, 387 US. 541

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

(1967), the Court recognized that 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, may be

permissible under the Fourth Amendment without a

showing of probable cause directed to a particular place

or person to be searched. See also New York v. Burger,

supra, 482 U.S. 691; Donovan v. Dewey, 452 US. 594

(1981); Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978);

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

James, 400 U.S. 309 (1971); Colonnade Corp. v. United

States, 397 US. 72 (1970).

|

17.

Although Camara and See required a search warrant

to conduct the administrative inspection (see Marshall v.

Barlow’s, Inc. supra, 436 US. at pp. 312-313), this

requirement is not applicable to “pervasively regulated

business[es}" (Biswell, supra, at p. 316) or to "closely

regulated” industries "long subject to close supervision and

inspection." Colonnade, supra, at pp. 74, 77. Additionally,

a warrant is not required if obtaining one frustrates the

governmental! purpose behind the search (Camara, supra,

at p. 533; Donovan v. Dewey, supra, 452 U.S. at p. 603), or

if the purposes of the warrant requirement -- protection

of privacy from unauthorized intrusion, notice to the

citizen of the legal authorization, and detached scrutiny by

a neutral] magistrate -- are not served.

We turn to a consideration of the applicability of the

search warrant and probable cause requirements.

18.

(1)

Respondents do not, nor could they successfully,

contend that a search warrant is required for the

implementation of a sobriety checkpoint. To begin with,

we can think of no everyday activity more heavily

regulated than driving. See New York v. Class, 475 US.

106, 111-112 (1986); Rakas v. Illinois, 439 U.S. 128, 154

(1978) (Powell, J., concurring.) Second, the owner of a

car has a lesser expectation of privacy in the vehicle than

in his home or office. See California v. Carey, 471 US.

386, 392 (1985); South Dakota v. Opperman, 428 US. 364,

365 (1976); Cardwell v. Lewis, 417 US. 583, 590 (1974)

(plurality opinion); Cady v. Dombrowski, 413 U.S. 441-442

(1973).

Third, the securing of a search warrant is completely

impractical because the field officers do not anticipate

19.

which vehicles will approach the checkpoints. Because

the officers do not have probable cause to support the

issuance of the warrant (see Griffin v. Wisconsin, supra,

483 U.S. at p. 877 & n.4) and because a warrant

requirement for each car leads to inordinate or

unacceptable delays, the only alternative is the issuance

of a pro forma warrant broad enough to cover all

prospective vehicles. In the latter case, however, little is

served by the warrant requirement. A warrant notifies

the citizen subject to the search or seizure that this

intrusion is authorized by law and is not the random act

of government agents. Skinner v. Railway Labor Executives

Ass'n, supra, 109 S.Ct. at p. 1415; New York v. Burger,

supra, 482 U.S. at p. 703. The Michigan law requires

advance publicity of the use of checkpoints and the

conspicuous use of warning signs. App. to Pet. for Cert.

20.

152a-153a. These requirements provide assurances to the

motorists of the lawful authority to conduct the

checkpoint. Cf. United States v. Martinez-Fuerte, supra, 428

US. at p. 565.

In addition, the warrant requirement allows a neutral

magistrate to determine whether the intrusion is justified.

See National Treasury Employees Union v. Von Raab, supra,

109 S.Ct. at p. 1391; United States v. Chackwick, 433 U.S.

1, 9 (1977). But because every motorist is detained, the

field officers exercise no discretion and there are no

special facts for a magistrate to evaluate. Von Raab,

supra, at p. 1391. We conclude that the Fourth

Amendment does not require the issuance of a warrant.

(2)

Turning to the more general requirement of probable

cause (Skinner, supra, at pp. 1416-1417; Von Raab, supra,

21.

at p. 1391; New Jersey v. T.L.O., supra, 469 U.S. at p. 340),

we observe that this Court has declared that the probeble

cause standard "is peculiarly related to criminal

investigations” (Colorado v. Bertine, supra, 479 U.S. at p.

371, quoting South Dakota v. Opperman, supra, 428 U.S. at

p. 370 n.5) and "may be unhelpful in analyzing the

reasonableness of routine administrative functions .. .

especially where the Government seeks to prevent the

development of hazardous conditions or to detect

violations that rarely generate articulable grounds for

searching any particular place or person." National

Treasury Employees Union v. Von Raab, supra, 109 S.Ct.

at pp. 1391-1392. It has been estimated that only one of

2000 drunk drivers is arrested, presumably upon the basis

of probable cause. 4 La Fave, Search and Seizure: A

Treatise on the Fourth Amendment (2d Ed. 1987)

22.

§10.8(d) at p. 73. It is readily apparent that the probable

cause standard is wholly ineffectual to further the

compelling state interest of highway safety. Cf. United

States v. Martinez-Fuerte, supra, 428 U.S. at p. 557. The

remaining question is whether any particularized suspicion

should be required to justify a detention at a sobriety

checkpoint. |

(3)

The "Fourth Amendment imposes no irreducible

requirement of such [individualized] suspicion." Jd. at p.

561. "In limited circumstances, where the privacy interests

implicated by the search are minimal, and where an

important governmental interest furthered by the intrusion

would be placed in jeopardy by a requirement of

individualized suspicion, a search may be reasonable

despite the absence of such suspicion." Skinner v. Railway

ova TA

oe lel chap i 5 PM: +

j

t

{

23.

Labor Executives Ass’n, supra, 109 S.Ct at. 1417; accord,

National Treasury Employees Union v. Von Raab, supra, 109

S.Ct. at p. 1392. The Michigan sobriety checkpoint

program is constitutional under this balancing test.

-D-

This Court’s administrative search precedents require

that (1) the invasion caused by the search or seizure be

minimal; (2) the governmental interest be important; (3)

the interest be furthered by the search; and (4) the

interest be jeopardized by a requirement of individualized

Suspicion. Skinner, supra, at p. 1417; New York v. Burger,

supra, 482 U.S. at pp. 702-703, 708-712. We turn to those

considerations.

(1)

Respondents do not deny that the need to identify

and remove drunk drivers from the highways is compelling,

24.

if not absolute. This Court has lamented the "carnage

caused by drunk drivers... .". South Dakota v. Neville, 459

U.S. 553, 558 (1983). The California Supreme Court

documented the tragic extent of the problem:

"Nearly half of the traffic deaths in California between

1976-1980 involved drinking drivers. [Citations omitted.)

Traffic deaths in the United States exceed 50,000 annually

and approximately one-half of those fatalities are alcohol-

related. [Citations omitted.]

"Indeed, in the years 1976 to 1980 there were many more

injuries to California residents in alcohol-related traffic

accidents than were suffered by the entire Union Army

during the Civil War, and more were killed than in the

bloodiest year of the Vietnam War." Burg v. Municipal

Court, 35 Cal.3d 257, 261-262, 673 P.2d 732, 735 (1983).

The danger posed by the drunk driver on our streets

and highways, is almost beyond exaggeration.

(2)

We have acknowledged that a checkpoint stop is a

seizure within the meaning of the Fourth Amendment.

i

3

25.

However, the intrusion is minimal for the following

reasons.

First, there is a diminished expectation of privacy in

an automobile. United States v. Chadwick, supra, 433 U.S.

at p. 12; California v. Carney, supra, 471 U.S. at pp. 391-

392. "There are sound reasons for this distinction

[between automobiles and other locations}: Automobiles

operate on public streets; they are serviced in public

places; they stop frequently; they are usually parked in

public places; their interiors are highly visible; and they

are subject to extensive regulation and inspection.” Rakas

v. Illinois, supra, 439 U.S. at p. 154 n.2 (1978) (Powell, J.,

concurring) (emphasis added.)

Second, a checkpoint stop is less intrusive than the

roving-patrol detention, which the lower court impliedly

sanctioned. App. to Pet. for Cert. 20a. "Roving patrols

26.

often operate at night on seldom-traveled roads, and their

approach may frighten motorists. At traffic checkpoints

the motorist can see that other vehicles are being stopped,

he can see visible signs of the officers’ authority, and he

is much less likely to be frightened or annoyed by the

intrusion.” United States v. Ortiz, 422 U.S. 891, 894-895

(1975). "[T]he potential interference [by checkpoints] 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. . . ."

United States v. Martinez-Fuerte, supra, 428 U.S. at p. 559.

The Michigan courts found that the sobriety

checkpoints were more intrusive than those described in

Martinez-Fuerte, reasoning that the latter checkpoints were

in fixed locations while those used in Michigan were

subject to relocation. App. to Pet. for Cert. 21a-22a. This

27.

conclusion is inconsistent with this Court’s approval in

dictum of license check roadblocks in Delaware v. Prouse

(440 US. at p. 663), “which quite obviously cannot be

maintained at a permanent location." 4 La Fave, Search

and Seizure, supra, § 10.8(d) at p. 76. The analysis of the

New York Court of Appeals places the temporary nature

of a checkpoint in its proper perspective:

"Nor is constitutionality affected by the shifting and

temporary nature of the checkpoints. The fact that the

Supreme Court has approved permanent roadblocks but

disapproved roving patrol stops is not determinative.

What is critical is the intrusiveness of the checkpoint in

relation to the governmental purpose involved. The

subjective effect upon a vehicle driver approaching a

roadblock is unrelated to whether it is permanent or was

established but a few minutes before the driver

approached it; in either instance his or her observation

of it will be measured in minutes if not seconds. The

likelihood of there being the kind of fright or annoyance

that invalidates a random stop made by a roving patrol is

obviated in the case of a temporary checkpoint by the

visible signs of authority which the checkpoint entails --

signs announcing the purpose, lighting, and identifiable

police vehicles and the observable fact that there is a

uniform system for stopping cars [citations omitted]. The

28.

only subjective difference between temporary and

permanent checkpoints is that because its location is

known in advance the latter can be avoided entirely by

using a different route, but that difference is minimal as

concerns afixiety, especially since a temporary checkpoint

can also be avoided." People v. Scott, 63 N.Y.2d 518, 473

N.E.2d 1, 5 (1984).

In Michigan, the notice provided by the advance

publicity and signs announcing the purpose of, and

authorization for, the checkpoints minimized their

intrusiveness for Fourth Amendment purposes.

Third, this Court has recognized that a seizure is less

intrusive than a search, because only the latter impinges

upon the right to privacy. See Segura v. United States, 468

U.S. 796, 806 (1984) (Opinion of Burger, C.J.); United

States v. Jacobsen, 466 U.S. 109, 113 nS (1984). The

Michigan sobriety checkpoint program authorizes the

detention but not the search of the vehicle and its

occupants. Compare United States v. Martinez-Fuerte,

29.

supra, 428 U.S. 543, with United States v. Ortiz, supra, 422

U.S. 891. Inspection of the vehicle is limited to what can

be seen without a search. Texas v. Brown, 460 U.S. 730

(1983). The Michigan checkpoint program apparently

does not require the motorist to produce his driver’s

license and car registration. See New York v. Class, supra,

475 U.S. at pp. 113-114; Delaware v. Prouse, supra, 440

U.S. at p. 659. Because the motorist apparently has

broken no law and thus poses no danger to the officers,

he is not directed to step from his car. Pennsylvania v.

Mimms, 434 U.S. 106 (1977); see 4 La Fave, Search and

Seizure, supra, § 10.8(d) at 84.

Finally, the intrusion into a person’s right of privacy

may be minimized by the use of a plan which sets forth

neutral criteria limiting the exercise for discretion by the

30.

in-field officers. Brown v. Texas, supra, 443 U.S. at p. 41.

As this Court observed in Martinez-Fuerte,

“checkpoint operations both appear to and actually involve

manner in which established checkpoints are operated is

visible evidence, reassuring to lawabiding motorists, that

the stops are duly authorized and believed to serve the

public interest. The location of a fixed checkpoint is not

chosen by officers in the field, but by officials responsible

for making overall] decisions as to the most effective

allocation of limited enforcement resources. We may

assume that such officials will be unlikely to locate a

checkpoint where it bears arbitrarily or oppressively on

motorists as a class. And since field officers may stop

only those cars passing the checkpoint, there is less room

for abusive or harassing stops of individuals than there was

in the case of roving-patrol stops. Moreover, a claim that

a particular exercise of discretion in locating or operating

a checkpoint is unreasonable is subject to post-stop judicial

review.” 428 U.S. at 559. (Fn. omitted.)

The Michigan checkpoint program minimizes the

exercise of discretion of in-field officers to a level

compatible with Fourth Amendment values. The

procedures for the operation of a checkpoint are

developed by supervising law enforcement personnel. Not

31.

only does the formation of policy by high ranking

personnel reduce the potential for abusive stops, it also

facilitates judicial review of the operations (ibid.), an

important consideration in Fourth Amendment cases. See

United States v. Leon, 468 U.S. 897, 924 (1984). Under the

program before this Court, sites are selected to promote

safety and minimize inconvenience, every motorist is

required to be diverted, and discretion is exercised only in

the identification of motorists who are asked to perform

a field sobriety test. Officers make that determination on

the basis of specific and articulable circumstances, just as

they do on traffic patrol. Terry v. Ohio, supra.

(3)

But it is not sufficient to establish, as we have, that

the gravity of the public interest justifies the limited

intrusion into the personal liberty, privacy, and dignity of

32.

interest. Brown v. Texas, supra. This Court has indicated

unmistakably that a checkpoint serves its purpose under

the Fourth Amendment if it deters the conduct sought to

be interdicted. See Delaware v. Prouse, supra, at p. 660,

United States v. Martinez-Fuerte, supra, at p. 557.

Preliminarily, we make the following observations

about the requirement that a checkpoint or any other

program be “effective.” First, just as the Fourth

Amendment does not demand that any particular

governmental activity be the “least intrusive” means

possible to achieve the stated objective (Skinner v. Railway

Labor Executives Ass'n, supra, 109 S.Ct at p. 1419 n.9;

Colorado v. Bertine, supra, 479 U.S. at pp. 373-374; Mlinois

v. Lafayette, 462 US. 640, 647 [1983]), neither does it

require that the governmental response to a problem be

33.

the "most effective" means available. A contrary principle

would unjustifiably hamper a state in developing tools to

combat social ills, for only the most effective could be

used. In terms of privacy interests, it is possible that in

any given situation the most effective means may also be

the most intrusive. See Von Raab, supra, at p. 1396 n.4.

The Fourth Amendment’s flexible standard of

reasonableness requires neither that the means be the

most effective nor that they be the least intrusive.

Second, the effectiveness of a procedure is not

necessarily determinea by the percentage of violators who

are detected. See National Treasury Employees Union v.

Von Raab, supra, 109 S.Ct at p. 1395. In Martinez-Fuerte,

for example, 725 deportable aliens were found in 146,000

vehicles, meaning that one alien was found for every 200

cars stopped. 428 U.S. at p. 554. This Court found that

34.

the checkpoint was effective. By contrast, this Court

condemned the procedure in Prouse as not "sufficiently

productive to qualify as a reasonable law enforcement

practice” because there was no evidence to indicate that

a random stop of motorists was an effective way to

identify unlicensed drivers. 440 U.S. at pp. 659-660. As

Professor La Fave points out, however, the real evil in the

Delaware procedure was its randomness, not its lack of

efficiency. "This can only mean that because a checkpoint

operation is much less intrusive and threatening than a

system of random stops, it does not require nearly as

strong a showing of likely ‘success’ in the sense of

stop/apprehension percentages." 4 La Fave, Search and

Seizure, supra, § 10.8(d) at 74.

Judged by these considerations, sobriety checkpoints

have been shown to be effective. It is true that evidence

35.

of their effectiveness is tentative, but that is primarily

attributable to their recent vintage as a technique in the

war against drunk driving. If the scarcity of data

invalidates the use of sobriety checkpoints, they could

never be employed, because no evidence of effectiveness

could be developed.

Nevertheless, California’s experience with sobriety

checkpoints has demonstrated its value as a deterrent to

drunk driving. In December of 1984, the California

Highway Patrol conducted checkpoints in North

Sacramento, Redding, Glendale, and Bakersfield. At those

locations there were 25.6% more arrests for drunk driving,

18.8% fewer accidents, and 21.3% fewer injuries than in

December 1983, before the use of checkpoints in those

areas. Some 10,150 vehicles were screened in 76 hours,

an average of 2.2 per minute. Department of California

36.

Highway Patrol, Sobriety Checkpoints -- Phase |

Evaluation (1985) at 5-6. Sobriety checkpoints were

conducted in North Sacramento during the period

May 1 - October 31, 1985. Over 12,000 vehicles were

screened. Arrests increased by 1.3% in that area over

the comparable period for 1984 (the statewide increase

was 0.7%), accidents decreased by 12.9% (versus 6.0%

statewide), and injuries decreased by 13.1% (versus 5.2%

statewide). Department of California Highway Patrol --

Phase II Evaluation (1986) at 9-10.

During the period May-September 1988, the California

Highway Patrol conducted 38 checkpoints which screened

33,475 vehicles. As a result, 918 field sobriety tests were

conducted (2.7% of the cars) and 283 persons were

arrested (0.84%). Department of California Highway

Patrol, Final Report: Driving Under the Influence (DUI)

37.

Program, May-September 1988, at 2-13. Accidents

decreased by 7.1% compared to the corresponding period

in 1987; the statewide decrease was only 3.7%. Id. at 2-

15, 2-16. Arrests had also decreased: 6.2% in checkpoint

areas; 8.2% statewide. Jd. at 2-16. "This result indicated

that the use of checkpoints may have successfully deterred

some motorists from driving while under the influence.

Newspaper articles related to the Department’s operation

of sobriety checkpoints may have also contributed to the

deterrent effect." Ibid.

We believe that the California experience provides

ample data to establish the effectiveness of the sobriety

checkpoint program. The number of alcohol-related

accidents has decreased more in the checkpoint areas than

in the rest of the state. Almost one drunk driver is found

in each 100 vehicles screened, a figure which compares

38.

favorably to the national average of one arrest for each

2000 intoxicated drivers. We cxghasies Gat Go pagan

is efficient, taking less than 30 seconds to screen each car.

(4)

Finally, we argue that the dispensation of

individualized suspicion to justify the detention is necessary

to effectuate the purpose of the program. See Skinner v.

Railway Labor Executives Ass’n, supra, 109 S.Ct. at p. 1417.

That purpose is to protect the lives of highway motorists.

If an officer cannot stop a motorist unless he is driving

erratically, official action may come too late. "First, the

erratic driver may cause injury to himself or others before

he is observed by patrols. Second, the ability of a drunk

driver to avoid erratic movements along a roadway does

not mean he will be able to respond to an emergency

where prompt reflexes may be of great importance."

39.

People v. Bartley, 109 Wl.2d 273, 486 N.E.2d 880, 886

(1985).

"[I}t is only fortuitous that an officer happens to be in

a position to see a drunk entering the freeway on the off-

ramp before that drunk happens to kill some innocent

person. We are not likely to achieve the situation where

there will be police officers available at closing time on a

Labor Day weekend night at each of the locations where

patrons shuffle from their favorite saloon to the parking

lot... ." State ex rel. Ekstrom v. Justice Court, 136 Ariz.1,

668 P.2d 992, 999 (1983) (conc. opn.).

resulted in an arrest ratio of one to 2,000 offenders and

a yearly death toll of over 25,000 persons. These statistics

only hint at the human suffering involved and are eloquent

40.

evidence of the need to act in the absence of an

individualized suspicion.

— -

The vast majority of the cases to pass upon the

constitutionality of sobriety checkpoints have upheld their

use, either on the facts of the case or in principle. These

programs have promoted highway safety while minimizing

official intrusion into the privacy of motorists. This Court

does not lightly “brush aside the experience of States”

which cast light upon the efficacy of a procedure. Mapp

v. Ohio, 367 US. 643, 651 (1961), quoting Wolf v.

Colorado, 338 U.S. 25, 31-32 (1949).

Sobriety checkpoint programs have been upheld

against constitutional challenge in Arizona (State v.

Superior Court, 143 Ariz. 45, 691 P.2d 1073 [1984]);

41.

Arkansas (Coffman v. State, 26 Ark.App. 45, 759 S.W.24

573 [1988]); California (Ingersoll v. Palmer, 43 Cal.3d 1321,

743 P.2d 1299 [1987]); Florida (State v. Jones, 483 So.2d

433 (Fla. 1986) [dictum]; State v. Abelson, 485 So. 861

(Fla.App. 1986]); Georgia (State v. Golden, 171 Ga-App.

27, 318 S.E.2d 693 [1984]); Illinois (People v. Bartley, 109

Ill. 273, 486 N.E.2d 880 [1985], cert. denied, 475 US. 1068

(1986]); Indiana (State v. Garcia, 500 N.E.2d 158 [Ind.

1986], cert. denied, 481 U.S. 1014 [1987]); lowa (State v.

Riley, 377 N.W.2d 242 [la.App. 1985]); Kansas (State v.

Deskins, 234 Kan. 102, 673 P.2d 1174 [1983]); Kentucky

(Kinslow v. Commonwealth, 660 S.W.2d 677 [Ky-App.

1983], cert. denied, 460 U.S. 1105 [1984]); Maine (State v.

Leighton, 551 A2d 116 [Me. 1988]); Maryland (Little v.

State, 300 Md. 485, 479 A.2d 903 [1984]); Massachusetts

(Commonwealth v. Trumble, 396 Mass. 81, 483 N.E.2d

“ 42.

1102 [1985]); Mississippi (Miller v. State, 373 So.2d 1004

[Miss. 1979]); Nebraska (State v. Crom, 222 Neb. 273, 383

N.W.2d 461 [1986] [dictum]); New Jersey (State v. Kirk,

202 N.J.Super.-28,493 A.2d 1171 [App.Div. 1985]); New

Mexico (City of Las Cruces v. Betancourt, 735 P.2d 1161

[N.M. 1987]); New York (People v. Scott, 63 N.Y.2d 518,

473 N.E.2d 1 [1984]); Ohio (State v. Alexander, 22 Ohio

Misc.2d 34, 489 N.E.2d 1093 [1985]); Oregon (Nelson v.

Lane County, 304 Or. 97, 743 P.2d 692 [1987] [statute

required under state law]); Pennsylvania (Commonwealth

v. Tarbert, 517 Pa. 277, 535, 1035 [1987] [checkpoints

constitutional, but prohibited by statute]), Texas (Wedd v.

State, 739 S.W.2d 802 [Tex.Cr.App. 1987] [dictum));

Vermont (State v. Martin, 145 Vt. 562, 49% Ald 442

(1985]); and Virginia (Lowe v. CommonwSalth, 230 Va.

43.

346, 337 S.E.2d 273 [1985], cert. denied, 475 U.S. 1084

[1986}).

The cases upholding the state’s right to use sobriety

checkpoints employ a similar methodology: they balance

the need to contro! drunk drivers to the end of promoting

highway safety against the nature of the invasion into the

privacy of the motorist. That intrusion is minimized to an

acceptable level by the implementation of a program,

devised by policy-making administrative officials, which

circumscribes the discretion of the officers, assures a safe

and well-lighted checkpoint, gives adequate warning to

oncoming motorists, requires the display of legitimate

policy authority, minimizes the time of detention, and

provides for the detention of vehicles on a systematic,

nonrandom basis. See, ¢.g., People v. Bartley, supra, at pp.

44

887-888; Little v. State, supra, at p. 911; State v. Deskins,

supra, at p. 1185; People v. Scott, supra, at p. 4.

To be sure, a number of states have prohibited the

use of sobriety checkpoints on constitutional grounds.

Some decisions are based in whole or in part on the

jurisdiction's state constitution. E.g., State v. Church, 538

So.2d 993 (La. 1989); State v. Koppel, 127 N.H. 286, 499

A.2d 977 (1985). Other cases either rely upon

considerations which are unapplicable to this case or rest

upon arguments which do not withstand scrutiny. In State

v. Olgaard, 248 N.W.2d 382 (S.D. 1976); Webb v. State,

supra, 739 S.W.2d 802; and City of Seattle v. Mesiani, 110

Wash.2d 454, 755 P.2d 775 (1988), the courts were

concerned with the considerable amount of discretion

exercised by the officers, the lack of high-level supervision,

or the irregular nature of the checkpoints. By contrast,

45.

the Michigan program requires policy makers to select the

sites based upon valid and neutral criteria and greatly

circumscribes the discretion of the field officers.

Some courts have found the use of temporary

checkpoints objectionable, purporting to distinguish

Martinez-Fuerte on that basis. See State v. Olgaard, supra,

248 N.W.2d at p. 394; State v. Smith, 674 P.2d 562, 564-

565 (Okla.Ct.Crim.App. 1984). The New York Court of

Appeals met and defeated this argument in People v.

Scot, supra, 473 N.E.2d at p. 6, quoted at pages 27-28 of

A few courts have invalidated checkpoint programs on

the ground that there are equally effective and less

intrusive means of identifying and deterring drunk drivers -

- harsher penalties and observation of erratic driving by

46.

roving patrols, for example. State v. Koppel, supra, A.2d

at p. 982.

We reiterate our argument (see Part D(3)) that the

reasonableness of a search or seizure does not depend

upon a showing that it is the least intrusive or most

effective means possible of achieving a desirable social

purpose. In addition, as explained earlier, an erratic

driver may cause injury before he is observed by a roving

patrol.

Deterrence by means of enacting harsher penalties has

superficial appeal, but the “problem is that deterrence by

punishment is often ineffective unless combined with a

fear of apprehension.” State ex rel Ekstrom v. Justice

Court, 136 Ariz 1, 668 P.2d 992, 1000n.3. None of the

2,000 drunk drivers who are on the road at any given time

fears that he will be the unlucky one to be arrested.

47.

Other available law enforcement techniques simply do not

deter. Furthermore, the courts which focus upon criminal

penalties misperceive the essential purpose of sobriety

checkpoints, which is to promote highway safety, not

apprehend and punish criminals.

For these reasons we submit that the majority view

validating sobriety checkpoint programs is also the better

reasoned position. When numerical and logical superiority

coincide, approval should follow. We ask this Court to

approve the majority rule. The safety of thousands of

motorists requires no less.

-F-

We conclude by addressing the unstated fear that the

use of checkpoints is another step toward the

transformation of our society into a police state in which

uniformed officers are placed on every street corner, in

48.

every public place, with citizens required to identify

themselves before walking the streets, boarding common

carriers, or driving the highways. Is validation of sobriety

checkpoints the first step on the road to a society which

is antithetical to the cherished values and beliefs

supporting this nation? The answer is "no."

We do not believe that the validity of a legal

proposition can be determined by carrying it to its

ultimate conclusion. Crime could be deterred by placing

a police officer in every home, but such a repugnant

prospect cannot invalidate the use of a sobriety checkpoint

as a deterrent technique. Whatever imaginary specters

may haunt some, the undeniable reality is that drunk

drivers are slaughtering innocents on the roads of our

nation. This case addresses a specific condition which

results in the deaths of thousands of Americans each year.

49.

To combat the growing menace of the drunk driver,

petitioners wish to detain vehicles at certain locations for

approximately 30 seconds. There is no arrest or

warrantless search. There is only a brief encounter at

which trained officers quickly determine whether the

operator of a 3000-pound moving machine is too drunk to

maneuver it safely.

It is true that the increased fear of detention may

deter other crimes, but those situations can be easily

distinguished for purposes of this case:

"In drunk driving it is the very presence of the vehicle on

the road which is the object to be prevented and the

single thing most effectively accomplished by roadblocks.

In narcotics enforcement, on the other hand, there is no

assurance that roadblocks would prevent possession or

sale, and there is no method of enforcement except by

search of the person and vehicle itself. In my opinion,

this involves too great an infringement on personal liberty.

The deterrent roadblock for drunk driving would, however,

force the car off the road or prevent it coming on the

road, thus meeting the law enforcement objective with a

very minima] infringement on personal liberty." State ex

50.

rel. Ekstrom v. Justice Court, supra, 668 P.2d at p. 1000n.3

(conc. opn.).

In United States v. Knotts, 460 U.S. 276 (1983), the

defendant argued that the result of upholding the use of

a beeper device “would be that ‘twenty-four hour

surveillance of any citizen of this country will be possible,

without judicial knowledge or supervision.” Jd. at p. 283.

This Court responded to that concern:

"But the fact is that the ‘reality hardly suggests abuse,’

[citation omitted]; if such dragnet-type law enforcement

practices as [defendant] envisions should eventually occur,

there will be time enough then to determine whether

different constitutional principles may be applicable." 460

US. at pp. 283-284.

Petitioners and amici curiae want to control drunk

drivers with the use of checkpoints and have attempted

to describe the circumstances under which the employment

of checkpoints is constitutionally reasonable. Any abuse

of this technique by attempted expansion to unsuitable

$1.

situations can be met with the appropriate judicial

response. Until then we ask this Court to uphold the use

of sobriety checkpoints.

CONCLUSION

For the foregoing reasons, the judgment of the

Michigan Court of Appeals must be reversed.

DATED: November 15, 1989

JOHN K. VAN DE KAMP,

Attorney General of the

State of California

RICHARD B. IGLEHART

Chief Assistant Attorney General

JOHN H. SUGIYAMA

Senior Assistant Attorney General

MORRIS BEATUS

Supervising Deputy Attorney General

Lonek

RONALD E. NIVER

Deputy Attorney General

No. 88-1897

Rick Sitz, Joseph F. Young, Sr.

Dominic J. Jacobetti, Dick Allen,

Keith Muxlow and Jack Welborn,

Respondents.

eee ee eee eee ee”

RONALD E. NIVER, a member of the Bar of

the Supreme Court of the United States, states:

That his business address is 350 McAllister Street,

Room: 6000 in the City and County of San Francisco, State

of California; that on November 16, 1989, he served true

copies of the attached Brief Amici Curiae for the States

of California, Florida, North Carolina and the

Commonwealth of Massachusetts in the above-entitled

2.

matter on counsel for respondent and petitioners by

placing same in envelopes addressed as follows:

Mr. Thomas L. Casey Mr. Doug Ross

Assistant Solicitor General National Association of

753 Law Building Attorneys General

525 West Ottawa Street Hall of the States

Lansing, MI 48913 444 North Capitol St.

Washington, D.C. 20001

Mr. Louis Hubener Mr. Lacy H. Thornburg

Mr. Robert A. Butterworth Attorney General of

Office of the Attorney North Carolina

Genera! Department of Justice

The Capitol 2 East Morgan Street

Teliahassee, FL 32399-1050 Raleigh, N.C. 27602

Mr. James M. Shannon

Attorney General of Massachusetts

One Ashburton Place - 20th Floor

Boston, Massachusetts 02108

lum day of Tigurmiict , 195

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