PEOPLE v. BANKS

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mary Louise BANKS, Defendant and Appellant.

No. G013096.

Decided: November 25, 1992

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Alan Crivaro, Deputy Public Defenders, for defendant and appellant. Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., Wallace J. Wade, Asst. Dist. Atty., Kathleen M. Harper and James F. Bacin, Deputy Dist. Attys., for plaintiff and respondent.

OPINION

We accepted transfer of this matter after certification by the appellate department of the superior court to settle the following question:  Is advance publicity necessary to a constitutionally operated sobriety checkpoint?   We conclude it is.

 The general rule, of course, is that absent an exception such as exigent circumstances, a random vehicle stop violates the Fourth Amendment:  “[F]ederal constitutional principles require a showing of either the officer's reasonable suspicion that a crime has occurred or is occurring or, as an alternative, that the seizure is ‘carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.’  [Citations.]”  (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1329, 241 Cal.Rptr. 42, 743 P.2d 1299.)   In Ingersoll the California Supreme Court, relying on a line of United States Supreme Court cases,1 upheld the constitutionality of sobriety checkpoints under the federal and state Constitutions, provided they are operated pursuant to a plan and in an approved manner.   One of the requirements is advance publicity because it “both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.”  (Id. at p. 1346, 241 Cal.Rptr. 42, 743 P.2d 1299.)

The district attorney argues, however, that the exclusionary rule may be applied only if federal law requires suppression (In re Lance W. (1985) 37 Cal.3d 873, 887–888, 210 Cal.Rptr. 631, 694 P.2d 744), and because no opinion of the United States Supreme Court denounces sobriety checkpoints staged without advance publicity, the stop in this case must be upheld.   We disagree.   Federal law does require application of the exclusionary rule when vehicles are detained outside border areas without warrant, reasonable suspicion, or exigent circumstances, unless another exception to the general rule, such as that recognized in Ingersoll, applies.

Notwithstanding the district attorney's claims, Michigan State Police v. Sitz (1990) 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 is not authority to the contrary, quite the opposite.   There, the United States Supreme Court upheld a sobriety checkpoint program similar to that discussed in Ingersoll.   Although it, too, contained an advance publicity requirement, the district attorney somehow derives from Sitz the remarkable notion that Ingersoll has, in effect, been overruled sub silentio on the advance publicity point.

 The district attorney's interpretation founders against the well-known shoal of appellate practice that cases are not authority for issues they do not address.  (People v. Burnick (1975) 14 Cal.3d 306, 317, 121 Cal.Rptr. 488, 535 P.2d 352.)   And a close reading of Sitz itself demonstrates his interpretation is incorrect:  “Petitioners, the Michigan Department of State Police and its director, established a sobriety checkpoint pilot program in early 1986.   The director appointed a Sobriety Checkpoint Advisory Committee comprising representatives of the State Police force, local police forces, state prosecutors, and the University of Michigan Transportation Research Institute.   Pursuant to its charge, the advisory committee created guidelines setting forth procedures governing checkpoint operations, site selection, and publicity.”  (Michigan State Police v. Sitz, supra, 496 U.S. at p. 447, 110 S.Ct. at 2484, italics added.)   These guidelines appear to be very similar or identical to those set out in Ingersoll.  (Sitz v. Department of State Police (1988) 170 Mich.App. 433, 436, 429 N.W.2d 180, 181.)

This is the Supreme Court's holding in Sitz:  “In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program.   We therefore hold that it is consistent with the Fourth Amendment.”  (Michigan State Police v. Sitz, supra, 496 U.S. at p. 455, 110 S.Ct. at 2488, italics added.)   Thus, the district attorney has misread Sitz.   That decision does not uphold unfettered installation of sobriety checkpoints contrary to the general rule of exclusion applied to random car stops.   To pass federal constitutional muster, the Supreme Court requires a program, and the only one it has approved includes publicity.2  Thus, there is no basis for the belief that pre-checkpoint publicity is not necessary to pass constitutional muster.  (See People v. Morgan (1990) 221 Cal.App.3d Supp. 1, 270 Cal.Rptr. 597.)

Judgment reversed.3

FOOTNOTES

1.   Brown v. Texas (1979) 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357;  Delaware v. Prouse (1979) 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660;  United States v. Martinez–Fuerte (1976) 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116.

2.   The exact nature of the publicity requirement was not discussed, concededly.   The Michigan Court of Appeals' opinion in Sitz v. Department of State Police, supra, 170 Mich.App. 433, 436, 429 N.W.2d 180, 181 provides no more information, stating only that “[t]he guidelines set forth procedures as to site selection, publicity, and operation of the checkpoint․”  (Italics added.)

3.   The municipal court denied the defense motion to suppress, notwithstanding the lack of proof of pre-checkpoint publicity, because defendant apparently had actual knowledge that the checkpoint was in place before electing to drive through its location.   This is apples and oranges logic.   A roadblock illegal at the outset does not, chameleon-like, change colors according to the state of mind of those passing through it.

CROSBY, Associate Justice.

SILLS, P.J., and WALLIN, J., concur.