INGERSOLL v. PALMER

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

William INGERSOLL et al., Petitioners, v. Alfred PALMER et al., Respondents.

A029680.

    Decided: December 19, 1985

Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, Donna J. Hitchens, ACLU Foundation of Northern California, San Francisco, Paul L. Hoffman, Mark D. Rosenbaum, Joan W. Howarth, ACLU Foundation of Southern California, Los Angeles, for petitioners. John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Linda Ludlow, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for respondents.

PETITION FOR WRIT OF MANDATE

This petition, brought by taxpayers, challenges establishment of roadblock sobriety checkpoints in several California counties.   At the time the petition was filed, most such roadblocks were only threatened, and petitioners sought to stay their operation.   We denied the request for a stay, but issued an alternative writ to examine the legality of the proposed roadblocks.   We have concluded that those roadblock sobriety checkpoints conducted according to guidelines which we will outline are permissible under the United States and California Constitutions.

I

In 1984, California's Attorney General rendered an opinion announcing that “California law enforcement agencies may lawfully utilize checkpoints in the detection and apprehension of persons driving under the influence of intoxicating substances if sufficient safeguards are taken to minimize the intrusion on motorists.”  (67 Ops.Cal.Atty.Gen. 471 (1984).)   The opinion suggested in some detail how checkpoints should be operated to satisfy constitutional requirements.

The Burlingame Police Department was the first to institute a sobriety checkpoint in this state.   The California Highway Patrol then set up checkpoints at several locations around the state, and other police agencies announced their intention to follow suit.   For purposes of this opinion, we need describe only the Burlingame checkpoint, which was expected to serve as a model for others.   Based upon street layout, traffic patterns, and frequency of drunk driving arrests, an intersection on El Camino Real was selected for the checkpoint.   With the approval of the California Department of Transportation (Caltrans), and in accordance with Caltrans guidelines for lane closure, Burlingame officers placed warning signs (including one announcing a sobriety checkpoint) and used cones to taper the three northbound lanes into a one-lane traffic control point.

At the control point, the officers selected every fifth vehicle for sobriety screening.   That car was diverted to another officer who handed an information letter and a self-addressed and stamped survey postcard to the driver.   The officer shined his flashlight into the interior of the vehicle looking for open containers or other evidence of alcoholic beverage use.   The officer observed for alcohol on the breath, slurred speech, glassy and/or bloodshot eyes, and other symptoms of impairment.   If signs of impairment were observed, the officer would direct the driver to another officer, who would conduct a field sobriety test.   If a motorist chose to avoid the checkpoint he or she would not be stopped for the act of avoiding the checkpoint.

The sobriety checkpoint was given extensive advance publicity including its date and general location.   It operated from 10 p.m. to 3 a.m. the night of November 16–17, 1984.   During that period, a total of 233 motorists were screened.   Ten were asked to perform field sobriety tests, and all passed.   According to the follow-up report, several cars contained sober drivers and intoxicated passengers.   The average period of detention was 28 seconds for each motorist, and the 10 who took the field sobriety tests were detained for an average of 6.13 minutes.   Of the 29 percent of the drivers who responded to the survey, about 91 percent said they were not significantly delayed and 80 percent approved of sobriety checkpoints to remove drunk drivers from the highways.

II

As the Attorney General's opinion points out, implicit in the nature of sobriety checkpoints is the fact that officers will stop vehicles without probable cause or individualized suspicion that the drivers are under the influence or are otherwise violating the law.   Petitioners argue that in the absence of individualized suspicion, such detentions are prohibited by both the United States and the California Constitutions.

We first consider the requirements of federal law.   There is as yet no United States Supreme Court decision squarely addressing this question.   Nevertheless, Fourth Amendment principles articulated in several decisions of that court lead to the conclusion that a properly conducted roadblock would not violate the federal Constitution.

Although ordinarily the Fourth Amendment requires “some quantum of individualized suspicion” as a prerequisite to a constitutional search or seizure, it “imposes no irreducible requirement of such suspicion.”  (United States v. Martinez-Fuerte (1976) 428 U.S. 543, 560–561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116.)   Individualized suspicion has not been required in a series of United States Supreme Court decisions relating to “administrative searches.”   In general, these cases involve entry or attempted entry by an administrative official into residential or business premises, without a warrant, to inspect for compliance with statutory or regulatory standards such as housing or safety codes.  (See, e.g., Camara v. Municipal Court (1967) 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930;  See v. City of Seattle (1967) 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943;  Colonnade Corp. v. United States (1970) 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60;  United States v. Biswell (1972) 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87;  Marshall v. Barlow's, Inc. (1978) 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305;  Donovan v. Dewey (1981) 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262.)

These housing and business inspection cases are not the only situations in which the United States Supreme Court has upheld a seizure not based on individualized suspicion.   In United States v. Martinez-Fuerte, supra, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116, the court held that a vehicle may be stopped at a fixed checkpoint operated away from the International Border by the border patrol for brief questioning of its occupants, without any reason to believe the particular vehicle contains illegal aliens.  (Id., at p. 545, 96 S.Ct. at p. 3077.)   The court reached that conclusion by weighing the government's interest advanced to justify the stop against the nature of the stop's intrusion on Fourth Amendment interests.   It concluded that the need for routine checkpoint stops was great, because the flow of illegal aliens cannot be controlled effectively at the border.  (Id., at pp. 556–557, 96 S.Ct. at pp. 3082–83.)   In contrast, it described a checkpoint stop as a “quite limited intrusion” on Fourth Amendment interests.   Such a stop entailed only a brief detention, requiring no more than a response to a question or two and possible production of a document.   Neither vehicle nor occupant was searched.   The court also concluded that the “subjective instrusion” of a fixed checkpoint stop was minimal, unlike that of a random or roving stop.   Motorists could see that other vehicles were being stopped, could see visible signs of the officers' authority, and were much less likely to be frightened or annoyed by the intrusion.  (Id., at pp. 557–558, 96 S.Ct. at pp. 3082–83.)

Nor did the court consider routine checkpoint stops a great interference with legitimate traffic.   First, “[m]otorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere.   Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity.   The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding 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.”  (Id., at p. 559, fn. omitted, 96 S.Ct. at p. 3083 fn. omitted.)

Martinez-Fuerte was followed by Delaware v. Prouse (1979) 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660, in which the court considered a random auto stop by a policeman to check a driver's license and registration.   The officer had not observed any traffic or equipment violations, or any suspicious behavior, and was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks promulgated either by his department or the State Attorney General.  (Id., at p. 650, 99 S.Ct. at p. 1394.)

Although the court acknowledged the state's “vital interest” in ensuring that only qualified persons are permitted to drive and that vehicles are safe, it found the stop unconstitutional.   A random stop is more than a minimal intrusion on Fourth Amendment interests, and there are more effective alternative mechanisms to enforce the state's highway safety program.  (Id., at pp. 658–659, 99 S.Ct. at pp. 1398–99.)   On balance, the contribution to highway safety of the random spot check did not justify the practice under the Fourth Amendment.  (Id., at p. 659, 99 S.Ct. at p. 1399.)

However, the court then limited its holding by adding, “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 roadblock-type stops is one possible alternative.   We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.”  (Id., at p. 663, 99 S.Ct. at p. 1401, fn. omitted, emphasis added.)   In a concurring opinion, Justice Blackmun assumed that the court's apparent approval of roadblock stops also included other not purely random stops which equate with a 100 percent roadblock stop such as every 10th car to pass a given point.   (Id., at pp. 663–664, 99 S.Ct. at pp. 1401–02.)

Later in Brown v. Texas (1979) 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357, the court summarized the principles applicable to determining the constitutionality of a seizure less intrusive than a traditional arrest.   “Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.”  (Id., at pp. 50–51, 99 S.Ct. at pp. 2640–41.)   The court also cautioned, “A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.  [Citations.]  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 must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.”  (Id., at p. 51, 99 S.Ct. at pp. 2640–41, emphasis added.)

Relying on the foregoing cases and applying the balancing test, several courts in other states have found particular sobriety checkpoints constitutional.   (See, e.g., Commonwealth v. Trumble (1985) 396 Mass. 81, 483 N.E.2d 1102;  People v. Bartley (Ill.1985) 109 Ill.2d 273, 93 Ill.Dec. 347, 486 N.E.2d 880;  State v. Garcia (Ind.App.1985) 481 N.E.2d 148, 153–154;  State v. Super. Ct. in & for County of Pima (1984) 143 Ariz. 45, 691 P.2d 1073, 1075–1077;  People v. Scott (1984) 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1, 3–5;  Little v. State (1984) 300 Md. 485, 479 A.2d 903, 907–910;  State v. Golden (1984) 171 Ga.App. 27, 318 S.E.2d 693, 695–696;  State v. Deskins (1983) 234 Kan. 529, 673 P.2d 1174, 1178–1181;  Kinslow v. Commonwealth (Ky.App.1983) 660 S.W.2d 677, 678;  State v. Coccomo (N.J.Super.L.1980) 427 A.2d 131, 134.)   Applying the same test, other courts have found certain roadblocks unconstitutional.  (See, e.g., State v. Koppel (N.H.1985) 499 A.2d 977 [54 U.S.L.W. 2155] [relying on state constitution];  State v. Marchand (1985) 104 Wash.2d 434, 706 P.2d 225;  State v. Smith (Okla.App.1984) 674 P.2d 562;  State v. McLaughlin (Ind.App.1984) 471 N.E.2d 1125, 1130–1134 [record failed to demonstrate inadequacy of traditional method of enforcing DUI laws, or superiority of roadblock method of identifying and apprehending drunk drivers];  Jones v. State (Fla.App.1984) 459 So.2d 1068, 1072–1075 [some DUI roadblocks may be constitutionally permissible, but not this one] Com. v. McGeoghegan (1983) 389 Mass. 137, 449 N.E.2d 349, 350–353 [record did not establish roadblock lacked arbitrariness];  State ex rel. Ekstrom v. Justice Ct. of State (1983) 136 Ariz. 1, 663 P.2d 992, 993–994 [record inadequate re effectiveness of roadblocks;  state admits experienced officer can detect drunk drivers without roadblocks];  State v. Olgaard (S.D.1976) 248 N.W.2d 392, 394–395 [record does not indicate how roadblock location was chosen].)

III

 The Attorney General contends that the roadblock at issue is constitutionally permissible in view of Fourth Amendment principles established by the United States Supreme Court, and that this court need go no further in its analysis.   We must also consider, however, whether the roadblock violates article I, section 13 of the California Constitution, which may provide California citizens greater protection against unreasonable searches and seizures than that required by the United States Constitution.1  (People v. Brisendine (1975) 13 Cal.3d 528, 549–550, 119 Cal.Rptr. 315, 531 P.2d 1099.)   The Attorney General argues that the analysis under either Constitution is the same, but we cannot agree.

Sobriety checkpoints may be new to California, but routine inspection of automobiles without individualized suspicion is not.   In Wirin v. Horrall (1948) 85 Cal.App.2d 497, 193 P.2d 470, the court held unconstitutional a police roadblock of certain areas of Los Angeles, during which police stopped all persons and automobiles entering or leaving and searched them without a warrant or probable cause.  (Id., at pp. 499–504, 193 P.2d 470.)   In People v. Gale (1956) 46 Cal.2d 253, 294 P.2d 13, the court suppressed evidence found in a routine vehicle search designed to “ ‘curb the juvenile problem and also check for ․ anything that looked suspicious'.”  (Id., at p. 256, 294 P.2d 13;  see also People v. Glover (1979) 93 Cal.App.3d 376, 155 Cal.Rptr. 592.)

Other kinds of vehicle inspections have been upheld.   In People v. De La Torre (1967) 257 Cal.App.2d 162, 64 Cal.Rptr. 804, the court rejected an attack upon the constitutionality of Vehicle Code section 2814, which authorized the California Highway Patrol to stop vehicles and require drivers to submit the vehicles to “an inspection of the mechanical condition and equipment of the vehicle․”  (Id., at pp. 163–164, 64 Cal.Rptr. 804.)   The court distinguished Wirin and Gale, supra, concluding that an individual's right of mobility was “subject to close regulation under the Vehicle Code.”   (Id., at p. 166, 64 Cal.Rptr. 804.)   In People v. Dickinson (1980) 104 Cal.App.3d 505, 163 Cal.Rptr. 575, the court held that officers at agricultural inspection stations may constitutionally stop motorists and request to look in the trunks of vehicles.   The court relied in part on United States v. Martinez-Fuerte, supra, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116, the fixed checkpoint case.

None of the foregoing cases clearly identified the differences between the unlawful roadblock inspections and lawful vehicle inspections.   However, the California Supreme Court's opinion in People v. Hyde (1974) 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830, although addressing a slightly different issue, clarified to some extent the analysis required in this state.   In Hyde, the court was asked to rule on the lawfulness of an airport search.   The defendant was stopped as he attempted to board a flight because he allegedly satisfied the Federal Aviation Administration's behavioral profile of a potential hijacker and activated a magnetometer.   His hand luggage was searched and contraband was discovered.  (Id., at pp. 161–162, 115 Cal.Rptr. 358, 524 P.2d 830.)

The Hyde court rejected an argument that the search could be justified under the principles of Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 simply by balancing the serious governmental interest in the prevention of air piracy with the minimally intrusive search necessary to reduce the likelihood of a successful hijacking.   It reasoned in part that applying the Terry rationale to justify airport searches could lead to permitting the wholesale frisking of the general public whenever a serious threat of crime occurred.  “California courts have consistently rejected such a blunderbuss approach,” the court lectured.  (People v. Hyde, supra, 12 Cal.3d at pp. 162–165, 115 Cal.Rptr. 358, 524 P.2d 830.)

Nevertheless, the court upheld the constitutionality of the airport search by turning to the United States Supreme Court's decisions relating to “administrative searches.”  “These cases recognize 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 though not supported by a showing of probable cause directed to a particular place or person to be searched.’  [Citation.]  [¶]  In applying the administrative search doctrine to the instant case, we bear in mind that the essential purpose of the anti-hijacking system established by the FAA is not to ferret out contraband or to preserve for trial evidence of criminal activity.   Nor, as appears above, are airport searches intended to provide a means of self-protection for investigators performing official duties as in Terry.   Instead, pre-departure screening procedures are a central phase of a comprehensive regulatory program designed to insure that dangerous weapons will not be carried onto an airplane and to deter potential hijackers from attempting to board.  [Citations.]”  (Id., at pp. 165–166, 115 Cal.Rptr. 358, 524 P.2d 830.)

Having concluded that the administrative search doctrine would apply, the Hyde court noted the irony that it must then “undertake a similar process of balancing to that which would have followed from a reliance upon Terry.”   (Id., at p. 166, 115 Cal.Rptr. 358, 524 P.2d 830.)   It then weighed the grave governmental interest in the prevention of air piracy against both the minimal intrusion of the pre-departure screening and the likelihood that no other canvassing technique would achieve acceptable results, and found the screening procedure constitutionally reasonable.  (Id., at pp. 166–168, 115 Cal.Rptr. 358, 524 P.2d 830.)

The decision in Hyde was that of a divided court.   In a concurring opinion, three members of the court agreed that the airport procedures were constitutionally reasonable, but objected strongly to the majority's rationale.   They sharply criticized the majority's attempt to “compress” airport searches within the confines of the so-called administrative search doctrine, and urged that the question should be resolved in the first instance by balancing the gravity of the governmental interest at stake, and the effectiveness of alternative procedures, and the nature and quality of the intrusion on individual rights.  (People v. Hyde, supra, 12 Cal.3d at pp. 170–179, 115 Cal.Rptr. 358, 524 P.2d 830.)   Nevertheless, it is the opinion of the Hyde majority which is binding on this court.

We recognize that the Hyde court was not confronted with the facts now before this court.   Instead, it was assessing a search which could reasonably be considered to be part of a subsequently enacted regulatory scheme;  therefore it was only logical for the majority to turn for guidance to the United States Supreme Court's “administrative search decisions.”   Furthermore, Hyde was decided in 1974, before the United States Supreme Court decided United States v. Brignoni-Ponce (1975) 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, Martinez-Fuerte, supra, 428 U.S. 543, 96 S.Ct. 3074, and Delaware v. Prouse, supra, 440 U.S. 648, 99 S.Ct. 1391, in which that court discussed intrusions analogous to the sobriety roadblock.

 As an intermediate appellate court, however, this court's duty is to follow the decisional law laid down by our Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   That court may qualify or overrule its own decisions, but those decisions are controlling on this court.  (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 388, 115 Cal.Rptr. 765, 525 P.2d 669.)   In sum, Hyde seems to require that in this state detentions without individualized suspicion must be tested under the administrative search rationale.   If such a detention does not first qualify as an administrative search, it apparently cannot pass constitutional muster in California regardless of the gravity of the governmental interest and the minimal nature of the intrusion.   Therefore we must consider whether roadblock sobriety checkpoints can fairly be characterized as “administrative searches” as that term is used in Hyde.

 Hyde defines an administrative search as one conducted as part of a “general regulatory scheme” which furthers our “administrative purpose.”   (People v. Hyde, supra, 12 Cal.3d at p. 165, 115 Cal.Rptr. 358, 524 P.2d 830.)   The “regulatory scheme” need not be legislative in origin:  in Hyde there was a Presidential directive, followed by regulations promulgated by the Federal Aviation Administration.2  (Id., at p. 161, fn. 1, 115 Cal.Rptr. 358, 524 P.2d 830.)   While an administrative search may not have as its essential purpose ferreting out contraband or preserving for trial evidence of criminal activity, apparently it may be directly related to deterring criminal conduct.   The administrative purpose which justified the search in Hyde was “․ to insure that dangerous weapons will not be carried onto an airplane and to deter potential hijackers from attempting to board ․ [¶] ․ to prevent the hijacking of airplanes․”  (Id., at p. 166, 115 Cal.Rptr. 358, 524 P.2d 830.)

 If deterring hijacking and detecting potential hijackers can be characterized as an “administrative purpose,” so too can deterring drunk driving and detecting drunk drivers.   Furthermore, there presently exists a legislatively enacted “general regulatory scheme” to deter drunk driving in the form of the extensively amended and revised Vehicle Code provisions relating to driving under the influence of intoxicating liquor and drugs.  (Stats. 1981, ch. 940;  Stats. 1982, ch. 53.)   Our Supreme Court has already characterized those amendments as the Legislature's attempt to “address the continuing threat to public safety posed by drinking drivers.”  (Burg v. Municipal Court (1983) 35 Cal.3d 257, 264, 198 Cal.Rptr. 145, 673 P.2d 732;  see also Fox v. Alexis (1985) 38 Cal.3d 621, 630, 214 Cal.Rptr. 132, 699 P.2d 309.)   While the Legislature may not have explicitly authorized sobriety checkpoints as part of its regulatory program to deter drunk driving, the conduct of those checkpoints unquestionably furthers that regulatory purpose.

Petitioners argue that without express statutory authority the police have no power to establish these roadblocks, but that argument is unpersuasive.   The requisite authority is implicit in law enforcement's statutory authority to enforce criminal laws generally or traffic laws specifically.  (See, e.g., Veh.Code, § 2400;  Gov.Code, §§ 26600, 26601.)

IV

 We have concluded that roadblock sobriety checkpoints may be evaluated according to the administrative search doctrine as that doctrine is explained and applied in Hyde.   The next step in our analysis is to determine whether such checkpoints are constitutionally reasonable.   The test is similar under both the federal and the California Constitutions:  we must balance the gravity of the governmental interest or public concerns served by the roadblocks, the degree to which the roadblocks advance these concerns, and the severity of the interference with individual liberty resulting from the roadblocks.  (See Brown v. Texas, supra, 443 U.S. at pp. 50–51, 99 S.Ct. at pp. 2640–41;  People v. Hyde, supra, 12 Cal.3d at pp. 166–169, 115 Cal.Rptr. 358, 524 P.2d 830.)

a. The Governmental Interest

The first of these factors, the need to deter drunk driving and to identify and remove drunk drivers from the highways, weighs heavily in favor of the state.   As our Supreme Court has recently stated, “The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation.   The monstrous proportions of the problem have often been lamented in graphic terms by this court and the United States Supreme Court.  [Citations.]  ․ [I]n 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.   [Citation.]  Given this setting, our observation that ‘[d]runken drivers are extremely dangerous people’ [citation] seems almost to understate the horrific risk posed by those who drink and drive.”  (Burg v. Municipal Court, supra, 35 Cal.3d at p. 262, 198 Cal.Rptr. 145, 673 P.2d 732.)   The threat to public safety posed by the drunk driver is so great that our high court has declared its resolve “to support ‘all possible means of deterring persons from driving automobiles after drinking ․’ [citations]․”  (Peterson v. Superior Court (1982) 31 Cal.3d 147, 155, 181 Cal.Rptr. 784, 642 P.2d 1305.)

b. Effectiveness

The second factor to be considered is the degree to which the roadblocks advance those public concerns.   A related question is whether there are less intrusive alternatives which are equally effective.

Effectiveness is unquestionably difficult to quantify.   An argument can be made that with the same publicity and personnel, roving patrols looking for signs of driving under the influence might be more effective in detecting drunk drivers than sobriety chekcpoints.  (See, e.g., State v. McLaughlin, supra, 471 N.E.2d 1125.)   But the number of arrests is not necessarily an accurate measure of the incidence of drunk driving.   Another court considering the issue has concluded that while a sobriety checkpoint may be no more (and perhaps less) efficient than a roving patrol in detecting drunk drivers, it is more effective in deterring drunk driving.  (State v. Super. Ct. in & for County of Pima, supra, 691 P.2d 1073, 1076–1077.)

Common sense suggests that the effectiveness of sobriety checkpoints should be measured largely by the number of persons deterred from driving while intoxicated, not by the number of persons arrested.   The People concede that the evidence in this record of deterrence is “tentative.”   Nevertheless, we have no difficulty in concluding that well publicized, properly placed and timed sobriety checkpoints will have a significant deterrent effect upon drunk driving, especially in view of the stiff penalties drunk drivers now face in this state.  (See Veh.Code, §§ 23160, 23165, 23170, 23175, 23185, 23190, 23195.)   Certainly, law enforcement officials should not be prohibited from adopting a potentially effective and otherwise unobjectionable procedure merely because definitive statistics cannot yet be compiled to establish its effectiveness with absolute certainty.

We find support for our conclusion in People v. Scott, supra, 473 N.E.2d at pp. 4–5:  “The value of roadblocks in decreasing drunk driving is attested by both the United States Department of Transportation and the Governor's Alcohol and Highway Safety Task Force.   A 1983 paper on Safety Checkpoints For DWI Enforcement issued by the Department of Transportation's National Highway Traffic Safety Administration's Office of Alcohol Countermeasures emphasizes the importance of informing the public about DWI checkpoint operations as the chief means of deterring driving while intoxicated (id., at p. 26), and the Governor's Task Force found ‘that the systematic, constitutionally conducted traffic checkpoint is the single most effective action in raising the community's perception of the risk of being detected and apprehended for drunk driving’ (Report, at p. 103).”

We also find persuasive the court's discussion in Little v. State, supra, 479 A.2d at page 913:  “Of greater significance is the evidence in the record indicating that the pilot program had a substantial impact on the drunk driving problem.   Police attending the checkpoints found that many drunk individuals asked a sober spouse or companion to drive instead.   Taxi companies reported a substantial increase in business from intoxicated persons who had been deterred from driving.   Furthermore, some groups chartered buses or other vehicles to transport revelers.   The prospect of being stopped at a roadblock thus convinced some intoxicated individuals to find alternate means of transportation.”   Anecdotal though this evidence may be, it supports our conclusion that sobriety roadblocks will significantly deter drunk driving.

c. Intrusion on Individual Liberty

The third factor in the balancing equation is the severity of the interference with individual liberty resulting from the roadblocks.   As the Attorney General's opinion recognizes and as the courts of other states have decided, a sobriety roadblock can be planned and operated so that it results in a relatively minimal intrusion on personal liberty.   We have concluded that if a sobriety checkpoint is conducted according to the following guidelines, its limited intrusiveness will be far outweighed by its potential effectiveness and the gravity of the public interest in deterring drunk driving.

1. Role of supervisory personnel

First, the decision to establish a sobriety roadblock, the selection of a site, and the procedures for its operation must be made and established by supervisory law enforcement personnel, rather than the officer in the field.   This requirement is essential to reduce the potential for abusive or harassing stops or otherwise arbitrary enforcement.  (See United States v. Martinez-Fuerte, supra, 428 U.S. at p. 559, 96 S.Ct. at p. 3083.)

Decisions in other states are in accord on this point.   Checkpoints have been upheld where the county sheriff issued a memorandum detailing the procedures (People v. Scott, supra, 473 N.E.2d at p. 2);  where the Commander of the Traffic Enforcement Division of the police department issued an extensive command directive (State v. Super. Ct. in & for County of Pima, supra, 691 P.2d at p. 1075);  where comprehensive regulations were first reviewed by the Superintendent of the Maryland State Police, the Attorney General and the Governor (Little v. State, supra, 479 A.2d at p. 905);  where, at the urging of the county prosecutor, the township police chief adopted regulations approved by the Attorney General of New Jersey (State v. Coccomo, supra, 427 A.2d at p. 133, fn. 1), and in other situations where the regulations were promulgated by supervisory personnel (see, e.g., State v. Golden, supra, 318 S.E.2d 693;  State v. Deskins, supra, 673 P.2d at p. 1185).

In contrast, checkpoints have been found unconstitutional where the record failed to show what level of law enforcement personnel made the decision to set up the roadblock (Jones v. State, supra, 459 So.2d at p. 1079;  State v. Olgaard, supra, 248 N.W.2d 392);  where the roadblock was “the result of a plan formulated earlier in the day by the police chief and four subordinates” (Com. v. McGeoghegan, supra, 449 N.E.2d at p. 350);  and where officers in the field hastily prepared a vandalism roadblock in a local park (State v. Hilleshiem (Iowa 1980) 291 N.W.2d 314).

2. Restrictions on discretion of field offices

A related requirement is that field officers must not be permitted to exercise discretion in choosing which motorists to detain.   Instead, the decision to detain must be based upon a mathematical selection formula (i.e., all drivers, or every second, third, fifth, etc. driver) rather than upon any officer's determination that one particular kind of car or driver should be scrutinized more closely than another.

In Delaware v. Prouse, supra, 440 U.S. at p. 661, 99 S.Ct. at p. 1400, the court addressed the danger of unbridled discretion:  “When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations—or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered—we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver.   This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.”   The court then suggested that questioning of all oncoming traffic at a roadblock-type stop was one possible alternative to the disapproved “spot checks” in issue there.  (Id., at p. 663, 99 S.Ct. at p. 1401.)

In sum, only if a roadblock is carried out according to a comprehensive plan adopted by supervisory personnel and embodying explicit, neutral limitations on the conduct of individual officers can it begin to satisfy constitutional requirements.  (See Brown v. Texas, supra, 443 U.S. at pp. 50–51, 99 S.Ct. at pp. 2640–41.)

3. Safety

In planning for sobriety checkpoints, supervisory personnel must give primary consideration to safety.   Success in deterring and detecting drunk drivers will be a hollow victory if officers or motorists are killed or maimed during the conduct of a checkpoint.   No checkpoint should be placed in operation if a high degree of safety cannot be assured.

4. Reasonable location

The location of a roadblock will affect both its intrusiveness and its safety.   The United States Supreme Court has implied that checkpoints must be reasonably located.  (See United States v. Martinez-Fuerte, supra, 428 U.S. at p. 559, 96 S.Ct. at p. 3083.)   One state court has found a checkpoint unconstitutional at least in part because it was not in a permanent location.   (State v. Olgaard, supra, 248 N.W.2d at p. 394.)   However, other courts have upheld checkpoints with changing locations.  (See People v. Scott, supra, 473 N.E.2d 1;  Little v. State, supra, 479 A.2d 903.)

It is apparent that the Olgaard court's concern with lack of permanency was bound up with its objection to surprise and lack of publicity.   If motorists are adequately forewarned that sobriety checkpoints may be used by law enforcement and if the checkpoints are well marked and safely conducted, we see no reason to restrict them to permanent or semipermanent locations.   Law enforcement supervisors should be permitted to establish roadblocks in whatever locations reasonably suit the goals of safely and effectively deterring drunk driving and locating drunk drivers.

5. Time and duration

When a checkpoint is established and how long it lasts will also bear on both its intrusiveness and its effectiveness.   For example, a nighttime stop will doubtless be more hazardous and possibly more frightening to motorists, but it will also probably prove more effective in deterring and identifying drunk drivers.   While mentioned as a factor in State v. Deskins, supra, 673 P.2d 1174, time and duration have received scant attention in the decisions addressing sobriety checkpoints.   In State v. Coccomo, supra, 427 A.2d at page 135, the court mentioned that the checkpoints were put into effect only in the early morning hours “to coincide with the closing hours of local taverns,” but did not comment on the propriety of conducting them at that time.   Other decisions upholding checkpoints indicate that the checkpoints were established in the late evening and operated until the early morning hours.  (See, e.g., People v. Scott, supra, 473 N.E.2d 1;  Little v. State, supra, 479 A.2d 903;  State v. Golden, supra, 318 S.E.2d 693;  State v. Deskins, supra, 673 P.2d 1174.)

We conclude that no hard and fast rules can be laid down concerning either time or duration.   Law enforcement supervisory personnel must exercise sound judgment in setting times and durations, with the safety of motorists a primary consideration.

6. Indicia of official nature of roadblock

Those aspects of a sobriety roadblock which evidence its official nature are also critical in minimizing its intrusiveness.   The roadblock should be established with high visibility, including warning signs, flashing lights, flares, police vehicles, and the presence of uniformed officers.  (See 67 Ops.Cal.Atty.Gen., supra, at p. 472, citing a report of the National Transportation Safety Board.)   In addition to being important for safety reasons, this advance warning will reassure motorists that the stop is duly authorized.

Clearly visible warning lights and other signs of authority have been present in most of the checkpoints upheld by other courts.  (See People v. Scott, supra, 473 N.E.2d at p. 3;  Little v. State, supra, 479 A.2d at pp. 905–906;  State v. Golden, supra, 318 S.E.2d at p. 694;  Stark v. Perpich (D.Minn.1984) 590 F.Supp. 1057, 1059 [traffic survey for intoxication].)   In contrast, most of the checkpoints found unconstitutional have not provided adequate warning to motorists.  (See State v. McLaughlin, supra, 471 N.E.2d 1125;  Com. v. McGeoghegan, supra, 449 N.E.2d at p. 353;  State v. Hilleshiem, supra, 291 N.W.2d 314 [vandalism roadblock];  State v. Olgaard, supra, 248 N.W.2d at p. 394.)

7. Length and nature of detention

The average time each motorist is detained must be minimized, both to reduce the intrusiveness of the stop on the individual driver and to avoid lengthy traffic tie-ups.   As occurred in the Burlingame checkpoint, each motorist who is stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes.   If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay.   If the officer does observe symptoms of impairment, the driver may be directed to a separate area for a roadside sobriety test;  under the latter circumstances, general principles of detention and arrest take over.

Authorities must be alert to the role delay can play in measuring the degree of intrusion caused by sobriety checkpoints and must be ready to take measures to prevent excessive delay.   In Com. v. McGeoghegan, supra, 449 N.E.2d 349, one of several problems with the checkpoint was that traffic was backed up on the highway for at least two-thirds of a mile.  (Id., at p. 353.)   In State v. Coccomo, supra, 427 A.2d 131, the court recommended reducing the number of cars stopped when traffic was heavy or even moderate, to reduce danger and prevent detaining an excessive number of vehicles at one time.   (Id., at p. 135.)   Such flexibility and attention to the intrusiveness of checkpoints can make the difference between a lawful and an unlawful checkpoint operation.

8. Advance publicity

Advance notice to the public through the media that sobriety checkpoints are planned will simultaneously diminish their intrusiveness and increase their deterrent effect.

The concurring opinion in State ex rel. Ekstrom v. Justice Ct. of State, supra, 663 P.2d at p. 1001, cogently explained the value of advance publicity:  “Such publicity would warn those using the highways that they might expect to find roadblocks designed to check for sobriety;  the warning may well decrease the chance of apprehending ‘ordinary’ criminals, but should certainly have a considerable deterring effect by either dissuading people from taking ‘one more for the road,’ persuading them to drink at home, or inducing them to take taxicabs.   Any one of these goals, if achieved, would have the salutary effect of interfering with the lethal combination of alcohol and gasoline.   Advance notice would limit intrusion upon personal dignity and security because those being stopped would anticipate and understand what was happening.”  (See also State v. Deskins, supra, 673 P.2d at p. 1182;  Jones v. State, supra, 459 So.2d at p. 1076 [criticizing failure to give advance notice].)

No legitimate purpose is served by surprising motorists at a checkpoint.   Indeed, in the airport search context, the concurring judges in People v. Hyde, supra, 12 Cal.3d at pages 175–176, 115 Cal.Rptr. 358, 524 P.2d 830, explained:  “Of signal importance is the fact that airline passengers have advance notice that they will be subjected to a pre-entry screening for weapons and explosives.   Although advance notice in itself cannot operate to deprive an individual of his Fourth Amendment rights, it nevertheless has been recognized by the courts and commentators as a factor of major significance in evaluating the extent to which individual privacy is compromised and intruded upon by governmental action.   Advance notice enables the individual to avoid the embarrassment and psychological dislocation that a surprise search causes.”  (fns. omitted.)

In sum, advance publicity is absolutely essential to the establishment of a constitutionally permissible roadblock.   Only when it becomes generally known to the driving public that such checkpoints may be encountered will maximum deterrent effect be achieved.   Publicity will also considerably lessen the anxiety of the motorist approaching the checkpoint and will permit motorists to plan for potential delays from sobriety checkpoints.   We also agree, however, with those authorities which have suggested that the publicity need not identify the precise location of the roadblock.  (See, e.g., State v. Super. Ct. in & for County of Pima, supra, 691 P.2d at p. 1073;  Com. v. McGeoghegan, supra, 449 N.E.2d at p. 353.)

V

Considering and balancing all these factors, we conclude that sobriety checkpoints conducted according to the guidelines we have enumerated are permissible under the United States and California Constitutions.   Though intrusive and burdensome to the public even when properly conducted, the degree of intrusion is justified by the magnitude of the drunk driving hazard and the potential for deterrence and detection.   We emphasize, however, that the balance does not so clearly favor such checkpoints as to permit their establishment or operation without considerable planning, preparation, and publicity.   Careful attention must be paid to the Attorney General's suggestions:  “[Planning and preparation] should commence with high level management and policy-making officers and personnel.   The location and timing of the checkpoints should be carefully chosen, preferrably [sic] with statistical verification that they correlate with high incidence of drunk driving.   The methods and procedures to be used should be spelled out in detail so that little discretion is left to the officers conducting the checkpoint.   Care must be taken to assure the safety of motorists and that traffic is not allowed to back up.   Sufficient personnel and equipment must be provided to fully implement the plans.   All of the foregoing should be fully documented so that it may be presented to the court to justify any arrests that may be made․”  (67 Ops.Cal.Atty.Gen., supra, at p. 486.)

Petitioners having presented no showing that the checkpoints in issue violate these principles, the alternative writ is discharged and the petition for peremptory writ is denied.

I dissent.   Although I join the majority and the California Supreme Court in believing that the drunk driver poses a most serious threat to public safety, I cannot join the majority in short-circuiting the required constitutional analysis.   The majority correctly concludes that under the California Constitution sobriety checkpoints must qualify as administrative searches.   In my view, however, the majority errs when, by the stroke of a pen, it turns the routine detention of motorists by law enforcement personnel into some kind of administrative search.   Crucial to the Hyde court's analysis was its statement that “pre-departure screening procedures are a central phase of a comprehensive regulatory program designed to insure that dangerous weapons will not be carried onto an airplane and to deter potential hijackers from attempting to board.”  (People v. Hyde (1974) 12 Cal.3d 158, 166, 115 Cal.Rptr. 358, 524 P.2d 830.)   I find no comparable “comprehensive regulatory program” here.

The majority says that for purposes of the administrative search doctrine a regulatory scheme need not be legislative in origin, noting that Hyde involved a Presidential directive, followed by regulations promulgated by the Federal Aviation Administration and that the search in question was conducted before the regulations took effect.   They read too much from Hyde.   It is true that the specific authority for a magnetometer search was derived from the President's directive.   But a 1961 federal statute had already authorized the Federal Aviation Administration to adopt anti-hijacking procedures:  “Subject to reasonable ․ regulations prescribed by the [Federal Aviation] Administrator, any air carrier is authorized to refuse transportation to a passenger ․ when, in the opinion of the air carrier, such transportation ․ might be inimical to safety of flight.”  (49 U.S.C., § 1511 (1961).)  (See Wurfel, Aircraft Piracy—Crime or Fun?  (1969) 10 Wm. & Mary L.Rev. 820, 862.)   The President's directive merely called upon the Department of Transportation to have the airlines begin their surveillance procedures before the regulations took effect.   This sequence of events cannot be interpreted as eliminating the Legislature as the ultimate source of authority for an administrative search.

There is good reason to require legislative authorization for a search which will be tested by the administrative search rationale.   The Legislature is the body elected to represent the citizenry.   It, not the Executive Branch or the courts should make the initial determination of whether the public need for a particular kind of administrative search outweighs the burden placed on individual rights.   The Legislature is better able to take evidence concerning the need for the procedure, the effectiveness of other procedures, and the degree of intrusion caused by the administrative search.

The majority opinion bears witness to this fact.   It concedes that effectiveness is difficult to quantify and ends up relying on “common sense” to conclude that sobriety checkpoints provide a significant deterrent to drunk driving.   It fails to make a convincing case for sobriety checkpoints being more effective than roving patrols with the same publicity and commitment of personnel.   A court should not be asked to shoulder the burden of the balancing test before the Legislature has weighed the evidence and reached a conclusion about the need for an administrative search.

The majority suggests that the Legislature has already given some form of implicit authorization to these sobriety checkpoints because it has extensively regulated drunk driving and because sobriety check points “unquestionably further[] that regulatory purpose.”   But it is for the Legislature, not this court, to determine that sobriety checkpoints further the purpose of the drunk driving regulatory scheme.   A court should not read silence as a form of authorization, particularly when the Legislature has demonstrated in the agricultural pest and vehicle mechanical inspection statutes that it knows the mechanics of authorizing administrative searches.   We have been advised by the parties that in two successive years sobriety checkpoint bills have been introduced in the Legislature and have died in committee.   This information further belies the majority's suggestion that authorization exists in the present drunk driving legislation.

The majority seems also to agree with the Attorney General that the requisite authority for sobriety checkpoints can be found in statutes conferring the general police power upon law enforcement.   But if the police could take authority for administrative searches from the grant of general police power, the administrative search rationale would swallow other search and seizure doctrines and be used to justify all manner of searches.   The constitutional requirements of probable cause and individualized suspicion could be replaced by dragnet procedures whenever the police concluded that the need for such procedures outweighed the intrusion upon individual rights.

Summarizing my view, I conclude that when a decision is made whether to sacrifice individual rights in order to eradicate a common pest or hazard, whether it be a fruit fly, airplane hijacker, rattletrap automobile, delapidated building, or drunk driving menace, the initial balancing should be done by the Legislature.   That body is better equipped than the local sheriff or chief of police or the California Highway Patrol to hear evidence and entertain opposing views.*  Only when the Legislature has determined the nature and scope of the intrusion to be allowed, should law enforcement authorities take steps to implement the administrative search program.   This court's balancing test should be conducted only after the Legislature has done the initial balancing.  (See generally, Jacobs & Strossen, Mass Investigation Without Individual Suspicion:  A Constitutional and Policy Critique of Drunk Driving Roadblocks (1985) 18 U.C. Davis L.Rev. 595, 669–673.)

FOOTNOTES

1.   The initiative commonly referred to as Proposition 8 (Cal. Const., art. 1, § 28) did not repeal or change this principle.   What would have been an unlawful search or seizure in this state before the passage of Proposition 8 is unlawful today, even if it would satisfy the federal Constitution.   Proposition 8 merely eliminated the judicially created remedy of exclusion of evidence seized in violation of the federal or state Constitution, except to the extent exclusion is federally compelled.   (In re Lance W. (1985) 37 Cal.3d 873, 886–887, 210 Cal.Rptr. 631, 694 P.2d 744.)

2.   In fact, the search at issue in Hyde occurred before the promulgation of the FAA regulations.  (People v. Hyde, supra, 12 Cal.3d at p. 161, fn. 1, 115 Cal.Rptr. 358, 524 P.2d 830.)

FOOTNOTE.   The Legislature is also better able to devise a comprehensive, state-wide sobriety checkpoint program.   The majority's balancing test results depend upon deterrence and upon not unduly burdening or delaying motorists.   If only a few municipalities institute sobriety checkpoints, the majority's predictions about deterrence will not be met.   On the other hand, if the motorist driving through Burlingame encountered the roadblocks of a dozen other municipalities along El Camino Real, burden and delay might tip the majority's balance against sobriety checkpoints.   Legislative action could provide guidelines aimed at avoiding both of these dangers.

SCOTT, Associate Justice.

BARRY-DEAL, J., concurs.

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