IN RE: RICHARD T., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. RICHARD T., Defendant and Appellant.
Are warrantless temporary roadblocks established to combat drunk driving lawful? No.
Richard T. was arrested in the early morning hours of New Years Day, 1985, after he was stopped in a so-called “sobriety checkpoint” in the City of Anaheim. He moved to suppress the evidence against him, all of which was alleged to be the product of an illegal detention. He argued the officers had no particularized suspicion sufficient to stop his vehicle, no exception to the warrant requirement of the Fourth Amendment for sobriety checkpoints exists, and the establishment of the checkpoints is not authorized by statute.
Anaheim Police Sergeant Ronald Lovejoy was charged with the development and operation of the checkpoints in that city for the 1985 holiday season. In preparation for this assignment he observed the Riverside Police Department operate its own checkpoint and read several publications on the subject, including a recent opinion of the Attorney General (67 Ops.Cal.Atty.Gen. 471 (1984) ). That opinion was given in response to an inquiry from the Commissioner of the California Highway Patrol and has been, apparently, along with certain language appearing in the United States Supreme Court's Delaware v. Prouse (1979) 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 decision, the inspiration for the recent roadblock revival in this state.
As a result of his study, Lovejoy and several other officers developed a set of procedures to be followed called the “Anaheim Sobriety Checkpoint Guidelines.” This document, a press release announcing the holiday checkpoints, and a later police memorandum summarizing the cost and effectiveness of the operation were received in evidence.
Lovejoy described the purposes of the checkpoints as education and deterrence, to make the public more aware of the dangers of drinking and driving and to specifically discourage it, particularly in Anaheim. The checkpoints, consequently, were widely publicized, although their locations were not disclosed.
Richard T. was ensnared in a checkpoint on Knott Boulevard near Lincoln. The geographical selection was based on the high relative incidence of fatal accidents and arrests for driving under the influence of alcohol in that area.
The operational procedure described in the guidelines provided for all vehicles to be diverted into two lanes where they were halted at stop signs and the drivers questioned briefly concerning the origin and destination of their journey. The officers were to scrutinize the operators for signs of intoxication and the interiors of the vehicles for evidence of ingestion of alcohol. This was yclept the primary checkpoint. A motorist displaying symptoms would be taken to the secondary checkpoint for field sobriety tests. Although Lovejoy stated a driver who failed to roll down his window at the request of an officer was to be simply waved on, the officer who confronted Richard T. testified such noncooperation would result in backup officers being sent to stop the recalcitrant subject.
This particular checkpoint was operated from 9 p.m. on December 31, 1984, to 3:30 a.m. on January 1, 1985. Between 9 and 11 p.m. every other vehicle was stopped for processing at the primary checkpoint; after 11 p.m. they all were because, according to Lovejoy, the percentage of intoxicated drivers increases as the hour grows later. If traffic had become too congested, he would have returned to the system used earlier, however.
Lovejoy testified the time of each encounter at the primary checkpoint was about 20.3 seconds, although the average motorist also had to wait some 90 seconds behind other vehicles. On the evening of this minor's arrest, nineteen persons were apprehended for driving under the influence at the checkpoint. There were 6,934 contacts and 44 arrests for that offense in the one-week period the program was in effect. The cost to the city was $10,931, plus the use of thirteen officers in a sector usually patrolled by five.
The officer who encountered Richard T. testified he smelled the odor of alcohol and asked the minor from whence he had come. In an honest but damning response, he replied, “From a party.” He was escorted to the secondary checkpoint where he failed a field sobriety test and was arrested. The minor's motion to suppress was denied, and the petition was sustained after the case was submitted by stipulation on the blood alcohol result (0.12% w/v) and the police report.
In the words of our Supreme Court, “[t]he drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262, 198 Cal.Rptr. 145, 673 P.2d 732, cert. den. (1984) 466 U.S. 967, 104 S.Ct. 2337, 80 L.Ed.2d 812.) The court noted in the years 1976 to 1980 many more Californians were injured in alcohol related accidents than members of the whole Union Army during the Civil War and more were killed than in the deadliest year of the Vietnam War. (Ibid.) The United States Supreme Court has spoken on the subject in similar terms: “The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield.” (Breithaupt v. Abram (1957) 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448.)
Nevertheless, the ardor of Californians for the unfettered use of the open road finds protection in both the state and federal Constitutions. The stop and detention of a citizen or a vehicle and its occupants is a “seizure” within the meaning of the Fourth Amendment (Delaware v. Prouse, supra, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660) and article I, section 13 of the California Constitution. (Formerly art. I, § 19; see People v. Triggs (1973) 8 Cal.3d 884, 891–892, fn. 5, 106 Cal.Rptr. 408, 506 P.2d 232, disapproved on another point in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 1, 150 Cal.Rptr. 910, 587 P.2d 706.)
Consequently, a vehicle stop is constitutionally permissible only if an appropriate search or arrest warrant has first been obtained or if one of four recognized exceptions to the warrant requirement exists: 1 consent; exigent circumstances; reasonable suspicion of wrongdoing; or when carried out at fixed locations, such as border immigration checkpoints, weigh stations, and airport metal detector checkpoints. (Ybarra v. Illinois (1979) 444 U.S. 85, 96, fn. 11, 100 S.Ct. 338, 344, fn. 11, 62 L.Ed.2d 238; Brown v. Texas (1979) 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357; United States v. Martinez-Fuerte (1976) 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116; United States v. Brignoni-Ponce (1975) 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607; People v. Loewen (1983) 35 Cal.3d 117, 196 Cal.Rptr. 846, 672 P.2d 436; In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957; People v. Hyde (1974) 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830.) The United States Supreme Court has specifically rejected a fifth possible exception, roving regulatory vehicle stops (Delaware v. Prouse, supra; Almeida-Sanchez v. United States (1973) 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596), and has yet to directly consider the impact of the type of vehicle stop involved in this case, temporary roadblocks.
Does the Anaheim sobriety checkpoint, operated without benefit of a warrant, fit one of the recognized exceptions? We quickly eliminate the first three possibilities: There is no claim Richard T. consented to the stop of his vehicle or the detention of his person. The Legislature has created an implied consent law in the context of blood alcohol testing for motorists arrested for drunk driving (Veh.Code, §§ 13353 et seq., 23157), but California has no law implying submission to sobriety checkpoints by the mere act of driving.2 And a statute so providing would be of dubious constitutionality. (See Delaware v. Prouse, supra, 440 U.S. at p. 662, 99 S.Ct. at 1400 and People v. Hyde, supra, 12 Cal.3d at p. 162, fn. 2, 115 Cal.Rptr. 358, 524 P.2d 830.)
Similarly, there is no claim that Richard T. was stopped based on any particularized, reasonable suspicion or that exigent circumstances, at least as traditionally understood, were involved. (See, e.g., Tamborino v. Superior Court (1986) 41 Cal.3d 919, 226 Cal.Rptr. 868, 719 P.2d 242; compare People v. Glover (1979) 93 Cal.App.3d 376, 155 Cal.Rptr. 592 and United States v. Williams (D.S.D.1974) 372 F.Supp. 65.) Nor do we believe the menace of drunk driving conjures up a special emergency comparable to the danger of an airliner hijacking, the rationale our Supreme Court used in approving airport metal detectors at fixed checkpoints in People v. Hyde, supra, 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830. One hijacking presents a threat to life and property many hundreds of times greater than that posed by a drunk driver. Moreover, as our discussion will reveal, the special emergency notion is no longer essential to the result in Hyde in light of more recent United States Supreme Court decisions approving fixed checkpoints per se.
We are left with a single possible justification for the temporary roadblock used in this case: the relatively newly recognized fixed checkpoint exception to the warrant requirement. But are temporary sobriety checkpoints 3 the constitutional equivalent of fixed checkpoints? Or, are they akin to impermissible roving patrol stops?
One leading case disapproving roving automobile stops for regulatory purposes is United States v. Brignoni-Ponce, supra, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607. There, the court held, “We are unwilling to let the Border Patrol dispense entirely with the requirement that officers must have a reasonable suspicion to justify roving-patrol stops.” (Id., at p. 882, 95 S.Ct. at 2580.) This passage was footnoted: “Because the stop in this case was made without a warrant and the officers made no effort to obtain one, we have no occasion to decide whether a warrant could be issued to stop cars in a designated area on the basis of conditions in the area as a whole and in the absence of reason to suspect that any particular car is carrying aliens. See Almeida-Sanchez, 413 US, at 275, 37 LEd2d 596, 93 SCt 2535 (Powell, J., concurring); Camara v. Municipal Court, 387 US 523, 18 LEd2d 930, 87 SCt 1727 (1967).” (Id. at p. 882, fn. 7, 95 S.Ct. at 2580, fn. 7.) Thus, roving stops for the purpose of regulatory enforcement are not lawful in the absence of probable cause or reasonable suspicion.
Several years later, the court took an entirely different view of warrantless regulatory seizures at fixed checkpoints. Although the specific checkpoint considered in United States v. Martinez-Fuerte, supra, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 was for immigration purposes, the court strongly hinted the rules will be the same for other checkpoints, at least those of a permanent nature: “Stops for questioning, not dissimilar from those involved here, are used widely at state and local levels to enforce laws regarding drivers' licenses, safety requirements, weight limits, and similar matters. The fact that the purpose of such laws is said to be administrative is of limited relevance in weighing their intrusiveness on one's right to travel; and the logic of the defendants' position, if realistically pursued, might prevent enforcement officials from stopping motorists for questioning on these matters in the absence of reasonable suspicion that a law was being violated. As such laws are not before us, we intimate no view respecting them other than to note that this practice of stopping automobiles briefly for questioning has a long history evidencing its utility and is accepted by motorists as incident to highway use.” (Id., at p. 560, fn. 14, 96 S.Ct. at p. 3084, fn. 14.)
The court also distinguished its earlier decision concerning roving patrol stops: “We concluded [in Brignoni-Ponce ] that random roving-patrol stops could not be tolerated because they ‘would subject the residents of ․ [border] areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers․ [They] could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000 mile border, on a city street, a busy highway, or a desert road․’ [Citation.] There also was a grave danger that such unreviewable discretion would be abused by some officers in the field. [Citation.]” (Id., at pp. 558–559, 96 S.Ct. at p. 3083.)
The court added, “Routine [fixed] checkpoint stops do not intrude similarly on the motoring public. First, the potential interference 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 and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which the 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.” (Id., at p. 559, 96 S.Ct. at p. 3083.)
In considering whether an administrative warrant was constitutionally mandated in the case of fixed checkpoints, the court observed, “A warrant requirement ․ draws some support from Camara, where the Court held that, absent consent, an ‘area’ warrant was required to make a building code inspection, even though the search could be conducted absent cause to believe that there were violations in the building searched.” (Id., at p. 564, 96 S.Ct. at p. 3085, fn. omitted.) The court distinguished Camara on the following grounds, however: (1) Stronger Fourth Amendment interests are involved when private residences are to be searched. (2) An occupant of a residence has no way of knowing the lawful scope of the inspector's authority to search or whether he is authorized at law, but “the visible manifestations of the field officers' authority at a checkpoint provide substantially the same assurances․” (Id., at p. 565, 96 S.Ct. at p. 3086.) (3) Warrants prevent hindsight evaluation of the reasonableness of a search; but in the context of fixed checkpoints, “reasonableness ․ turns on factors such as the location and method of operation of the checkpoint, factors that are not susceptible to the distortion of hindsight, and therefore will be open to post-stop review․” (Ibid.) And (4) there is no great need to substitute the judgment of a magistrate for the searching officer because “the decision to ‘seize’ is not entirely in the hands of the officer in the field, and deference is to be given to the administrative decisions of higher ranking officials.” (Id., at p. 566, 96 S.Ct. at p. 3086.)
The Supreme Court's latest consideration of roving car stops came in Delaware v. Prouse, supra, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. The issue framed by the court was “whether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop an automobile, being driven on a public highway, for the purpose of checking the driving license of the operator and the registration of the car, where there is neither probable cause to believe nor reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable law.” (Id., at p. 650, 99 S.Ct. at p. 1394.)
The court rejected a possible implied consent justification for roving drivers license checks: “There are certain ‘relatively unique circumstances' [citation] in which consent to regulatory restrictions is presumptively concurrent with participation in the regulated enterprise. [Citing cases involving federal regulation of firearms and liquor.] Otherwise, regulatory inspections unaccompanied by any quantum of individualized, articulable suspicion must be undertaken pursuant to previously specified ‘neutral criteria.’ [Citation.]” (Id., at p. 662, 99 S.Ct. at p. 1400, fn. given, infra.)
Does the presence of “neutral criteria” dispense with the warrant requirement? The court's message on that point may be found in the footnote to the previously quoted passage. It reads, “Cf. Marshall v. Barlow's, Inc., 436 US 307, 56 LEd2d 305, 98 SCt 1816 (1978) (warrant required for federal inspection under interstate commerce power of health and safety of workplace); See v. Seattle, 387 US 541, 18 LEd2d 943, 87 SCt 1737 (1967) (warrant required for inspection of warehouse for municipal fire code violations); Camara v. Municipal Court, 387 US 523, 18 LEd2d 930, 87 SCt 1727 (1967) (warrant required for inspection of residence or municipal fire code violations).” (Delaware v. Prouse, supra, 440 U.S. at p. 662, fn. 25, 99 S.Ct. at p. 1400, fn. 25.) Consequently, while roving patrols are constitutional for administrative purposes in heavily regulated industries without a warrant based on an implied consent theory, the same is not true in other areas less heavily regulated, such as traffic safety enforcement.
Thus, the court concluded discretionary spot checks of motorists violated the Fourth Amendment. But in a famous dictum it added, “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.” (Delaware v. Prouse, supra, 440 U.S. at p. 663, 99 S.Ct. at p. 1401, fn. omitted, emphasis added.) The highlighted passage provided a powerful boost to the proponents of sobriety checkpoints; but it does not, of course, suggest the procedure for the implementation of these roadblocks, specifically whether they would be lawful in the absence of prior judicial authorization.
The resolution of that question depends on a comparison of the mechanics of fixed and temporary checkpoints. We find little similarity. Fixed checkpoints are generally accompanied by government buildings, permanent signs and traffic control devices, a clear warning of purpose, and are visible by day. Agricultural inspection stations, weigh stations, immigration checks, and airport security systems do not surprise. Their locations are widely known, and they may be easily avoided. (See People v. Hyde, supra, 12 Cal.3d 158, 175–176, 115 Cal.Rptr. 358, 524 P.2d 830 (conc. opn. of Wright, C.J.).)
In our view, temporary checkpoints, like roving patrol stops, do not quite meet these criteria: They do take the motorist by surprise; and because they utilize such devices as flares, cones, and flashing lights and virtually always appear by night, they do not provide “visible evidence” of a “regularized manner” of operation which would reassure motorists. Instead, they take on the appearance of an emergency situation more likely to engender excitment and apprehension in the motoring public. (See State v. Koppel (1985) 127 N.H. 286, 499 A.2d 977, 983.)
Also, hindsight evaluation of temporary checkpoints, both with respect to location and administration, presents problems fixed checkpoints do not. Worse, they require repeated redetermination on a case by case basis, a procedure largely unnecessary when considering fixed checkpoints.
Finally, we suspect a police sergeant who, as in this case, not only chose the site for the temporary roadblock but also commanded the field operation, would not meet the Supreme Court's definition of a higher ranking official entitled to judicial deference in the selection of a roadblock location. Fixed checkpoints must obviously be approved at very high levels of the executive branch and funded by the Legislature; roadblocks are simply not comparable in this respect.
Based on an examination of these cases, the conclusion appears compelled that warrantless temporary roadblocks, like roving patrol stops, are unlawful. Other courts have so held. For example, the Supreme Court of South Dakota found warrantless temporary sobriety checkpoints unconstitutional precisely because of their transitory nature, noting “[n]either the defendants in the instant case nor other motorists had prior knowledge of the roadblock in question and presumably could not have acquired such knowledge, for by its very nature the roadblock was set up to stop without prior warning, and perforce by surprise, all motorists who happened to pass that particular point on the night in question.” (State v. Olgaard (S.D.1976) 248 N.W.2d 392, 394.) The court concluded, “We hold only that unless authorized by prior judicial warrant, the establishment of a roadblock for the purpose of investigating all motorists for [drunk driving] constitutes an unconstitutional seizure․” (Id., at p. 395.) 4
Mere implementation of neutral criteria without a warrant will not suffice. As the Texas Court of Appeals has stated, “It is apparent that the [police] in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the [police] themselves, not by a judicial officer. A search has never been sustained by the United States Supreme Court upon the sole ground that the officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. [Citation.]” (Webb v. State (Tex.App. 5 Dist 1985) 695 S.W.2d at p. 683.)
One recent law review analysis goes further: “If widely approved, sobriety checkpoints could be set up at shifting locations all over the country. Neither Border Patrol checkpoint stops nor any other types of suspicionless investigations that the Supreme Court has authorized have touched the lives of so many citizens or been aimed at criminal law enforcement. The acceptance of drunk driving roadblocks could pave the way for other dragnet searches and seizures to enforce other criminal laws.
“While submission to sobriety checkpoint investigations might seem a small price to pay for an alleged ‘solution’ to the serious drunk driving problem, similar ‘solutions' could be offered for every crime problem. This Article has pointed out that the effectiveness of drunk driving roadblocks has not been demonstrated and that enforcement strategies consistent with the probable cause or reasonable suspicion standard are at least as productive. The Article has also shown that, notwithstanding Supreme Court decisions approving other types of suspicionless searches and seizures, there are strong constitutional reasons to reject drunk driving roadblocks.
“Routine roadblocks call to mind the way police and soldiers are deployed in authoritarian societies. Even if they were conducted in a uniform and ‘friendly’ manner, they would be inconsistent with American constitutional and political traditions․” (Jacobs & Strossen, Mass Investigations Without Individualized Suspicion: A Constitutional and Policy Critique of Drunk Driving Roadblocks (1985) 18 U.C. Davis L.Rev. 595, 679–680, fn. omitted.) 5
Nothing in our review of California authority persuades us, in light of the more recent decisions of the United States Supreme Court, that warrantless roadblocks are constitutional.6 Warrantless roadblocks to detain motorists without particularized suspicion for the purpose of combating juvenile delinquency or general criminal activity were held unconstitutional in People v. Gale (1956) 46 Cal.2d 253, 294 P.2d 13 and Wirin v. Horrall (1948) 85 Cal.App.2d 497, 193 P.2d 470. But in People v. De La Torre (1967) 257 Cal.App.2d 162, 64 Cal.Rptr. 804, the court approved temporary checkpoints for vehicle safety inspections pursuant to Vehicle Code section 2814.
It is not clear from the opinion whether the checkpoint in De La Torre was permanent or temporary, but the statute would apparently authorize either. It reads in part, “Every driver of a passenger vehicle shall stop and submit the vehicle to an inspection of the mechanical condition and equipment of the vehicle at any location where members of the California Highway Patrol are conducting tests and inspections of passenger vehicles and when signs are displayed requiring such stop.” Vehicle Code section 2814 goes on to provide for the promulgation of regulations by the Commissioner of the California Highway Patrol to implement its purpose.
Whether De La Torre remains sound law after more recent United States Supreme Court cases, particularly Brown v. Texas, supra, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357, is highly debatable; and we believe not. For example, De La Torre relied in part on the holding of People v. Weger (1967) 251 Cal.App.2d 584, 59 Cal.Rptr. 661, certiorari denied sub nom. Weger v. California (1968) 389 U.S. 1047, 88 S.Ct. 774, 19 L.Ed.2d 840, which approved a stop and identify statute similar to that struck down in Brown. Citing Weger, the De La Torre court stated, “ ‘The duty of a motorist to stop and submit to a routine check is similar to that of a person abroad at night to stop and identify himself.’ ” (People v. De La Torre, supra, 257 Cal.App.2d at p. 166, 64 Cal.Rptr. 804.) Thus, to the extent they are similar, De La Torre was severely wounded by Brown. Whether it is moribund after Prouse and the Supreme Court immigration and administrative warrant cases is, of course, the essence of the issue before us.
Temporary drivers license control checkpoints were upheld in People v. Washburn (1968) 265 Cal.App.2d 665, 670, 71 Cal.Rptr. 577; but this holding is also of dubious precedential value. Washburn solely and uncritically relied on two roving stop decisions, People v. Porter (1961) 196 Cal.App.2d 684, 16 Cal.Rptr. 886 and Lipton v. United States (9th Cir.1965) 348 F.2d 591; and both cases were clearly nullified by Delaware v. Prouse, supra, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. Thus, Washburn, like De La Torre, is legally obsolete.
In People v. Hyde, supra, 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830, our Supreme Court upheld the use of airport metal detectors as administrative searches justified by an “ongoing emergency.” (Id. at p. 168, 115 Cal.Rptr. 358, 524 P.2d 830.) Three justices concurred on the basis the searches were reasonable and could be simply avoided by the election to use other forms of travel. But the rationale of Hyde has been relegated to legal history by the reasoning of United States v. Martinez-Fuerte, supra, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116. Martinez-Fuerte appears to have eliminated the warrant requirement for any properly authorized permanent checkpoint, the fixed aspect of the checkpoint itself fulfilling the function of a warrant according to the court.
This checkpoint was not fixed; nor, as we previously explained, can it be reasonably defended on an ongoing emergency theory. Thus, although it is necessary to acknowledge that the weight of authority in other jurisdictions is contrary to our analysis,7 we must conclude that the warrantless roadblock used to detain this minor was unlawful and reverse accordingly.
In today's ruling we conclude warrantless temporary roadblocks designed to deter driving under the influence are unlawful. My colleagues are unwilling to accept the corollary, however: that they would be constitutional if authorized by an administrative area search warrant. Although it is generally a wiser course to withhold pronouncements not essential to a particular decision, there are exceptions. This is such a case.
The clear implication to be derived from the United States Supreme Court decisions discussed in the lead opinion is that temporary roadblocks authorized by an area warrant would be constitutional, but lower courts have simply failed to take note. In view of this state's strong public policy to discourage the tipsy motorist and the general failure of judicial opinions across the country on both sides of the issue to recognize the possibility of legitimizing roadblocks by means of area search warrants, I believe we have a responsibility, here and now, to explain how and why such warrants would be constitutional and the proper legislative steps to implement them.
Moreover, I believe a tentative endorsement of judicially authorized roadblocks is necessary to our holding. To be logically consistent, we must declare the positive as a necessary implication of a statement of the negative. If a warrant authorizing sobriety checkpoints is not possible, the motoring public may be stranded in the clutches of the rather imprecise balancing formula of Brown v. Texas (1979) 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357. A warrant procedure would be far preferable.
In Brown officers stopped the appellant, a pedestrian, in an area of narcotics trafficking because they had never seen him before and he appeared “suspicious.” He was then arrested for refusing to identify himself in violation of a statute which permitted officers to stop individuals without probable cause or reasonable suspicion to require identification.
Somewhat ironically, although the warrantless stop in Brown was held to be invalid, a fundamental misapplication of that opinion has substantially contributed to the acceptance of warrantless roadblocks in a number of jurisdictions. Many courts have simply assumed the propriety of a balancing test in roadblock cases without discussion of the lack of a warrant.1 Brown itself does not mention warrants, but for good reason. It was an obvious given that the street encounter in Brown provided no opportunity to obtain one.
The same is not necessarily true of roadblocks; they are usually planned weeks or months in advance. Nonetheless, the following language from the Brown opinion has served as a common analytical springboard for many of the drunk driving roadblock cases: “The reasonableness of seizures that are less intrusive than a traditional arrest [citations] depends ‘ “on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.” ’ [Citations.] 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. [Citation.]” (Id., at pp. 50–51, 99 S.Ct. at p. 2640.)
A good example of the misuse of the Brown balancing test may be found in an otherwise very thorough and thoughtful opinion of the Attorney General (67 Ops.Cal.Atty.Gen. 471 (1984)). Substantially based on the logic of the cases from other jurisdictions which simply assume the applicability of Brown to drunk driving roadblocks without consideration of the warrant question (see maj. opn., at pp. 893–94 fn. 7), the opinion concludes, “California courts have already upheld the constitutionality of checkpoint stops without individualized suspicion (1) to inspect the mechanical condition and equipment of vehicles for traffic safety purposes; (2) to search prospective airplane passengers for weapons and explosives as an air safety measure; and (3) to inspect vehicles entering the state for agricultural pests to protect California agriculture. It seems likely they would also approve the use of sobriety checkpoints conducted with safeguards minimizing the intrusion on motorists to reduce the carnage on our highways caused by intoxicated drivers. We therefore conclude 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.” (Id., at p. 487.)
As explained in the lead opinion, however, the fixed checkpoint cases do not perforce support the use of temporary sobriety checkpoints; and the Washburn and De La Torre courts' approval of drivers license and vehicle safety inspection stops may be legally obsolete. (People v. Washburn (1968) 265 Cal.App.2d 665, 71 Cal.Rptr. 577; People v. De La Torre (1967) 257 Cal.App.2d 162, 64 Cal.Rptr. 804.) Nevertheless, the Attorney General's opinion does set forth neutral criteria based on sobriety checkpoint cases from other jurisdictions which would be useful in the preparation of an area search warrant.
These are the suggested guidelines:
1. The decision to establish a roadblock and its location must be made by “policy-making officials, rather than by officers in the field.” And the locations chosen should be areas of a statistically provable high incidence of drunk driving and alcohol related accidents. (67 Ops.Cal.Atty.Gen., at pp. 479, 486, supra.)
2. The time and duration of operation should coincide with times that drunk drivers would be expected to be on the road, e.g., closing times of taverns. (Id., at pp. 479–480.)
3. The discretion of the officers must be limited and the intrusion on motorists minimized. (Id., at pp. 480, 486)
4. The existence of the checkpoint should be publicized in advance, although not necessarily its location. (Id., at p. 481.)
5. Roadside signs giving advance warning of the checkpoint should be used. (Id., at pp. 481–482.)
6. Fear and anxiety of approaching motorists should be minimized. (Id., at p. 482.)
7. The safety of motorists must be a prime consideration. Checkpoints should not be installed in heavy traffic, and traffic should not be allowed to build up. (Id., at pp. 482, 486.)
8. The period of detention must be minimized. (Id., at p. 483.)
9. The field officers should be briefed in advance by supervisory personnel and thoroughly instructed in appropriate procedures. (Id., at p. 483.)
10. Records should be maintained in order to evaluate the effectiveness of the checkpoint. (Id., at pp. 484, 486.)
The recitation concludes, “It is readily apparent that the factors discussed above interrelate with one another. The location, timing and method of operation of sobriety checkpoints all affect safety, anxiety and fear generated, and their effectiveness. By enumerating the factors we do not mean to suggest that each is indispensable or that each will carry the same weight in the Fourth Amendment balancing process.” (Id., at p. 486.)
Although entirely skeptical of the usefulness and legality of sobriety checkpoints in any case, the authors of a comprehensive current examination of the subject suggest they should only be permitted, if at all, by area warrants based on similar substantive criteria: “The potentially useful role that warrants can play in limiting field officer discretion was summarized by the Supreme Court in a recent Occupational Safety and Health Act inspection case: [¶] ‘A warrant ․ would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria. Also, a warrant would then and there advise the [individual whose property was being searched] of the scope and objects of the search, beyond which limits the inspector is not expected to proceed.’ [¶] To obtain a warrant authorizing a sobriety checkpoint, the agency should be required to demonstrate that a serious drunk driving problem exists in the vicinity of the requested checkpoint; that the proposed timing of the checkpoint's operation is consistent with the goals of detection and deterrence; and that the proposed site is consistent with considerations of nondiscrimination, safety, and convenience. The magistrate should not renew the warrant after expiration of a reasonable time period unless the law enforcement agency can demonstrate the checkpoint's productivity in terms of either increased drunk driving arrests or decreased alcohol-related crashes.” (Jacobs & Strossen, Mass Investigations Without Individualized Suspicion: A Constitutional and Policy Critique of Drunk Driving Roadblocks (1985) 18 U.C. Davis L.Rev. 595, 679–680, fn. omitted.)
Of course, many of the discomfiting aspects of temporary roadblocks, such as the fear and apprehension they potentially engender, cannot be entirely removed merely because a judicial officer reviews the neutral criteria in advance. Yet public knowledge that the roadblock must have been judicially authorized with rules, limits, and uniform procedures would provide some assurance to the motorist; and indeed, this is one instance when publication of the affidavit and warrant in advance would be of positive benefit.2
Moreover, as a representative of an impartial branch of government with responsibilities to the public as a whole, a magistrate can act to prevent the misuse of roadblocks by particular municipalities and to check their overuse in contiguous areas. For example, the officer in this case testified the goal of the roadblock was to deter drunk driving, particularly in Anaheim. What message does this send to surrounding communities? Must they retaliate, in effect, by setting up barriers on their own borders to contain Anaheim violators? California has numerous metropolitan areas of contiguous municipalities; many citizens live in one city, work in another, and have daily business in numerous others. Must they be subjected to an uncontrolled and uncoordinated series of sobriety checkpoints at a period in our history when traffic, even at night, approaches gridlock dimensions in many parts of the state?
Roadblocks, if permitted at all, must be subject to prior judicial authorization in the form of an administrative area search warrant based on neutral criteria of the sort suggested by the Attorney General.3 And one of those criteria must be a consideration of the effect on the particular community where the roadblock is to be located, as well as surrounding areas and traffic patterns, taking all other proposed and approved checkpoints into account. To this end, and to avoid “judge shopping,” only one magistrate in each county, perhaps to be appointed by the presiding judge of the superior court, should be authorized to issue roadblock warrants.
This is not to say that such warrants would be available in other contexts for the general purpose of criminal law enforcement, e.g., for searches of all the shoppers in a mall to apprehend and deter petty thieves. The usual Penal Code search warrant provisions could obviously not be adapted to that end (Pen.Code, § 1524 et seq.). More importantly, petty thieves are not licensed and their activities not regulated. Neither are they required to register the implements of their trade and maintain them in a safe condition according to strict standards.
Driving under the influence, on the other hand, is not merely a crime. It also is, and perhaps primarily ought to be viewed as, a matter of traffic safety regulation. The impaired driver's vehicle is a hazard on the road comparable to one with worn tires or defective steering or brakes. Just as the health and vision of motorists are legitimate subjects of inquiry by the Department of Motor Vehicles, so is the sobriety of those actually on the road to the agencies responsible for enforcing the regulations applicable to unsafe vehicles and impaired drivers. While as a legislator I might find tightened regulations for ordinary motorists approaching those now in place for pilots, truckers, and ship captains to be intolerable, as a judge I cannot find they would be constitutionally infirm.
I am aware our Supreme Court specifically considered, and rejected, the potential use of search warrants in People v. Hyde (1974) 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830, the airport metal detector case. The court held no warrant was required in that situation because “Airport searches are singularly unsuited to the warrant procedure. Every day through airport terminals nationwide pass thousands of airline travellers, each of whom must be screened for weapons or explosives. The result is a form of ongoing emergency rendering it impracticable, if not impossible, for airline officials to seek a search warrant for individual passengers.” (Id., at pp. 168–169, 115 Cal.Rptr. 358, 524 P.2d 830.)
But Hyde appeared before United States v. Brignoni-Ponce (1975) 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 and its rather pointed hint that area search warrants authorizing roving border patrols would be constitutional under appropriate conditions. (Id., at p. 882, fn. 7, 95 S.Ct. at p. 2580, fn. 7.) The California Supreme Court in Hyde obviously did not contemplate that prospect and, after the decision in Martinez-Fuerte approving warrantless fixed checkpoints, has had no reason to reconsider.
Moreover, the purpose of airport metal detectors is largely criminal law enforcement, i.e., to apprehend terrorists and hijackers. Thus, the type of warrant contemplated in the Hyde discussion was that traditionally used in criminal enforcement, not a warrant for regulatory purposes.
Drunk driving roadblocks are substantially different, however. Potential offenders are not generally devoted criminals bent on destroying the social fabric, but otherwise valued citizens who merely combine two lawful acts, drinking and then driving, to an intolerable degree. The officer testified in this case that the object of the roadblock was to educate the public and deter driving under the influence, goals entirely appropriate to a regulatory setting. Any future regulatory scheme based on roadblocks should primarily aim to ensure the safe operation by licensees of their licensed and registered vehicles, not to make a single arrest necessarily.
Accordingly, I conclude temporary roadblocks for the purpose of deterring and removing those who are under the influence from driving on our streets and highways would be lawful where authorized by an administrative area search warrant based on neutral criteria. To require anything less than prior judicial scrutiny, however, would be to sacrifice freedoms of the many, without the slightest pretense of legal process, to the indubitably important and well-intentioned task of deterring the few. If the sacrifice must be made, let it be so in accordance with the Constitution—not naked police fiat. The warrant procedure would add little to the burdens of those planning an otherwise proper roadblock but could do much to protect and assure the innocent motorist.
I concur. On the facts before us, the minor motorist's motion to suppress evidence secured as a result of an illegal seizure should have been granted.
I recognize and deplore the terrible toll of death, destruction, and injury drunk drivers have wrought on our highways. I further understand and applaud the Herculean efforts of our police departments to combat this senseless slaughter. However, no matter how well intentioned the purpose or socially desirable the intended result, the methods used must not violate constitutional guarantees of freedom of movement as well as protection from unreasonable searches and seizures. As pointed out in the lead opinion, “[t]he stop and detention of a citizen or a vehicle and its occupants is a ‘seizure’ within the meaning of the Fourth Amendment (Delaware v. Prouse, supra, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660) and article I, section 13 of the California Constitution. (Formerly art. I, § 19; see People v. Triggs (1973) 8 Cal.3d 884, 891–892, fn. 5, 106 Cal.Rptr. 408, 506 P.2d 232, disapproved on another point in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 1, 150 Cal.Rptr. 910, 587 P.2d 706.) [¶] Consequently, a vehicle stop is constitutionally permissible only if an appropriate search or arrest warrant has first been obtained or if one of four recognized exceptions to the warrant requirement exists: consent; exigent circumstances; reasonable suspicion of wrongdoing; or when carried out at fixed locations, such as border immigration checkpoints, weigh stations, and airport metal detector checkpoints. (Ybarra v. Illinois (1979) 444 U.S. 85, 96, fn. 11, 100 S.Ct. 338, 344, fn. 11, 62 L.Ed.2d 238; Brown v. Texas (1979) 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357; United States v. Martinez-Fuerte (1976) 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116; United States v. Brignoni-Ponce (1975) 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607; People v. Loewen (1983) 35 Cal.3d 117, 196 Cal.Rptr. 846, 672 P.2d 436; In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957; People v. Hyde (1974) 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830.)” (Fn. omitted.) None of the circumstances found to be constitutionally necessary to support such a seizure are present in the case before us.
I write separately because, after correctly deciding the case before us, the lead opinion postulates on what might be. I cannot agree that in some future case as yet unknown, a seizure, similar to that before us, pursuant to an administrative warrant will be valid. Quite the contrary. I am unable to divine a situation which will allow transitory, temporary roadblock stops, searches and seizures of our citizens based upon an administrative warrant.
Temporary roadblocks at night with barricades, flashing lights, police everywhere, lines of stopped cars full of wide-eyed innocent people 1 conjure up visions of totalitarian societies where the citizen has no right to move about freely.
While recognizing the Supreme Court has held discretionary stops of automobiles for regulatory purposes to be a violation of the Fourth Amendment (Delaware v. Prouse (1979) 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; Almeida-Sanchez v. United States (1973) 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596), the lead opinion nevertheless holds out the promise of constitutional sanction if an administrative search warrant is first obtained. Justification for this stark break from traditional Fourth Amendment analysis is premised on “regulation.” Justice Crosby, in a concurring opinion, further expands on the regulatory concept involved. Such reasoning is mere sophistry and result oriented. I strongly disagree.
I perceive the proposed regulatory scheme to be a substitute for criminal law enforcement, a concept abhorrent to our traditional constitutional freedoms. Conceivably, the temporary roadblock may prove a solution (though there appears to be no evidence to support the premise, see fn. 1, supra ) to a serious crime problem: to wit, drunk driving. However, if condoned, is it not a short step to “regulate” another serious crime problem, illegal narcotics traffic? An administrative search warrant for all people on the street at night in an area of known drug use might well increase the number of drug related arrests. Also if we sanction blanket searches of homes in wealthy areas, we undoubtedly would uncover significant drug use since statistics show wealthy people are more prone to use certain drugs.
Unfortunately such tactics would do serious harm to our constitutional guarantees and protections. I, as much as anyone, long to see a society purged of alcohol and drug-related crime. Yet, I am not willing to destroy the basic concepts of our constitutional freedoms in an attempt to achieve it. Other methods compatible with our traditional concepts of individual rights must be devised in this area. While we fight the “war” against these terrible societal problems, let us not cause the Bill of Rights to be one of its victims.
For however desirable it may be to live in a society safe from drunk drivers or drug pushers, such security must not be obtained by destruction of, or even intrusion upon, those individual freedoms which make our country and society unique in the world.
1. The definition of an “appropriate” search warrant is another question. We imply nothing on that subject at this juncture.
2. Implied consent to be sued in this state is also presumed of nonresident motorists who use our highways. (Veh.Code, § 17450 et seq.)
3. We note most courts in other jurisdictions refrain from the “Newspeak” used by police in this state and frankly describe these artificial traffic jams in plain English as roadblocks. (Orwell, Nineteen Eighty-Four (1949).)
4. To the extent that hunting and fishing roadblocks are comparable to sobriety checkpoints, and there are several obvious distinctions, South Dakota has been inconsistent. In State v. Halverson (S.D.1979) 277 N.W.2d 723, the appellant was stopped on two occasions at a temporary game checkpoint and cited for driving with an expired vehicle safety inspection sticker. The South Dakota Supreme Court determined the warrantless checkpoint was constitutional nonetheless and upheld the convictions. The court reasoned those obtaining a hunting license had “tacitly consent[ed]” to the inspection. As to the appellant and other nonhunting motorists, the court simply observed, “The intrusion into [their] right ․ to the uninterrupted use of the highways [was] slight and greatly outweighed by the public interest in the management and conservation of wildlife in [the] state.” (Id., at p. 725.) The continuing validity of this opinion, rendered three weeks after Delaware v. Prouse, supra, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660, is, of course, debatable. Noteworthy to our discussion is the view of Professor LaFave with respect to hunting and fishing checkpoints. He would require an area search warrant in order that “a magistrate could circumscribe in advance a warden's authority ․ imposing limits as to time and areas and, perhaps, factors which at least would support a likelihood that any person stopped has been engaged in hunting or fishing.” (3 LaFave, Search and Seizure (1986 pocket pt.) § 10.8, p. 194.)
5. Several courts and commentators have expressed similar sentiments. For example, the Oklahoma Court of Criminal Appeals warned, “The roadblocks in the present case could well act, and most likely did act, as a total surprise to those passing through. The fear factor involved in this case is heightened by the presence of at least ten officers, chemical testing equipment, and mobile booking and jail vans actually on the scene. To the individual approaching such a roadblock, it is not unlikely that he would reasonably perceive the officers as being desirous of arresting criminals and that anyone passing through could easily be arrested. The United States Supreme Court has never stretched its permanent roadblock exception to the point that such an intrusion can be tolerated under the Fourth Amendment. The subjective[ ] intrusion, i.e., fear and apprehension, potentially imposed upon the individual innocent of misconduct is simply too great. [¶] The Court finds such activities by law enforcement authorities, while commendable in their ultimate goal of removing DUI offenders from the public highways, draw dangerously close to what may be referred to as a police state.” (State v. Smith (Okla.Cr.1984) 674 P.2d 562, 564; see also State v. Marchand (1985) 104 Wash.2d 434, 706 P.2d 225; State v. Koppel, supra, 127 N.H. 286, 499 A.2d 977; Webb v. State (Tex.App. 5 Dist.1985) 695 S.W.2d 676; and Commonwealth v. Tarbert (1985) 348 Pa.Super. 306, 502 A.2d 221.)Even nationally syndicated columnist Andy Rooney has addressed the subject: “ ‘If you aren't doing anything wrong, what have you got to worry about?’ That's the argument you hear [in support of drunk driving roadblocks and warrantless searches in general for that matter]. [¶] Well, I haven't done anything wrong. I don't drink when I drive and I'm plenty worried. If the police can stop us anytime in our cars, why can't they stop us on the street and check us over for counterfeit $20 bills or weapons? They could question us on any criminal activity down by the supermarket. [¶] The police in this country have a tough enough time maintaining their image as friendly protectors of law-abiding citizens without the burden of this kind of police-state work.” (Rooney, Giving Up Some Liberty in Exchange for Security, The Orange County Register (Apr. 4, 1983) p. C2.)
6. Our Supreme Court has granted review in a case presenting the issue we consider here (Ingersoll v. Palmer (1986) 175 Cal.App.3d 1028, 221 Cal.Rptr. 659, review granted, ––– Cal.3d –––, 224 Cal.Rptr. 719, 715 P.2d 680).
7. For example, the Supreme Court of Florida, while invalidating the arrest in the case before it, gave its approval to future roadblocks where the law enforcement agency could make a favorable showing under the Brown balancing test using criteria listed by the Supreme Court of Kansas in State v. Deskins (1983) 234 Kan. 529, 673 P.2d 1174: “(a) degree of discretion left to field officers; (b) location, time and duration of the roadblock; (c) standards set by superior officers; (d) advance notice to [the] public; (e) warning to approaching motorists; (f) degree of fear or anxiety caused; (g) length of detention of each motorist; (h) safety conditions; (i) physical factors of the method of operation; (j) availability of less intrusive methods for combating the problem; (k) effectiveness of the procedure; (l) any other relevant circumstances.” (State v. Jones (Fla.1986) 483 So.2d 433, 437.) (See also State v. Martin (1985) 145 Vt. 562, 496 A.2d 442, 448; Commonwealth v. McGeoghegan (1983) 389 Mass. 137, 449 N.E.2d 349.)Although approving the roadblock it examined, the Kansas Supreme Court in Deskins stated, “It might well be advisable that minimum uniform standards for the operation of vehicular roadblocks be adopted and established by the legislature or attorney general․” (State v. Deskins, supra, 673 P.2d at pp. 1185–1186.) A dissenting justice retorted, “My basic concern is that, without legislative standards and limitations, the rights of Kansas citizens to privacy and freedom from unreasonable intrusion by governmental officials would be destroyed. I cannot in good conscience accept that as a way of life in this land of freedom.” (Id., at p. 1188 (dis. opn. of Prager, J.).)In People v. Bartley (1985) 109 Ill.2d 273, 93 Ill.Dec. 347, 486 N.E.2d 880, certiorari denied sub nom. Bartley v. Illinois (1986) –––U.S. ––––, 106 S.Ct. 1384, 89 L.Ed.2d 608, the Supreme Court of Illinois made an important distinction: “Since we deal here only with the type of roadblock which can and should be planned in advance, our appraisal of the roadblock established in this case is not intended to address the validity of an emergency roadblock, for example, a ‘dragnet’ established to trap a dangerous criminal before he can flee the jurisdiction.” (Id., at p. 885; but see People v. Glover, supra, 93 Cal.App.3d 376, 155 Cal.Rptr. 592.) The court went on to find that although the drivers license check roadblock before it might have been designed as a subterfuge to apprehend drunk drivers, it met the Deskins criteria and was consequently constitutional.Other courts have upheld drunk driving roadblocks, at least in principle, under similar, although sometimes less extensive, analyses. (Lowe v. Commonwealth (1985) 230 Va. 346, 337 S.E.2d 273, cert. den. sub nom. Lowe v. Virginia (1986) ––– U.S. ––––, 106 S.Ct. 1464, 89 L.Ed.2d 720; Commonwealth v. Trumble (1985) 396 Mass. 81, 483 N.E.2d 1102; State v. Superior Court (Simmons) (1984) 143 Ariz. 45, 691 P.2d 1073; People v. Scott (1984) 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1; Little v. State (1984) 300 Md. 485, 479 A.2d 903; State v. Garcia (Ind.App. 1 Dist.1986) 489 N.E.2d 168; State v. Golden (1984) 171 Ga.App. 27, 318 S.E.2d 693; Kinslow v. Commonwealth (Ky.App.1983) 660 S.W.2d 677, cert. den. sub nom. Kinslow v. Kentucky (1984) 465 U.S. 1105, 104 S.Ct. 1606, 80 L.Ed.2d 136; State v. Coccomo (1980) 177 N.J.Super.L. 575, 427 A.2d 131.) Several other courts have upheld roadblocks in analogous circumstances. (State v. Cloukey (Me.1985) 486 A.2d 143 [drivers license and vehicle equipment checkpoint]; State v. Tourtillott (1980) 289 Or. 845, 618 P.2d 423, cert. denied sub nom. Tourtillott v. Oregon (1981) 451 U.S. 972, 101 S.Ct. 2051, 68 L.Ed.2d 352 [game checkpoint].)
1. To paraphrase our Supreme Court in another context, the error lies in placing the balancing cart before the warrant horse. (See Williams v. State of California (1984) 34 Cal.3d 18, 22, 192 Cal.Rptr. 233, 664 P.2d 137.)
2. Although, of course, the exact location of the roadblock might be deleted.
3. Administrative search warrants are creatures of statute, and California has such a scheme (Code Civ.Proc., § 1822.50 et seq.). May it be reasonably interpreted, as currently written, to encompass all vehicles passing through a particular area? Probably not. A cursory review of the statutes would suggest that they are presently drawn too narrowly for the purpose.Code of Civil Procedure section 1822.50 permits the issuance of inspection warrants “to conduct any inspection required or authorized by state or local law or regulation relating to ․ safety․” The Legislature could, of course, create an enabling inspection statute. And while section 1822.54 specifically includes vehicles within the class of places permitted to be searched, it also requires that the warrant “particularly” describe the vehicle. That is clearly not possible in the case of temporary sobriety checkpoints, but the statute could be amended to provide for temporary seizures of vehicles within a particular area for the purpose of removing those operated by impaired individuals.
1. As pointed out in the majority opinion, 6,934 vehicles were stopped; 44 arrests were made, thus 99.4% of the people who drove through the roadblock were presumably not in violation of anything. Add to that the number of passengers in the vehicles stopped and the percentage of innocent citizens “detained” at a “regulatory” roadblock increases.3
CROSBY, Associate Justice.
TROTTER, P.J., concurs. WALLIN, J., concurs in the result only.