State v. Fedak, 15206

• Decision Date: 11 February 1992
• Docket Number: No. 15206,15206
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Edward FEDAK, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 1068

825 P.2d 1068

9 Haw.App. 98

STATE of Hawaii, Plaintiff-Appellee, v. Edward FEDAK, Defendant-Appellant.

No. 15206.

Intermediate Court of Appeals of Hawai'i.

Feb. 11, 1992.

Syllabus by the Court

1. A Honolulu Police Department regulation setting forth the procedures to be followed by the police in announcing sobriety roadblocks, and establishing their times, sites, and specific locations, is an internal regulation exempt under Hawaii Revised Statutes (HRS) § 91-1(4) (1985) from the promulgation requirements applicable generally to an agency's rules and regulations under HRS Chapter 91-4.

2. Where a driver is stopped by the police at a sobriety roadblock without a warrant, the State has the burden of proving that the seizure was reasonable.

3. HRS § 286-162.5 (1985) requires that once the police establish procedures relating to sobriety roadblocks, those procedures will be scrupulously followed.

4. Where the evidence showed that the sobriety roadblock where the defendant was stopped and arrested for driving under the influence of intoxicating liquor had been moved to that location by the officer in charge from another authorized location because of "traffic congestion," but the State did not prove that the officer in charge had such authority, seizure of the defendant was illegal and all the evidence that flowed therefrom should have been suppressed.

Walter K. Horie, Anthony H. Yusi (Horie & Yusi, of counsel) Honolulu, on briefs, for defendant-appellant.

Charlotte J. Duarte, Deputy Pros. Atty., City and County of Honolulu, on brief, for plaintiff-appellee.

Before BURNS, C.J., HEEN, J., and Circuit Judge HUDDY, assigned by reason of vacancy.

HEEN, Judge.

In this appeal by Defendant-Appellant Edward Fedak (Defendant) from his bench trial conviction for driving under the influence of intoxicating liquor, Hawaii Revised Statutes (HRS) § 291-4(a)(1) (1985), the dispositive issue is whether the trial court erred in denying Defendant's motion to suppress. We answer in the affirmative.

On December 24, 1989, at 2240 hours, Defendant was stopped by a Honolulu Police Department (HPD) officer at an HPD sobriety roadblock (sobriety roadblock) on North King Street fronting Wallace Rider Farrington High School. The sobriety roadblock was part of HPD's drunk driving prevention program and was established under an HPD regulation entitled Administrative Notice No. 86-10 (Notice 86-10).

1.

Defendant argues that Notice 86-10 was not promulgated in accordance with HRS Chapter 91, as required by HRS § 286-162.5 (1985), which reads as follows:

Authorization to establish intoxication control roadblock programs. The police departments of the respective counties are authorized to establish and implement intoxication control roadblock programs in accordance with the minimum standards and guidelines provided in section 286-162.6. The chief of police in any county establishing an intoxication control roadblock program pursuant to this section shall specify the procedures to be followed in carrying out the program in rules adopted under chapter 91; provided that the procedures shall be in conformity with and not more intrusive than the standards and guidelines described in section 286-162.6.

The State argues that Notice 86-10 was an internal HPD regulation within the definition of HRS § 91-1(4) and, therefore, exempt from Chapter 91's promulgation provisions. ¹ We agree with the State. Doe v. Chang, 58 Haw. 94, 564 P.2d 1271 (1977).

The same issue was raised in Commonwealth v. Trumble, 396 Mass. 81, 483 N.E.2d 1102 (1985). There, the court held that the "guidelines" did not constitute a regulation requiring promulgation according to Massachusetts law. The court stated:

The guidelines are directed solely toward troopers, and instruct them as to the manner in which they fulfill their duties. Thus, they do concern the internal management of this agency.... [The guidelines] limn important procedural and safety considerations. The guidelines reflect an attempt to ensure that the State Police execute roadblocks in compliance with the principles articulated in Commonwealth v. McGeoghegan [389 Mass. 137, 449 N.E.2d 349 (1983) ], supra. They do not purport directly to regulate public conduct. The guidelines are simply an accurate reflection of the rights of the public as set forth in McGeoghegan. We conclude that the guidelines are not regulations as defined in G.L. c. 30A, § 1(5).

Id. 396 Mass. at 89, 483 N.E.2d at 1107.

Similarly, although HPD sobriety roadblocks unquestionably impinge on a driver's freedom of movement, Notice 86-10's procedures are aimed at prescribing and controlling the police officer's activities in order to minimize the intrusion on the driver's rights. See Commonwealth v. Shields, 402 Mass. 162, 521 N.E.2d 987 (1988).

2.

Defendant next argues that the sobriety roadblock at which he was stopped was not established according to Notice 86-10 and, therefore, he was subject to an unconstitutional seizure. Consequently, he asserts, the trial court erred in denying his motion to suppress all the evidence obtained as a result of the stop. We agree.

Because Defendant was seized without a warrant, the State has the burden of proving that the seizure was reasonable. Shields, supra.

To carry its burden of proving that the roadblock seizure was reasonable the Commonwealth must show, at least, that the roadblock was conducted in accordance with the guidelines established in Trumble, supra, and Commonwealth v. McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983). See Commonwealth v. Amaral, 398 Mass. 98, 101, 495 N.E.2d 276 (1986). Adherence to these guidelines, the content of which need not be recited here, assures that a roadblock seizure is the result of a "plan embodying explicit, neutral limitations on the conduct of individual officers." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). Conducting roadblocks in accordance with such neutral criteria minimizes the risk "that the individual's reasonable expectation of privacy [will be] 'subject to the discretion of the official in the field.' " Delaware v. Prouse, 440 U.S. 648, 655, 99 S.Ct. 1391, 1397, 59 L.Ed.2d 660 (1979), quoting Camara [v. Municipal Court ], supra 387 U.S. at 532, 87 S.Ct. [1727] at 1732 [18 L.Ed.2d 930 (1967) ]. Adherence to the guidelines' requirements also assures that the surprise, fear, and inconvenience to--and therefore the intrusion on--the motoring public is minimized.

Id. 402 Mass. at 164-65, 521 N.E.2d at 989-90. Our review of the record in the instant case convinces us that the State failed to carry its burden.

HRS § 286-162.5 requires that sobriety roadblock procedures comply with the minimum standards established in HRS § 286-162.6 (1985 & Supp.1991). ² Notice 86-10 generally conforms to the minimum standards. Notice 86-10 also contains other procedures which, in our view, are designed to make sobriety roadblocks less intrusive than HRS § 286-162.6's minimum standards. ^{3 3} It is clear from the statute that the legislature intended that, once the procedures were established by the various police departments, they would be scrupulously followed.

In order to validate the change in location of the sobriety roadblock in this case, the State had to prove that HPD Sergeant William Donnelly's (Sgt. Donnelly) decision was in accordance with Notice 86-10 and not an exercise of his discretion to set up a roadblock in a more manageable location. See Shields. The State failed to do so.

A memorandum in evidence from Sgt. Donnelly, the officer in charge of the sobriety roadblock, to his superior officers indicated that the sobriety roadblock for December 24-25, 1989, was to be situated at Palama and Halona Streets (Palama-Halona) between 2100 and 2330 hours. However, the State's offer of proof was that Sgt. Donnelly changed the location from Palama-Halona to North King Street, approximately a mile away, because of traffic congestion.

The State failed to prove that Sgt. Donnelly had such authority under Notice 86-10. Paragraph II.C. of Notice 86-10 provides that the "General Site" for a sobriety roadblock will be selected by divisional-level commanders. On the other hand, the "Specific Location" for the sobriety roadblock is selected by the "supervisor responsible for the maintenance of the roadblock[.]" Notice 86-10, Paragraph II.D. Unfortunately, Notice 86-10 does not define either "general site" or "specific...