Ascher v. Commissioner of Public Safety

• Decision Date: 30 June 1994
• Docket Number: No. C3-93-364,C3-93-364
• Citation: 519 N.W.2d 183
• Parties: Ricky Francis ASCHER, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, petitioner, Appellant.
• Court: Minnesota Supreme Court

Page 183

519 N.W.2d 183

63 USLW 2078

Ricky Francis ASCHER, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, petitioner, Appellant.

No. C3-93-364.

Supreme Court of Minnesota.

June 30, 1994.

Rehearing Denied Aug. 9, 1994.

Syllabus by the Court

Police use of temporary roadblock to stop cars and investigate large number of drivers in the hope of discovering evidence of alcohol-impaired driving by some of them violates Minn. Const. art. I, Sec. 10, which generally requires that police may not subject a driver to an investigative stop without first having objective, individualized articulable suspicion of criminal wrongdoing by the driver.

Hubert H. Humphrey, III, Atty. Gen., Nancy J. Bode, Asst. Atty. Gen., St. Paul, for appellant.

Faison T. Sessoms, Jr., Minneapolis, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

COYNE, Justice.

The issue in this appeal is whether the state has met its burden of establishing constitutional justification for police use of temporary roadblocks to stop cars and investigate a large number of drivers in the hope of discovering that some of them are alcohol-impaired. We hold that it has not met its burden and that such roadblocks violate Minn. Const. art. I, Sec. 10.

This case arises from a roadblock that the Burnsville Police Department and the Minnesota State Patrol conducted at the intersection of Nicollet Avenue and Highway 13 in Burnsville from 10:00 p.m., Friday, August 14, 1992, to 2:00 a.m., Saturday, August 15, 1992. The supervising patrol officer testified that the location was chosen because it is a "high accident area" and a site where there is a "high inciden[ce] of DWI violations." He testified that the purposes of the roadblock were apprehension and deterrence.

Officers directed vehicles from Nicollet or Highway 13 into a "pre-screen area" just off the intersection. Signs along the road warned drivers approaching the roadblock, but the drivers could not circumvent it. Officers briefly interviewed all drivers, looking for "indicia of intoxication" and making sure each driver possessed a valid license. Those whom the police suspected of a violation were directed into a "final screen area" for further investigation, including field sobriety tests and a computer check for outstanding warrants. Initially, officers were instructed to stop all cars entering the checkpoint. Later, because of unusually heavy traffic on Highway 13, the ranking officers decided to stop only every fourth car on that road.

As the State Patrol routinely does with its enforcement measures, it notified media representatives of the roadblock. According to the supervising officer, the presence of members of the media helps reassure those who "happen to get caught up in it" and the resulting publicity helps deter potential violators. Two local television stations covered the roadblock, using lights and cameras to film parts of the procedure. All filming was done in the final screen area where those suspected of DWI were tested. Within that area, according to the supervising officer, the police "didn't tell them what they could or could not shoot."

A Burnsville police officer was performing final screenings when Ricky Ascher was directed into the final screen area. After the officer observed physical indicia of intoxication, the officer directed Ascher to perform several field sobriety tests, and then directed him to take a preliminary breath test. After placing Ascher under arrest and reading him the implied consent warning, the officer took Ascher to the police station. Ascher tried but failed to contact an attorney before finally stating that he refused to submit to an Intoxilyzer test.

The roadblock resulted in 14 DWI arrests (1.4% of all stops), four arrests for DAR/DAS, one arrest for an open bottle violation, one arrest for cocaine possession, one arrest for driving an unregistered vehicle, and one arrest of a fugitive. In all, 2.3% of those stopped were cited or arrested. Another officer measured the delays experienced by a sample of motorists. He timed eight of the 975 vehicles and determined that the average delay among them was under 2 minutes. In preparation for the roadblock, the supervising officer consulted with senior officers in the Burnsville Police Department, the Dakota County Sheriff's Department and the State Patrol but not with any directly-elected officials.

The court of appeals reversed the order of the district court sustaining the revocation of Ascher's license; it concluded (1) that, in view of the presence of the media, the sobriety roadblock was impermissibly intrusive under the Fourth Amendment of the United States Constitution and (2) that the roadblock violated Minn. Const. art. I Sec. 10. Ascher v. Commissioner of Pub. Safety, 505 N.W.2d 362 (Minn.App.1993).

Until 1968 the United States Supreme Court upheld a "seizure" of the person under the Fourth Amendment only if the police officer making the seizure had probable cause. In that year the Court recognized an exception to the probable cause requirement, holding that police may temporarily seize a person to investigate suspected criminal wrongdoing if the police have objective, individualized articulable suspicion of criminal wrongdoing by that person. Terry v. Ohio 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In recognizing this exception, the Court relied upon the so-called "balancing test." As later articulated in Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979), this test provides that if a seizure of a person is less intrusive than an arrest of the person, the reasonableness of the seizure under the Fourth Amendment depends upon a weighing or balancing 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."

In Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the United States Supreme Court, in a decision written by Chief Justice Rehnquist, used this test in concluding that use of temporary roadblocks to stop and investigate all drivers in the hope of catching some alcohol-impaired drivers does not violate the Fourth Amendment.

The Court began its analysis by stating the obvious: "No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." 496 U.S. at 451, 110 S.Ct. at 2485. Conversely, the Court declared the intrusion involved in stopping a motorist at a temporary roadblock to investigate possible alcohol-impaired driving is slight on the Fourth Amendment scale of intrusions. Id. at 451-53, 110 S.Ct. at 2485-86. The Court then addressed "the degree to which the seizure advances the public interest," suggesting that roadblocks of this sort would be impermissible only if the state advanced no empirical evidence of effectiveness. Id. at 454, 110 S.Ct. at 2487. Pointing to evidence that such roadblocks result in drunken driving arrests of around one percent of all motorists stopped, the Court held that the state had established effectiveness. Id. at 455, 110 S.Ct. at 2487. In summary, the Court said, "the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program." Id.

Dissenting, Justice Brennan, joined by Justice Marshall, agreed that a balancing analysis was appropriate but disagreed with the Court's application of the balancing test. Justice Brennan stated:

[T]he [majority] opinion reads as if the minimal nature of the seizure ends rather than begins the inquiry into reasonableness. Once the Court establishes that the seizure is "slight," * * * it asserts without explanation that the balance "weighs in favor of the state program." * * * The Court ignores the fact that in this class of minimally intrusive searches, we have generally required the government to prove that it had reasonable suspicion for a minimally intrusive seizure to be considered reasonable. See, e.g., Delaware v. Prouse, 440 U.S. 648, 661 [99 S.Ct. 1391, 1400, 59 L.Ed.2d 660] (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 882-83 [95 S.Ct. 2574, 2580-81, 45 L.Ed.2d 607] (1975); Terry v. Ohio, 392 U.S. 1, 27 [88 S.Ct. 1868, 1883, 20 L.Ed.2d 889] (1968). Some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. [Citations omitted]. By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police.

Id. at 457-58, 110 S.Ct. at 2489. Because the state had failed to establish that continued adherence to the traditional requirement of individualized suspicion would be impractical or ineffective, Justice Brennan concluded that the state had failed to meet its burden of justifying making an exception to the requirement. Id. at 458, 110 S.Ct. at 2489.

Also dissenting, Justice Stevens, ...