King v. State

• Decision Date: 11 December 2007
• Docket Number: No. 58A01-0704-CR-159.,58A01-0704-CR-159.
• Citation: 877 N.E.2d 518
• Parties: Kenneth Scott KING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

877 N.E.2d 518

Kenneth Scott KING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 58A01-0704-CR-159.

Court of Appeals of Indiana.

December 11, 2007.

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Joby D. Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.

Here, we reach an age old conclusion—a worthy end does not necessarily justify unreasonable means. Ohio County police officers responded to a party in progress at a rural residence. The officers broke up the party and then required partygoers to pass through two checkpoints—a portable breath test administered to all drivers by officers while still on private property, and a checkpoint set up at the base of the driveway through which all vehicles were required to pass, giving the officers a second chance to observe the drivers to ensure that they were not intoxicated. The State has failed to provide evidence from which we can conclude that these checkpoints are reasonable under Article 1, section 11 of the Indiana Constitution.

Appellant-defendant Kenneth Scott King brings this interlocutory appeal of the trial court's denial of his motion to suppress evidence relating to charges brought against King by the State for class A misdemeanor operating a vehicle while intoxicated and class C misdemeanor operating a motor vehicle with a blood alcohol content of .08 or higher. Finding that the checkpoints at issue were unconstitutional, we reverse the judgment of the trial court.

FACTS

Just after midnight on August 3, 2005, Rising Sun Police Officer Lowell Colen responded to a dispatch¹ about a party in progress in rural Ohio County. When Officer Colen arrived at the residence in question, he observed sixty vehicles parked near the home. Several other police officers also responded to the dispatch. To ensure that none of the partygoers drove away from the party while intoxicated, the officers set up a checkpoint in the road, immediately adjacent to the driveway, in such a way that anyone leaving the house would have to drive through the checkpoint. After breaking up the party, the officers administered portable breath tests (PBTs) to everyone exiting the residence who planned on driving and then required all vehicles to drive through the checkpoint, where the officers observed the drivers to further ensure that no one was intoxicated.

As he monitored the checkpoint, Officer Colen observed King slowly driving his vehicle near other parked vehicles in the residence's yard. The officer "felt like" King was trying to avoid the checkpoint; consequently, Officer Colen stopped King and administered a PBT, which King failed. Tr. p. 8. On August 4, 2005, the State charged King with class A misdemeanor operating a vehicle while intoxicated and class C misdemeanor operating a motor vehicle with a blood alcohol content of .08 or higher. King filed a motion to suppress on November 14, 2006, and following a hearing, the trial court denied the motion on February 15, 2007, finding as follows:

1. On August 3, 2005, an officer was dispatched to a party after midnight;

2. A large crowd was at the party;

3. The officers checked several cars;

4. The party goers were informed about the check;

5. The Defendant went around the check point 6. The Defendant departed from the lawn or road and drove in the grass to avoid the check point; and

7. The motion should be denied.

CONCLUSIONS OF LAW. In [State v. Gerschoffer, 763 N.E.2d 960 (Ind.2002),] the Indiana Supreme Court held that sobriety check points are permitted[, provided] that they meet certain criteria. The roadblock was designed to target a serious danger specific to vehicles [sic] operation. We have to take into consideration that a party was in process at which alcohol was being consumed and that something had to have brought all this to the attention of the police. The purpose was to prevent drunken driving on the highways. The general public was not inconvenienced by the road block. It was designed to target a limited number of persons and to present [sic] intoxicated drivers from driving on the highway. The Defendant obviously intentionally awarded [sic] the roadblock.

Appellant's App. p. 38-39. King now brings this interlocutory appeal.

DISCUSSION AND DECISION

King argues that the dual checkpoints violated the Fourth Amendment to the United States Constitution and Article 1, section 11 of the Indiana Constitution. He also contends that Officer Colen's conclusion that King attempted to avoid the checkpoint was unreasonable and that, in any event, the mere avoidance of a checkpoint does not give a police officer sufficient reasonable suspicion to conduct a traffic stop.

In reviewing the denial of a motion to suppress, we do not reweigh the evidence and consider conflicting evidence most favorably to the trial court's ruling. Taylor v. State, 689 N.E.2d 699, 702 (Ind. 1997). We must also, however, consider any uncontested evidence that is favorable to the defendant. Fair v. State, 627 N.E.2d 427, 434 (Ind.1993). And we review constitutional challenges de novo. State ex rel. Willard Library v. Evansville-Vanderburgh Pub. Library, 848 N.E.2d 1162, 1164 (Ind.Ct.App.2006).

We begin our analysis with the Indiana Constitution. Article 1, section 11 must be liberally construed to guarantee the people against unreasonable search and seizure. Cheatham v. State, 819 N.E.2d 71, 76 (Ind.Ct.App.2004). The purpose of this provision is to protect against unreasonable police activity in areas of life that Indiana citizens regard as private. Id.

Our Supreme Court has held that "[a] minimally intrusive roadblock designed and implemented on neutral criteria that safely and effectively targets a serious danger specific to vehicular operation is constitutionally reasonable, unlike the random and purely discretionary stops we have disapproved." Gerschoffer, 763 N.E.2d at 966. Among the relevant factors to be considered are: (1) whether the roadblock was staged pursuant to a formal, neutral plan approved by appropriate officials; (2) the objective, location, and timing of the checkpoint, taking these factors into account to determine whether the seizure was well calculated to effectuate its purpose; (3) the amount of discretion exercised by field officers conducting the checkpoint, with a goal of minimal discretion to ensure against arbitrary or inconsistent actions by the screening officers; (4) degree of intrusion and whether the roadblock was avoidable; (5) whether the surrounding conditions of the checkpoint were safe; and (6) whether the checkpoint was effective. Id. at 967-70.

A Formal Plan. The Gerschoffer court favorably described Connecticut guidelines, which

required, among other things, advance approval by ranking officers; a careful choice of location, date and time "after considering many factors, including the safety of the public and those conducting the operation and the potential inconvenience to the public"; advance publicity; and assurance to drivers that the stop was routine.

Id. at 967 (quoting State v. Boisvert, 40 Conn.App. 420, 671 A.2d 834, 837 (1996)). The Gerschoffer court then noted that although a police officer testified that he had followed written federal and state police guidelines in conducting the roadblock, the guidelines were not part of the record; consequently, the court was unable to assess the efficacy of those guidelines.

Here, the State did not present any evidence establishing that this checkpoint was staged pursuant to a formal, neutral plan or guidelines. To the contrary, the evidence in the record essentially establishes that the officers in question set up the checkpoint spontaneously in an impromptu response to the party. Officer Colen testified that there was no written policy regarding how to administer PBTs to a large group. Tr. p. 10. In other words, the record does not support a conclusion that the officers were acting pursuant to a formal, neutral plan.

Objective, Location, and Timing. As explained by our Supreme Court, "`[a] seizure is not reasonable unless it is well calculated to effectuate its purpose.'" Gerschoffer, 763 N.E.2d at 967 (quoting State v. Garcia, 500 N.E.2d 158, 167 (Ind.1986) (Shepard, J., dissenting)). More specifically,

[t]o be constitutionally reasonable, the location and timing of sobriety checkpoints should take into account police officer safety, public safety, and public convenience. The roadblock should also effectively target the public danger of impaired driving. Here, the State did not offer any evidence of objective considerations such as an unusually high rate of OWI-related accidents or arrests in the chosen area. The State has therefore not shown that this roadblock was sufficiently related to the legitimate law enforcement purpose of combating drunk driving.

Id. at 968.

Here, the location—on private property for the PBTs and on a public roadway immediately adjacent to a driveway for the checkpoint—and timing—sometime after midnight—present no substantial problems in relation to police officer safety, public safety, or public convenience. We find it particularly troubling, however, that the seizures took place on private property and immediately adjacent to private property. Even more compelling, the checkpoints were clearly targeted at a specific group of people rather than at the public in general.

Furthermore, although the State offered their goal of ensuring that none of the partygoers drove away from the party intoxicated as an objective, it has offered no evidence aside from King's arrest that any alcohol was consumed at the party. The officer did not testify that he observed anyone consuming alcohol or that anyone attending the party appeared to be intoxicated.² Thus, it is not at all clear that these checkpoints effectively targeted the danger of impaired driving. This factor, therefore, does not...