People v. Banks

• Citation: 13 Cal.Rptr.2d 920,11 Cal.App.4th 165
• Decision Date: 25 November 1992
• Docket Number: No. G013096,G013096
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 11 Cal.App.4th 165, 16 Cal.App.4th 1188 11 Cal.App.4th 165, 16 Cal.App.4th 1188 The PEOPLE of the State of California, Plaintiff and Respondent, v. Mary Louise BANKS, Defendant and Appellant.

Page 920

13 Cal.Rptr.2d 920

Previously published at 11 Cal.App.4th 165, 16 Cal.App.4th 1188

11 Cal.App.4th 165, 16 Cal.App.4th 1188

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mary Louise BANKS, Defendant and Appellant.

No. G013096.

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

Nov. 25, 1992.

Review Granted Feb. 18, 1993.

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Alan Crivaro, Deputy Public Defenders, for defendant and appellant.

Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., Wallace J. Wade, Asst. Dist. Atty., Kathleen M. Harper and James F. Bacin, Deputy Dist. Attys., for plaintiff and respondent.

OPINION

CROSBY, Associate Justice.

We accepted transfer of this matter after certification by the appellate department of the superior court to settle the following question: Is advance publicity necessary to a constitutionally operated sobriety checkpoint? We conclude it is.

The general rule, of course, is that absent an exception such as exigent circumstances, a random vehicle stop violates the Fourth Amendment: "[F]ederal constitutional principles require a showing of either the officer's reasonable suspicion that a crime has occurred or is occurring or, as an alternative, that the seizure is 'carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.' [Citations.]" (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1329, 241 Cal.Rptr. 42, 743 P.2d 1299.) In Ingersoll the California Supreme Court, relying on a line of United States Supreme Court cases, ¹ upheld the constitutionality of sobriety checkpoints under the federal and state Constitutions, provided they are operated pursuant to a plan and in an approved manner. One of the requirements is advance publicity because it "both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock." (Id. at p. 1346, 241 Cal.Rptr. 42, 743 P.2d 1299.)

The district attorney argues, however, that the exclusionary rule may be applied only if federal law requires suppression (In re Lance W. (1985) 37 Cal.3d 873, 887-888 210 Cal.Rptr. 631, 694 P.2d 744), and because no opinion of the United States Supreme Court denounces sobriety checkpoints staged without advance publicity, the stop in this case must be upheld. We disagree. Federal law does require application of the exclusionary rule when vehicles are detained outside border areas without warrant, reasonable suspicion, or exigent circumstances, unless another exception to the general rule, such as that recognized in Ingersoll, applies.

Notwithstanding the district attorney's claims, Michigan State Police v. Sitz (1990) 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 is not authority to the contrary, quite the opposite. There, the United States Supreme Court upheld a sobriety checkpoint program similar to that discussed in Ingersoll. Although it, too, contained an advance publicity requirement, the district attorney somehow derives from Sitz the remarkable notion that Ingersoll has, in effect, been overruled sub silentio on the advance publicity point.

The district attorney's interpretation founders against the well-known shoal of appellate practice that cases are not authority for issues they do not address. (People v. Burnick (1975) 14 Cal.3d 306, 317, 121 Cal.Rptr. 488, 535 P.2d 352.) And a close reading of Sitz itself demonstrates his interpretation is incorrect: "Petitioners, the Michigan Department of State Police and its director, established a sobriety checkpoint pilot program in early 1986. The director appointed a Sobriety Checkpoint Advisory Committee comprising representatives of the State Police force, local police forces, state prosecutors, and the University of Michigan Transportation Research Institute. Pursuant to its charge, the advisory committee created guidelines setting forth procedures governing checkpoint operations, site selection, and publicity." (Michigan State Police v. Sitz, supra, 496 U.S. at p. 447, 110 S.Ct. at 2484, italics...