People v. Scott

• Decision Date: 20 November 1984
• Citation: 473 N.E.2d 1,63 N.Y.2d 518,483 N.Y.S.2d 649
• Parties: , 473 N.E.2d 1, 53 USLW 2300 The PEOPLE of the State of New York, Respondent, v. Joseph J. SCOTT, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 649

483 N.Y.S.2d 649

63 N.Y.2d 518, 473 N.E.2d 1, 53 USLW 2300

The PEOPLE of the State of New York, Respondent, v. Joseph J. SCOTT, Appellant.

Court of Appeals of New York.

Nov. 20, 1984.

Clark J. Zimmermann, Batavia, for appellant.

Ronald L. Fancher, Dist. Atty., Batavia (Robert C. Noonan, Batavia, of counsel), for respondent.

Robert Abrams, Atty. Gen. (Robert Hermann, Sol. Gen., Peter H. Schiff and Peter J. Dooley, Asst. Attys. Gen., of counsel), for State of New York, amicus curiae.

Scott N. Fein, Jonathan P. Nye, Michael Whiteman, Albany, and Richard Emery, New York City, for the New York Civil Liberties Union, amicus curiae.

OPINION OF THE COURT

MEYER, Judge.

A roadblock established pursuant to a written directive of the County Sheriff for the purpose of detecting and deterring driving while intoxicated or while impaired, and as to which operating personnel are prohibited from administering sobriety tests unless they observe listed criteria, indicative of intoxication, which give substantial cause to believe that the operator is intoxicated, is constitutionally permissible, notwithstanding that the location of the roadblock is moved several times during the three- to four-hour period of operation, and notwithstanding that legislative initiatives have also played a part in reducing the incidence of driving while intoxicated in recent years. Defendant having pleaded guilty to driving while impaired after denial of his motion to suppress the evidence obtained at the roadblock, the order of the County Court, Genesee County, 122 Misc.2d 731, 471 N.Y.S.2d 964, affirming his conviction, should, therefore, be affirmed.

I

At about 2:00 a.m. on Saturday, September 25, 1982, defendant, while driving on Route 5 in the Town of LeRoy, came up to a roadblock established pursuant to a directive of the Sheriff of Genesee County. He was directed to pull to the side and there was requested by Chief Deputy Sheriff Maha to produce his license, registration and insurance card. Observing that defendant fumbled a bit with his wallet, that his eyes were watery and bloodshot and that there was a strong odor of alcohol, Maha asked whether defendant had been drinking. After defendant responded that he had just left a bar, he was asked to step out of his car. As he did so he was unstable on his feet and was unable successfully to perform heel-to-toe and finger-to-nose tests. Based on those facts and an alco-sensor breath screening test, which defendant agreed to take, Maha concluded that defendant was intoxicated and placed him under arrest.

The roadblock had been established pursuant to a March 5, 1982 memorandum of the County Sheriff which called attention to the deaths, injuries and losses occasioned by intoxicated drivers and the need "to employ every lawful means to deter and apprehend the drunken driver." It quoted from the October, 1981 Report of the Governor's Alcohol and Highway Safety Task Force the value of "systematic traffic checkpoints at known DWI and high accident locations during peak hours", and the advisability that, "Such checks at specific sites * * * be of short duration, with an ability to move quickly to new sites to insure that the drinking driver will not be able to forecast checkpoint locations", and noted that the "greatest risk is on weekend late evening/early morning hours, when one in every ten vehicles or less contains an intoxicated driver." In succeeding detailed paragraphs it established procedures for site selection, lighting and signs; avoidance of discrimination by stopping all vehicles, or every second, third or fourth vehicle; location of screening areas off the highway to which vehicles would be directed; the nature of the inquiries to be made, with specific direction that unless the operator's appearance and demeanor gave cause to believe him or her intoxicated sobriety tests not be given. It listed the factors to be considered and stated that neither the odor of alcohol alone nor any one of the listed factors would suffice as a basis for sobriety tests. It also directed that checkpoint sites be prescreened and that from two to four locations be used during a four-hour period.

Under that procedure roadblocks were established once each month between midnight and 3:00 a.m., at locations selected in advance by senior personnel. Of the predetermined sites, four had been selected for use on September 25, 1982, the roadblock at each location being maintained for some 20 to 30 minutes before moving on to the next. Defendant was stopped at the third location in use that night. At that location warning signs were set up on the shoulders facing traffic from both directions some 300 feet in advance of the checkpoint, ¹ two police vehicles exhibiting flashing roof lights were placed so that their headlights illuminated the signs, and flares were placed in the center of the road. The checkpoint was manned by 10 persons, 6 from the Sheriff's office and 4 from the auxiliary police, and all vehicles approaching from either direction were stopped. ² In addition, two patrol cars were stationed in the area to follow and observe for possible violations any vehicle that avoided the roadblock by making a U-turn.

Defendant moved to suppress the evidence obtained at the roadblock. After a hearing the Town Justice denied the motion, finding that it had been operated in a uniform, nonarbitrary and nondiscriminatory manner. The County Court affirmed, finding the State's interest in curbing drunken drivers great and the operation of the roadblock sufficient to allay feelings of fright or annoyance and to circumscribe sufficiently the discretion of the personnel engaged in the operation. On appeal to this court defendant argues that deterrence is an improper purpose, that a temporary roadblock is constitutionally impermissible, and that it has not been shown that less intrusive means of enforcement would not be effective. We affirm.

II

There is, of course, no question that a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment (People v. John BB., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864, cert. den. 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400; People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39; United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116; see Berkemer v. iMcCarty, --- U.S. ----, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317; Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660), but it is also true that there is only a diminished expectation of privacy in an automobile ( United States v. Martinez-Fuerte, supra, 420 U.S., at p. 561, 96 S.Ct. at p. 3084; see People v. Belton, 55 N.Y.2d 49, 53, 447 N.Y.S.2d 873, 432 N.E.2d 745; United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 1085, 75 L.Ed.2d 55; United States v. Chadwick, 433 U.S. 1, 11-13, 97 S.Ct. 2476, 2483-2485, 53 L.Ed.2d 538) and that individualized suspicion is not a prerequisite to a constitutional seizure of an automobile which is "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers" (see Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357; Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, supra; United States v. Martinez-Fuerte, supra, 428 U.S., at pp. 558-562, 96 S.Ct. at pp. 3083-3085).

The permissibility of a particular practice is a function of its "reasonableness," which is determined by balancing its intrusion on the Fourth Amendment interests of the individual involved against its promotion of legitimate governmental interests (People v. John BB., supra, 56 N.Y.2d, at p. 487, 453 N.Y.S.2d 158, 438 N.E.2d 864; United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22; Delaware v. Prouse, supra, 440 U.S., at p. 657, 99 S.Ct. at p. 1398). Of importance in that analysis are the governmental interest involved and the effect of the procedure in relation to it, on the one hand, and, on the other, the degree of intrusion of the procedure on the individual subjected to it, measured in terms of both its subjective effect and the degree of discretion vested in the officials charged with carrying it out.

The importance of the governmental interest here involved is beyond question. "The carnage caused by drunk drivers is well documented and needs no detailed recitation here" (South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 920, 74 L.Ed.2d 748; see, also, Mackey v. Montrym, 443 U.S. 1, 17-18, n. 9, 99 S.Ct. 2612, 2620-2621, n. 9, 61 L.Ed.2d 321; Presidential Commission on Drunk Driving, An Interim Report to the Nation Report of Governor's Alcohol and Highway Safety Task Force Drunk Driving Reform in New York State, 1980-1984, Report of the Subcommittee on Drunk Driving of the Assembly Transportation Committee; L. 1981, ch. 910, § 1 Ifft, Curbing the Drunk Driver Under the Fourth Amendment: Constitutionality of Roadblock Seizures, 71 Georgetown L.J. 1457, n. 1).

Moreover, in light of the specific procedures devised and promulgated to law enforcement personnel by the head of their department, the Sheriff, and the way in which the particular roadblock was being operated when defendant was stopped, the courts below could properly conclude that it did not intrude to an impermissible degree upon the privacy of motorists approaching the checkpoint, that it was being maintained in accordance with a uniform procedure which afforded little discretion to operating personnel, and that adequate precautions as to safety, lighting and fair warning of the existence of the checkpoint were in operation (People v. Peil, 122 Misc.2d 617, 471 N.Y.S.2d 532; State v. Deskins, 234 Kan. 529, 673 P.2d 1174; Little v. State, 300 Md. 485, 479 A.2d 903; State v. Coccomo, 177 N.J.Super 575, 427 A.2d 131; State v. Shankle, 58 Or.App. 134, 647 P.2d 959; cf. People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39, supra; State...