People v. Squire

• Decision Date: 06 May 1993
• Docket Number: No. E012047,E012047
• Citation: 19 Cal.Rptr.2d 121,15 Cal.App.4th 775
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Clinton B. SQUIRE, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 121

19 Cal.Rptr.2d 121

15 Cal.App.4th 775

PEOPLE of the State of California, Plaintiff and Appellant, v. Clinton B. SQUIRE, Defendant and Respondent.

No. E012047.

Court of Appeal, Fourth District, Division 2, California.

May 6, 1993.

[15 Cal.App.4th 776] Grover C. Trask II, Dist. Atty. and Gary B. Tranbarger, Supervising Deputy Dist. Atty., for plaintiff and appellant.

Gerald D. Polis, Riverside, for defendant and respondent.

OPINION

McKINSTER, Associate Justice.

Pursuant to California Rules of Court, rule 62 et seq., we accepted a transfer of this case from the Appellate Department of the Riverside Superior Court. The sole issue presented by this appeal is the adequacy of the advance publicity of a sobriety checkpoint. The trial court found there was insufficient advance publicity for the checkpoint, and consequently, it granted a motion brought pursuant to Penal Code section 1538.5 suppressing all evidence seized after the defendant was detained in it. The district attorney appealed to the appellate department which reversed the trial court. The defendant then petitioned for a rehearing or in the alternative for certification to this court. We agree the lower court erred in granting the motion to suppress and reverse.

FACTS

During the Labor Day weekend on Friday, August 30, 1991, around 7:30 p.m. the defendant was driving his car on city streets when he entered a sobriety checkpoint being operated on Van Buren north of Philbin. A Riverside city policeman observed the defendant displaying objective signs of intoxication. An investigation ensued which led to the arrest of the defendant for a violation of Vehicle Code section 23152(a) and (b). He later gave a breath sample that measured a .08 percent blood alcohol level.

In municipal court the defendant brought a motion pursuant to Penal Code section 1538.5 to suppress all evidence seized after the defendant entered the checkpoint based solely on the insufficiency of the advance publicity of the checkpoint. An evidentiary hearing was held on that issue.

At that hearing Detective James Cannon testified that he was the public information officer. On August 28, 1991, he prepared a press release announcing a sobriety checkpoint to be conducted on August 30, 1991, and placed it in the public information area at the front counter of the police department. Cannon contacted the three major television networks by telephone advising them of the particulars of the checkpoint. Additionally, Cannon contacted the Press-Enterprise, a morning daily newspaper of county-wide circulation, El Contacto, a local Hispanic newspaper, and the Black Voice, a local African-American newspaper.

Detective Cannon testified that to his knowledge the only publicity his efforts actually garnered was an article that appeared in the Press-Enterprise on the morning of August 30, 1991. ¹

The court took the motion to suppress under submission and later granted the motion in a written decision. It found that the single article published on the date the checkpoint was instituted did not constitute substantial notice, and therefore, the checkpoint was not constitutionally valid. The court stated that for advance notice to the public to be valid "[t]here must be a substantial likelihood that a majority of the public will become aware of the pending checkpoint...." A day later the court dismissed all charges against the defendant.

DISCUSSION

In Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 241 Cal.Rptr. 42, 743 P.2d 1299, the Supreme Court found the use of sobriety checkpoints did not violate the state or federal constitutions. The court found that such checkpoints were not criminal investigations, but rather they serve the regulatory function of "keeping intoxicated drivers off the highways to the end of advancing public safety." (Id., at p. 1335, 241 Cal.Rptr. 42, 743 P.2d 1299.) In reaching its conclusion that checkpoint detentions meet the standard of reasonableness under both constitutions the court used the balancing test enunciated in Brown v. Texas (1979) 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357. That test determines the lawfulness of a detention or seizure by balancing the public interest served by the seizure, the degree to which the seizure advances that public interest, and the severity of the interference with individual liberty. (Id., at pp., 50-51, 99 S.Ct. at 2640-41.)

In Ingersoll v. Palmer, supra, 43 Cal.3d 1321 at p. 1341, 241 Cal.Rptr. 42, 743 P.2d 1299 the court considered cases from other jurisdictions bearing on the severity of interference with individual liberty, the third balancing factor of Brown v. Texas, supra, 443 U.S. 47, 99 S.Ct. 2637, and synthesized from them standards which provide eight "functional guidelines for minimizing the intrusiveness of sobriety checkpoint stops." ² The eighth functional guideline, advance publicity, is the only one at issue in the present appeal.

"Advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock." (Ingersoll v. Palmer, supra, 43 Cal.3d at p. 1346, 241 Cal.Rptr. 42, 743 P.2d 1299.) Having said that, the court is then silent regarding the nature and scope of publicity necessary to satisfy the advance publicity guideline. It provided no specific guidance concerning what would constitute adequate advance publicity nor do any subsequent cases address the issue. Nothing is mentioned regarding how far in advance publicity should occur, its duration of time, or over what geographic area the publicity should be disseminated. The opinion is also silent regarding what medium or combination of media would be adequate. (E.g., leaflets, press releases, placement of billboards or other temporary signs in the general area of the checkpoint before it is operated, posting of notice in the courthouse lobby, print media, radio and television.)

California is a pluralistic society. Is advance publicity in English alone sufficient or should there also be publicity in Spanish or some other language where there is a substantial community of non-English speaking people living in the general area of the checkpoint? Again, Ingersoll is silent.

An interesting unanswered question raised by the decision in Ingersoll v. Palmer, supra, 43 Cal.3d 1321, 241 Cal.Rptr. 42, 743 P.2d 1299 is whether the eight "guidelines" are in fact merely directory guidelines or factors to be considered and weighed in determining the constitutionality of a checkpoint or whether they are mandatory prerequisites to a constitutionally valid checkpoint. The Ingersoll court stated, "Advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint." (Id., at p. 1346, 241 Cal.Rptr. 42, 743 P.2d 1299, emphasis added.) This suggests it is a mandatory requirement. However, in its discussion of publicity at page 1346, 241 Cal.Rptr. 42, 743 P.2d 1299, the court stated that publicity helps to establish in the minds of motorists the legitimacy of sobriety checkpoints and cited Jones v. State (Fla.Dist.Ct.App.1984) 459 So.2d 1068, at pages 1079-1080, a case which states advance publicity may not be a constitutional requirement for all sobriety checkpoints. The Jones court observed that advance publicity reduced surprise, fear, and inconvenience, and the Ingersoll court found that observation consistent with finding reasonableness under the Fourth Amendment. (Ingersoll v. Palmer, supra, 43 Cal.3d at pp. 1346-1347, 241 Cal.Rptr. 42, 743 P.2d 1299.)

In People v. Morgan (1990) 221 Cal.App.3d Supp. 1, 270 Cal.Rptr. 597, the only California case on the issue of advance publicity, the police agency sent a notice to the Bay City News and made a phone call to it 24 to 48 hours before the checkpoint was to be established, but there was no actual publicity generated. The People there contended that advance publicity was not a prerequisite to a constitutionally valid checkpoint but merely one of several guidelines offered by Ingersoll v. Palmer, supra, 43 Cal.3d 1321, at pp. 1341-1347, 241 Cal.Rptr. 42, 743 P.2d 1299, to ensure a balance between the governmental and individual interests involved.

The Morgan court acknowledged that "[I]ngersoll does not expressly state that police departments must strictly apply each of the eight factors. [p ] Nevertheless, from the standpoint of the ultimate purpose and legal theory supporting administrative motorist detentions, we hold that advance warning and publicity of sobriety checkpoints is essential if such checkpoints are to serve as an effective deterrent, because it may be impossible to deter an uninformed public. Ingersoll's requirement of 'substantial advance publicity' means that checkpoint authorities must do more than simply inform the press about their plan to operate a checkpoint. To be constitutionally permissible, the press relations strategy implemented by the authorities must actually generate 'substantial publicity.' " (Id., at p. 4, 270 Cal.Rptr. 597.)

The People contend that People v. Morgan, supra, 221 Cal.App.3d Supp. 1, 270 Cal.Rptr. 597 is wrongly decided. Ingersoll v. Palmer, supra, 43 Cal.3d 1321, 241 Cal.Rptr. 42, 743 P.2d 1299 does not expressly require that there be "substantial advance publicity." Ingersoll only stated that "advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint." (Id., at p. 1346, 241 Cal.Rptr. 42, 743 P.2d 1299.) The court then commented that the record then before it showed "substantial advance publicity" in fact accompanied the operation of the checkpoints. (Id., at p. 1347, 241 Cal.Rptr. 42, 743 P.2d 1299.)

It is also clear that the Morgan court went significantly beyond the express holding in Ingersoll, as it readily admitted, in holding that advance publicity was not just a guideline but an essential prerequisite since the validity of sobriety...