Richard T., In re

• Decision Date: 19 September 1986
• Citation: 229 Cal.Rptr. 884,194 Cal.App.3d 1124
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 194 Cal.App.3d 1124 194 Cal.App.3d 1124 In re RICHARD T., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. RICHARD T., Defendant and Appellant. G0002987.

Page 884

229 Cal.Rptr. 884

Previously published at 194 Cal.App.3d 1124

194 Cal.App.3d 1124

In re RICHARD T., a Person Coming Under the Juvenile Court Law.

The PEOPLE of the State of California, Plaintiff and Respondent, v. RICHARD T., Defendant and Appellant.

G0002987.

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

Sept. 19, 1986.

Review Granted Dec. 18, 1986.

Opinion ordered citable pending further order of court Dec. 19, 1986.

Ronald Y. Butler, Public Defender (Orange), Carl C. Holmes and Frank Scanlon, Asst. Public Defenders, Lindsey Fenimore, Sharon Petrosino and Mark A. Rakich, Deputy Public Defenders, Santa Ana, for defendant and appellant.

ACLU Foundation of Southern California, Paul Hoffman, Mark D. Rosenbaum and Joan Howarth, Los Angeles, as amici curiae on behalf of defendant and appellant.

Amitai Schwartz, San Francisco, as amicus curiae on behalf of defendant and appellant.

ACLU Foundation of Northern California, Margaret C. Crosby, Alan L. Schlosser and Edward Chen, San Francisco, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., John W. Carney and Jay M. Bloom, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

Ira Reiner, Dist. Atty., Los Angeles, Harry B. Sondheim and Richard Sullivan, Deputy Dist. Attys., Los Angeles, as amici curiae on behalf of plaintiff and respondent.

CROSBY, Associate Justice.

Are warrantless temporary roadblocks established to combat drunk driving lawful? No.

I

Richard T. was arrested in the early morning hours of New Years Day, 1985, after he was stopped in a so-called "sobriety checkpoint" in the City of Anaheim. He moved to suppress the evidence against him, all of which was alleged to be the product of an illegal detention. He argued the officers had no particularized suspicion sufficient to stop his vehicle, no exception to the warrant requirement of the Fourth Amendment for sobriety checkpoints exists, and the establishment of the checkpoints is not authorized by statute.

Anaheim Police Sergeant Ronald Lovejoy was charged with the development and operation of the checkpoints in that city for the 1985 holiday season. In preparation for this assignment he observed the Riverside Police Department operate its own checkpoint and read several publications on the subject, including a recent opinion of the Attorney General (67 Ops.Cal.Atty.Gen. 471 (1984) ). That opinion was given in response to an inquiry from the Commissioner of the California Highway Patrol and has been, apparently, along with certain language appearing in the United States Supreme Court's Delaware v. Prouse (1979) 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 decision, the inspiration for the recent roadblock revival in this state.

As a result of his study, Lovejoy and several other officers developed a set of procedures to be followed called the "Anaheim Sobriety Checkpoint Guidelines." This document, a press release announcing the holiday checkpoints, and a later police memorandum summarizing the cost and effectiveness of the operation were received in evidence.

Lovejoy described the purposes of the checkpoints as education and deterrence, to make the public more aware of the dangers of drinking and driving and to specifically discourage it, particularly in Anaheim. The checkpoints, consequently, were widely publicized, although their locations were not disclosed.

Richard T. was ensnared in a checkpoint on Knott Boulevard near Lincoln. The geographical selection was based on the high relative incidence of fatal accidents and arrests for driving under the influence of alcohol in that area.

The operational procedure described in the guidelines provided for all vehicles to be diverted into two lanes where they were halted at stop signs and the drivers questioned briefly concerning the origin and destination of their journey. The officers were to scrutinize the operators for signs of intoxication and the interiors of the vehicles for evidence of ingestion of alcohol. This was yclept the primary checkpoint. A motorist displaying symptoms would be taken to the secondary checkpoint for field sobriety tests. Although Lovejoy stated a driver who failed to roll down his window at the request of an officer was to be simply waved on, the officer who confronted Richard T. testified such noncooperation would result in backup officers being sent to stop the recalcitrant subject.

This particular checkpoint was operated from 9 p.m. on December 31, 1984, to 3:30 a.m. on January 1, 1985. Between 9 and 11 p.m. every other vehicle was stopped for processing at the primary checkpoint; after 11 p.m. they all were because, according to Lovejoy, the percentage of intoxicated drivers increases as the hour grows later. If traffic had become too congested, he would have returned to the system used earlier, however.

Lovejoy testified the time of each encounter at the primary checkpoint was about 20.3 seconds, although the average motorist also had to wait some 90 seconds behind other vehicles. On the evening of this minor's arrest, nineteen persons were apprehended for driving under the influence at the checkpoint. There were 6,934 contacts and 44 arrests for that offense in the one-week period the program was in effect. The cost to the city was $10,931, plus the use of thirteen officers in a sector usually patrolled by five.

The officer who encountered Richard T. testified he smelled the odor of alcohol and asked the minor from whence he had come. In an honest but damning response, he replied, "From a party." He was escorted to the secondary checkpoint where he failed a field sobriety test and was arrested. The minor's motion to suppress was denied, and the petition was sustained after the case was submitted by stipulation on the blood alcohol result (0.12% w/v) and the police report.

II

In the words of our Supreme Court, "[t]he drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation." (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262, 198 Cal.Rptr. 145, 673 P.2d 732, cert. den. (1984) 466 U.S. 967, 104 S.Ct. 2337, 80 L.Ed.2d 812.) The court noted in the years 1976 to 1980 many more Californians were injured in alcohol related accidents than members of the whole Union Army during the Civil War and more were killed than in the deadliest year of the Vietnam War. (Ibid.) The United States Supreme Court has spoken on the subject in similar terms: "The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield." (Breithaupt v. Abram (1957) 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448.)

Nevertheless, the ardor of Californians for the unfettered use of the open road finds protection in both the state and federal Constitutions. The stop and detention of a citizen or a vehicle and its occupants is a "seizure" within the meaning of the Fourth Amendment (Delaware v. Prouse, supra, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660) and article I, section 13 of the California Constitution. (Formerly art. I, § 19; see People v. Triggs (1973) 8 Cal.3d 884, 891-892, fn. 5, 106 Cal.Rptr. 408, 506 P.2d 232, disapproved on another point in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 1, 150 Cal.Rptr. 910, 587 P.2d 706.)

Consequently, a vehicle stop is constitutionally permissible only if an appropriate search or arrest warrant has first been obtained or if one of four recognized exceptions to the warrant requirement exists: ¹ consent; exigent circumstances; reasonable suspicion of wrongdoing; or when carried out at fixed locations, such as border immigration checkpoints, weigh stations, and airport metal detector checkpoints. (Ybarra v. Illinois (1979) 444 U.S. 85, 96, fn. 11, 100 S.Ct. 338, 344, fn. 11, 62 L.Ed.2d 238; Brown v. Texas (1979) 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357; United States v. Martinez-Fuerte (1976) 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116; United States v. Brignoni-Ponce (1975) 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607; People v. Loewen (1983) 35 Cal.3d 117, 196 Cal.Rptr. 846, 672 P.2d 436; In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957; People v. Hyde (1974) 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830.) The United States Supreme Court has specifically rejected a fifth possible exception, roving regulatory vehicle stops (Delaware v. Prouse, supra; Almeida-Sanchez v. United States (1973) 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596), and has yet to directly consider the impact of the type of vehicle stop involved in this case, temporary roadblocks.

Does the Anaheim sobriety checkpoint, operated without benefit of a warrant, fit one of the recognized exceptions? We quickly eliminate the first three possibilities: There is no claim Richard T. consented to the stop of his vehicle or the detention of his person. The Legislature has created an implied consent law in the context of blood alcohol testing for motorists arrested for drunk driving (Veh.Code, §§ 13353 et seq., 23157), but California has no law implying submission to sobriety checkpoints by the mere act of driving. ² And a statute so providing would be of dubious constitutionality. (See Delaware v. Prouse, supra, 440 U.S. at p. 662, 99 S.Ct. at 1400 and People v. Hyde, supra, 12 Cal.3d at p. 162, fn. 2, 115 Cal.Rptr. 358, 524 P.2d 830.)

Similarly, there is no claim that Richard T. was stopped based on any particularized, reasonable suspicion or that exigent circumstances, at least as traditionally understood, were involved. (See, e.g., Tamborino v. Superior Court (1986) 41 Cal.3d 919, 226 Cal.Rptr. 868, 719 P.2d 242; compare People v. Glover (1979) 93 Cal.App.3d 376, 155 Cal.Rptr. 592 and United States v. Williams (D.S.D.1974) 372 F.Supp. 65.) Nor do we believe the menace of drunk driving conjures up a special emergency comparable to the danger of an airliner hijacking,...