Riche v. Director of Revenue

• Decision Date: 23 February 1999
• Docket Number: No. 80861,80861
• Citation: 987 S.W.2d 331
• Parties: George RICHE, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Supreme Court

Page 331

987 S.W.2d 331

George RICHE, Appellant, v. DIRECTOR OF REVENUE, Respondent.

No. 80861.

Supreme Court of Missouri,

En Banc.

Feb. 23, 1999.

Rehearing Denied March 23, 1999.

Bruce B. Brown, Kearney, for Appellant.

Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for Respondent.

ANN K. COVINGTON, Judge.

The Director of Revenue suspended the driver's license of appellant George Riche pursuant to section 302.505, RSMo (Supp.1997). On direct appeal to this Court, Riche challenges the constitutionality of subsection 1 of section 302.505, which provides for administrative driver's license suspension and revocation for driving while intoxicated. Affirmed.

While driving west on Highway 116 in Clinton County, a Missouri Highway Patrol trooper twice observed a vehicle ahead of him cross over the fog line, the white line that demarcates the shoulder from the road. The trooper stopped the vehicle and approached the driver. The trooper smelled an odor of alcohol on the breath of the driver, Riche. The trooper observed that Riche's eyes were bloodshot and that his movements were slow and deliberate. The trooper asked Riche to perform several field sobriety tests, the results of which indicated that Riche was intoxicated. The trooper arrested Riche for driving while intoxicated and took him into custody. At the police station, Riche consented to a breath test. The breath test revealed that Riche had a blood alcohol concentration of .10%.

The director suspended Riche's driver's license pursuant to section 302.505.1. At a trial de novo before the circuit court, Riche challenged the suspension on the grounds that section 302.505.1 is unconstitutional. The circuit court found that the trooper did not have probable cause to stop Riche's vehicle, but concluded that the evidence gathered after the stop established probable cause to arrest Riche. The circuit court rejected Riche's constitutional challenges and upheld the suspension of Riche's driving privileges. Riche appeals.

At issue is the validity of section 302.505.1, which provides:

The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500, or where such person was less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was "driving while intoxicated" in violation of section 577.010, RSMo, or "driving with excessive blood alcohol content" in violation of section 577.012, RSMo, or upon probable cause to believe such person violated a state, county or municipal traffic offense and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight.

Seeking to have this Court rule that the circuit court should have applied the exclusionary rule to exclude evidence of intoxication gathered after the initial stop, Riche claims that the omission of a requirement for probable cause or reasonable suspicion to stop from section 302.505.1 implicitly violates the federal and Missouri constitutional provisions prohibiting unlawful searches and seizures. U.S. Const. Amends. IV and XIV; Mo. Const. art. I, sec. 15. ¹ Riche contends that, even though section 302.505.1 does not require a "probable or reasonable cause to stop" for drivers over twenty-one years of age, this Court should impose such a requirement.

It is well-established that the exclusionary rule requires that evidence obtained in violation of the fourth amendment cannot be used in a criminal proceeding against the victim of an illegal search and seizure. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The exclusionary rule was designed to deter unlawful police conduct. Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The rule applies in criminal prosecutions for driving while intoxicated. See State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995).

Whether the exclusionary rule applies in Missouri administrative driver's license revocation and suspension proceedings is an issue of first impression for this Court. Similar issues, however, have been raised in other civil proceedings. For example, in In re Littleton, 719 S.W.2d 772, 775 n. 2 (Mo. banc 1986), this Court refused to apply the exclusionary rule in an attorney discipline proceeding. Similarly, in State ex rel. Peach v. Boykins, 779 S.W.2d 236, 237 (Mo. banc 1989), this Court held that the exclusionary rule did not apply in an ouster proceeding.

Each of the three districts of the Missouri Court of Appeals has addressed the question of whether the exclusionary rule applies in driver's license suspension and revocation proceedings under section 302.505. Each has held that the exclusionary rule does not apply. Gordon v. Director of Revenue, 896 S.W.2d 737, 740 (Mo.App.1995); Sullins v. Director of Revenue, 893 S.W.2d 848, 850 (Mo.App.1995); Green v. Director of Revenue, 745 S.W.2d 818, 821 (Mo.App.1988).

Although some other jurisdictions have applied the exclusionary rule to administrative license revocation and suspension proceedings, ² a number of jurisdictions having statutory schemes similar to Missouri's have held that the exclusionary rule does not apply in administrative proceedings to suspend or revoke a driver's license. See, e.g., Powell v. Secretary of State, 614 A.2d 1303 (Me.1992); Westendorf v. Iowa Dept. of Transp., Motor Vehicle Div., 400 N.W.2d 553 (Iowa 1987); Holte v. State Highway Com'r, 436 N.W.2d 250 (N.D.1989).

The United States Supreme Court has repeatedly held that the use of evidence obtained in violation of the fourth amendment does not violate the Constitution. Pennsylvania Bd. of Probation v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 2019, 141 L.Ed.2d 344 (1998). See, e.g., United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Stone v. Powell, 428 U.S. 465, 482, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). The exclusionary rule is a judicially created means of deterring illegal searches and seizures. Scott, 524 U.S. 357, 118 S.Ct. at 2019. As such, the rule does not "proscribe the introduction of illegally seized evidence in all proceedings or against all persons." Stone, 96 S.Ct. 3037, 428 U.S. at 486. Instead, the exclusionary rule applies only in contexts "where its remedial objectives are thought most efficaciously served." Calandra, 94 S.Ct. 613, 414 U.S. at 348.

Because the exclusionary rule is prudential rather than constitutionally mandated, it will not be applied where its "substantial social costs" outweigh its deterrent benefits. Scott, 524 U.S. 357, 118 S.Ct. at 2019, quoting Leon, 468 U.S. at 907, 104 S.Ct. 3405. For example, the Court has refused to extend the exclusionary rule to parole revocation hearings, Scott, 524 U.S. 357, 118 S.Ct. at 2019, federal deportation cases, Immigration & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1035, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), and federal grand jury proceedings, Calandra, 94 S.Ct. 613, 414 U.S. at 348. In each case, the Court determined that the potential benefit of applying the exclusionary rule was outweighed by the resulting cost to societal interests.

When this Court applies the cost-benefit analysis in the context of section 302.505 proceedings, it becomes clear that applying the exclusionary rule would impose significant costs to society. Extending the exclusionary rule to section 302.505 proceedings would unnecessarily complicate and burden an administrative process designed to remove drunken drivers from Missouri's roads and highways as quickly as possible. See Scott, 524 U.S. 357, 118 S.Ct. at 2020-21; Powell, 614 A.2d at 1307. In addition, application of the exclusionary rule would preclude consideration of probative, reliable evidence and would allow many drivers to remain on the road who would otherwise lose their licenses. See Scott, 118 S.Ct. at 2020; Westendorf, 400 N.W.2d at 557.

Although the costs to societal interests have been determined to be worth bearing in criminal prosecutions, the deterrent benefits of applying the exclusionary rule in section 302.505 proceedings do not outweigh the burdens. Imposing the exclusionary rule in civil license revocation and suspension proceedings would have little force in deterring unlawful police action, because the director of revenue has no control over the actions of local police officers. See Westendorf, 400 N.W.2d at 557. Assuming that application of the exclusionary rule deters illegal searches, its use in criminal proceedings should serve to deter unlawful police action. Minimal additional deterrence to that which obtains in a criminal proceeding is gained by applying the exclusionary rule in administrative proceedings. See Scott, 524 U.S. 357, 118 S.Ct. at 2019-20; Westendorf, 400 N.W.2d at 557; Powell, 614 A.2d at 1306-7. In sum, any incremental deterrent effect that might be achieved by extending the rule to section 302.505 proceedings is uncertain at best, see Calandra, 414 U.S. at 351, 94 S.Ct. 613, and is outweighed by the benefit of using reliable evidence of blood alcohol content in license revocation and suspension proceedings even when that evidence is inadmissible in criminal proceedings.

Riche contends that a section 302.505 proceeding is a "quasi-criminal," rather than civil, proceeding. Riche relies on One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 700-02, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), a forfeiture case. In One 1958 Plymouth, the police searched the defendant's vehicle without probable cause and found several cases of alcohol that did not bear the appropriate tax seals. Police arrested the defendant and charged him with a criminal offense...