Sitz v. Department of State Police, Docket No. 131032

Decision Date20 April 1992
Docket NumberDocket No. 131032
Parties, 60 USLW 2762 Rick SITZ, et al., Plaintiffs-Appellees, v. DEPARTMENT OF STATE POLICE, et al., Defendants-Appellants. (On Remand)
CourtCourt of Appeal of Michigan — District of US

Mark Granzotto, Deborah L. Gordon, and William Gage, Detroit, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Thomas L. Casey, Asst. Sol. Gen., for defendants-appellants.

Pepper, Hamilton & Scheetz by Abraham Singer, Detroit, and Roger Conner and Robert Teir, Washington, D.C., amici curiae, for American Alliance for Rights and Responsibilities and Dr. C. Everett Koop.

Rizik & Zintsmaster, P.C. by Michael B. Rizik, Jr., Flint, amici curiae, for Mothers Against Drunk Driving Michigan.

Before GRIBBS, P.J., and HOLBROOK and McDONALD, JJ.

McDONALD, Judge.

This case has been remanded by the United States Supreme Court for further proceedings not inconsistent with Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). This Court previously affirmed the trial court's decision and held that Michigan's sobriety-checkpoint program violated the Fourth Amendment of the United States Constitution and therefore Const.1963, art. 1, Sec. 11. Sitz v. Dep't of State Police, 170 Mich.App. 433, 429 N.W.2d 180 (1988), lv. den. 432 Mich. 872 (1989), rev'd 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). The United States Supreme Court reversed our decision and held a state's use of highway sobriety checkpoints does not violate the Fourth and Fourteenth Amendments of the United States Constitution. Sitz, 496 U.S. at 447, 110 S.Ct. at 2483, 110 L.Ed.2d at 418. At issue here is whether sobriety checkpoints, while permitted by the United States Constitution, nevertheless violate the Michigan Constitution. We hold that they do.

The facts from which this search and seizure question arises are not in dispute. 1 On May 17 and 18, 1986, the Saginaw County Sheriff's Department conducted a sobriety-checkpoint operation in Saginaw County. Nineteen officers were present at the checkpoint. During the approximately one-hour operation, 126 vehicles passed through the checkpoint. All vehicles were stopped and the drivers briefly examined for signs of intoxication. Two drivers were retained for sobriety field tests, only one was arrested for driving under the influence of alcohol. A third driver, who drove through the checkpoint without stopping, was also arrested for driving while under the influence of alcohol.

Thereafter, plaintiffs filed an action for declaratory judgment and injunctive relief. Defendants agreed to delay implementation of the sobriety-checkpoint program pending resolution of this case. Following trial, the trial court issued a sixty-page written opinion finding the sobriety checkpoint violated the Fourth Amendment of the United States Constitution. In reaching this conclusion, the court applied a balancing test derived from Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640-2641, 61 L.Ed.2d 357 (1979). The trial court also concluded, on the basis of state law precedent, that the checkpoint violated art. 1, Sec. 11 of the Michigan Constitution.

On appeal, this Court affirmed, finding no basis for disturbing the trial court's findings. Sitz, 170 Mich.App. at 444, 429 N.W.2d 180. In our previous opinion, we agreed with the trial court that, although there is a grave and legitimate state interest in curbing drunk driving, the sobriety-checkpoint program did not significantly further that interest and subjectively intruded on individual liberties. Id. at 439, 429 N.W.2d 180. Thus, the use of the checkpoint was found to violate the Fourth Amendment of the United States Constitution. Because the Michigan Constitution offers at least the same protection as the federal constitution, the trial court's finding that the use of the checkpoint violated the Michigan Constitution was also affirmed and the question whether art. 1, Sec. 11 offers greater protection than the Fourth Amendment to the federal constitution was not decided. Id. at 445, 429 N.W.2d 180.

In its opinion, the United States Supreme Court held the trial court and this Court properly found the Brown balancing test the appropriate measure to determine whether the checkpoint violated the federal Constitution. 2 In cases involving seizures less intrusive than traditional arrests, the Brown balancing test calls for a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interests, and the severity of the interference with individual liberty. Brown, supra. In applying this test, the trial court concluded that, although the problems caused by drunk driving are of great public concern, sobriety checkpoints fail to effectively advance the public interest of combating the problems. The evidence at trial indicated checkpoints generally result in a very low arrest rate and therefore have a questionable deterrent value. Moreover, we note the lack of information provided regarding the arrest rate that would likely have resulted from use of the numerous officers present at the checkpoint in more traditional forms of law enforcement aimed at apprehending drunk drivers. 3 In addition to finding the checkpoints only minimally effective in curbing drunk driving, the trial court found the overall intrusiveness of the roadblocks to the citizens to be great. Although the objective intrusion was deemed slight because of the brief length of the actual stop, 4 the subjective intrusiveness was found to be substantial. Because the program calls for temporary, rather than permanent, checkpoints, and the purpose is to search for violators of the criminal law, the court found a high potential for generating fear and surprise in the motorists. 5

Thus, given the low degree to which the checkpoint advanced the public interest in curbing drunk driving and the severity of the interference with individual liberty, the trial court found the checkpoint program violative of the Fourth Amendment of the federal constitution. As already noted, this Court previously affirmed the decision of the trial court, finding no basis upon which to set aside the court's findings and conclusions. If now writing on a clean slate, we would again agree with the findings of the trial court. However, the Supreme Court has ruled that improper consideration and weight was given the Brown factors in such a manner that we erred in concluding the use of the checkpoint violated the Fourth and Fourteenth Amendments of the United States Constitution. The federal constitutionality of the checkpoint settled, we must now determine whether the checkpoint program, although found permissible under the federal constitution, is violative of art. 1, Sec. 11 of the Michigan Constitution. In other words, whether the Michigan Constitution affords its citizens greater rights than those provided by the federal constitution.

Generally, the Michigan Constitution is construed to afford the same rights as those given by the federal constitution. However, where there is compelling reason to do so, the Michigan Constitution may be construed in a manner that results in greater rights than those afforded by the federal constitution. People v. Nash, 418 Mich. 196, 341 N.W.2d 439 (1983); People v. Collins, 438 Mich. 8, 475 N.W.2d 684 (1991).

In determining whether compelling reasons exist, several factors may be considered, including any significant textual differences in parallel provisions of the federal and state constitutions, state constitutional and common-law history, and state law preexisting the constitutional provision. Moreover, as our Supreme Court stated in Collins, supra, the beginning of the consideration should be the application of the fundamental principle of constitutional construction to determine the intent of the framers of the constitution and of the people adopting it. Id., at 32, 475 N.W.2d 684.

We do not believe the framers of our constitution or the people adopting it intended that art. 1, Sec. 11 permit suspicionless seizures of persons under the circumstances presented in this case. Before the United States Supreme Court's decision in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), and thus at the time art. 1, Sec. 11 was first adopted, federal case law generally required the government to prove that it had reasonable suspicion for minimally intrusive seizures to be considered reasonable. Martinez-Fuerte was the first and, until this suit, the only case wherein the Supreme Court upheld a program that subjects the general public to suspicionless seizures. 496 U.S. at 457, 110 S.Ct. at 2489, 110 L.Ed.2d at 425 (Brennan, J., dissenting). Federal case law is replete with condemnation of suspicionless random stops of motorists for investigatory purposes. See, generally, Delaware v Prouse, 440 U.S. 648, 99 S.Ct. 1391; 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); Almeida-Sanchez v. United States, 413 U.S. 266; 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).

Likewise, a review of Michigan case law regarding the issue of warrantless stops of vehicles reveals Michigan's longstanding adherence to the principle that an officer may not indiscriminately stop an automobile absent some reasonable grounds of suspicion that criminal activity is afoot. People v. Kamhout, 227 Mich. 172, 198 N.W. 831 (1924); People v. Roache, 237 Mich. 215, 211 N.W. 742 (1927). More recently, in People v. Whalen, 390 Mich. 672, 682, 213 N.W.2d 116 (1973), the Supreme Court established rules with respect to the stopping, searching, and seizing of motor vehicles and their contents:

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