Sitz v. Department of State Police

• Decision Date: 14 September 1993
• Docket Number: Docket No. 93851,No. 5,5
• Citation: 443 Mich. 744,506 N.W.2d 209
• Parties: , 62 USLW 2215 Rick SITZ; Joseph F. Young, Sr.; Dominic J. Jacobetti; Dick Allen; Keith Muxlow and Jack Welborn, Plaintiffs-Appellees, v. DEPARTMENT OF STATE POLICE and Gerald L. Hough, Director of the Michigan Department of State Police, Defendants-Appellants. Calendar
• Court: Michigan Supreme Court

Page 209

506 N.W.2d 209

443 Mich. 744, 62 USLW 2215

Rick SITZ; Joseph F. Young, Sr.; Dominic J. Jacobetti;

Dick Allen; Keith Muxlow and Jack Welborn, Plaintiffs-Appellees, v. DEPARTMENT OF STATE POLICE and Gerald L. Hough, Director of

the Michigan Department of State Police,

Defendants-Appellants.

Docket No. 93851.

Calendar No. 5.

Supreme Court of Michigan.

Argued March 2, 1993.

Decided Sept. 14, 1993.

Mark Granzotto, Detroit, Deborah L. Gordon, Royal Oak, William C. Gage, Detroit, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Lansing, for defendants-appellants.

Varnum Riddering Schmidt & Howlett, by Joseph J. Vogan, Grand Rapids, Michele McDowell Fields, Stephen L. Oesch, Arlington, VA, for amici curiae.

Rizik & Rizik, P.C. by Michael B. Rizik, Jr., Flint, amicus curiae for MADD Michigan.

John R. Minock, Ann Arbor, for amicus Criminal Defense Attorneys of Michigan.

Abraham Singer, Pepper, Hamilton & Scheetz, Detroit, Robert Teir, American Alliance for Rights and Responsibilities, Washington, DC, for amicus curiae.

Opinion

BOYLE, Justice.

The case before us concerns a challenge to the use of sobriety checkpoints by the Michigan State Police. The United States Supreme Court held that the checkpoint scheme does not constitute a violation of the Fourth Amendment of the United States Constitution. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). On remand from that Court, a two-judge majority of the Michigan Court of Appeals determined that sobriety checkpoints violate art. 1, § 11 of the Michigan Constitution. Because there is no support in the constitutional history of Michigan for the proposition that the police may engage in warrantless and suspicionless seizures of automobiles for the purpose of enforcing the criminal law, we hold that sobriety checklanes violate art. 1, § 11 of the Michigan Constitution.

I

The following facts in this case are undisputed and are set forth in the Court of Appeals opinion, 170 Mich.App. 433, 435-437, 429 N.W.2d 180 (1988):

1982 PA 310 established the Michigan Drunk Driving Task Force in the Department of State Police, MCL 257.625j; MSA 9.2325(10). The Task Force was charged with reviewing all aspects of the drunk driving problem in the state. In September, 1985, the Task Force submitted its final report which set forth thirty-five recommendations for combating alcohol-related traffic accidents. One suggestion was the implementation of sobriety checkpoints on public highways. Due to legislative opposition, defendants did not attempt to implement sobriety checkpoints at that time.

In his State of the State Address on January 29, 1986, Governor Blanchard directed defendants to implement a sobriety checkpoint pilot program. In February, 1986, defendant Gerald L. Hough, Director of the Michigan Department of State Police, appointed a Sobriety Checkpoint Advisory Committee, composed of representatives of the State Police, local law enforcement officials, prosecuting attorneys, and the University of Michigan Transportation Research Institute. The committee drafted guidelines for the program. The guidelines set forth procedures as to site selection, publicity, and operation of the checkpoint, including briefing, scheduling, safety considerations, motorist contact, staffing and assignment of duties.

Under the program, checkpoints would be established at certain sites along state highways. All motorists would be stopped upon reaching a checkpoint and would be examined for signs of intoxication. Should the examining officer find indications of intoxication, the officer would direct the driver to an out-of-traffic location, check the driver's license and car registration, and possibly conduct further sobriety tests, including a Breathalyzer test. If the officer concluded that the driver was intoxicated, the officer would have discretion to arrest the driver; should the officer conclude the driver was not intoxicated, the driver was to be released.

The first sobriety checkpoint operation was conducted at Dixie Highway and Gretchen Road in Saginaw County on May 17 and 18, 1986. The Saginaw County Sheriff's Department cooperated in the operation which lasted from about 11:45 p.m. to 1:00 a.m. One hundred twenty-six vehicles passed though the checkpoint in that time, with an average delay to motorists of twenty-five seconds or less. Two drivers were retained for sobriety field tests; one was arrested for driving while under the influence of alcohol. A third driver drove through the checkpoint without stopping, was pulled over by an officer in an observation vehicle, and was arrested for driving under the influence.

This action was commenced on May 16, 1986, with the filing of plaintiffs' complaint for a declaratory judgment and injunctive relief. Plaintiffs are licensed drivers of the State of Michigan who regularly travel throughout the state in their automobiles. During the course of the initial proceedings, defendants agreed to delay implementation of the sobriety checkpoint program pending resolution of the case.

Trial took place from May 29, 1986, through June 3, 1986. In its opinion dated June 24, 1986, the trial court found that, although there was statutory authority for the operation of the sobriety checkpoints, the plan violated the Fourth Amendment to the United States Constitution and art 1, § 11 of the Michigan Constitution.

On August 1, 1988, the Court of Appeals unanimously affirmed the trial court's ruling that the sobriety checkpoints violated the Fourth Amendment, finding it unnecessary to decide if the state constitution offered greater protection.

Following a denial of leave to appeal to this Court, 432 Mich. 872 (1989), the defendants appealed to the United States Supreme Court, which granted certiorari. The United States Supreme Court reversed the decision of the Court of Appeals, finding that the Michigan sobriety checkpoint program did not violate the Fourth Amendment of the United States Constitution. ¹ On remand, the Court of Appeals held that "the indiscriminate suspicionless stopping of motor vehicles in the form of roving roadblocks violat[es] art 1, § 11 of the Michigan Constitution." 193 Mich.App. 690, 699, 485 N.W.2d 135 (1992). This Court granted leave to appeal, 441 Mich. 869 (1992).

II

At the outset, we note, as did the United States Supreme Court, that this case involves a facial challenge to the constitutionality of the checkpoint program:

It is important to recognize what our inquiry is not about. No allegations are before us of unreasonable treatment of any person after an actual detention at a particular checkpoint. See Martinez-Fuerte, 428 U.S. 559 [96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) ] ("claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review"). As pursued in the lower courts, the instant action challenges only the use of sobriety checkpoints generally. We address only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers. Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard. [Sitz, 496 U.S. at 450-451, 110 S.Ct. at 2485. (Emphasis in the original.) ]

Because the United States Supreme Court established that Michigan's sobriety checkpoints do not violate the Fourth Amendment of the United States Constitution, the specific question presented in this case is whether sobriety checkpoints are unreasonable under art. 1, § 11 of the Michigan Constitution. Before addressing this issue, we must first address the more fundamental question, how we interpret the Michigan Constitution.

A

During the decade of United States Supreme Court jurisprudence "commonly characterized as the 'criminal law revolution of the Warren Court,' " the Supreme Court "rapidly extend[ed] the reach of various constitutional provisions applicable to the criminal justice process...." 1 LaFave & Israel, Criminal Procedure, § 2.1, p. 56 and n. 1. Subsequent decisions of the Burger Court were characterized by some commentators as pulling back from, suspending, or weakening the scope of constitutional protections, including the specific guarantees of the Bill of Rights. In 1977, Justice William J. Brennan, the "patron saint of the revival of interest in state constitutional law," ² commented on the "trend" in a landmark article, urging state activism in interpretation of state law:

[T]he very premise of the cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach. With the federal locus of our double protections weakened, our liberties cannot survive if the states betray the trust the Court has put in them. And if the trust is, for the Court, strong enough to override the risk that some states may not live up to it, how much more strongly should we trust state courts whose manifest purpose is to expand constitutional protections. With federal scrutiny diminished, state courts must respond by increasing their own. [Brennan, State constitutions and the protection of individual rights, 90 Harv.L.R. 489, 503 (1977).]

The movement Justice Brennan heralded and strengthened with his article came to be called "New Federalism." One commentator has noted:

Today's New Federalism movement has its roots in two phenomena. The first is the liberal reaction in the mid-1970s to the jurisprudence of the Burger Court. As the Burger Court slowed the expansion of constitutionally protected individual rights begun by the Warren Court, many liberals began to look to state courts to take up the Warren Court's legacy in the form of rights-protective state constitutional rulings. The second phenomenon is a much older and sparser tradition of criticizing state courts for ignoring state...