State v. Bates

• Decision Date: 27 June 1995
• Docket Number: No. 15519,15519
• Citation: 902 P.2d 1060,120 N.M. 457,1995 NMCA 80
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jack BATES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1060

902 P.2d 1060

120 N.M. 457

STATE of New Mexico, Plaintiff-Appellee, v. Jack BATES, Defendant-Appellant.

No. 15519.

Court of Appeals of New Mexico.

June 27, 1995.

Certiorari Denied Sept. 1, 1995.

[120 N.M. 459] Tom Udall, Attorney General and M. Anne Wood, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Todd Hotchkiss, Timothy M. Padilla & Associates, P.C. and John W. Higgins, Higgins, Mescall & Lee, Albuquerque, for Defendant-Appellant.

OPINION

WECHSLER, Judge.

Defendant appeals his conviction for driving while intoxicated (DWI). He contends that the roadblock at which he was detained violated prohibitions of both the New Mexico and the United States Constitutions against unreasonable searches and seizures. We hold that the roadblock was not an unreasonable search and seizure and, therefore, affirm.

Facts

Approximately two weeks before the Fourth of July weekend in 1993, Sergeant Karl Offner of the Albuquerque Police Department requested authorization from his superiors to set up a DWI checkpoint. Offner presented the proposal to his superiors explaining his purpose in establishing the roadblock and his reasons for choosing the proposed location. Offner noted that he had been told by the deputy police chief that a checkpoint was needed and Offner had been requested to make a proposal for one. Since the primary purpose for DWI roadblocks is to deter drunk driving, Offner based the particular location of the checkpoint on traffic studies showing a number of alcohol-related accidents in the vicinity. Offner's request was approved by his lieutenant, captain, and the deputy chief of police on June 25, 1993.

Police officers set up the roadblock at the intersection of Eubank Boulevard and Chico Street in Albuquerque to stop southbound traffic on Eubank. They planned to maintain the roadblock from 11:00 p.m. on Friday, July 2, 1993, until 3:00 a.m. on July 3, 1993. The checkpoint involved Batmobiles, a large transport van, and a series of warning signs. It also included marked Albuquerque police cars as well as signs indicating an "APD checkpoint." There was a lighted area set aside for field sobriety testing. The checkpoint was visible to oncoming traffic from four-tenths of a mile away. Those who wanted to avoid the checkpoint could go through a Burger King parking lot and exit onto Copper Avenue.

The officers at the scene wore APD uniforms, badges, and fluorescent jackets with "Police" written on them. The officers were instructed to stop every vehicle and treat each driver in the same manner, asking for the driver's license, registration, and proof of insurance. Supervisors told the officers to limit the initial contact with a driver to one minute. If, at any time, vehicles had to wait longer than four minutes, the officers were told to allow all traffic to proceed through the roadblock for five minutes or until the backup cleared. However, no backup ever occurred necessitating such a procedure.

After the checkpoint was approved, Offner sent a news release advising the media of the checkpoint. The release identified the location of the checkpoint, even though routine media practice, at APD's request, is for the media not to inform the public of the exact location of a checkpoint. Some of the media erroneously reported that the checkpoint would be located in the southeast quadrant of the city, while others simply stated that there would be stepped-up DWI checkpoints and other efforts to deter drunk driving during the holiday weekend.

Discussion

I. DWI Roadblocks Do Not Require a Warrant

Relying on State v. Gutierrez, 116 N.M. 431, 863 P.2d 1052 (1993), and Campos v. State, 117 N.M. 155, 870 P.2d 117 (1994), Defendant argues that the New Mexico Constitution, Article II, Section 10 (Repl.Pamp.1992), and current case law interpreting our constitution require that a roadblock be supported by a search warrant. We do not believe that either Gutierrez or Campos requires us to change our case law regarding DWI roadblocks. That law is governed by City of Las Cruces v. Betancourt, 105 N.M. 655, 735 P.2d 1161 (Ct.App.), cert. denied, 105 N.M. 618, 735 P.2d 535 (1987). See also State v. Goss, 111 N.M. 530, 532, 807 P.2d 228, 230 (Ct.App.), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991). Betancourt held that a DWI roadblock, at which drivers are stopped without probable cause or reasonable suspicion, is not a per se violation of the Fourth Amendment to the United States Constitution; the constitutionality of the roadblock depends on whether it is reasonable. Id. at 657, 735 P.2d at 1163. Betancourt did not discuss whether a warrant is required for a roadblock.

Gutierrez was concerned with the execution of an invalid search warrant in a situation that required a warrant authorizing a no-knock entry into a residence. Id. at 432, 863 P.2d at 1053. The Gutierrez Court stated that "[p]robable cause serves as the justification for mobilizing police action. Once probable cause has been determined by a detached and neutral judicial officer, the executing officers' right to [seize and search] matures.... The constitutional requirement of reasonableness governs the conduct of the search[.]" Id. at 434-35, 863 P.2d at 1055-56. Defendant argues that the reasonableness requirement of a roadblock goes only to the conduct of the roadblock and that the constitutional requirement for probable cause, which is met by a search warrant, is not addressed in our roadblock cases. As we explain below, however, we believe that the reasonableness requirement of our roadblock cases serves to satisfy both the justification and conduct prongs of Gutierrez.

Campos dealt with whether probable cause alone was enough for a valid, warrantless arrest of a suspect in a moving motor vehicle. Campos, 117 N.M. at 156, 870 P.2d at 118. Our Supreme Court held that if probable cause is present and there are exigencies preventing the police officer from obtaining a warrant, then it would be reasonable to seize a suspect without a warrant. Id. at 159, 870 P.2d at 121. Without those exigencies, it is unreasonable to arrest without a warrant. Id. The opinion in Campos is based on what is reasonable, as are the opinions in other cases dealing with searches and seizures.

Although there is no question that a roadblock is a seizure, a roadblock does not require reasonable suspicion or probable cause with respect to a particular motorist. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990); State v. Bolton, 111 N.M. 28, 32, 801 P.2d 98, 102 (Ct.App.), cert. denied, 111 N.M. 16, 801 P.2d 86 (1990). Rather, a roadblock must be reasonable. "The reasonableness of a roadblock provides a constitutionally adequate substitute for the reasonable suspicion that would otherwise be required to justify the detention of vehicles and the questioning of their occupants." Id.

Defendant argues that the reasonableness of the roadblock only validates the conduct of the officers at the roadblock, but does not address the need for exigent circumstances or a warrant. He argues that no exigent circumstances existed in this case and that there is no reason why a search warrant should not have been obtained in order to set up the roadblock.

A warrant "interjects a detached and neutral decisionmaker between the police and the person to be searched." Gutierrez, 116 N.M. at 434, 863 P.2d at 1055. It requires the probable cause determination to be made by a disinterested magistrate rather than the police officer. State v. Cordova, 109 N.M. 211, 213, 784 P.2d 30, 32 (1989). The purpose of a warrant is to safeguard individuals against arbitrary intrusion by police officers in the pursuit of suspected criminals. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 621-22, 109 S.Ct. 1402, 1415-16, 103 L.Ed.2d 639 (1989). A warrant "prevent[s] hindsight from coloring the evaluation of the reasonableness of [the] seizure." United States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074, 3086, 49 L.Ed.2d 1116 (1976) (permanent border checkpoint case).

We do not believe that the decision to set up a DWI checkpoint should require a warrant. The evils that a warrant is designed to prevent are addressed by the restrictions on the field officer's discretion in setting up and conducting a roadblock. See Betancourt, 105 N.M. at 658, 735 P.2d at 1164.

In a case involving a permanent border checkpoint, we held that a brief stop for routine questioning for the purpose of detecting illegal immigrants need not be authorized by a search warrant. State v. Affsprung, 115 N.M. 546, 548-49, 854 P.2d 873, 875-76 (Ct.App.), cert. denied, 115 N.M. 545, 854 P.2d 872 (1993). Further, "[t]he reasonableness of checkpoint stops ... turns on factors such as the location and method of operation of the checkpoint, factors that are not susceptible to the distortion of hindsight[.]" Martinez-Fuerte, 428 U.S. at 565, 96 S.Ct. at 3086. Defendant suggests that the principles outlined in the cases involving border checkpoints do not apply to DWI roadblocks. We agree that the validity of temporary DWI checkpoints does not necessarily flow from the validity of permanent border checkpoints and, hence, requires a separate analysis.

State v. Olgaard, 248 N.W.2d 392, 395 (S.D.1976), a case cited by Defendant, held that a warrant is required to investigate motorists for possible liquor law violations. Olgaard distinguished DWI roadblocks from permanent border checkpoints and observed that Martinez-Fuerte hinged on the permanency of the checkpoint location. Olgaard, 248 N.W.2d at 394. However, one feature of the checkpoint in Olgaard was that the defendants had no warning that they were about to enter the roadblock. Id. In the present case, there was such warning, and, in fact, warning is one of the factors in determining the reasonableness of the roadblock. Betancourt, 105 N.M. at 659, 735 P.2d at 1165. More importantly, there was no record in...