State v. Crom

• Decision Date: 21 March 1986
• Docket Number: No. 84-471,84-471
• Citation: 383 N.W.2d 461,222 Neb. 273
• Parties: , 54 USLW 2521 STATE of Nebraska, Appellant, v. Jeffery L. CROM, Appellee.
• Court: Nebraska Supreme Court

Page 461

383 N.W.2d 461

222 Neb. 273, 54 USLW 2521

STATE of Nebraska, Appellant, v. Jeffery L. CROM, Appellee.

No. 84-471.

Supreme Court of Nebraska.

March 21, 1986.

Syllabus by the Court

Motor Vehicles: Constitutional Law: Search and Seizure. A motorist has a reasonable expectation of privacy which is not subject to arbitrary invasions solely at the unfettered discretion of police officers in the field.

Paul L. Douglas, Atty. Gen., Donald L. Knowles, Douglas Co. Atty., and J. Michael Tesar, Sp. Deputy Co. Atty., for appellant.

Michael T. Levy of Levy & Lazer, P.C., Omaha, for appellee.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

The municipal court of the city of Omaha convicted defendant, Jeffery L. Crom, of driving while under the influence of alcohol. On appeal the district court reversed the conviction on the ground that the evidence of Crom's intoxication had been obtained as the result of an unconstitutional seizure of his person. The State has appealed to this court; we affirm.

On August 15, 1983, four or five patrolmen and a sergeant assigned to the 11 p.m. to 7 a.m. shift of the Omaha Police Department's selective enforcement unit determined to set up a transitory checkpoint, at which every fourth vehicle reaching it would be stopped on the pretext of checking the operator's license and the vehicle registration. The actual purpose of the stops, however, was to determine whether the operator of the vehicle emitted an odor of alcohol, in which event further investigation would follow.

All decisions relating to the establishment and operation of the checkpoint were made entirely by these field officers, who were not acting under any standards, guidelines, or procedures promulgated by the policymakers for the police department or other law enforcement agency. The officers were free to move the checkpoint from place to place and in fact established a number of such checkpoints at different locations throughout the city of Omaha at various times, as they alone saw fit.

The checkpoint in question was established at a little before 1 a.m. on August 16, 1983, by placing a marked police vehicle, with its rotating red lights flashing, in the center of the two southbound lanes of traffic near a southwest Omaha intersection, selected because of its proximity to a bar which had been the recent source of "numerous problems." The time was selected because of its near relationship to the bar's closing time.

Crom was driving one of the fourth cars to reach the checkpoint, and he was therefore stopped. There was no indication prior to the stop that Crom was driving under the influence of alcohol, that his motor vehicle was improperly registered, that he was operating the motor vehicle without a valid driver's license, or that he was violating any other law.

The officer making the stop detected the odor of alcohol on Crom's breath and gave Crom a field sobriety test. Crom failed that test and was transported to police headquarters, where a Breathalyzer test was administered. This test showed a blood alcohol level in excess of ten-hundredths of 1 percent, and Crom was charged with violating Neb.Rev.Stat. § 39-669.07 (Reissue 1984).

In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), a police officer, notwithstanding that he had observed no traffic or equipment violation or other suspicious activity, stopped a motorist to check his driver's license and vehicle registration. As he was walking toward the stopped vehicle, the officer smelled marijuana and, the marijuana being in plain view, seized it.

Delaware argued the evidence of the marijuana's presence should not have been suppressed because officers should not be subject to any constraints in deciding which automobiles shall be stopped for license and registration checks. Delaware's contention was that its interest in discretionary spot checks as a means of ensuring the safety of its roadways outweighs the resulting intrusion on the privacy and security of the persons detained. The U.S. Supreme Court rejected Delaware's argument and affirmed the suppression of the evidence. In doing so the Court acknowledged that a state has a vital interest in the safety of its highways and therefore in determining what vehicles are being operated and by whom. The Court observed, however, that the fourth amendment to the U.S. Constitution imposes a standard of reasonableness upon the exercise of discretion by law enforcement agents in order to safeguard the privacy and security of individuals against arbitrary invasions.

The Court stated that the permissibility of a particular law enforcement practice is therefore judged by balancing its intrusion on the individual's fourth amendment interests against its promotion of legitimate governmental interests. The reasonableness standard usually requires, at a minimum, that the facts upon which the intrusion is based be capable of measurement against an objective standard, whether this be probable cause or a less stringent test. Where the balance of interests precludes insistence upon some quantum of individualized suspicion, other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not subject to the discretion of the officer in the field.

The Court then reasoned that, given the alternative mechanisms available to accomplish Delaware's ends, the record did not warrant a conclusion that the incremental contribution to highway safety warranted the physical and psychological intrusion upon the occupants of the vehicles randomly stopped at the unbridled discretion of law enforcement officials. The Court therefore held that except in those situations in which there is at least an articulable and reasonable suspicion that a motorist is unlicensed, that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his or her documents is unreasonable under the fourth amendment to the U.S. Constitution. The Court said:

When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations--or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered--we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.

(Footnote and citations omitted.) 440 U.S. at 661, 99 S.Ct. at 1400.

Three months after its decision in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the U.S. Supreme Court decided Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Therein, two police officers stopped Brown, who was unknown to them, because he was walking in an area with a high incidence of drug traffic. The officers did not suspect Brown of any specific misconduct but wanted to ascertain his identity pursuant to a state statute requiring one lawfully stopped by an officer to identify himself or herself. In finding that Brown had been seized in violation of the fourth amendment to the U.S. Constitution, the Court again noted that determination of the reasonableness of a seizure involves a weighing of the gravity of the public concern served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. Citing Delaware, among other cases, the Court said at 51, 99 S.Ct. at 2640: "A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field."

The uncontradicted evidence in the case before us is that there was no plan formulated at the policymaking level of the Omaha Police Department, or elsewhere, which considered, weighed, and balanced the factors enumerated in Delaware and Brown. Rather, a six- or seven-person unit within the department, commanded by a field sergeant, was left free to decide when, where, and how to establish and operate the transitory checkpoint in question. The checkpoint was thus subject to the constitutional infirmity found to exist in both Delaware and Brown; that is, a driver's reasonable expectation of privacy was rendered subject to arbitrary invasion solely at the unfettered discretion of officers in the field.

As such, Crom was unreasonably seized in violation of the fourth amendment to the U.S. Constitution. The judgment of the district court reversing Crom's conviction was therefore correct and must be affirmed. That determination makes it unnecessary that we consider any other aspect of this case.

AFFIRMED.

KRIVOSHA, Chief Justice, concurring.

I concur in the result reached in the per curiam opinion adopted by the court. I write separately, however, because I believe that the per curiam, standing alone, may lead one to believe that the mere adoption of a plan formulated at the policymaking level of a law enforcement agency may be sufficient to permit the type of random stops conducted in the instant case. I believe there is more to this matter than merely the formulation of a plan.

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