State v. Deskins, 55845

• Decision Date: 02 December 1983
• Docket Number: No. 55845,55845
• Parties: STATE of Kansas, Appellant, v. Rick L. DESKINS, Appellee.
• Court: Kansas Supreme Court

Page 1174

673 P.2d 1174

234 Kan. 529

STATE of Kansas, Appellant, v. Rick L. DESKINS, Appellee.

No. 55845.

Supreme Court of Kansas.

Dec. 2, 1983.

Syllabus by the Court

1. In considering the application of Kansas Constitution Bill of Rights § 15 to any particular factual situation, its scope is identical to that of the Fourth Amendment to the United States Constitution.

2. Whenever a police officer accosts an individual and restrains his freedom to depart the scene, he has seized that person.

3. Stopping an automobile and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment even though the purpose of the stop is limited and the resulting detention quite brief.

4. The random stopping of a motorist based upon the unbridled discretion of the police officer without at least articulable and reasonable suspicion that the motorist is unlicensed or that the vehicle is unregistered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, constitutes an unreasonable restraint under the Fourth Amendment.

5. The essence of the Fourth Amendment prohibition against unreasonable search and seizure is to safeguard the privacy and security of individuals against arbitrary invasions by government officials by imposing a standard of reasonableness upon the exercise of those officials' discretion.

6. Except in certain carefully defined classes of cases, a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant.

7. Whether a warrantless search and seizure is constitutional is determined by balancing the degree of legitimate governmental interests against the resulting intrusion on the individual's Fourth Amendment rights.

8. In applying the balancing test of the degree of governmental or public interest against the degree of intrusion upon the individual's constitutionally protected rights, the courts must weigh the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest and the severity of the interference with individual liberty.

9. In determining whether a driver's license check or DUI roadblock meets the balancing test in favor of the state, factors to be considered include: (1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test.

10. When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. (Following State v. White, 230 Kan. 679, Syl. p 1, 640 P.2d 1231 [1982].)

Frank A. Caro, Jr., Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Gene M. Olander, Dist. Atty., and Arthur R. Weiss, Asst. Dist. Atty., were with him on the brief for appellant.

Hal E. Des Jardins, Topeka, argued the cause for appellee.

HOLMES, Justice:

This is an interlocutory appeal, pursuant to K.S.A. 22-3603, by the State of Kansas from an order of the district court suppressing certain evidence in a prosecution for driving while under the influence of alcohol (DUI) and possession of marijuana.

Defendant, Rick L. Deskins, was arrested after his automobile was stopped by police officers at a roadblock ostensibly set up for the purpose of checking drivers' licenses. Prior to trial defendant filed a motion to suppress all evidence of DUI and the small bag of marijuana found in the automobile glove-box after defendant's arrest. The court found the roadblock to be an unconstitutional violation of the Kansas Constitution Bill of Rights § 15, the Kansas equivalent to the Fourth Amendment to the United States Constitution. The trial court found as a matter of fact, and counsel for the State candidly conceded in argument before this court, that the roadblock was set up to catch drunk drivers and that the checking of drivers' licenses was a facade for such purposes. Therefore, the narrow question before this court is whether the use of a DUI roadblock under the factual situation existing in this case is an unconstitutional infringement upon a person's right to be free from unreasonable searches and seizures under the Kansas Bill of Rights and the Fourth Amendment. In considering the application of § 15 of the Kansas Bill of Rights to any particular factual situation, its scope is identical to that of the Fourth Amendment. State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963).

At 10:00 p.m. on November 20, 1982, thirty-five to forty police officers from the Kansas State Highway Patrol, the Shawnee County Sheriff's Office, and the Topeka Police Department, set up a roadblock at the intersection of 45th Street and Topeka Avenue in Topeka, ostensibly to check drivers' licenses. All vehicles proceeding both north and south on Topeka Avenue were stopped and their drivers checked to determine if they were carrying valid licenses. Mr. Deskins was driving south on Topeka Avenue around 1:20 a.m. the next morning, and was stopped in the check lane. A state trooper approached the car and requested Deskins' license which was found to be in order and at that point he had satisfied all the requirements for the license check.

The officer had not observed the defendant operate the automobile, as it was standing still in a line of stopped vehicles when the officer approached, and the officer, prior to the vehicle being stopped, had no facts or knowledge which would constitute probable cause or even a reasonable suspicion that defendant had committed, was committing, or was about to commit a violation of Kansas criminal statutes. However, from his position outside Deskins' car, the trooper "could smell a strong odor of alcohol, some type of alcoholic beverage on [defendant's] breath and his eyes were kind of bloodshot and watery." The officer asked Deskins to step out of the car to take a sobriety and coordination test. His performance was less than satisfactory to the officer and, as the officer was of the opinion defendant was under the influence of alcohol, he arrested defendant and read him the Miranda rights. The trooper moved defendant to a squad car and another officer, with defendant's permission, moved his car out of the check lane. While defendant remained in the police car, one of the officers searched the defendant's automobile and found in the glove-box a plastic bag containing marijuana.

Defense counsel filed a motion to suppress all evidence gathered after defendant's vehicle was stopped, on grounds the roadblock was designed not to check drivers' licenses but solely to "stop all vehicles for the purpose of arresting individuals that the police suspected of driving while intoxicated." Defendant claimed the roadblock stop violated his constitutional rights under the Fourth Amendment. At the hearing on the motion, the arresting officer testified that during a briefing before establishing the roadblock it was made clear to the officers that if, after stopping someone in the lane, they smelled alcohol or had any "suspicion" of drinking, they could question the driver further. The State, as previously indicated, has conceded the primary purpose of the roadblock was to catch drunk drivers, and this appeal will be considered in that light, although incidental to that purpose arrests were also made for a number of other reasons, including some involving license violations.

There can be no doubt that the stopping of a motorist for the sole purpose of checking for a valid driver's license, let alone to seek evidence of the commission of a crime such as DUI, constitutes a "seizure" under the Fourth Amendment. In Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891), the court stated:

"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." 141 U.S. at 251, 11 S.Ct. at 1001.

The Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), was faced with a Fourth Amendment challenge to the admission of evidence recovered in a "stop and frisk" encounter between police and defendant Terry. The defendant, while walking on the street, had been stopped by a veteran police officer merely on the officer's suspicion that Terry and his companions might be considering a robbery. For his own protection the officer patted down the outer clothing of the men and found Terry to be carrying a pistol. Terry was later convicted of carrying a concealed weapon and the case eventually made its way to the Supreme Court on the question of whether his rights under the Fourth Amendment had been violated and whether the evidence recovered in the "stop and frisk" should have been suppressed. In its opinion the Court stated:

"It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime--'arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." 392 U.S. at 16, 88 S.Ct. at 1877.

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