State v. Gerschoffer, 71A05-0003-CR-116.

Docket NºNo. 71A05-0003-CR-116.
Citation738 N.E.2d 713
Case DateNovember 28, 2000
CourtCourt of Appeals of Indiana

738 N.E.2d 713

STATE of Indiana, Appellant-Plaintiff,
Jarrod E. GERSCHOFFER, Appellee-Defendant

No. 71A05-0003-CR-116.

Court of Appeals of Indiana.

November 28, 2000.

738 N.E.2d 716
Karen M. Freeman-Wilson, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General Indianapolis, IN, Attorneys for Appellant

Mark A. Kopinski, South Bend, IN, Attorney for Appellee.

738 N.E.2d 714

738 N.E.2d 715

NAJAM, Judge


The State appeals from the trial court's order granting Jarrod E. Gerschoffer's motion to suppress evidence of intoxication obtained at a sobriety checkpoint. The question presented is a matter of first impression, namely, whether sobriety checkpoints violate Article I, Section 11 of the Indiana Constitution. We hold that a sobriety checkpoint constitutes an unreasonable seizure under the Indiana Constitution and that, as such, the trial court properly suppressed the evidence of Gerschoffer's intoxication.

We affirm.


On the evening of June 18, 1999, the Indiana State Police and the Mishawaka Police Department conducted a joint sobriety checkpoint on McKinley Avenue in Mishawaka. Indiana State Police Sergeant Gary Coffie and Mishawaka Police Corporal Timothy Williams had previously agreed on a plan to conduct the checkpoint and notified local news media two days earlier. The officers selected the site of the checkpoint because that location had been used before, it had been a "trouble spot" for the Mishawaka Police Department, and it was well-lighted and allowed police to pull cars off the road without impeding traffic.

At approximately 11:30 p.m., police set up the checkpoint according to the plan. Coffie positioned his patrol car in the middle of McKinley Avenue with a sign indicating a sobriety checkpoint. Police placed cones and flares leading traffic from the roadway into an adjacent parking lot. Coffie then began to flag down five cars at a time to enter the checkpoint, permitting

738 N.E.2d 717
other vehicles to proceed. Each driver entering the checkpoint was asked to produce his license and vehicle registration. If an officer suspected that a driver was intoxicated, the officer would ask the driver to perform field sobriety tests. If no violations were detected, the driver was allowed to leave, and the stop lasted not more than five minutes

Gerschoffer was one of seventy cars to pass through the sobriety checkpoint. While speaking to Gerschoffer, Williams smelled a strong odor of alcohol, observed that Gerschoffer's eyes were glassy and bloodshot, and noticed that his speech was slurred. After failing three field sobriety tests, Gerschoffer agreed to submit to a chemical test, which revealed he had a blood alcohol content ("BAC") of 0.11.

The State charged Gerschoffer with operating a vehicle while intoxicated ("OWI") and with operating a vehicle with a BAC of at least 0.10. Both offenses were elevated to Class D felonies because Gerschoffer had a previous conviction of OWI within the last five years. Gerschoffer filed a motion to suppress all evidence of his intoxication obtained at the sobriety checkpoint, claiming that the checkpoint violated the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Indiana Constitution.

Following a hearing, the trial court granted Gerschoffer's motion to suppress. The court concluded that the sobriety checkpoint "did not violate the Fourth Amendment, as it followed very closely the guidelines approved by the Indiana Supreme Court in [State] Garcia v. [Garcia} State, [500 N.E.2d 158 (Ind.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1986 [1987]) ]." However, the trial court determined that the checkpoint did not satisfy the requirements of Article I, Section 11, noting that "where no exigent circumstances exist; and where the [S]tate could easily seek the issuance of a warrant from a neutral detached judicial officer, failure to do so is unreasonable." The State challenges that ruling on appeal.1


Standard of Review

Initially, we note our standard of review on appeal from an order granting a motion to suppress. The State has the burden of demonstrating the constitutionality of the measures it uses to secure evidence. See State v. Ashley, 661 N.E.2d 1208, 1211 (Ind.Ct.App.1995). Therefore, the State appeals from a negative judgment and must show that the trial court's ruling on the suppression motion was contrary to law. State v. Smith, 638 N.E.2d 1353, 1355 (Ind.Ct.App.1994).

The State contends that the trial court improperly suppressed evidence of Gerschoffer's intoxication obtained at the sobriety checkpoint. In particular, the State argues that the trial court erred when it concluded that a sobriety checkpoint constitutes an unreasonable seizure under Article I, Section 11 of the Indiana Constitution. We agree with the trial court.

Sobriety Checkpoints under the Fourth Amendment

Before addressing the constitutionality of sobriety checkpoints under Article I, Section 11, we summarize federal jurisprudence on the subject. The Fourth Amendment of the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and states that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." As a general rule, a motorist surrenders neither his reasonable expectations of privacy nor the protections of the Fourth Amendment when he steps into his automobile. Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct. 1391, 59 L.Ed.2d 660

738 N.E.2d 718
(1979). Accordingly, police officers may search an automobile or seize its occupants only upon obtaining a warrant or upon having probable cause to believe a crime has been committed by occupants of the vehicle. Snyder v. State, 538 N.E.2d 961, 963 (Ind.Ct.App.1989), trans. denied.

The centerpiece of federal search and seizure jurisprudence is the warrant requirement. Brown v. State, 653 N.E.2d 77, 80 (Ind.1995). Searches and seizures conducted outside the judicial process, that is, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment. Green v. State, 719 N.E.2d 426, 428 (Ind.Ct.App.1999). This fundamental principle is subject to a few specific and well-delineated exceptions, one being the Terry investigatory stop and frisk. Id. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court established that the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion that criminal activity may be afoot. Stalling v. State, 713 N.E.2d 922, 924 (Ind.Ct.App.1999) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868). In such a case, the officer may briefly detain the occupants of a vehicle "to conduct a limited `non-invasive' search such as a `pat down' for weapons, a license and registration check, or field sobriety tests." Snyder, 538 N.E.2d at 963.

The United States Supreme Court has also created a sobriety roadblock exception to the Fourth Amendment warrant requirement. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) ("Sitz I"). It is well settled that stopping a vehicle at a roadblock constitutes a seizure for Fourth Amendment purposes. Id. at 450, 110 S.Ct. 2481. However, the Supreme Court has determined that such a stop is less intrusive than a traditional arrest, and therefore, that its reasonableness depends upon a balance between the public interest and the individual's right to personal security free from arbitrary interference by law enforcement officers. See id. at 450-55, 110 S.Ct. 2481; see also Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (striking down random stop-and-identify statute as unconstitutional). In Brown v. Texas, the Supreme Court enunciated three factors to be weighed in determining the reasonableness of "a variety" of seizures that fall short of a traditional arrest:

(1) the gravity of the public concerns served by the seizure,
(2) the degree to which the seizure advances the public interest, and
(3) the severity of the interference with individual liberty.

Brown, 443 U.S. at 50, 99 S.Ct. 2637. The court subsequently held in Sitz I that the Brown v. Texas balancing test applies to sobriety checkpoints and that the balance of the State's interest in preventing drunken driving, the extent to which sobriety checkpoints advance that interest, and the degree of intrusion on motorists' individual rights weighs in favor of the State.2 Sitz I, 496 U.S. at 450-55, 110 S.Ct. 2481.

A "central concern" in assessing the competing considerations set forth in Brown v. Texas has been to make certain that "an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Brown, 443 U.S. at 51, 99 S.Ct. 2637; see also Prouse, 440 U.S. at 663, 99 S.Ct. 1391 (striking down random, discretionary stops to check

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for driver's licenses and vehicle registrations and holding that "persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers."). In addition, "the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Brown, 443 U.S. at 51, 99 S.Ct. 2637. When stops are made pursuant to a plan that satisfies the Fourth Amendment balancing test set forth in Brown v. Texas, such stops may be made without probable cause or reasonable suspicion. Snyder, 538 N.E.2d at 963.

In State v....

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3 cases
  • State v. Gerschoffer
    • United States
    • Indiana Supreme Court
    • 5 Marzo 2002
    ...suspicion of illegal activity, constitutes an unreasonable seizure as proscribed by Article 1, Section 11." State v. Gerschoffer, 738 N.E.2d 713, 726 (Ind.Ct.App.2000). We granted transfer to this Court, thus vacating that opinion. 753 N.E.2d 6 I. Federal Roadblock Jurisprudence: A Brief Re......
  • Sublett v. State
    • United States
    • Indiana Appellate Court
    • 13 Octubre 2004
    ...cause or reasonable suspicion of illegal activity constituted an unreasonable search under Article 1, Section 11. See State v. Gerschoffer, 738 N.E.2d 713 (Ind.Ct.App.2000), trans. granted, opinion 10. Indeed, the Gerschoffer court actually contrasted the placement of the sign in that case ......
  • Sasser v. City of Richland, 2002-KM-01641-COA.
    • United States
    • Mississippi Court of Appeals
    • 15 Julio 2003 guarantee more expansive protection to the motoring public than that extended under the Fourth Amendment. State of Indiana v. Gerschoffer, 738 N.E.2d 713 (Ind.App. 2000); Sitz v. Dept. of State Police, 443 Mich. 744, 506 N.W.2d 209 (1993). In view of the striking similarities between the......

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