State v. Madalena, 16008

• Decision Date: 19 September 1995
• Docket Number: No. 16008,16008
• Citation: 1995 NMCA 122,908 P.2d 756,121 N.M. 63
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Aurelia MADALENA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 756

908 P.2d 756

121 N.M. 63

STATE of New Mexico, Plaintiff-Appellee, v. Aurelia MADALENA, Defendant-Appellant.

No. 16008.

Court of Appeals of New Mexico.

Sept. 19, 1995.

Certiorari Denied Nov. 21, 1995.

[121 N.M. 65] Tom Udall, Attorney General, Bill Primm, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Sammy J. Quintana, Chief Public Defender, Rita LaLumia, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

FLORES, Judge.

1. Defendant was convicted of driving while intoxicated (DWI) after being stopped at a sobriety checkpoint, also known as a DWI roadblock, conducted by the Albuquerque Police Department (APD). Defendant appeals on the basis that the roadblock was an unconstitutional search and seizure under Article II, Sections 4 and 10 of the New Mexico Constitution, which Defendant contends provide greater protection than the Fourth Amendment to the United States Constitution. We hold that the roadblock was a reasonable search and seizure under the New Mexico Constitution and affirm Defendant's conviction.

BACKGROUND

2. On January 21, 1994, the APD set up a sobriety checkpoint on Central Avenue, SE, which was conducted between the hours of 12:00 a.m. and 3:00 a.m. on January 22, 1994. The location of the roadblock was chosen by reference statistics concerning alcohol-related accidents and fatalities in the area. The purpose of the roadblock was to enforce the DWI laws and deter persons from driving while intoxicated.

3. Sergeant Anne Avend-t, Tactical Supervisor for the DWI Unit of the APD, requested and received authority from superior officers, including the lieutenant, the captain, and the deputy chief of police to conduct the roadblock. Prior to commencing the roadblock, officers attended a briefing session from 11:00 p.m. to 12:00 a.m. Officers were instructed to stop each motorist traveling westbound on Central Avenue who approached the stop sign. Officers were further instructed to say the same thing to each driver, including: "Good evening, I'm Officer ______. This is an Albuquerque Police Department sobriety checkpoint. How are you?" The officer would then hand the driver a piece of literature on the law. If the officer smelled alcohol on the driver's breath, noticed bloodshot, watery eyes, slurred speech, or the presence of an open container of alcohol, then the driver would be instructed to proceed to the inspection area.

4. Safety features were employed at the checkpoint site including a safe-stopping distance before entering the checkpoint area, a safety zone where drivers could go for further investigation, two separate field sobriety test areas, and an area for the Batmobile (APD's mobile breath-alcohol testing unit). There were six police cars with their lights flashing parked at the checkpoint site. Orange pylons separated the police cars from the area where motorists came to a stop at the special stop signs. The police officers working the roadblock wore APD uniforms, badges and reflectorized traffic vests. Additional portable lighting was provided for the test areas.

5. To minimize the intrusion on motorists, Sergeant Avend-t instructed the contact officers that no driver should wait in line for more than four minutes and that no driver should be delayed at the stop sign for more than one minute. If these limits were exceeded, Sergeant Avend-t ordered that the stop signs be reversed and that traffic be allowed to proceed uninhibited. Nevertheless, it did not become necessary to utilize this procedure during the roadblock in question. If directed to complete field sobriety testing, motorists could be detained for up to five minutes.

6. Prior to the roadblock, Sergeant Avend-t arranged for publicity by contacting the Albuquerque Journal, Albuquerque Tribune, and Associated Press news desks and providing them with a press release. Sergeant Avend-t also provided the APD's public information officer with a press release. Further, two local television stations videotaped the roadblock.

7. Defendant approached the roadblock in the early morning hours of January 22, 1994. Officer Hernandez detected a strong odor of alcohol on Defendant's breath, bloodshot, watery eyes, and slurred speech. Defendant was instructed to proceed to the inspection area for further testing. Officer Hernandez directed Defendant to perform field sobriety tests, which Defendant failed. Defendant was given a breath test and was found to have a blood alcohol content of 0.21%. The breath test card was admitted at trial by stipulation.

8. Defendant was charged with DWI and with driving without a license. At the close of the evidence in metropolitan court, Defendant moved to suppress evidence obtained as a result of the stop on the grounds that the DWI roadblock was an unconstitutional search and seizure under the Fourth Amendment to the United States Constitution, and under Article II, Sections 4 and 10 of the New Mexico Constitution. After hearing the testimony, the court found Defendant guilty of DWI. No evidence was presented on the charge for driving without a license, which was dismissed.

9. Defendant appealed to the district court, arguing that the roadblock was unconstitutional because the New Mexico Constitution affords greater protection than the United States Constitution. Relying on 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), the district court affirmed the judgment of the metropolitan court. Defendant appeals.

DISCUSSION

10. Defendant argues that Article II, Sections 4 and 10 of the New Mexico Constitution afford greater protection than the United States Constitution when DWI roadblocks are used to stop motorists with no reasonable suspicion that a crime has been committed. In light of Betancourt and Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), Defendant admits that any constitutional challenge to the roadblock made under the Fourth Amendment to the United States Constitution would be precluded. Thus, Defendant's claims are made under the New Mexico Constitution.

I. Constitutionality of Roadblock

11. It is well settled that detaining motorists at a sobriety checkpoint "for the purpose of detecting and apprehending drunk drivers constitutes a 'seizure.' " Betancourt, 105 N.M. at 657, 735 P.2d at 1163. Therefore, the dispositive question here is whether, under the particular facts and circumstances of this case, the roadblock was conducted in a manner consistent with state constitutional requirements.

12. Caselaw in New Mexico regarding DWI roadblocks is governed by Betancourt. In Betancourt, we stated that stopping motorists at a roadblock without probable cause or reasonable suspicion is not a per se violation of the Fourth Amendment to the United States Constitution. Id. Instead, the question is one of reasonableness. Id. To determine the reasonableness of a roadblock, we followed other jurisdictions in adopting a balancing test whereby we "balance the gravity of the governmental interest or public concern served by the roadblock the degree to which it advances these concerns and the severity of the interference with individual liberty, security, and privacy resulting from the roadblock." Id., at 658, 735 P.2d at 1164. We further presented eight guidelines to consider and held that roadblocks conducted in accordance with these guidelines are valid under the Fourth Amendment to the United States Constitution. Id. at 658-59, 735 P.2d at 1164-65.

13. Recently, in State v. Bates, 120 N.M. 457, 902 P.2d 1060 (Ct.App.), cert. denied, 120 N.M. 213, 900 P.2d 962 (1995), this Court applied the Betancourt factors to the facts of the case and determined that the roadblock was reasonable under both the New Mexico Constitution and the United States Constitution. Id. at 461, 902 P.2d at 1064. The distinguishing factor is that in Bates there was no argument, as there is here, that the New Mexico Constitution affords more protection than the United States Constitution.

14. In this case, Defendant argues that, since Betancourt was decided, our Supreme Court has considerably expanded state constitutional law concerning the reasonableness of searches and seizures. See State v. Attaway, 117 N.M. 141, 149-51, 870 P.2d 103, 111-13 (1994) (holding that knock and announce rule in serving search warrants is incorporated in protection offered by New Mexico Constitution, Article II, Section 10); State v. Gutierrez, 116 N.M. 431, 435-47, 863 P.2d 1052, 1056-68 (1993) (rejecting "good faith" exception to exclusionary rule); State v. Cordova, 109 N.M. 211, 212-17, 784 P.2d 30, 31-36 (1989) (rejecting federal "totality of the circumstances" test in favor of two-prong common-law test for search warrants). Defendant contends that, given our Supreme Court's inclination to interpret the New Mexico Constitution as providing greater protection, this Court should find that sobriety checkpoints are unreasonable under the protections afforded by the New Mexico Constitution.

15. Defendant relies on two sections of Article II for his argument that the New Mexico Constitution affords more protection than the Fourth Amendment to the United States Constitution. Article II, Section 4 of the New Mexico Constitution provides:

All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.

16. Article II, Section 10 provides:

The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by...