State v. Olgaard, 11750
| Decision Date | 31 December 1976 |
| Docket Number | No. 11750,11750 |
| Citation | 248 N.W.2d 392 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Roger E. OLGAARD and Jack K. Behrens, Defendants and Appellants. |
| Court | South Dakota Supreme Court |
Doyle D. Estes, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.
Glen H. Johnson, of Gunderson, Farrar, Aldrich, Warder, DeMersseman & Johnson, Rapid City, for defendants and appellants.
Defendants were charged with the unlawful possession of an open container of alcoholic beverage and the unlawful possession of marijuana in a quantity in excess of one ounce after these substances were discovered by a South Dakota highway patrolman in defendants' vehicle after defendants had been stopped at an Alcohol Safety Action Program (ASAP) roadblock in Volga, South Dakota, at approximately 10:00 p.m., September 27, 1974. The trial court denied defendants' motion to suppress the evidence acquired as a result of the roadblock stop. We granted defendants' petition for permission to take an intermediate appeal pursuant to SDCL 23--51--5. We reverse and remand.
The officer who conducted the stop of defendants' vehicle testified with respect to the ASAP roadblock program that,
'* * * (W)e usually have one road block a week in different areas, mainly set up for alcohol related offenses plus other things, to check headlights and motor vehicle safety inspection.'
On the night in question there were several patrol cars parked with their red lights flashing at the point at which the officers had set up a large stop sign in the highway to mark the roadblock. There were four highway patrolmen at the scene. All vehicles passing in both directions were stopped. If the investigating officer had reason to believe that the driver of a stopped vehicle had been brinking he would ask the driver to pull off to the side of the road so that further investigation could be made. In most ASAP stops the officer relies upon his sense of smell, coupled with his observations concerning the driver's actions and appearance and the presence of beer and liquor containers in the vehicle, to determine whether a driver has been drinking.
In defendants' case, the officer in charge asked the driver, defendant Olgaard, for his drivers license. As the officer was inspecting the license he detected what he thought was the odor of beer coming from the vehicle. In response to the officer's question concerning an open alcoholic beverage container, defendant Olgaard replied that some beer might have spilled. Defendant Olgaard then removed a half empty beer bottle from a sack. Further investigation by the officer revealed the presence of marijuana in the vehicle.
After measuring the roadblock stop in the instant case against the carefully circumscribed checkpoint stops approved by the United States Supreme Court in United States v. Martinez-Fuerte, 428 U.S. ---, 96 S.Ct. 3074, 49 L.Ed.2d 1116, we conclude that defendants are correct in their assertion that the ASAP roadblock stop was an unconstitutional infringement of their right to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution and Article VI, § of the South Dakota Constitution.
As the Martinez-Fuerte case makes clear, a checkpoint stop is a seizure within the meaning of the Fourth Amendment. In balancing the interest of the public in having drunken drivers removed from our public highways against the right of the motoring public to be free from interference by law enforcement officials, we start with the proposition that the hazard to the public created by drunken drivers is so terrifyingly real as to require no extensive statistical demonstration. One recent news release by the South Dakota Department of Public Safety will suffice:
'Tests to determine the presence or absence of alcohol were taken in 89 of the first 154 fatal crashes from January through October, 1976. Of those tested nearly 62% Were alcohol related crashes. * * *
'In those fatal crashes tested, 68 people died in a crash that involved alcohol, many of whom were innocent victims of another person's drinking spree. Thirty-nine of those killed were drunk drivers and they took 17 passengers, four drivers in other vehicles, five passengers in other vehicles, and three pedestrians with them.
* * *' Public Safety News & Views, South Dakota Department of Public Safety, December 1976, page 3. 1
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Richard T., In re
...warning, and perforce by surprise, all motorists who happened to pass that particular point on the night in question." (State v. Olgaard (S.D.1976) 248 N.W.2d 392, 394.) The court concluded, "We hold only that unless authorized by prior judicial warrant, the establishment of a roadblock for......
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...re effectiveness of roadblocks; state admits experienced officer can detect drunk drivers without roadblocks]; State v. Olgaard (S.D.1976) 248 N.W.2d 392, 394-395 [record does not indicate how roadblock location was The Attorney General contends that the roadblock at issue is constitutional......
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...Some courts have extrapolated from the Border Patrol cases the requirement that a checkpoint be "permanent." See, e.g., State v. Olgaard, 248 N.W.2d 392, 394 (S.D.1976).In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), however, the Court did not refer to "permanent"......
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