State v. Superior Court In and For Pima County, 17679-SA

• Decision Date: 21 November 1984
• Docket Number: No. 17679-SA,17679-SA
• Citation: 143 Ariz. 45,691 P.2d 1073
• Parties: , 53 USLW 2301 STATE of Arizona, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, and the Honorable William L. Scholl, a Judge thereof, Respondent, and Gene SIMMONS, Mary Miller, Glen Ethington, Jerry Collier, Real Parties in Interest.
• Court: Arizona Supreme Court

Page 1073

691 P.2d 1073

143 Ariz. 45, 53 USLW 2301

STATE of Arizona, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, and the Honorable William L. Scholl, a Judge thereof, Respondent and Gene SIMMONS, Mary Miller, Glen Ethington, Jerry Collier, Real Parties in Interest.

No. 17679-SA.

Supreme Court of Arizona In Banc.

Nov. 21, 1984.

Reconsideration Denied Jan. 8, 1985.

Frederick S. Dean, Tucson City Atty. by Frank W. Kern, III, Deputy City Atty., Tucson, for petitioner.

Michael L. Altman, Tempe, and Law Offices of Kelly C. Knop, P.C. by Kelly C. Knop, Tucson, for real parties in interest.

CAMERON, Justice.

This is a special action brought by the State from a decision of the Superior Court of Pima County affirming the granting of defendants' motion to dismiss the complaints against them. We have jurisdiction pursuant to Art. 6, § 5 of the Arizona Constitution.

We must decide the following issue: Were the sobriety checkpoints conducted by the Tucson Police Department between 9 December 1983 and 31 December 1983 constitutional?

The facts follow. The Tucson Police Department set up a series of sobriety checkpoints between 9 and 31 December 1983. The stops were constructed and operated according to an extensive command directive compiled by the Commander of the Traffic Enforcement Division. The checkpoints were not to be set up on main, high traffic volume arteries. The directive provided that a driver would first encounter a sign saying "Reduce Speed Ahead." Approximately two hundred feet from the sign would be another sign saying "Speed Limit Twenty Five Miles Per Hour." Another hundred feet away a sign stated "Sobriety Checkpoint Ahead." A coning pattern was placed eight hundred feet further away to divert traffic. If there were any side streets before the coning pattern, a No-Turn sign would be placed in front of the street. After the cones there would be a "Prepare to Stop" sign and two hundred feet from that would be a stop sign. A police officer would approach the car and ask the driver to pull up to a second officer. This first officer would shine a flashlight into the car to determine whether the driver or passenger had any weapons. The second officer would then ask the driver to produce his driver's license. He would also shine a light into the car to look for open containers and observe the driver closely for signs of intoxication and would be permitted to ask him such questions as "where have you been tonight" and "what do you think about checkpoints." If the officer had no basis for believing that the driver was intoxicated, the driver would be permitted to proceed. The entire process took anywhere from five to twenty seconds. If the driver seemed to be impaired the officer would ask him to proceed into a predesignated parking area where he would be asked to perform a field sobriety test.

The police were also prepared for drivers attempting to avoid the roadblock. A chase officer would follow any driver making a turn prior to the initial reduce speed ahead sign for one mile. If any traffic violations or problems were noted that would warrant a stop under normal circumstances, a stop would be made to check for impairment. The same procedure would occur for a person who drove safely through the roadblock but refused to talk with the officers. If a driver made a turn at a No-Turn sign, a chase officer would stop the driver to check for signs of intoxication. No citations were issued for traffic violations such as driving with an expired license. Rather, the driver would be informed of the violation and advised to correct the deficiency.

Defendants Gene Simmons, Mary Miller, Glen Ethington and Jerry Collier were stopped pursuant to these checkpoints and arrested for Driving Under the Influence of Intoxicating Liquor, A.R.S. § 28-692. They each filed a motion to dismiss, alleging that the checkpoints were unconstitutional. The four motions were consolidated for hearing and granted by the Municipal Court judge (the trial court). The state appealed to the Pima County Superior Court, Ariz. Const. Art. 6, § 16 and A.R.S. § 12-124, and the trial court ruling was affirmed. We accepted jurisdiction because the case presents an issue of statewide importance.

The issue of the propriety of roadblocks has been before us before. In State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d 992 (1983) we examined a series of roadblocks conducted by the Department of Public Safety. We held that because the police were given a "not insubstantial amount" of discretion and the state was unable to demonstrate that roadblocks were more effective in apprehending drunk drivers than traditional methods, those sobriety checkpoints were unconstitutional. Justice Feldman, in his concurrence, listed those procedures that he felt were constitutionally required. He focused primarily on the need for a plan formulated or approved at the executive level that would provide standards concerning time, place, number of officers and procedures concerning how the stops should be conducted. Advance publicity in the media was also suggested. Id. at 9, 663 P.2d at 1000.

It appears that the suggestions made by Justice Feldman in his concurrence in Ekstrom, supra, were followed by the Tucson Police Department. A command directive was compiled by the Commander of the Traffic Enforcement Division, Lieutenant Davis, concerning the procedures to be followed at the roadblocks. Copies were distributed to all personnel who would be participating at the checkpoints. The directive outlined what the officers were supposed to say to drivers of stopped cars and how the officers should react in various situations. The location of each stop was also selected by Lieutenant Davis. He reviewed statistics compiled by the police department concerning the location of alcohol related collisions and chose sites within approximately a square mile of where the highest percentage of such accidents had occurred.

Press releases were issued before the first three roadblocks were conducted. For the other roadblocks, information was given to the community relations unit, which then transmitted it to the public through radio, television and newspaper advertisements. These announcements, which were issued from one to three days in advance of each roadblock, stated that stops would be conducted in the City of Tucson.

The question is whether these procedures did, in fact, satisfy the fourth amendment's proscription against unreasonable searches and seizures. U.S. Const.amend. IV. That amendment is implicated because roadblock stops are considered seizures. United States v. Martinez-Fuerte 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Although the Supreme Court has never squarely addressed this issue, it has indicated that in certain instances brief detentions made without any quantum of suspicion would be permissible. In Martinez-Fuerte, supra, the Court upheld the use of a fixed checkpoint stop near the border of Mexico to search for illegal aliens. Later the Supreme Court stated in a case involving a random stop made by the police to check for license and vehicle registrations that:

This holding does not preclude the state of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.

Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673-74 (1979) (footnote omitted). The United States Supreme Court subsequently laid down a "balancing of interests" test to evaluate certain distinct types of official action. Three factors must be weighed: "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." Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362 (1979).

In the instant case,...