State v. Tykwinski

• Decision Date: 19 September 1991
• Docket Number: Nos. 1,CA-CR,s. 1
• Citation: 824 P.2d 761,170 Ariz. 365
• Parties: STATE of Arizona, Appellee, v. Edward Donald TYKWINSKI, III, and Jonathon Andrew Newell, Appellants. 89-1297, 1 89-1494.
• Court: Arizona Court of Appeals

Page 761

824 P.2d 761

170 Ariz. 365

STATE of Arizona, Appellee, v. Edward Donald TYKWINSKI, III, and Jonathon Andrew Newell, Appellants.

Nos. 1 CA-CR 89-1297, 1 CA-CR 89-1494.

Court of Appeals of Arizona Division 1, Department E.

Sept. 19, 1991.

Review Denied March 3, 1992.

[170 Ariz. 366] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Eric A. Bryant, Asst. Atty. Gen., Phoenix, for appellee.

Bret H. Huggins, Show Low, for appellants.

OPINION

CLABORNE, Presiding Judge.

Appellants Edward Donald Tykwinski, III and Jonathon A. Newell were convicted of the crimes of possession of marijuana and possession of drug paraphernalia, both class six undesignated felonies. The trial court sentenced each defendant to a two-year term of probation, a $1,027.50 fine and forty hours of community service.

On appeal, appellants argue that the trial court erred in denying their motion to suppress evidence seized during a stop of their vehicle at a roadblock. The appellants claim that the stop violated their rights under the fourth amendment to the United States Constitution and art. II, § 8 of the Arizona Constitution, because the police lacked an individualized suspicion that they were involved in the crime for which the roadblock was established.

We hold that these constitutional provisions do not require law enforcement, when conducting a roadblock stop, to have a founded or individualized suspicion that the occupants of a vehicle were involved in the crime under investigation before the vehicle may be validly stopped. We affirm.

FACTS

On December 31, 1988, at approximately 7:10 p.m., Navajo County Sheriff's Officer Robert Varner was fatally shot in his patrol car on the eastbound side of Interstate 40 near Winslow, Arizona. An eyewitness gave the police a minimal description of two suspects, indicating they were driving a small brown vehicle. Approximately forty minutes later, and twenty-seven miles east of the scene, a vehicle matching the eyewitness description was observed. When the police approached the vehicle, the occupants began firing. Thereafter, the suspects abandoned their vehicle at a nearby farmhouse, and accosted the residents at gunpoint, taking their vehicle.

Navajo County Sheriff's deputies chased the stolen car and shortly thereafter, the suspects crashed the stolen vehicle into an irrigation ditch. They then fired numerous rounds at the pursuing officers and fled on foot. The police ordered roadblocks. The general vicinity was searched, and homes in the area were canvassed throughout the night. The next morning, police found footprints leading away from the abandoned stolen vehicle; one set headed east and one set headed south or west.

The police set up one of the roadblocks on U.S. 180, seven or eight miles east of the location where the suspects crashed the stolen automobile. It appears that this particular roadblock was maintained from at least 5:00 a.m. on January 1, 1989, until later that same afternoon. During this period approximately one hundred eastbound vehicles were detained. Department of Public Safety Officer Monty Long testified that the passenger areas and trunks of all vehicles were inspected for the suspects based upon the suspicion that they could be in any eastbound vehicle. Each detention lasted no longer than one to two minutes.

The appellants' vehicle arrived at the roadblock at approximately 10:15 a.m. As Officer Long approached, the driver, appellant Newell, rolled down his window. Officer Long smelled the odor of burnt marijuana coming from inside the vehicle. At this point Officer Long asked Newell to step out of the vehicle. Newell was patted down and asked if he had any marijuana. Newell responded by handing the officer a film canister which contained marijuana. Both appellants were detained and their vehicle searched.

The appellants moved to suppress all evidence that was seized during the stop, arguing that the initial stop was unconstitutional. The trial court held an evidentiary hearing on the motion and, in a detailed opinion, concluded that the manner and scope of the roadblock search were justified and denied the motion. The appellants waived their right to a jury and submitted the matter to the court based upon police reports, grand jury testimony and the transcript of the hearing on the motion to suppress. The appellants were found guilty and timely notices of appeal followed. We consolidated the appeals since the issue in each is identical.

The only issue on appeal is the propriety of the initial stop of the vehicle. It is conceded that once Officer Long smelled the marijuana, probable cause existed to search the appellants and the vehicle.

DISCUSSION

The appellants contend that the stopping of their vehicle at the roadblock constituted an unreasonable search and seizure in violation of both the United States and Arizona Constitutions. Their sole argument is that Officer Long was required to form an individualized or founded suspicion that they were involved in the shooting death of Officer Varner or the shooting at the other officers before their vehicle could have been legally stopped. Because the officer did not have such a suspicion, the appellants argue that the evidence seized during the stop should have been suppressed.

Roadblock stops are considered seizures within the meaning of the fourth amendment. ¹ State v. Superior Court (Simmons), 143 Ariz. 45, 47, 691 P.2d 1073, 1075 (1984). When the police stop a vehicle and detain its occupants, a seizure occurs regardless of the reason for the stop or the length of the detention. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). The issue is whether the stop was "reasonable."

The reasonableness of a search or seizure that is less intrusive than an arrest depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). There must be a "weighing of 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." Id. at 50-51, 99 S.Ct. at 2640.

Appellants are correct in claiming that a police officer may not conduct an investigatory stop of a vehicle absent an individualized or founded suspicion that the occupants are involved or have been involved in criminal activity. State v. Acosta, 166 Ariz. 254, 256, 801 P.2d 489, 491 (App.1990). This rule, however, is not an absolute. The fourth amendment imposes no "irreducible requirement" of individualized or founded suspicion. United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976).

The Supreme Court has on more than one occasion considered what is required by the fourth amendment before the police may validly stop a motorist. In United States v. Brignoni-Ponce, the Court concluded that Border Patrol agents could not randomly stop vehicles in the border area in search of illegal aliens without some suspicion that the vehicle stopped was carrying illegal immigrants. 422 U.S. 873, 882, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). Although the Court recognized the public's strong interest in preventing the illegal entry of aliens at the Mexican border, it was unwilling to permit the Border Patrol to stop vehicles absent some reasonable suspicion to justify the stop. Id. at 882, 95 S.Ct. at 2580. The reasonableness requirement of the fourth amendment, said the Court, "demands something more [in the context of border area stops] than the broad and unlimited discretion sought by the Government." Id. at 882, 95 S.Ct. at 2580-81.

To approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers.

Id. at 882, 95 S.Ct. at 2581.

In Delaware v. Prouse, the Court held unconstitutional the use of random stops in order to check the driver's license and automobile registration absent some articulable and reasonable suspicion that the driver is unlicensed, that the automobile is unregistered or that there has been a violation of some other law. 440 U.S. at 663, 99 S.Ct. at 1401. The Court analogized the random stops to the roving-patrol stops prohibited in Brignoni-Ponce, and concluded that random stops on city streets are no less intrusive than roving-patrol stops on a major highway. Id. at 657, 99 S.Ct. at 1398.

Both of these stops generally entail law enforcement officers signalling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority. Both interfere with freedom of movement, are inconvenient, and consume time. Both may create substantial anxiety.

Id.

In contrast, the Court held in Martinez-Fuerte that border agents could stop a vehicle in search of illegal aliens at a fixed checkpoint and briefly question its occupants absent "any individualized suspicion" that the vehicle contained illegal aliens. Id. 428 U.S. at 562, 96 S.Ct. at 3085. The Court concluded that requiring reasonable suspicion in this situation would not serve the public's interest in locating illegal aliens. Id. at 557, 96 S.Ct. at 3082-83. "[T]he flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens." Id. at 557, 96 S.Ct. at 3083. Furthermore, the reasonableness of the procedures minimized the intrusion on the motorists. Id. at 562, 96 S.Ct. at 3085. "Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search." Id. at 558, 96...