State v. Welch, WD

• Decision Date: 28 June 1988
• Docket Number: No. WD,WD
• Citation: 755 S.W.2d 624
• Parties: STATE of Missouri, Respondent, v. Gary Dean WELCH, Appellant. 39797.
• Court: Missouri Court of Appeals

Page 624

755 S.W.2d 624

STATE of Missouri, Respondent, v. Gary Dean WELCH, Appellant.

No. WD 39797.

Missouri Court of Appeals Western District.

June 28, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 2, 1988.

Application to Transfer Denied Sept. 13, 1988.

Van B. Adams, California, for appellant.

William L. Webster, Atty. Gen., Theodore A. Bruce, Timothy W. Anderson, Asst. Attys. Gen., Mark A. Richardson, Asst. Pros. Atty., Jefferson City, for respondent.

Before MANFORD, P.J., and TURNAGE and COVINGTON, JJ.

MANFORD, Presiding Judge.

This is a direct appeal of a conviction for driving while intoxicated, in violation of § 577.010, RSMo 1986. The judgment is affirmed.

Appellant formally presents six points, but they are best described as variations of a common theme. They are summarized as follows:

Appellant charges the trial court erred in failing to sustain his motion to suppress evidence of his intoxication, because said evidence was secured as a result of a roadblock operation and any evidence secured as a result thereof was (a) obtained without a warrant or any reason to suspect that appellant was violating any law and thus was a per se violation of the Fourth Amendment and (b) obtained by an unreasonable seizure, in violation of the Fourth Amendment. He also alleges that (c) the roadblocks and evidence secured thereby were a per se violation of Mo. Const. Article I, § 15; (d) that said evidence was obtained by an unreasonable seizure, in violation of Mo. Const. Article I, § 15; (e) that said evidence was obtained in violation of § 43.200, § 577.041, and § 577.037.4, RSMo 1986; and (f) that the entry of judgment against him was erroneous, because the evidence in support thereof was obtained by reason of a roadblock.

This matter was tried to the court without a jury. The facts in this case are rather simple and for the most part, not in dispute.

On the night of July 5, 1986, the Missouri Highway Patrol established a roadway sobriety checkpoint, commonly referred to as a "roadblock" on U.S. 50 Highway in Apache Flats, Cole County, Missouri. This particular location was selected as a result of an evaluation of alcohol related arrests and accidents made over a prescribed period of time by Troop F of the Missouri Highway Patrol. The roadblock operation was planned in such a manner as to include a sign reading, "Sobriety Checkpoint Ahead," and flares were displayed to route approaching traffic. Patrol vehicles with flashing lights were readily visible for moving traffic, and a trooper with a light directed vehicles to stop or proceed. Vehicular traffic moving in both directions was stopped. The procedure employed when a vehicle was stopped called for a trooper to approach the vehicle, ask to see the operator's motor vehicle license, and make a general observation of the operator.

Appellant was stopped and a Trooper Hale asked for appellant's operator's license. Trooper Hale noticed a strong odor of beer on appellant and that appellant had difficulty in presenting his operator's license. When asked, appellant got out of his vehicle. He was also asked to perform certain "field sobriety tests", which he did, and Trooper Hale noticed that he was unsteady in walking. He first denied that he had anything to drink, but finally admitted to drinking beer during the afternoon. Appellant also displayed difficulty in reciting the alphabet and had a poor response of eye movement (technically referred to as horizontal gaze nystagmus).

The trooper believed appellant to be intoxicated. Appellant was placed under arrest and taken to the county jail for a breathalyzer test. Appellant was informed of his rights to refuse the breathalyzer test and the consequences of refusal. This is often called the "implied consent test". Upon testing, appellant's blood was shown to have a .17% concentration of alcohol.

At trial, appellant filed a motion to suppress, and after hearing, said motion was overruled. At the close of the evidence, appellant was found guilty and a fine was imposed. This appeal followed. Any additional facts deemed applicable to the disposition of this appeal will be set forth infra.

As noted above, since appellant's alleged errors are variations upon a common theme, they are taken up conjunctively in this opinion. It is noted from the outset that appellant makes no challenge to the testing method or the function of the machine which established under law that he was intoxicated. In addition, he makes no challenge to the evidence which clearly established that under the law he was intoxicated. Indeed, from this record it should be noted that any such challenge would have been meritless.

Stated in simple terms, appellant asserts that roadway sobriety checkpoints or roadblocks, as they are commonly called, are per se a violation of a citizen's constitutional rights. One should not assume that appellant totally opposes society's right to protect itself from those operators of motor vehicles who, by design or indifference, choose to combine the elements of "booze" and a motor vehicle which too often establishes a serious, if not fatal, combination; but rather, appellant attacks the method of the roadblock to provide that protection. It is his attack upon that method which serves as the basis of this decision.

This proceeding has provided the first opportunity for the courts of this state to directly and precisely take up the question of the constitutionality of roadblocks as a means by which the serious problem of drinking while driving might be addressed.

Appellant's argument is summarized as follows:

The trial court erred when it denied his motion to suppress and when it entered judgment against him, because both actions were based upon evidence secured in violation of his Fourth Amendment rights, because there was no probable cause for his arrest, and he was entitled to be free from unreasonable search and seizure. Appellant extends his argument by further asserting that in addition to invasion of his Fourth Amendment rights, his rights under Mo. Const. Article I, § 15 of the Missouri Constitution were also violated. He continues by asserting that the roadblock violates his rights under §§ 43.200, 577.041, 577.037.4 and 577.039, RSMo. He then concludes that all the evidence against him was tainted and thus the "fruit of the poisonous tree".

Appellant is correct when he discloses to this court that the federal courts and several of the state courts have wrestled with this issue. As will be observed infra, the results have been varied. The benchmark federal case is Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). From this decision, numerous cases have followed and a brief reference to these authorities is made to set the background for the ruling in this proceeding.

Prouse ruled that the random stopping of a vehicle and the detaining of the occupants constitutes a seizure within the Fourth Amendment of the United States Constitution. The United States Supreme Court went on to declare that the "permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U.S. at 654, 99 S.Ct. at 1396. It must be noted that Prouse addressed the issue of "random or spot checks" of vehicles for proper registration and licensing. In its opinion, the United States Supreme Court noted its prior decision in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), approving "checkpoints" by the border patrol in policing the international border between the United States and Mexico. Martinez followed the ruling in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), which had disapproved random or spot checks by roving patrols for seeking out illegal aliens. In Prouse, the court ruled that random or spot checking of vehicles for the purpose of checking for registration and licensing, even though that might be in furtherance of public safety, was not a permissible activity which overcomes the individual protections provided by the Fourth Amendment.

What appears from a reading of Prouse and Martinez, supra, is the following: Random or spot checks are not permissible absent a showing of a violation of the law or reasonable suspicion that a law has been violated. Checkpoints, if they are designed to stop all traffic and are supported by a valid public interest, are permissible.

Some of our sister states have addressed the issue in the following manner. In the Commonwealth of Massachusetts, the court in Commonwealth v. McGeoghegan, et al., 389 Mass. 137, 449 N.E.2d 349 (1983), ruled that roadblocks conducted for the purpose of detecting drunk drivers were unconstitutional. In so ruling, the court noted that there is a standard of reasonableness required by the Fourth Amendment and that stopping the defendant's vehicle was a seizure within the Fourth Amendment. The court stated that for such roadblocks to be permissible,

it appears that the selection of motor vehicles to be stopped must not be arbitrary, safety must be assured, motorists' inconvenience must be minimized, and assurance must be given that the procedure is being conducted pursuant to a plan devised by law enforcement supervisory personnel. While we do not suggest that advance notice is a constitutional necessity, advance publication of the date of an intended roadblock, even without announcing its precise location, would have the virtue of reducing surprise, fear, and inconvenience. Such a procedure may achieve a degree of law enforcement and highway safety that is not reasonably attainable by less intrusive means. Also, while we do not suggest that roadblocks can only be constitutional if prescribed by statute or appropriate governmental regulation, we think that procedures conducted pursuant...