DUI Appeal - NC Roadblock Challenged for Unlawful Purpose

In State of North Carolina v. Nolan, --- S.E.2d ----, 2011 WL 1467572 (N.C.App.) the defendant appealed the validity of a roadblock, alleging that its primary purpose was unlawful, i.e. general crime control. A roadblock whose primary purpose is general crime control is unconstitutional under the US Supreme Court case of City of Indianapolis v. Edmond.

The defendant was stopped at the checkpoint. Deputy J. Moore (“Deputy Moore”) of the FCSD, one of the officers assigned to the checkpoint, approached defendant's vehicle and asked defendant for his license. As Deputy Moore spoke with defendant, he detected an odor of alcohol. Deputy Moore asked defendant “about the odor, and he said he had not been drinking.” Deputy Moore then asked defendant “about ... a six-pack of Budweiser Select” which Deputy Moore observed “in the back seat with two bottles missing.” When Deputy Moore asked defendant about the missing bottles, defendant admitted he “had a couple earlier.” Deputy Moore then asked defendant to exit the vehicle, which he did. Deputy Moore then advised defendant that he was going to conduct a field sobriety test and asked defendant to “pull the stuff out of his pockets.”

Defendant prepared for the field sobriety test by removing the objects from his pants pockets. As defendant removed a sunglasses case from his pants pocket, a second officer, Deputy J. Bracken (“Deputy Bracken”) of the FCSD, who was assigned to the checkpoint, observed a plastic bag containing a substance which appeared to be marijuana. Deputy Bracken asked defendant, “What's the plastic baggie?” and defendant replied, “Uh, oh.” Deputy Bracken searched defendant and the search revealed another plastic bag, a glass pipe, and a lighter. A K–9 officer approached with a K–9 dog, to detect the presence of drugs in the vehicle. When officers searched defendant's vehicle, they discovered multiple items of contraband, including drugs.

The appeals court then reviewed the defendants assertion that the purose of the roadblock was illegal crime control and/or drug interdicition. "When considering a challenge to a vehicle checkpoint, the reviewing court must undertake a two-part inquiry to determine whether the checkpoint meets constitutional requirements: first, the court must determine the primary programmatic purpose of the checkpoint, and second, if a court finds that police had a legitimate primary programmatic purpose for conducting a checkpoint the court must judge its reasonableness, hence, its constitutionality, on the basis of the individual circumstances." In so determining, the appeals court wrote:

"Our Court has previously held that where there is no evidence in the record to contradict the State's proffered purpose for a checkpoint, a trial court may rely on the testifying police officer's assertion of a legitimate primary purpose. However, where there is evidence in the record that could support a finding of either a lawful or unlawful purpose, a trial court cannot rely solely on an officer's bare statements as to a checkpoint's purpose. In such cases, the trial court may not simply accept the State's invocation of a proper purpose, but instead must carr[y] out a close review of the scheme at issue. This type of searching inquiry is necessary to ensure that an illegal multi-purpose checkpoint [is not] made legal by the simple device of assigning the primary purpose to one objective instead of the other[.]"

The court concluded that the primary purpose of the roadblock herein was the detection of impaired drivers. The court found that the police officer's testimony regarding the primary programmatic purpose of the driver's license checkpoint, as supplemented by written checkpoint plan, supported the trial court's finding that the primary programmatic purpose of the checkpoint was the detection of drivers operating a motor vehicle while impaired, and not merely to further general crime control.

Additionally, the court found the police order for the defendant to empty his pockets reasonable:

"When Deputy Moore noticed defendant was carrying a small knife, he asked defendant about a bulge in defendant's pants pocket. Defendant then emptied his pockets, and Deputy Bracken observed in plain view a clear bag containing a substance which he believed to be marijuana. Although defendant was not charged with driving while impaired, he possessed a weapon, drugs, and drug paraphernalia. The actions taken by Deputies Moore and Bracken were reasonably necessary to maintain their safety during the operation of the checkpoint."

EDITORS NOTE: What was't specifically addressed was whether the initial order to exit, which was based only on an unquantified odor of alcohol and two missing bottles of beer from a six-pack, was reasonable. The US Supreme Court in Michigan v. Sitz did suggest that something more than the suspicionless seizure itself would be required to pull motorists out of their cars, and this point was notferreted out in the courts opinion herein.

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal - When is a Georgia roadblock an illegal roving patrol?

In Owens v. State of Georgia, --- S.E.2d ----, 2011 WL 816624 (Ga.App.), the defendant argued that the roadblock was the result of an unauthorized, “on-the-fly” decision made jointly by an alleged supervisor and his field officers and that the roadblock was, essentially, an improper “roving patrol” of officers who illegally stopped and detained motorists. The court recited applicable law that:

"In general, a seizure is unreasonable absent some individualized suspicion of a crime. City of Indianapolis v. Edmond, 531 U.S. at 37(II); Thomas v. State, 277 Ga.App. at 89-90. As a result, “roving patrols in which officers exercise [ ] unfettered discretion to stop drivers in the absence of some articulable suspicion” are unconstitutional. (Citation omitted.) Thomas v. State, 277 Ga.App. at 90. A limited exception to the rule requiring individualized suspicion, however, allows standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives and that impose minimal intrusions on the motoring public. City of Indianapolis v. Edmond, 531 U.S. at 41-42(III); LaFontaine v. State, 269 Ga. 251, 253(3) (497 S.E.2d 367) (1998)."

To justify a traffic stop under this exception, the State must prove that a highway roadblock program “was implemented at the programmatic level [[FN3] for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor, rather than by officers in the field, and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.” FN4 (Citations omitted.) Hobbs v. State, 260 Ga.App. 115, 116(1) (579 S.E.2d 50) (2003). “Elevating the roadblock decision from the officers in the field to the supervisory level limits the exercise of discretion by the officers in the field .” Thomas v. State, 277 Ga.App. at 90.



Georgia's courts have not yet precisely defined what it means for a decision to be made at the “programmatic level.” See Jacobs v. State, --- Ga.App. ----, ----, n. 6 (Case No. A11A0107, decided February 28, 2011). Here, the roadblock was approved by a Sergeant. The order for the roadblock was issued by Sergeant Michael C. Johnson post commander of Post 7 of the Georgia State Patrol, Toccoa, Georgia.... Sgt. Johnson is in fact the commanding officer for the field officers at his Post and his duties include “Initiating road-checks[.]” [FN5] ... Sgt. Johnson initiated the roadblock verbally and the decision was made by him alone.[[FN6] ... Sgt. Johnson [then] supervised the roadblock. The court also found that, when Sgt. Johnson verbally initiated the roadblock on August 15, 2008, he called into the radio operator to report the roadblock. The roadblock approval form, which was admitted into evidence without objection, stated the reasons for the roadblock on August 15, 2008, and the court found that the information on the form did not conflict with any evidence presented as to when the roadblock was to be conducted or by whom it was authorized.

In addition, the appeals court held that the State must prove that:



"all vehicles [were] stopped as opposed to random vehicle stops; the delay to motorists [was] minimal; the roadblock operation [was] well identified as a police checkpoint; and the screening officer's training and experience [was] sufficient to qualify him [or her] to make an initial determination as to which motorists should be given field tests for intoxication."

The appeals court found that the roadblock was not unlawful:

"Contrary to Owens' contentions, there is no evidence in this case that Sgt. Johnson spontaneously decided in the field to conduct the roadblock or that the roadblock had any other characteristic of a “roving patrol.” Instead, given the evidence presented, the trial court was authorized to conclude that Sgt. Johnson properly initiated, authorized, and supervised the roadblock and that his decision to implement the roadblock was made at the programmatic level for a legitimate primary purpose."



Additionally, the defendant claimed that the trial court erred in finding that his detention by the officers was not excessive under the circumstances. Georgia law applies Miranda to filed sobriety testing post-arrest:



"When a violator is placed in custody or under arrest at a traffic stop, the protection of Miranda[ arises. Thus, if an officer gives a field sobriety test to a person who is in custody or under arrest but who had not been warned of his right against self-incrimination, then the test results are inadmissible. Conversely, if the person is not in custody when he takes a field sobriety test, the results are generally admissible[,] even if the person had not been warned of his Miranda rights. The test to determine whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee's position would have thought the detention would not be temporary. The safeguards prescribed by Miranda become applicable only after a detainee's freedom of action is curtailed to a degree associated with formal arrest. The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee's exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous."



The appeals court found that the 20 minute delay at the roadblock was not 'custodial':



"As the trial court in this case found, the arresting officer



detained [Owens] for [20] minutes after the initial portable breath test to conduct an additional test. The reason given by the arresting officer was that [Owens] admitted he had something to drink recently and there could be residual mouth alcohol. Not until after the [20] minute wait and after the second portable breath test was possible was [Owens] placed under arrest.... The [20] minute delay was for the benefit of [Owens] to insure that the portable alcohol test was not affected by residual alcohol due to [Owens'] recent consumption of alcoholic beverages."



Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

OUI Appeal - Maine Roadblock Stop Unreasonable

This case comes to DAD through the watchful eyes of NCDD Maine Attorney Wayne Foote. In State of Maine v. Kent, --- A.3d ----, 2011 WL 1120102 (Me.), 2011 ME 42, the defendant was arrested for OUI following a roadblock stop. he challenged the roadblock through the filing of a Motion to Suppress. At a hearing on a motion to suppress, Maine law holds that the State bears the burden of demonstrating that the execution of a roadblock stop by police officers was reasonable pursuant to the Fourth Amendment. The trial court held that the roadblock was lawful, and the defendant was eventually convicted.
The written standard operating procedures (SOPs), established by the Chief of the Auburn Police Department, applied to the operation of the roadblock. The SOPs provide in relevant parts:

The Chief of the Auburn Police Department shall approve any requests to hold a sobriety checkpoint.
....
The location of a sobriety checkpoint shall be chosen after consideration of [several factors related to safety and efficiency and the frequency and location of prior OUI related accidents and arrests].
....
The public shall be notified via the media of any plan to hold a sobriety checkpoint at least 24 hours prior to holding the checkpoint.
....
A minimum of one supervisor and six patrolmen will be used at all sobriety checkpoints.
....
All vehicles passing through the sobriety checkpoint shall be stopped. Only when backed up traffic becomes a hazard will vehicles be allowed through without being checked, and in this case all vehicles will be let through until there is no longer a hazard.
....
Each operator will be given a message card and will be spoken to only briefly. If there is no reason to believe a violation is occurring, then the vehicle will be allowed to continue without further delay.

On appeal, Kent argued that the seizure of her person at the roadblock stop was constitutionally unreasonable because the State did not establish that, as required by the SOPs, (1) the roadblock was approved by the Chief of Police; (2) a supervisor was present at the roadblock; and (3) all vehicles passing through the roadblock were stopped. Admitting that there were deficiencies, the State nevertheless replied that not all violations of these procedures should cause a roadblock to be declared unlawful or an arrest to be suppressed. The Supreme Court found the deficiencies constitutionally defective:

"In this case, the State did not establish that there was any leadership or accountability in the design, approval, and execution of the roadblock. Although Sergeant Bryant testified that he had participated in the six or seven previous roadblocks that were set up in the same location and in the same manner, there was no direct evidence that the roadblock's location was chosen according to the criteria set forth in the SOPs. Nor did the State establish that the Chief of the Auburn Police Department or any other authority approved a request to conduct any of these roadblocks or that the public was notified in advance of this roadblock. With respect to supervision of the roadblock, Sergeant Bryant did not testify about who supervised the roadblock or whether a supervisor was even present.

Reviewing the other Cloukey factors, the average length of time that motorists were detained at this roadblock is notable. One SOP provides, “Each operator will be given a message card and will be spoken to only briefly.” However, at this roadblock, motorists without violations were detained an average of three to five minutes. Compared to the average time of detentions in cases where roadblocks were deemed reasonable, the length of these seizures suggests more than a minimal intrusion of a motorist's liberty interest. See Bjorkaryd–Bradbury, 2002 ME 44, ¶ 3, 792 A.2d at 1083 (safety checks lasting “only a couple of minutes”); Patterson, 582 A.2d at 1206 (safety checks taking “only 1 1/2 to 2 minutes”); State v. Babcock, 559 A.2d 337, 337 (Me.1989) (OUI detentions lasting one to two minutes); McMahon, 557 A.2d at 1325 (safety and OUI detentions lasting “one to two minutes”); Leighton, 551 A.2d at 117 (OUI stops lasting “under a minute”); Cloukey, 486 A.2d at 144 (conducting thirty safety checks in one-half hour); Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 448, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (sobriety checkpoint stops lasting an average of twenty-five seconds)."

NOTE: The decision points out that it should be the State's responsibility to establish the validity of the roadblock - not vice versa. Further, the lenght of delay should be explored in every case, as it is not uncommon for cops to apparently hold persons 'hostage' for longer and longer each time they rune one of these events...


Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal of the Day (DAD) - Roadblock approved by Field Captain

In Jacobs v. State, --- S.E.2d ----, 2011 WL 677949 (Ga.App.) the defendant challenged his arrest for DUI by claiming that a highway roadblock that was implemented by a field officer, rather than by a supervisor at the programmatic level, and, therefore, that the trial court erred in denying his motion to suppress evidence obtained as a result of that roadblock. The person who implemented and approved the roadblock was Captain Crawshaw. As a captain, Crawshaw was the senior officer in the field, charged with supervising a shift that consisted of herself, a lieutenant, and at least five officers. Above Crawshaw in the chain of command were one of four majors and the chief of police, who decide the policies within the departments. The Fayetteville Police Chief established departmental uniform goals, pursuant to which each shift would conduct a certain number of road safety checks per quarter. Before July 25, 2009, Crawshaw discussed the uniform goals generally, along with the prescribed procedure for conducting a roadblock, with the chief and the majors. As a shift supervisor, Crawshaw was authorized by her superiors to plan and implement roadblocks. Although she obtained some input from her subordinates, Crawshaw did not obtain prior approval, either written or verbal, from her superiors of her plan to have a roadblock on July 25, 2009.

The State must prove that a highway roadblock program “was implemented at the programmatic level for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor rather than by officers in the field and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.”

The Georgia court found that the captain was a 'supervisor at the programmatic level' as contemplated under the law:

Applying controlling precedents, we conclude that Crawshaw was a supervisor by virtue of the fact that her rank and job duties required her to supervise the work of a number of officers of subordinate rank, even though she supervised those subordinates in the field, rather than from behind a desk, and even though she initially screened Jacobs at the roadblock.


Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!