IN THE MUNICIPAL COURT OF MONTICELLO, ARKANSAS

STATE OF ARKANSAS PLAINTIFF

vs. No. 91-3-3044, 91-3-3045

91-2-1931, 91-2-1932, 91-4-336

JAMES SUBER DEFENDANT

FINDINGS OF FACT AND ORDER

The above style cause came on for trial in this court on the 11th day of September, l991, and at the conclusion of said trial, the Court directed counsel to prepare briefs on certain issues presented during the course of the trial.

The defendant, James Suber, Jr., was charged on August 15, l991, with the offenses of disorderly conduct, failure to pay registration, no vehicle inspection, refusing a breath test, and with DWI first offense.

These charges were commenced when Arkansas State Police officers Ricky L. Newton and Jackie Jones, while conducting a field sobriety checkpoint, or roadblock, observed a vehicle driven by the defendant James Suber, Jr., approach and then turn around and go the other way from the roadblock which had been set up by the police officers.

Officers Newton and Jones both testified that they pursued the Defendant's vehicle in a State Police car, and after stopping his vehicle, approached the defendant and noticed the smell of alcohol about his person.

Officer Newton testified that prior to stopping the defendant's vehicle, he noticed that the license tags on the defendant's vehicle had expired, and further elaborated that he considered this sufficient probable cause to justify the detention of the defendant under the circumstances.

Officer Jones testified that at the time the officers got into the State Police car to pursue and apprehend the defendant, they did so with the intention that they were going to stop the individual because of what Officer Jones believed his attempt to avoid the field sobriety checkpoint which had been previously established. There is a clear discrepancy in the testimony existing between Officers Newton and Jones as to their intention when they initially decided to pursue and apprehend the defendant.

The issues presented to this Court for a decision involve the following:

1. The constitutionality of the field sobriety check- point, or roadblock, initiated and operated by the Arkansas State Police on August 15, l991.

2. The constitutionality or probable cause for the initiation of any charges against the defendant.

With respect to the constitutionality of the sobriety checkpoint or roadblock, there is extensive case law both within the state of Arkansas as well as the Federal court system regarding Fourth Amendment rights as they apply to unlawful or unreasonable searches and seizures.

The paramount case involves the decision by the United States Supreme Court which was addressed in the case of Michigan v. Sitz, ___U.S.___, 110 S. Ct. 2481 (1990). In Sitz, the Supreme Court noted that it saw virtually no difference between the levels of intrusion which occur on law abiding motorists from the stops necessitated by highway checkpoints checking for illegal aliens, and those intrusions which were designed to detect the sobriety of motor vehicle operators. In Sitz, however, checkpoints were selected and established pursuant to written guidelines adopted in Michigan, and uniform police officers stopped every approaching vehicle.

The Court noted that the brief stop encountered by the sobriety checkpoint in the Sitz case is, for constitutional purposes, indistinguishable from the checkpoint stops which were upheld in the case of United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074 (1976). Further, the Court in Sitz discussed the case of Delaware v. Prouse, 440 U. S. 648, 99 S. Ct. 1391 (1979), wherein the Court disapproved of random stops made by state highway officers and stated that the justifications for such stops have to be based on a balancing act which weighed the probability that random stops would be an effective and efficient means of apprehending those citizens who are not abiding by the law; further, the Court stated that the kind of random stops involved in the Prouse case were designed to place too much discretion in the hands of officials in the field which, as the Court said, "should be circumscribed, at least to some extent".

In Sitz, the Court distinguished that case between the facts prevailing in the Prouse case by stating that the Sitz case involved neither an absence of empirical data nor a challenge to random highway stops.

It is clear to this court that the Sitz case involved quite a different set of facts, policy, and standards which had been applied to that case that do not exist with the case before this court.

Significant dissension was noted in the Sitz case, namely with respect to the operation of sobriety checkpoints at night, unannounced locations, and without prior notification. The dissent by Justice Stevens in the Sitz case pointed out that there is, in that Justices's opinion, a significant constitutional problem where a field officer has such extremely broad discretion in determining such matters as the timing or the location of the stop. Mr Justice Stevens went on to indicate that there was a constitutional issue which was raised when, as a result of the operation of a sobriety checkpoint, an officer questioning a motorist at such a checkpoint has "virtually unlimited discretion to detain the driver based on even the slightest suspicion, such as a ruddy complexion, an unbuttoned shirt, blood shot eyes or a speech impediment which may suffice to prolong the detention. Any driver who had just consumed a glass of beer, or a sip of wine, would almost certainly have the burden of demonstrating to the officer that his or her driving ability was not impaired."

It is this very problem, among others, which concerns this court; and in previous cases before the court, officers have used the simple suspicion of "the odor of alcohol about the defendant's person" as a justification for a prolonged detention and further testing to determine public intoxication or DWI offenses.

As this court has stated in previous cases, the mere "smell of odor of alcohol about a defendant's person" in and of itself is an insufficient ground for finding probable cause, or for continued detention of a suspect. In the absence of any further factors which, when combined with the "smell" of alcohol, such cases are, in this court's opinion, constitutionally mandated to be dismissed because the consumption of an alcoholic beverage in and of itself is not a violation of the law. As with the dissent in the Sitz case, this Court is concerned most with the overreaching and broad discretion which could possibly be granted to law enforcement officers in the field in their zealous quest to detect a slight percentage of motorist who are operating their vehicles while under the influence of intoxicating alcohol.

While this court does not question the motive in attempting to alleviate what is now a national tragedy, and while this court sympathizes with the effort to lawfully restrain those motorists who are illegally intoxicated from operating their vehicles upon the nation's roadways, the Court is reminded of the old adage of "the ends do not justify the means". An analogy that comes to mind is the significant problems, destruction, deaths, and crime attributable to the wide spread importation, distribution, and use of illegal drugs and narcotics. In this county, the "war on drugs" has received a great deal of attention, publicity, and this court thinks that that is all proper. However, the question then arises as to the extent to which law enforcement officers, when frustrated by policies, procedures, and court rulings, are to be permitted discretion and latitude which heretofore have been ruled as unconstitutional acts, in attempting to snuff out, seize, arrest, and detain those individuals who may properly or not be suspected of engaging in the importation, sale, manufacture, distribution, or use of illegal drugs or narcotics. Certainly it is very clear that the constitutional rights to freedom from unreasonable searches and seizures still exist and have not yet been eroded significantly by the courts or legislative bodies so as to permit law enforcement officers from randomly stopping every pedestrian on the sidewalks and streets of Monticello, Arkansas, and asking them to spread their legs with their hands against the wall and to submit to a search based on the desire to apprehend, arrest and convict participants in the illegal drug trade. Things have not yet deteriorated to that point, but the rules of criminal procedure which have been adopted over the years are designed to protect the rights of the many, even if by applying such rules and procedures a guilty person is allowed to walk free.

It is in recognition of these philosophical points that the United States District Court for the Eastern District of Arkansas entertained a lawsuit which resulted in a consent decree which was entered on December 17, l982, in the case of Garrett v. Goodwin, 569 F. Supp. 106, (1982).

In Garrett v. Goodwin, the Arkansas State Police, after being sued by seven motorists and three passengers who had sought relief from the policy of the Arkansas State Police of conducting saturation roadblocks on Interstate 40 while searching for persons in possession of illegal drugs, basing their suit upon the unconstitutionality of such a policy under the Fourth Amendment to the United States Constitution.

Accordingly, the Goodwin case marked a recognition by the State of Arkansas, and particularly the Arkansas State Police, that the conduct of their prior policy did in fact constitute a search and seizure under the Fourth Amendment of United States Constitution which was impermissible and illegal in scope and application.

The Arkansas State Police, in entering into the consent decree, were permanently enjoined to promulgate a written policy based on the consent decree, and did so. It should be noted that the Goodwin case involved the use of roadblocks for enforcement of driver licenses and vehicle registration laws, but, as noted by the United States Supreme Court in the Sitz case, the applicability of the Fourth Amendment, and hence the viability and permissibility of roadblocks in such cases is indistinguishable and is allowable to the same extent in sobriety checkpoint cases.

The written policy of the Arkansas State Police, adopted in response to the consent decree and judgment issued in the Goodwin case, states that the determination of when and where to conduct roadblocks shall be made only by personnel at a management level; further, the location, organization, time and duration of such roadblocks will be determined primarily by the safety of the public and the officers involved; criminal enforcement's needs are not a consideration when planning an administrative safety check, and legal advice will be obtained before undertaking any aspect of conducting such a roadblock; a press representative would be appointed to issue statements made by the agency; motorists would not be ordered or requested to exit a vehicle unless there was some justification which arose at the scene, to the extent of probable cause; and other matters.

In the Goodwin case, the consent decree permitted the use of roadblocks where law enforcement officers followed strict operating guidelines which eliminated the discretion of the field officers, as well as producing empirical data which indicated the inherent reliability and effectiveness of such procedures.

However, one of the big concerns in Goodwin, as with the case before this court, is the use of a roadblock for conducting a plain view search of a vehicle, in obtaining evidence of the commission of other offenses which would not have otherwise come within the purview or observation of a law enforcement officer. The use of roadblocks as a tool does not allow law enforcement officers a field day for the examination in searching of automobiles; irrespective of whether an automobile is involved, there must always be probable cause for such a search and/or seizure.

The justification for the employment and use of the roadblock methodology is narrow, and in this court's opinion, the constitutionality and permissibility of such methods must be narrowly construed in order to prevent the broad, overreaching, unlawful discretionary type searches that can so easily arise and for which the Fourth Amendment to the Constitution was designed to prevent.

Accordingly, the State of Arkansas has a heavy burden because of the circumstances arising out of the employment of roadblock methods; at the very least, the state has the burden of proving to the satisfaction of any trial court that a uniform policy has been adopted by the management of the law enforcement department involved in operating such a roadblock, so that an objective review of that policy can be made, and so that the effectiveness in carrying out the policies and guidelines can be objectively determined by the trier of fact. At the very minimum, it is clear to this court that the decisions of the United States Supreme Court require such policies, and in view of the successful litigation in Garrett v. Goodwin, the Arkansas State Police in particular recognized the legal necessity for the adoption and implementation of written guidelines authorizing the use of roadblock methodology in safety check situations; it would appear to this court that the failure to adopt such a similar policy where that same department desires to employ the same methodology in sobriety checkpoints can impermissibly allow officers in the field too wide a discretion and latitude in carrying out such roadblocks.

Where the scope of such a roadblock is unacceptably broad, this court finds that such roadblocks are unconstitutionally permitted and are violative of the Fourth Amendment of the United States Constitution. The state must produce a reasonable policy and show that it was implemented without deviation; any deviation should be construed against the rights of the law enforcement agency employing or utilizing such methods, and accordingly, any arrest or charges stemming from such illegal methods should be disallowed.

In the case a bar, this court has received copies of internal memorandums dated June 25, l991, to troop commanders of the Arkansas State Police, encouraging such troop commanders to employ sobriety checkpoints. A copy was apparently forwarded to the various troop commanders of a technical report issued by the U. S. Department of Transportation encouraging the use of sobriety checkpoints as a valuable tool for the fight to remove impaired drivers from the road; attached with that were some guidelines for sobriety checkpoints.

The guidelines are quite extensive, and in this court's opinion, go a long way toward the implementation of reasonable safeguards designed to prevent overly broad, discretion divested in the hands of law enforcement officers in the field. With reference to the model policy contained in such guidelines, this court has noted that advance notification is provided for wherein the particular law enforcement agency announces to the media that checkpoints will be conducted in an effort to enhance public perception of law enforcement's aggressive actions, and to heighten the deterrent effect and to insure protection of constitutional rights. A number of other issues are addressed also by the model policy and guidelines which accompanied the internal State Police memorandum. However, this court has not been made aware of the formal adoption and implementation of any such policy or guidelines, and, accordingly due to that fact, and due to the fact that this court believes that the state has the burden of proving the inherent reliability of any such roadblock methodology which is undertaken by any law enforcement agency, this court hereby finds that the roadblock conducted by the Arkansas State Police in this case to be impermissible and outside the scope of constitutionally permitted activity.

That brings this court to the second issue involved in this case, namely, whether the law enforcement officers acted constitutionally or had probable cause to make an arrest in this case.

The state has cited the case of Coffman v. State, 26 Ark. App. 45, 759 S.W.2d 573 (1988), for the proposition that a defendant can be properly charged and convicted even though he was arrested for avoiding a roadblock which was unconstitutional in scope, impermissible, and illegal; Coffman does in fact stand for the fact that while a roadblock is unlawful, an arrest incident to an unlawful roadblock is not necessarily invalidated. However, Coffman required that the law enforcement officers must have some objective manifestations, and must have acted on the assumption that the defendant in Coffman, as in the case before this court, when approaching a roadblock, acted or attempted to avoid the roadblock and was trying to hide some type of unlawful activity.

Here, this court has previously discussed the inconsistent testimonies between Officers Newton and Jones, where Officer Jones particularly indicated to the court in his direct testimony that the simple fact that the defendant turned around was the reason that he engaged in pursuit of the defendant; however, Officer Newton attempted to justify the stopping of the vehicle not because of his attempts to evade the roadblock, but because his car registration had expired.

There was also some disagreement between the officers' testimony and that of the defendant, relative to the position of the defendant's vehicle at the time the officers approached the defendant. This court is of the opinion that at the time the officers approached the defendant, the vehicle was in fact parked, and that the officers had no reasonable suspicion to believe that this defendant was attempting to evade a roadblock, lawful or not, or that the Defendant was attempting to conceal from them some unlawful activity; the officers did not observe the Defendant operating the vehicle in any manner which would indicate the possibility of intoxication. Probable cause did not exist for the DWI, but probable cause did exist, based upon plain view, that the registration and licensing requirements of Arkansas law were not met. Approaching and apprehending the Defendant for those charges is sufficient to sustain a charge and conviction; however, the objective requirements called for by the Coffman case are not met here, and the defendant is found not guilty of DWI First Offense, not guilty of refusing a test, and not guilty of disorderly conduct, and the defendant is found guilty of failing to pay for a registration, and having no inspection sticker on his automotive vehicle, for which offenses the defendant is fined $50.00 each, for a total fine of $100.00.

This Court is not prohibiting roadblock methodology. This Court is simply requiring that objective written standards must exist and must have been adopted, as well as applied in employing this technique. Government, through its law enforcement officers, must be fundamentally fair, and must appear fair, or our Constitution and our way of life will not continue as we have known it. Never, is the means being employed by government justified by the end result which is being sought.

The Clerk of this Court is hereby directed to furnish a copy of this Order to all Counsel in this case.

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William R. Daniels

Municipal Court Judge

DATE:________________