Superior Court of New Jersey, Appellate Division.
STATE of New Jersey, Plaintiff-Respondent,
v.
Francis R. KIRK, Jr., Defendant-Appellant.
Argued Jan. 28, 1985.
Decided May 28, 1985.
SYNOPSIS
Defendant pled guilty in the Superior Court, Law Division, Cape May County, to driving while under the influence and then appealed denial of his motion to suppress evidence against him. The Superior Court, Appellate Division, King, P.J.A.D., held that: (1) State Constitution was more appropriate vehicle to resolve questions concerning rights of citizens to travel on highways of state without police interdiction and rights of police to use reasonable methods to enforce traffic laws than was Federal Constitution; (2) temporary road block set up by exercise of absolute, unbridled discretion of officers in field, which involved no command or supervisory participation, for which there was no demonstration of need or efficacy at particular time and place, upon which there were no limits or directions of any kind as to how, when or where road block was to be set up, or as to why it was set up, and purpose of which seemed to be little more than to give officers something to do, was violative of State constitutional provision against unreasonable seizure; and (3) if certain procedures set forth, ensuring supervisory control of check points and warning to motorist, are carefully followed, any constitutional objections will be overcome.
Reversed.
The opinion of the court was delivered by
KING, P.J.A.D.
The issue here is the constitutionality of a road block or vehicle check point set up by two State Troopers on a county highway in a rural area of Cape May County at about 5:30 p.m. on Saturday, October 15, 1983. The Law Division judge denied the defendant’s motion to suppress the evidence against him on the charge of drunken driving. All of the evidence against defendant was the product of the stop which was made without any probable cause or particularized suspicion of illegal activity. Defendant contends that the stop was a violation of his constitutional rights.
After denial of the motion to suppress, defendant pled guilty to driving while under the influence of alcohol, N.J.S.A. 39:4-50, was fined $250, and his license to drive was revoked for six months. No stay of the license revocation was sought and defendant **1273 has suffered that aspect of the penalty. He now appeals under R. 3:5-7(d) which preserves his right, despite the guilty plea, to appellate review of the validity of the stop and seizure of his person which he claims violated his constitutional rights.
Trooper Mayes was the only witness at the hearing on the motion to suppress. He described his duties on October 15, 1983 as “general traffic-any traffic enforcement.” He and Trooper Martinez decided to stop all traffic in both directions on County Route 550 in Dennis Township, Cape May County. This *33 is a two-lane road in a rural area, lightly travelled, especially at this time of year. He described his purpose as follows
What we do is we set up. At that time it was only two Troopers me and another trooper, we take both lanes north and south bound in this instance and stop every car that comes down the road asking for driver’s license, registration, insurance card and at this time we also check for any equipment violation such as bald tires and such, anybody who appears to be intoxicated and any drugs, anything in plain view of such sort.
The Trooper said he picked this road because it was less traveled than a main road. This was necessary because they planned to stop all cars. He said that “you have to keep in consideration the volume of traffic on these roadways” and “we can’t go on any major highways because you have traffic buildup so much that we pick a side road that is not so heavily travelled.” On Route 550, the troopers would usually have no more than five cars stopped going in each direction at the same time during a road block. The first car stopped was defendant’s; this was about ten minutes after the road block was set up. Immediately after defendant was arrested on suspicion of drunken driving the road block was broken down and defendant was taken to the barracks for booking. A single trooper could not operate the check point because of safety and security considerations. Only defendant Kirk and one other car had been stopped before the road block was closed down. As noted, there was no probable cause to stop defendant Kirk’s vehicle. The facts supporting the trooper’s decision to charge him were gleaned only after he was stopped, questioned, and given roadside tests to perform.
Trooper Mayes himself selected the place on the highway where all vehicles would be intercepted. He gave no reason or justification for the particular location. When asked: “How often do you set up these traffic checks?” the trooper replied: “There’s no specific, you know, amount.” He then said the determinative factor was “mostly the weather, really … we don’t have traffic checks in downpours.” He added that they were not set up on every clear day. When asked: “What determines in your mind when you’re going to set up a traffic *34 check?”, he replied: “Basically we [he and his partner trooper] just discuss it and we’ll have one.”
No flares or warning signs were used. There was no advance publicity given. The intercepting trooper simply stood in the middle of the road and waved down all cars from both directions. The trooper also expressed his reliance on New Jersey State Police Official Training Bulletin # 1-79 FN1 , May 10, 1979, which contained a summary **1274 of the United States Supreme Court’s opinion in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), prohibiting random stops, and an admonition to troopers to either stop every vehicle, or stop vehicles at a uniform rate, i.e., every fifth, tenth or fifteenth vehicle, when conducting a road block.
FN1. We have also been provided with a November 2, 1983 supplement to Bulletin # 1-79 which states that traffic interception procedure is a “valuable tool for members of the Division of State Police.” The Bulletin states that “when properly conducted it serves four general purposes: (1) increases contacts with the motoring public, (2) assists members in discovering violations of the law, (3) directes police attention to criminal activities, and (4) creates the psychological impression that law enforcement is omnipresent.”
In selecting a location the Bulletin states that a principle factor is “deterrence against those who drive while under the influence of alcohol or other drugs.”
I
We wish to be clear that our decision is rendered on State constitutional grounds exclusively, not on federal constitutional grounds. In compliance with the admonition of Justice O’Connor in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201, 1214 (1983), we rely on federal precedents for guidance as we would on precedents of any other jurisdiction, not because of any concept of federal constitutional compulsion. Ibid. We intend that our decision rest on “bona fide separate, adequate, and independent State grounds,” not subject to federal review. Ibid. As Justice O’Connor noted in Long: “It is *35 fundamental that State courts be left free and unfettered by us in interpreting their state constitutions.” Ibid.
[1] Art. I, par. 7 of the New Jersey Constitution of 1947 FN2 is almost identical in wording to the Fourth Amendment to the federal Constitution. FN3 Under our recent cases, we are free to look to our Constitution which on at least four occasions has been construed to afford greater protection to privacy interests than the parallel provision of the federal constitution. See State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982) (protectible interest in toll billing records); State v. Alston, 88 N.J. 211, 440 A.2d 1311 (1981) (standing to challenge search and seizure); State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975) (consent to search); State v. Novembrino, 200 N.J.Super. 229, 491 A.2d 37 (App.Div.1985) (no “good faith” exception to exclusionary rule). Indeed, the United States Supreme Court itself has invited the several states to develop acceptable alternatives to the constitutionally infirm random traffic stop condemned in the leading federal case, Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979): “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.”
FN2. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.
FN3. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[2] [3] Structural differences in the State and federal constitutions, and matters of particular state interest or local concern, are two of the factors to be considered in developing an independent body of state constitutional law. See Justice Handler’s *36 concurring opinion in State v. Hunt, 91 N.J. 338, 365-366, 450 A.2d 952 (1982). See also his opinion in State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983). See generally Brennan, “State Constitutions and the Protection of Individual Rights,” 90 Harv.L.Rev. 489 (1977); “Developments In the Law-Interpretation of State Constitutional Rights,” 95 Harv.L.Rev. 1324, 1361 (1982); Pollock, “State Constitutions as Separate Sources of Fundamental Rights”, 35 Rut.L.Rev. 707 (1983); Note, Fernandez, The New Jersey Supreme Court’s Interpretation and Application of the State Constitution, 15 Rut.L.J. 491 (1984). We conclude, as have many other state courts, that our State Constitution, which serves **1275 only “to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives,” Hunt at 365, 450 A.2d 952, is a more appropriate vehicle to resolve questions concerning the rights of our citizens to travel the highways of our state without police interdiction and the rights of the police to use reasonable methods to enforce our traffic laws than is the federal constitution. As the United States Supreme Court recognized in Delaware v. Prouse, this is an essentially local, not a federal concern, subject of course to the constitutionally minimum federal standards established by Delaware v. Prouse and its antecedents.
II
This case is one of first appellate impression in New Jersey. One Law Division opinion has approved a sobriety road block in State v. Coccomo, 177 N.J.Super. 575, 427 A.2d 131 (Law Div.1979), a case widely cited in other jurisdictions’ discussions of this problem FN4 . The contrast of the facts in Coccomo to the facts before us are instructive in illustrating why we conclude that the road block in the present case rests so much upon the discretion of the *37 officers in the field that it is unconstitutional. See infra at 1277.
FN4. We stress that this case has nothing to do with road blocks set up near scenes of recent serious crimes or to apprehend fleeing felons. These situations are discussed at 3 LaFave, Search and Seizure, § 9.5 at 140 (1978); see also A Model Code of Pre-arraignment Procedure, § 110.2(2) at 7 (ALI 1975).
As Justice Clifford said in State v. Carpentieri, 82 N.J. 546, 548, 414 A.2d 966 (1980):
There is, of course, no question that Prouse effected a radical departure from the state of our law as it existed up until the date of that decision, for until then such random stops were expressly authorized under case law in New Jersey, see State v. Gray, 59 N.J. 563, 567 [285 A.2d 1] (1971); State v. Braxton, 57 N.J. 286, 287 [271 A.2d 713] (1970); State v. Kabayama, 98 N.J.Super. 85, 87-88 [271 A.2d 713] (App.Div.1967), aff’d o.b. 52 N.J. 507 [246 A.2d 714] (1968), and at least inferentially under our statutory law, see N.J.S.A. 39:3-29.
See also State v. Gervasio, 94 N.J. 23, 24, 31, 462 A.2d 144 (1983), where Justice Handler observed, “a large majority of jurisdictions approved of random [investigatory] stops prior to the Supreme Court’s decision in Prouse.” Id. at 30, 462 A.2d 144.
[4] Our survey of Prouse, its federal antecedents, United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), and its successor, Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), and our consideration of the decisions of our sister states, leads us to the conclusion that the road block in this case was violative of our State constitutional provision against unreasonable seizure. We conclude that the road block used in this case is really not distinguishable from the random investigatory stop condemned in Prouse. This temporary road block was set up by the exercise of absolute, unbridled discretion of the officers in the field. There was no command or supervisory participation involved. There were no limits or directions of any kind on the “when, where and how” of this road block, and no hint as to any particular “why.” There was no demonstration of need or efficacy at this particular time and place. We get the distinct impression that the purpose was little more than to give the officers something to do on the particular occasion. To quote Justice White, the practical effect of the system used here was to leave the traveller “subject to the discretion of the official in the field.” *38 Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967) (constitutional right to insist that building **1276 inspectors obtain administrative search warrant).
In Delaware v. Prouse the Supreme Court held that random investigatory stops of motor vehicles made without probable cause or reasonable suspicion were unconstitutional. The Court granted certiorari apparently because five jurisdictions thought the Fourth Amendment permitted such stops but six thought to the contrary, 440 U.S. at 651, 99 S.Ct. at 1391. The Fourth and Fourteenth Amendments were implicated “because stopping an automobile and detaining its occupants constitute[d] a ‘seizure’ within the meaning of these Amendments”, 440 U.S. at 653, 99 S.Ct. at 1395, citing Martinez-Fuerte, Brignoni-Ponce, and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Prouse Court thought the essential purpose of the Fourth Amendment was to impose a standard of reasonableness upon law enforcement agents in order to safeguard the privacy and security of individuals. The Court stressed that in situations where the balance between intrusion on individual rights against the promotion of some legitimate governmental interests precluded insistence on some quantum of individualized suspicion, other safeguards are generally used to assure that reasonable privacy expectations are not subject to the whim or discretion of the official in the field. 440 U.S. at 654, 99 S.Ct. at 1396. In Prouse, Justice White alluded to the ruling in Brignoni-Ponce holding unconstitutional random stops by roving immigration patrols, stops not based on any individualized suspicion. This was in contrast to the approval of fixed road blocks strategically placed to uncover illegal immigrants approved in Martinez-Fuerte. Indeed the very question before us today, which may be fairly characterized as the “constitutionality of the roving road block”, seemed to have been left open by the federal high Court in Martinez-Fuerte at least until Prouse. See 440 U.S. at 656 n. 13, 99 S.Ct. at 1397 n. 13 (judgment reserved on the permissibility of state and local road blocks for documents and credentials).
*39 Prouse stressed that the unconstitutional aspect of roving patrols and random stops operating without probable cause or reasonable suspicion was “the unbridled discretion of law enforcement officials.” Thus “standardless and unconstrainted discretion” was the “evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.” 440 U.S. at 661, 99 S.Ct. at 1400. The “grave danger of abuse of discretion” required that regulatory inspections be undertaken pursuant to reasonably established “neutral criteria.” Id. at 662, 99 S.Ct. at 1400. Justice White concluded in Prouse that
An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles. See **1277 Adams v. Williams, 407 U.S. 143, 146, 32 L.Ed.2d 612, 92 S.Ct. 1921 (1972). [ Id. at 662-663, 99 S.Ct. at 1400-1401].
The Court then concluded the Prouse opinion by stating: “Questioning of all oncoming traffic at road block-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.” Id. at 663, 99 S.Ct. at 1401 [emphasis supplied].
Several months after Delaware v. Prouse was decided a unanimous Supreme Court reaffirmed the principles there expressed in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), a case where police officers unlawfully detained a pedestrian on criminal charges simply because he refused to *40 identify himself. The operative federal constitutional principle was summarized by Chief Justice Burger.
A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U.S. 648, 654-655, 59 L.Ed.2d 660, 99 S.Ct. 139 (1979); United States v. Brignoni-Ponce, supra [422 U.S. ] at 882, 54 L.Ed.2d 607, 95 S.Ct. 2574. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra [440 U.S. ] at 663, 59 L.Ed.2d 660, 99 S.Ct. 1391 [at 1401]. See United States v. Martinez-Fuerte, 428 U.S. 543, 558-562, 49 L.Ed.2d 1116, 96 S.Ct. 3074 [3083-3085] (1976). [443 U.S. at 51 [99 S.Ct. at 2640].
The arrest in Brown v. Texas was invalid because “the appellant’s activity was no different from the activity of other pedestrians in that neighborhood.” Id. at 52, 99 S.Ct. at 2641. The sole reason the officer stopped appellant, walking in an area frequented by drug users, was to ascertain his identity. The Chief Justice said “[t]he record suggests an understandable desire to assert a police presence; however, that purpose does not negate Fourth Amendment guarantees.” Ibid.
Then the debate began among the states and some federal courts as to the constitutionality of road blocks, particularly those designed to inhibit drunken driving, see generally Note, “Curbing the Drunk Driver under the Fourth Amendment: The Constitutionality of Roadblock seizures,” 71 Geo.L.J. 1457 (1983); see also Note, “The Prouse Dicta: From Random Stops to Sobriety Checkpoints”, 20 Idaho L.Rev. 127 (1984); Comment, “Sobriety Checkpoints Roadblocks: Constitutional in light of Delaware v. Prouse”, 28 S. Louis U.L.J. 813 (1984). Inevitably, two lines of cases developed-one line approving road blocks and one disapproving them. A review of the cases tends to suggest common themes. If the road block was established by a command or supervisory authority and was carefully targeted to a designated area at a specified time and place based on data justifying the site selection for reasons of public safety and reasonably efficacious or productive law *41 enforcement goals, the road block will likely pass constitutional muster. Other factors which enhanced judicial approval were (1) adequate warnings to avoid frightening the traveling public, (2) advance general publicity designed to deter drunken drivers from getting in cars in the first place, and (3) officially specified neutral and courteous procedures for the intercepting officers to follow when stopping drivers. Simply sending out officers to set up road blocks when and where they felt like it, without any command participation as to site, time and duration, and not based **1278 on articulated and rational law enforcement needs which justified the balance in favor of intrusion and outweighed the privacy right of the citizen to travel unimpeded, is a technique which has not survived constitutional scrutiny very well.
New Jersey’s sole opinion on the subject is State v. Coccomo, 177 N.J.Super. 575, 427 A.2d 131 (Law Div.1980), an oft-cited, post- Delaware v. Prouse trial court opinion which provides a sharp contrast with the road block procedures challenged in the case before us. In Coccomo the road block was set up at 1:30 a.m. on Saturday, April 5, 1980 by a detail of Roxbury Township police on Main Road, pursuant to the Chief of Police’s written departmental policy. The purpose of the road block was to check for the sobriety of drivers, and for drivers’ licenses, registrations and insurance cards ( N.J.S.A. 39:3-29). Every fifth vehicle was stopped. At about 2:55 a.m. defendant’s vehicle was stopped. Only after the stop did the police gain evidence to support the drunken-driving charge. The judge recognized the State’s indisputable vital interest in promoting public safety by detecting and prosecuting drunk drivers. Id. at 582, 427 A.2d 131. He also recognized that “whether the practice adopted in Roxbury Township is reasonable depends upon a balancing of the State’s interest in promoting highway safety against the individual motorist’s interests in his expectations of privacy.” Ibid.
The judge found from the evidence that the Roxbury program was “sufficiently productive to qualify as a reasonable law enforcement practice.” Ibid. The road-block detail, with a captain in charge, was strategically located during the early *42 morning hours of the weekend on Main Road near a resort area “where many bars are located” and which connected with U.S. Route 46. Seven fatal auto accidents had occurred on this road during the two years before road blocks were used and most involved alcohol abuse by the driver; “numerous” drunk-driving arrests had resulted from this road block program.
The road blocks were used only in early morning hours coinciding with “closing hours of local taverns.” The location was fixed throughout the night in use, marked by flares, and “specific, defined standards” implemented in accordance with a “written policy of the Roxbury Township police department,” id. at 579, 427 A.2d 131, were followed. The judge found that neither the State nor the federal constitution was offended by the Roxbury program and that the police had “simply adjusted their systems and procedures to accommodate evolving concepts of constitutional law.” Id. at 584, 427 A.2d 131. The road block in Coccomo was not a discretionary undertaking by subordinates in the field, established at whim for no detectable purpose other than to “pull people over” to see if something turned up. It was carefully set up for a demonstrably rational purpose and the “actual manner of stopping vehicles [was] designed both to promote safety and reduce anxiety on the part of motorists.” Id. at 583, 427 A.2d 131.
[5] [6] The most comprehensive and thoughtful discussion on this subject is found in 3 LaFave, Search and Seizure, 10.8(g) at 188 (Supp.1985). Professor LaFave has added subsection (g), entitled “Sobriety Check point,” to his treatise in this year’s supplement. During the course of his discussion of the extant authorities, he treats the issue of selection of the time and place for the interception of traffic without individualized suspicion to investigate for drunken driving. LaFave comments that “several basic features of the road block stop are identifiable.” Ibid. at 189.
He states that
The site of the roadblock and the time of its operation are usually determined by administrative officers in the law enforcement department of the jurisdiction. These officers decide where and when to locate a DWI roadblock based on empirical **1279 data indicating that drunk drivers pose a particular problem at the *43 respective location and time. [Citing Note, 71 Geo.L.J. 1457, 1461, n. 20, 21 (1983) ].
Our research confirms LaFave’s conclusion that participation of command or supervisory authority in selecting the time and place based on reasonable evidence of social utility is an essential constitutional ingredient and necessary to satisfy the objection that the traveller not be “subject to the discretion of the official in the field.” Camara v. Municipal Court, 387 U.S. at 532, 87 S.Ct. at 1732. We also agree with LaFave that it is “fair to conclude that a DWI road block is constitutional if properly conducted.” LaFave, § 10.8(g) at 190 (Supp.1985). LaFave recognizes the strong public interest in combatting drunken driving and the mixed success from more conventional means of law enforcement, such as routine patrols, id. at 190-192, noting that “success” of the road-block technique should encompass not only successful apprehensions but also the realization that substantial deterrence may be gained from generalized advance publicity of road blocks. Id. at 193.
But against this public interest LaFave cautions that we must weigh the Fourth Amendment and privacy interests which “would be intruded upon or threatened.” Id. at 193.
Most relevant in this respect is the Supreme Court’s explanation in Martinez-Fuerte of why the roadblock at issue there was not unduly intrusive:
First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review. [428 U.S. at 559, 96 S.Ct. at 3083].
*44 Certainly one very strong theme which runs through that statement is that a police procedure is less threatening to Fourth Amendment values when the discretionary authority of the police (and thus the risk of arbitrary action) is kept at an absolute minimum. Such was deemed to be the case in Martinez-Fuerte both as to the initial location of the checkpoint-which was fixed and was determined by supervisory officers-and as to the selection of vehicles to be subjected to the roadblock.
