By David Daggett
Sobriety checkpoints have been shown to be an effective tool in the ongoing battle against impaired drivers – not necessarily because of the number of impaired drivers snared during the checkpoint, but due to the anti-drinking and driving message that is sent to the general public. This month’s Blog addresses sobriety checkpoints in Maryland and will discuss procedures and case law. I’ve also included predicate questions for trial.
In the ten year period from 2005 through 2014, 5,426 people lost their lives on Maryland highways. Of that number, 1,823 died as a result of alcohol or drug related crashes. That’s an average of 543 deaths per year, with an average of 182 per year dying as a result of an alcohol or drug related crash – and the number of people seriously injured in alcohol related crashes in Maryland is much greater than that. But there is some good news: Thanks to the combined efforts of the Maryland Highway Safety Office, MVA, Maryland Department of Transportation, police, prosecutors, EMS/hospital personnel, victim-witness advocates such as MADD, Catherine’s Cause and the Roberta Roper Foundation, as well as other agencies involved in promoting highway safety, last year Maryland had its lowest highway death toll (443) since 1948. Of those 443 victims, 133 were drug/alcohol related. While that is still an unacceptable number, it does show marked improvement from just a few years ago, when, on average, 639 people died yearly on Maryland highways between the years 2000 and 2007. These numbers are helpful in understanding the importance of sobriety checkpoints, and are, in fact, one of the reasons appellate courts have upheld the validity of sobriety checkpoints.
There are just a handful of important Maryland appellate and Supreme Court cases dealing with sobriety checkpoints and it is a good idea for police and prosecutors to be familiar with them and with the legal requirements of setting up a checkpoint. If the guidance provided by these opinions is followed, there should be no reason why a checkpoint should be held to be invalid.
Little v. State
The Court of Appeals of Maryland first addressed sobriety checkpoints in the case of Little v. State, 300 Md. 485 (1984). The CoA granted cert to determine whether the checkpoints set up in Harford County violated any constitutional rights under the Fourth and Fourteenth Amendments of the Constitution and Article 26 of the Maryland Declaration of Rights. The Court held that the State had a compelling interest in detecting and deterring impaired driving and that the intrusion on individual liberties caused by the checkpoints was minimal. The Court held that since all vehicles were stopped and the checkpoint restrictions put into effect by police supervisors severely restricted the discretion of the officers in the field, there was no risk that motorists would be arbitrarily singled out.
The Court of Appeals in Little noted that there were comprehensive guidelines behind the sobriety checkpoint program. Those guidelines were reviewed and approved by the Superintendent of the Maryland State Police, Attorney General and Governor and the roadblock locations were selected on the basis of alcohol and crash data supplied by the State Highway Administration. The date, time and location of each checkpoint was approved by high ranking State Police officials and a factor to be considered at each location was the level of traffic and the length of delays caused. The safety of drivers and law enforcement personnel was paramount to any checkpoint location. Lights, flares and safety vests were used. In addition, if no evidence of impairment was observed, a brochure explaining the purpose of the checkpoint was distributed to those motorists and they were sent merrily on their way.
The Court also noted that the location was set up to allow a motorist to avoid the checkpoint by making a U-turn or turning onto a side road prior to reaching the roadblock, with no action being taken against that driver unless they drove erratically or committed some other traffic offense. As a reminder, this doesn’t mean that the spot in which the drivers are afforded the opportunity to avoid the checkpoint can be located in a “No U-Turn” area. In light of the recent notoriety garnered by a Florida attorney’s YouTube postings regarding sobriety checkpoints, it is interesting to note that the Little opinion includes the following language:
…a driver who stops at the checkpoint but refuses to roll down the car window is allowed to proceed. If other signs of intoxication are observed, the driver may be followed to detect signs of erratic driving.* The officers operating the checkpoint do not search the interior of the vehicle or its occupants. A flashlight is used to illuminate the driver only; the officers do not inspect the area around the driver or the remainder of the passenger compartment. Id @ 492
* I don’t believe this means that if the checkpoint officer has RAS to believe that the driver is impaired, even though the driver refuses to roll down his window, that the driver need be permitted to continue on his way and be followed looking for further signs of impairment. That would raise liability issues. In my opinion, this means that should the driver refuse to roll down his window and there is not RAS, at that point the driver can be followed in search of violations/other indications of impairment.
The Court of Appeals noted that while stopping an automobile and detaining its occupants was a seizure, it was necessarily an unreasonable seizure. The Court quoted from Delaware v. Prouse, 440 U.S. 648, 99 S. Ct 1391 (1979), “The essential purpose of the Fourth Amendment is to impose a standard of reasonableness upon the discretion of governmental officers in order to safeguard the privacy and security of individuals against arbitrary invasions. Hence, 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.” Prouse @ 1396
The Court of Appeals cited numerous decisions from other states in analyzing the validity of checkpoints, in particular State v. Deskins, 673 P.2d 1174 (1983), a Kansas case which listed a number of factors to be considered when balancing the government’s interest against the intrusion of individual liberty. Among them were:
- the degree of discretion, if any, left to the officer in the field;
- the location designated for the roadblock;
- the time and duration of the roadblock;
- standards set by superior officers (in terms of rank, not skill);
- advance notice to the public at large;
- advance warning to the individual approaching motorist;
- maintenance of safety conditions;
- degree of fear or anxiety generated by the mode of operation;
- average length of time each motorist is detained;
- physical factors surrounding the location, type and method of operation;
- the availability of less intrusive methods of combatting the problem;
- the degree of effectiveness of the procedure; and
- any other relevant circumstances which might bear upon the test.
Even though the defense attorneys in Little came up with a number of arguments that the intrusion of the checkpoint outweighed public interest, the Court wasn’t buying them and ultimately found that no Fourth Amendment or Article 26 violation occurred. The Court – in noting the magnitude of the problem of drunk driving – cited from the Supreme Court case of South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916 (1983):
The situation underlying this case – that of the drunk driver – occurs with tragic frequency on our Nation’s highways. The carnage caused by drunk drivers is well documented…the increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of in the battlefield… id @ 558, 920
Balanced against the State’s compelling interest in detecting and deterring impaired driving, the Court determined that the intrusion on individual liberties caused by the checkpoints was minimal.
Michigan Dep’t of State Police v. Sitz
The next big sobriety checkpoint case was Michigan Dep’t. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481 (1990), in which the U.S. Supreme Court overturned a Michigan trial and subsequent appellate court ruling that a State Police checkpoint violated the Fourth Amendment and the Michigan state constitution. The trial and appellate court rulings were based on the Michigan court’s determination that checkpoints were not an effective means of reducing drunk driving, given the statistically low arrest rate at checkpoints and that the subjective intrusion on liberty interests, in terms of potential to generate fear and surprise to motorists, was substantial.
The SCOTUS sagely disagreed and held that the initial stop of each motorist passing through the checkpoint – and the associated preliminary questioning and observation by checkpoint officers – were reasonable seizures which did not violate the Fourth Amendment, as the balance among the state’s interest in preventing drunk driving, the extent to which the checkpoint program could be reasonably said to advance that interest, and the limited degree of intrusion upon individual motorists, weighed in favor of the program, based upon the following findings:
- the magnitude of the drunken driving problem and the state’s interest in eradicating it were indisputable;
- the “objective” intrusion resulting from the checkpoint, measured by the duration of the seizure (an average of 25 seconds) and the intensity of the investigation, was minimal;
- the “subjective” intrusion resulting from the checkpoint program – when evaluated in terms of the fear and surprise engendered by law-abiding motorists by the nature of the stop, as opposed to the fear of one who has been drinking and worries over the prospect of being stopped at the checkpoint – is indistinguishable for constitutional purposes from that resulting from border checkpoints, which were held to be proper in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074 (1976);
- the advancement of the state’s interest in preventing drunken driving is sufficiently shown by (a) the fact that, in the one checkpoint conducted under the program in question, the detention of 126 vehicles resulted in the arrest of two drunk drivers, and (b) expert testimony that experience in other states demonstrated that checkpoints resulted in the arrest of about 1 percent of all drivers stopped.
Again, the Court seemed to be impressed by the fact that there were specific guidelines in place relating to the establishment of the checkpoint (operation, site selection, publicity, guidelines) that individual officer’s discretion was limited, and that prolonged detention was only to be based upon reasonable suspicion.
Brown v. State
Brown v. State, 78 Md. App. 513 (1989), while not specifically a DUI checkpoint case, nonetheless provides a good analysis of Maryland checkpoint law and is a “must read” case for its entertainment value, if nothing else.
In the early morning hours of August 7, 1987, agents of the Wicomico County Sheriff’s Office, State Police and Salisbury Police Department were involved in a dragnet operation in Salisbury. An area of Salisbury known as the “Rose Street Area,” was to be cordoned off, with officers stationed at various exit points from that area to block off any vehicle or person on foot who attempted to leave. Once the blockade was in place, the police intended to move into the area and accost anyone they found, obtain identification and detain the person long enough to check for outstanding warrants. They were also to look for and take action against any drug trafficking. It is unnecessary for purposes of this article to go into the facts of Mr. Brown’s seizure and subsequent search, other than to say that drugs were recovered from his person.
In the words of the Honorable Judge Wilner of the Court of Special Appeals, the police “implement(ed) a pre-planned paramilitary operation unparalleled in the annals of this Court, or, we hope, of any other court of this State.” It is clear from this language alone that things weren’t going to turn out well for the State. Add in the words “flagrantly illegal search” and it is a safe bet the State isn’t going to prevail.
The Brown opinion is relevant to sobriety checkpoints in that the State argued on appeal that this “dragnet operation” was similar to the sobriety checkpoint procedure
“Analogizing this operation with the sobriety checkpoint procedure at issue in Little, in our view, is about as valid as asserting that an anaconda is like an earthworm because they are both elongated and move on their bellies.” Id @ 517
Judge Wilner concludes his opinion with the following holding:
In short, this was the kind of operation, both in design and in execution that is foreign to every precept embodied not only in the Fourth Amendment but in the very notion of due process of law. The police did not just violate the constitution; they ignored it. The stop was illegal; the search of the appellant’s pocket was illegal; the arrest was illegal; the fruits of the search and the arrest were inadmissible as evidence; and the conviction based on it will be reversed.
While clearly not a “favorable” State opinion, Brown encapsulates the essence of the Little holding in a very clear and concise manner. Any police agency commander contemplating setting up a sobriety checkpoint or prosecutor prepping for a checkpoint trial would be well-served by reading both the Brown and Little opinions.
City of Indianapolis v. Edmond
City of Indianapolis v. Edmond, 531 U.S. 31, 121 S. Ct. 447 (2000) is another important case in the area of sobriety checkpoints. While, like Brown, it did not go well for the State, it nonetheless confirmed the legality of a well-organized sobriety checkpoint.
In this case, the City of Indianapolis Police Department set up vehicle checkpoints designed to interdict illegal narcotics. At numerous locations, the police stopped a predetermined number of vehicles. An officer was to advise the driver that he or she was being stopped at a drug checkpoint and was to ask them to produce their license and registration. While the first officer looked for signs of impairment, another officer walked a drug detection dog around the perimeter of the vehicle. If the dog alerted, or if signs of impairment were detected in the driver, the vehicles were pulled out of line for further investigation.
The Supreme Court distinguished this type of checkpoint from the border patrol checkpoint in Martinez-Fuerte and the sobriety checkpoint in Michigan v. Sitz in that, while those checkpoints were designed to serve purposes closely related to the problems of policing the border or the necessity of ensuring highway safety, in this case, the primary purpose was to detect evidence of ordinary criminal wrongdoing (CDS possession) with the Court opining that they have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.
While the State had conceded that the Indianapolis checkpoint program had the primary purpose of interdicting illegal narcotics, they still asserted that the purpose of their checkpoint was similar to that in Sitz, including its relationship to highway safety. The Court held that the narcotics-interdiction purpose of the checkpoints could not be rationalized in terms of highway safety as it was in Sitz because, under that logic, “the detection and punishment of almost any criminal offense broadly serves the safety of the community and our streets would no doubt be safer but for the scourge of illegal drugs.” 531 U.S. 31, 43. The Court went on to say that “
In combatting impaired driving, sobriety checkpoints are a very useful weapon in the State’s arsenal. They not only can result in the arrest of impaired drivers but they help get the anti-drinking and driving message out to the general public, both from public awareness of increased police presence on the evening of the checkpoint as well as any publicity that might result from the event. Sobriety checkpoints get the message across to the general public that impaired driving is a serious offense and that the state will go to great lengths to help combat it.
One of the defense arguments that has been used in these type cases in Maryland is that the checkpoint wasn’t advertised in the local newspaper. Apparently, this stems from the one Little factor that recommends “advance notice to the public at large.” It is important to remember that that is but one of the 13 factors listed by the Maryland Court of Appeals to be used in balancing the promotion of legitimate government interests versus the intrusion of individual liberty. Not all 13 factors are required. Still, it can’t hurt to place a blurb in the local paper. The scene commander should bring the newspaper to court and it should be admitted under Maryland Rules 5-901(a) and 5-902(6). As far as hearsay goes, the article doesn’t go to the truth of the matter asserted. In other words, what matters is that notice was posted, not that the checkpoint actually took place.
Once the checkpoint is in place, if the scene supervisor determines that traffic is getting backed up, suspend the checkpoint to allow traffic to again become free-flowing. Once that occurs, the checkpoint can begin again.
For those departments who’ve not yet conducted a sobriety checkpoint operation and are considering doing so, the Maryland State Police and Prince George’s County Police Departments (amongst others) have good guidelines in place and I’ve attached the MSP Operations Directive to this e-mail. It is also a good idea to contact the Maryland Highway Safety Office to get impaired driving location data to help determine an appropriate site. Be sure and contact your local State’s Attorney’s Office to get their input prior to initiating the checkpoint.
Checkpoints also present a good opportunity for prosecutors to get out of the office and interact with the police on their turf. Attend the roll call. Provide coffee, sodas and snacks for the officers. It always helps to be at the scene and observe the checkpoint up close and personal and will greatly improve your ability to present the case in court. Wear a safety vest. Have some fun.
AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEY’S OFFICE FOR ANY LEGAL ADVICE RELATED TO THIS SUBJECT.