Effectively Handling DUI Roadblock Cases

August 28, 2013

R. Parker McFarland, Jr.

Starting on First Base

• Motion Granted = Case dismissed

• Motion Denied = No evidence of bad driving

• Driving

• Under

• Influence

Significance of No Bad Driving

• NHTSA DWI Detection and Standardized Field Sobriety Testing Manual identifies only THREE phases of DUI Detection:– Vehicle in Motion

– Personal Contact

– Pre-Arrest Screening

– Argue evidence in only 2 of 3 phases = REASONABLE DOUBT

How Did We Get Here?

• U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976)

• (suspicionless stops allowed for purpose of deterring illegal immigration at border)

• To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy

• Unique sovereign interests implicated in border control

Deleware v. Prouse, 440 U.S. 648 (1979)

• Random stop of driver to check for license and registration violates the 4th Amendment

• “This holding does not preclude…States from developing methods for spot checks that involve less intrusion OR that do not involve unconstrained exercise of discretion,” such as stopping all oncoming traffic.

• Visible roadblocks cause less anxiety than stop

Brown v. Texas, 443 U.S. 47 (1979)

• Defendant “looked suspicious” in high drug area• Reasonable suspicion of criminal activity is generally

required for a seizure• Criteria for weighing Constitutionality of suspicionless

seizures is :– Gravity of public concerns served by seizure– Degree to which seizure advances public interest– Severity of interference with individual libertyCentral concern of balancing test “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”

State v. Golden, 171 Ga. App. 27 (1984)

• Roadblock held to be valid where:

– Decision to implement roadblock made by supervisory personnel (not field officers);

– Pre-arranged procedures dictated that all vehicles would be stopped;

– Delay to passing motorists was minimal (1-2 min.);

– Screening officer’s training and experience were sufficient due to 2 ½ years of police service and completion of DUI Enforcement school

Skinner v. Railway Labor Executives’ Assoc., 489 U.S. 602, 619 (1989)

• Suspicionless seizures are allowed only when “special needs beyond the normal need for law enforcement” are at issue.

– i.e. safety of public railway

• Allowed suspicionless breath and urine drug tests to employees who violated safety rules

Michigan v. Sitz, 496 U.S. 444 (1990)

• Suspicionless roadblock purposes extended to include sobriety checkpoints based on State’s “substantial government interest” in eradicating drunk driving

• 1.6 % of motorists arrested for DUI (2 of 126)

• 19 uniformed officers stopped all vehicles

• Checkpoints selected pursuant to guidelines

LaFontaine v. State, 269 Ga. 251 (1998)

• A roadblock is satisfactory where:

– The decision to implement the roadblock was made by supervisory personnel (not field officers)

– ALL vehicles are stopped as opposed to randomly

– The delay to motorists is minimal

– Roadblock is well identified as a police checkpoint

– Screening officers training and experience qualifies him to make an initial determination as to which motorists should be given field tests

City of Indianapolis v. Edmond, 531 U.S. 32 (2000)

• USSC refused to extend holding in Sitz to drug checkpoints; suspicionless checkpoints NOT authorized for purpose of drug detection

• “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary wrongdoing.”

• Checkpoints established for purpose of general crime control violate 4th Amendment

Baker v. State, 252 Ga. App. 695 (2001)

• Edmond requires “an inquiry into purpose at the programmatic level”

• Edmond has elevated proof of the supervisor’s “primary purpose” to a Constitutional prerequisite of a lawful checkpoint

• Neither collective knowledge of the field officers nor the actions of field officers on the scene are competent evidence of purpose at the “programmatic level”

Baker v. State, 252 Ga. App. 695, 702 (2001)

• Under LaFontaine and Edmond, a roadblock is valid when:

(1) the record reflects that the “decision to implement” the checkpoint in question was made by supervisory officers and NOT officers in the field; AND

(2) the supervisors had a legitimate primary purpose;

-“Decision to implement” includes deciding to have the roadblock, and when and where

Baker v. State, 252 Ga. App. 695, 702 (2001)

• AND “The evidence MUST also show that:• (2) all vehicles were stopped as opposed to

random stops,• (3) the delay to motorists was minimal;• (4) the roadblock operation was well-identified as

a police checkpoint; and• (5) the screening officer’s training and experience

were sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.”

Baker v. State, 252 Ga. App. 695 (2001)

• “The new guidance of Edmond indicates that perfunctory compliance will no longer suffice.”

• “The factors in LaFontaine as modified by Edmond are not general guidelines but are minimum constitutional prerequisites.”

• “Totality of the circumstances” test is applied only AFTER it has been determined that the minimum constitutional standards have been satisfied.

Insufficient Evidence that the Supervisor Authorized Roadblock

• In the following cases, the supervisor did NOT testify and Courts found insufficient evidence that roadblock was approved by a supervisor:

– Baker v. State, 252 Ga. App. 695 (2001)

– Blackburn v. State, 256 Ga. App. 800 (2002)

– Morris v. State, 265 Ga. App. 186 (2004)

– Cook v. State, 265 Ga. App. 491 (2004)

Pre-2013 Hearsay Rule

• Hearsay has no probative value

• Even if there is no objection, hearsay proves nothing

• Thus, despite defense counsel’s failure to object, field officer’s testimony as to supervisor’s approval of and purpose for roadblock was always hearsay

Georgia’s New Evidence Code

• O.C.G.A. § 24-1-103 Rulings on Evidence

(a) Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected AND:

• (1) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context…

-You MUST object to all hearsay evidence!

Georgia’s New Evidence Code

• Roadblock authorization forms could be admitted under O.C.G.A. § 24-8-803(6): “Records of Regularly conducted activity”

• O.C.G.A. § 24-9-902(11) provides for such records to be self-authenticating if accompanied by affidavit– Reasonable written notice required

– If you receive such notice, immediately file a confrontation clause objection under authority of Bullcoming v. New Mexico, 564 U.S. __ (2011); Melendez-Diaz v. Massachusetts, 557 U.S. __ (6/25/09); Crawford v. Washington; Miller v. State, 266 Ga. 850 (1996)

Illinois v. Lidster, 540 U.S. 419 (2004)

• USSC extends permissible purposes for suspicionlessroadblocks to police searching for witnesses or leads to a recent crime committed in a specific area

• Hit and run fatal accident one week before • All drivers stopped for 10-15 seconds, asked if they had

seen anything the previous weekend, and handed a flyer• Roadblock set up on same highway and at same time of

earlier accident (specific and known crime)• Such stops are “not automatically, or even presumptively,

constitutional.” Reasonableness, i.e. Constitutionality are judged on the basis of the individual circumstances.

State v. Morgan, 267 Ga. App. 728 (2004)

• Roadblock held on April 18-19, 2002

• Officer testified that roadblock was approved by his supervisor for both April 18 and 19

• Morgan arrested on April 18 for MJ trafficking

• However, the signed authorization for roadblock only referenced April 19

• Without supervisory approval for this 4/18 roadblock, it violated 4th Amendment

• DUI/Drug checkpoint also would violate Edmond

Importance of Discovery

• Pursuant to Open Records Act, O.C.G.A. § 50-18-70, request the following from arresting agency:– Standard operating procedures for checkpoints– Authorization/Approval of roadblock forms (who approved

for what date, time, and place)– Number of officers and ways roadblock identified– Number of vehicles stopped and number of arrests– Any delay to motorists – Whether or not all vehicles were stopped – Whether roadblock was stopped and restarted – All radio traffic, CAD reports, and videotape for the

duration of the DUI checkpoint

POST Training and Discipline Records

• Send Open Records Act Request to Georgia Peace Officer Standards and Training (P.O.S.T.) Council for:

– All roadblock officers’ training transcripts (classes)

– Disciplinary proceedings

– Employment history (voluntary resignations)

Importance of Internal Guidelines

• Field officers should have limited discretion.• State v. Manos, 237 Ga. App. 699 (1999) • Every car was stopped unless roadblock backed

up, then police let all cars through until there were no more cars in sight

• Since there were no procedures the officers used to determine whether public safety required that roadblock be terminated due to traffic back up, “unfettered discretion” of field officers to stop and start roadblock at will (randomly) caused roadblock to violate 4th Amendment

Importance of Internal Guidelines

• Thomas v. State, 277 Ga. App. 88 (2005)

• Field officer decided to implement roadblock which yielded 59 grams of methamphetamine

• State argued officer had authority to implement roadblock as shift supervisor, but Court said roadblock had characteristics of roving patrol since:– No Evidence of any specific authorization

– Police Dept. had no guidelines or manual for implementing roadblocks; thus, no implicit authority

Practical Considerations when Litigating a Motion to Suppress

• You are most likely to win a motion when the State does not prove one of elements

• If the State has not proven one of the LaFontaine-Baker elements, consider saying “no questions” and ask to submit a brief

• Try to get the officer to admit they were using roadblock for an unlawful purpose i.e. drugs, general crime control

Practical Considerations when Litigating a Motion to Suppress

• Try to establish that field officers had too much discretion, such as in:

– Deciding to have roadblock, choosing location and time of roadblock

– Deciding when to shut down, temporarily or permanently, the roadblock due to traffic

– Making exceptions for emergency vehicles or taxi cabs to be waived through roadblock

Failure to follow standard operating police procedures is best way to show field officers exceeded their discretion

Unfavorable Roadblock Law

• Hobbs v. State, 260 Ga. App. 115 (2003) (roadblock valid despite supervisor who implemented roadblock also was screening officer who stopped/arrested defendant);

• Velasquez v. State, 288 Ga. App. 109 (2007) (roadblock valid where Lt. approved roadblock but left precise location to Sgt.)

• Coursey v. State, 295 Ga. App. 476 (2009) (roadblock valid though set up on highway intersecting city street instead of city street as indicated on roadblock initiation form)

• Sutton v. State, 297 Ga. App. 865 (2009) (roadblock valid for legitimate primary purpose though Sutton’s counsel got officer to agree that roadblock’s purpose was for crime suppression)

Unfavorable Law

• State v. Brown, 315 Ga. App. 154 (2012) (4-3 decision)• Captain emailed 4 officers to “handle” a citizen complaint

about speeding, littering, racing• No further instructions given• Sgt. Made decision to implement roadblock• Motion granted since roadblock (1) not planned in advance

for specific time and (2) roadblock not sufficiently manned • Cobb County P. D. guidelines say supervisor should not be

screening officer and require adequate manpower • Dissent said proper standard was “clearly erroneous” not

“de novo” (Sgt. who approved roadblock acted as field cop)• Certiorari granted by GA Supreme Court 1/7/13

Attempts to Avoid Roadblocks

• Bad stops where driver made lawful U-turn:

• State v. Alexander, 245 Ga. App. 666 (2000); State v. Hester, 268 Ga. App. 501 (2004) normal driving that incidentally evades a roadblock does not justify an investigative stop, *but+ “abnormal or unusual actions taken to avoid a roadblock may give an officer a reasonable suspicion of criminal activity even when the evasive action is not illegal.”

Attempts to Avoid Roadblocks

• Jorgensen v. State, 207 Ga. App. 545 (1993) (unlawful stop where driver turned normally into residential area before roadblock):

– “There was no indication in the record of any sharp driving maneuver, sudden turn or reduction in speed or other facts which might tend to show that the appellant's actions were evasive.”

Attempts to Avoid RoadblocksWhen lawful acts = articulable suspicion

• Beware of State v. Webb, 193 Ga. App. 2 (1989) (officer’s good faith belief that U-turn was illegal was sufficient to justify stop despite court finding that U-turn technically was lawful);

• Pippins v. State, 204 Ga. App. 318 (1992) (roadblock upheld where .20 driver approaching roadblock from side road sat at the intersection for several min. before returning down the side road away from roadblock, and reappeared 5 min. later and turned away from the roadblock again)

• O.C.G.A. § 1-3-6 ALL citizens presumed to know the law - ignorance of the law excuses NO ONE [except cops]

Future Challenges to Roadblocks

• Challenge roadblocks under your State Constitution

• "[A] State is free as a matter of its own law to impose greater restrictions on police activity than those [the Supreme] Court holds to be necessary upon federal constitutional standards." Oregon v. Hass, 420 U.S. 714, 719 (95 S. Ct. 1215, 43 L. Ed. 2d 570) (1975).

• Thus, "the State [has] power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so." Cooper v. California, 386 U.S. 58, 62 (1967).

Georgia Constitution

• Georgia Constitution provides greater protection than the Federal Constitution

• State v. Miller, 260 Ga. 669 (1990) (First Amendment)

• Green v. State, 260 Ga. 625 (1990) (self-incrimination)

• Gary v. State, 262 Ga. 573 (1992) (O.C.G.A. § 17-5-30 provides more protection for illegally seized evidence; no good faith exception when executing a warrant)

Sobriety Checkpoints Declared Invalid by State Constitutions

• Michigan. Sitz v. Dept. of State Police, 485 N.W. 2d 135 (Mich. App. 1992)

• Minnesota• Oregon• Washington• Rhode Island• Texas• North Dakota• New Jersey• Louisiana

Purpose at Programmatic Level

• Baker v. State, 252 Ga. App. 695 (2001) held Edmond requires “an inquiry into purpose at the programmatic level”

– Very little caselaw discussion of the nature and extent of inquiry that needs to be made

– Standard Operating Procedures are necessary to determine purpose at programmatic level

– Don’t let internal guidelines delegate purpose to field officers in violation of Edmond

Effectiveness of Roadblock

• Commonwealth v. Trivitt, 650 A. 2d 104 (Pa. Super. 1994) (roadblock invalid under PA Constitution since no data sufficient to specify number of DUI related arrests/accidents within the relevant time period to justify need for roadblock

• Commonwealth v. Donnelly, 614 N.E. 2d 1018 (Mass. App. 1993) (roadblock invalid where no evidence showed that site of roadblock was a problem area)

Effectiveness of Roadblock

• State v. Groome, 664 S.E. 2d 460 (2008)• South Caroline Supreme Court invalidated a roadblock

using a Brown v. Texas analysis:– Gravity of public interest served by seizure;– Degree to which seizure serves public interest; – Severity of interference with individual liberty.– “While Sitz does criticize ‘searching examination of

effectiveness’ by trial courts, it retains the requirement that the State produce empirical data to support the effectiveness of the roadblock. Sitz at 454 (‘unlike Deleware v. Prouse, 440 U.S. 648 (1979), this case [does not involve+ a complete absence of empirical data..’)”

Effectiveness of Roadblocks

• 3 GA Supreme Court justices who dissented in LaFontaine recognized that the Brown v. Texas balancing test that was utilized in Sitz was ”the relevant test for determining the constitutionality of roadblocks.” (2nd prong is effectiveness) [Sears, Benham, Fletcher]

• Justice Benham stated in dissent he would vote to use GA Constitution to require judicial approval of roadblocks. Brent v. State, 270 Ga. 160 (1998)

• But see State v. Dymond, 248 Ga. App. 582 (2001)•

Resources

• “The Use of Sobriety Checkpoints for Impaired Driving Enforcement,” DOT HS-807-656 (National Highway Traffic Safety Administration, Nov. 1990)

• William C. Head and Frank T. Gomez, THE GEORGIA DUI TRIAL PRACTICE MANUAL (2013)

• Lawrence Taylor and Steven Oberman, DRUNK DRIVING DEFENSE (7th Ed. 2013)

R. Parker McFarland, Jr.

McFarland & McFarland, P.C.

309 Pirkle Ferry Road

Suite B-400

Cumming, GA 30040

770-889-2522

parker@mcfarlandmcfarland.com