Commonwealth v. Cox

491 S.W.3d 167, 2016 Ky. LEXIS 270, 2015 WL 9242822

• Court: Kentucky Supreme Court
• Decided: June 16, 2016
• Docket: 2013-SC-000618-DG
• Status: Published

Opinions

OPINION OF THE COURT BY

CHIEF JUSTICE MINTON

We granted discretionary review in this case to determine whether a police roadblock designed to remove drunk drivers from state highways amounted to an unreasonable seizure in violation of both the Fourth Amendment to the United States Constitution and Section 10 of the Ken- ■ tucky Constitution. Billy Cox was convicted of driving a motor vehicle under the influence of alcohol (DUI) after being stopped at a roadblock. The Court of Appeals found the roadblock unconstitutional because law enforcement failed to follow proper procedures in implementing a legal roadblock and, accordingly, reversed his conviction. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Billy Cox was stopped at a roadblock conducted by the Kentucky State Police (KSP) at a highway intersection. As Cox approached the roadblock, one of the troopers noticed that he was not wearing his seatbelt. When questioned, Cox admitted to drinking two beers over dinner at a nearby restaurant. The trooper observed that Cox’s speech was slurred, his eyes appeared bloodshot and glassy, and the trooper smelled alcohol on his breath. After failing three field sobriety tests, the. trooper believed that Cox was operating his vehicle under the influence of alcohol and placed him under arrest.

At the time Cox was stopped, the roadblock had been in operation for just over an hour. The roadblock was set up moments after troopers received approval from a superior officer. Trooper Rhodes, who was placed in charge of the checkpoint, arrived at the checkpoint area twenty minutes after the roadblock began. There were no media announcements that traffic checkpoints were planned, nor were there any signs indicating an upcoming roadblock on the highway. Trooper Walker, the arresting officer, was not wearing a safety vest. Troopers working the roadblock did, however, activate the emergency lights on their vehicles to alert oncoming traffic of the stop, and every vehicle that approached was checked.

A Marion District Court jury convicted Cox of second-offense driving under the influence (DUIII), failure to wear a seat-belt, and possession of an open alcohol container in a vehicle. He was sentenced to fourteen days in jail, a $350 fine, and an additional thirty days of community service. Cox’s conviction and sentence were affirmed by the circuit court.

The Court of Appeals granted discretionary review and reversed the circuit court, holding that evidence leading to Cox’s conviction was unconstitutionally obtained. Primarily, the Court of Appeals panel was “troubled” by the procedures the KSP employed in creating the roadblock and that the checkpoint appeared to grant “unfettered discretion” to KSP troopers, contrary to the safeguards we offered in Commonwealth v. Buchanon.1 The Commonwealth sought discretionary review from this Court. We granted review and, accordingly, affirm the Court of Appeals. If law enforcement is permitted to continue conducting indiscriminate seizures of individuals at a roadblock without any basis in suspicion, we must ensure that officers do not abuse this privilege.

II. ANALYSIS.

The Commonwealth petitioned for our review to determine whether the Court of Appeals erroneously held that the KSP roadblock was unconstitutionally implemented. Specifically, the Court of Appeals determined that the procedures the KSP employed to set up the roadblock that led to Cox’s arrest failed to comply with the processes necessary to implement a suspi-cionless traffic stop. We rely on well-established Supreme Court precedent, in addition to one landmark case from this Court that speaks directly on the issue before us, in reaching our decision.

A. Legal Background.

The Fourth Amendment to the United States Constitution mandates any warrantless search or seizure to be reasonable.² The Supreme Court has held that briefly stopping motorists at government-designated highway checkpoints constitutes a seizure for purposes of the Fourth Amendment.³ A seizure is generally unreasonable in the absence of a warrant or individualized suspicion;⁴’ Though checkpoints like the one in -question are not effectuated by a'warrant nor based on any level' of individualized suspicion, this practice is nonetheless considered consistent with the Fourth Amendment.⁵ The Supreme Court upheld DUI checkpoints because the government’s strong interest in removing drunk drivers from state highways greatly outweighs the brief intrusion on motorists stopped at the roadblock.⁶

Recognizing the potential for abuse, the Supreme Court supplied a balancing test for determining whether specific, traffic checkpoints are reasonable. The general, test for the reasonableness, of a seizure requires a reviewing court to “[weigh]- the gravity of the public concerns saved by the.seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.”⁷

In City of Indianapolis v. Edmond, the Supreme Court updated the analysis.⁸ In Edmond, the Court held that in addition to conducting the traditional balancing test for reasonableness, courts must review the purpose of the roadblock.⁹ Law enforcement may not impose checkpoints “whose primary purpose is to detect evidence of ordinary criminal wrongdoing!”¹⁰ Rather, roadblocks must have a “primary purpose,” such as keeping the roads safe from impaired drivers or maintaining border security.¹¹

In Commonwealth v. Buchanon, this Court offered four general guidelines for law enforcement to follow to ensure that Kentucky roadblocks are in line with the Supreme Court’s Fourth Amendment analysis:

1. It is important that decisions regarding-the location, time, and procedures governing a particular roadblock should be determined by those law enforcement officials in a supervisory position, rather than by the officers who are out in the field. Any lower ranking officer who wishes to establish a ■ roadblock should seek permission from supervisory officials. Locations should be chosen so as not to affect the public’s safety and should bear some reasonable relation- to the conduct - ■ lavf ■ enforcement is trying to curtail.¹²

2. The law enforcement officials who work the roadblock should comply with procedures established by their superior officers so that each motorist is dealt with in exactly the same manner. Officers in the field should not have unfettered discretion in deciding which vehicles to stop or how each stop is handled.¹³

3. The nature of the roadblock should be readily apparent to approaching motorists. At least some of the law enforcement officers present at the scene should be in uniform and patrol cars should be marked in some manner. Signs warning of a checkpoint ahead are also advisable.¹⁴

4. The length of .the stop is an important factor in determining the intrusiveness of the roadblock. .Motorists should not be detained any longer than necessary in order to perform a cursory examination of the vehicle to look for signs of intoxication or check for license and registration. If during the initial stop, an officer has a reasonable suspicion that the motorist has violated the law, the motorist should be asked to pull to the side so that the other motorists can proceed.¹⁵

We further elaborated that this list is- not exhaustive and violation of one factor alone does not necessarily result in a constitutional violation.¹⁶ The four Buchanon factors are simply to be used as guidelines for law enforcement in ensuring that the checkpoints they establish are constitutionally reasonable temporary seizures.

B. Applying Buchanon to Cox.

From a bird’s-eye view of Buchanon, it is clear we strongly disfavor hastily arranged highway checkpoints. It is implicit in our analysis that without proper planning and notice, roadblocks are susceptible to the type of discretion and intrusion the Fourth Amendment exists to forbid. It is unclear to us here whether those discretion-limiting procedures were adequately performed. A focused analysis of the facts of this case in comparison to the Buchanon guidelines -ultimately confirms dúr suspicions-that the proper procedures were not in place in establishing the roadblock that ultimately led to Cox’s arrest.

Marion County KSP appeared to satisfy the first Buchanon factor by seeking approval from supervising officers. It is .undisputed that Trooper Walker sought approval to set up a roadblock from Sergeant David Gibbs. Moreover, the roadblock’s location was selected from a list of pre-approved KSP sites. Finally, we may presume that this location was pre-ap-proved because of its relation to the KSP’s goals in'finding intoxicated motorists. So the first factor is apparently satisfied in this case.

The Court of Appeals relied heavily on this factor in reversing Cox’s conviction. The panel found. that the limited time difference between placing the roadblock request and. Sergeant Gibbs’s approval precluded any meaningful review and supervisory. guidance. This was underscored by the fact that Trooper Rhodes, the designated officer in charge, arrived at the site twenty minutes after the checkpoint began. We agree that any supervision here is likely cursory, but we also cannot say the KSP failed to seek approval from a superior officer before beginning the checkpoint. ' Compliance with this factor is ambiguous.

The second factor is even less clear. There is nothing to suggest that the troopers conducting the roadblock failed to follow any of Sergeant Gibbs’s directions., Rut, simultaneously, .there is also nothing to suggest Sergeant .Gibbs provided any direction or suggested any procedures for treating all motorists the same. Despite no apparent express policy for the uniform treatment of stopped drivers at the roadblock, the facts show that the troopers did not in fact exercise unfettered discretion in operating the checkpoint that evening. Trooper Walker testified that they stopped every car that approached the roadblock. The second Buchanon factor seems to have been satisfied.

The third factor is more problematic. Here, it is difficult for us to imagine how the roadblock is readily apparent to approaching motorists. We consider this factor effectively to require adequate notice. The facts reveal that KSP troopers were already at the roadblock site when Sergeant Gibbs approved the checkpoint, and its operation began almost immediately. The presiding troopers did not erect warning signs down the road to inform vehicles approaching the site, nor did they post any announcements of a proposed checkpoint to the media. The KSP did turn on their emergency lights at the roadblock and officers were in uniform, but this is not enough to provide adequate notice to approaching motorists. The roadblock began almost instantaneously without any apparent concern for affording motorists prior notice, which the third Buchanon factor implicitly mandates.

Finally, the KSP seems to have complied with the fourth factor. The Court of Appeals cited the undetermined length of the roadblock that night as a central reason for concluding the checkpoint was unreasonable. While undetermined durations may be symptomatic of broad discretion, this factor focuses more on individualized stops themselves and less on the duration of the checkpoint process as a whole. Review of Cox’s particular stop reveals that it was no more intrusive than necessary for Trooper Walker to obtain his license and registration and quickly ascertain reasonable suspicion of a DUI. Though there were many procedural problems in implementing the DUI checkpoint, we cannot say Cox’s stop itself was imper-missibly prolonged.

This is an admittedly difficult case where the facts simply do not fall in perfect order with the guidelines we established in Buchanon, and perfect compliance was never our intention when we announced them over a decade ago. But a closer look at Buchanon offers us additional guidance. There, we also faced a particularly difficult situation; and we declared that “we must err on the side of caution when dealing with the most fundamental of those rights granted to our citizens to be free from unreasonable searches and seizures.”¹⁷ In circumstances where the practices and procedures employed by law enforcement are constitutionally ambiguous, it is our duty to protect individuals against the risk of potentially unreasonable seizure without any suspicion of wrongdoing. Though we do not require rigid compliance with the Buchanon guidelines, we cannot continue to soften the edges of what is constitutionally reasonable.

Nothing in our decision today should be construed to disparage Buchanon or the various Supreme Court precedents legitimizing checkpoints to purge drunk drivers from our highways. We understand the grave danger intoxicated drivers create on the roads, and we presume that law enforcement generally acts honorably in its efforts to protect innocent motorists from the recklessness of impaired drivers. But we must also secure the blessings of liberty preserved through our foundational documents. We simply cannot conclude that law enforcement adequately complied with the Buchanon factors substantially enough to render this roadblock a “reasonable” seizure performed in the absence of a warrant or individualized suspicion.

III. CONCLUSION.

For the foregoing reasons, we affirm the determination of the Court of Appeals that Cox’s arrest and conviction was the fruit of an unconstitutional seizure.

All sitting. Abramson, Keller, Venters, JJ., concur. Noble, J., concurs by separate opinion. Cunningham, J., dissents by separate opinion in which Wright, J., joins.

1 . 122 S.W.3d 565 (Ky.2003).

2 . U.S. Const. amend. IV. See also Ky. Const. § 10. The Kentucky Constitution on this subject mirrors its federal counterpart and is considered co-extensive to the Fourth Amendment. See LaFollette v. Commonwealth, 915 S.W.2d 747 (Ky.1996) ("... Section 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment.”).

3 .See Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). See also United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).

4 . See City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

5 . Sitz, 496 U.S. at 450, 110 S.Ct. 2481.

6 . Id,

7 . Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

8 . 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

9 . Id. at 46, 121 S.Ct. 447 (".,.. our cases dealing with intrusions that occur pursuant to a general scheme absent individualized suspicion have often required an inquiry into purpose at the programmatic level.”). ,

10 . Id. at 41-42, 121 S.Ct. 447.

11 . Id. at 47, 121 S.Ct, 447 (upholding the constitutional purposes articulated in Sitz and Martinez-Fuerte in contrast to the unconstitutional purpose of ordinary criminal wrongdoing).

12 . Buchanon, 122 S.W.3d at 571.

13 . Id.

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17 . Buchanon, 122 S.W.3d at 570.