State v. Boyanovsky

743 P.2d 711, 304 Or. 131, 1987 Ore. LEXIS 1778

• Court: Oregon Supreme Court
• Decided: September 15, 1987
• Docket: TC TM84-3967; CA A39414; SC S33380
• Status: Published

Opinions

CARSON, J.

This case involves the legality of a sobriety roadblock conducted to discover and arrest persons committing the crime of driving while under the influence of intoxicants and to gather evidence for use in the criminal prosecutions.

From approximately 11:00 p.m. to 2:20 a.m., on September 28-29, 1984, the Oregon State Police, in conjunction with the Benton County Sheriffs Office and the Philomath Police Department, conducted a roadblock on Highway 20 near the Philomath city limits. Its primary purpose was to detect those persons driving under the influence of intoxicants. Secondarily, it was intended to check driver licenses and vehicle registrations.

Defendant was stopped and arrested for driving under the influence of intoxicants. ORS 487.540, since renumbered as 813.010. He challenged the legality of the roadblock on statutory and constitutional grounds. He argued that the roadblock was unlawful because it took place without statutory authority or agency rules allowing and controlling such a procedure. There was testimony that the Oregon State Police have published regulations governing roadblocks, but none were offered in evidence. The trial court did not consider these.

The trial court nonetheless found that the search and seizure did not violate the state or federal constitutions. The judge “balanced” the public need for sobriety roadblocks against the individual’s interest in privacy to reach this conclusion. Although the trial court expressed “extreme reluctance” in reaching its decision, it reasoned that this analysis and conclusion was compelled by State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980). The Court of Appeals reversed per curiam, relying on its decision in Nelson v. Lane County, 79 Or App 753, 720 P2d 1291 (1986), aff’d 304 Or 97, 743 P2d 692 (1987).

In Nelson v. Lane County, we recounted this court’s development, since State v. Tourtillott, supra, of an examination of sources of authority before reaching the question whether a challenged police procedure is constitutional. We suggested that some “searches” and “seizures,” conducted for reasons other than the enforcement of laws by means of criminal sanctions, may be authorized by the responsible lawmakers and carried out pursuant to administrative regulations without the customary advance judicial authorization of a warrant.

This roadblock, however, like the roadblock held unconstitutional in State v. Anderson, 304 Or 139, 743 P2d 715 (1987), was used to gather evidence for defendant’s criminal prosecution. Before government officials can embark on a search or seizure for evidence to be used for this purpose, they must have individualized suspicion of wrongdoing. Further, unless they can show to a court’s satisfaction, after the fact, that they did not have time to obtain a warrant, the authorities must have judicial authorization, in the form of a warrant, before the search or seizure.

Defendant was seized when his vehicle was stopped. His vehicle is, like other possessions, an “effect” in which he is entitled to be “secure * * * against unreasonable search, or seizure.” Or Const, Art I, § 9. His person and documents were searched and the evidence obtained was used to convict him of a crime. These acts occurred in the absence of any belief that he had committed an offense. The officers did not comply with the constitutional standards for searches and seizures. Or Const, Art I, § 9. The evidence must be suppressed.

The decision of the Court of Appeals is affirmed. The decision of the trial court is reversed. The case is remanded to the trial court for further proceedings in accordance with this opinion.