New York Criminal Lawyer Blog
At about 1:00 a.m. on 2 September 2007, defendant ND’s vehicle was stopped at a New York State Police sobriety checkpoint on Fluvanna Avenue in the City of Jamestown. For allegedly displaying certain outward indicia of intoxication and failing four out of five field sobriety tests, defendant was asked to give a breath sample. This resulted in a reading of a .13% blood alcohol content level.
Consequently, the criminal defendant was charged with operating a motor vehicle while having .08 of one per centum or more by weight of alcohol in her blood pursuant to Vehicle and Traffic Law § 1192 [2] and operating a motor vehicle while in an intoxicated condition pursuant to Vehicle and Traffic Law § 1192 [3].
Defendant then moved to suppress any statement attributed to her, the results of any chemical analysis of her breath, and all other evidence allegedly obtained from her; and, challenged the constitutionality of the checkpoint stop on the ground that the New York State Police failed to follow their own self-established, written guidelines.
The People’s request for a Dunaway/Scott hearing was denied.
The court ruled on the main issues as follows:
The written guidelines of the New York State Police, in addition to establishing a seemingly stringent criminal protocol for the selection of sites, scheduling, briefing, setup, system of stops and interview procedures, calls for the making of certain records and/or reports before, during and after the date of a checkpoint. When a sobriety checkpoint “is first scheduled,” a “DWI Program Notification” message is supposed to be transmitted to the Assistant Deputy Superintendent, using a prescribed format. This memorandum is basically a list of particulars pertaining to the planned checkpoint, including the time and location, enforcement personnel and system of stop like every vehicle, every third vehicle, etc. During the checkpoint, a “DWI Investigative Note Card (TB-38) must be used to record pertinent impairment information” including the officer’s observations, the motorist’s responses to specific questions and the specific cues, or signs of impairment, observed during field sobriety tests. A “DWI Program Activity Record” is then required to be received at “Division Traffic Services” not later than two business days following completion of the checkpoint. Apparently, this record is a data collection tool containing useful post-checkpoint information like the number of vehicles passing through the checkpoint, the number of vehicles stopped and the number of motorists arrested for DWI. While the guidelines do not specifically mandate the use of the DWI Investigative Note Card, the guidelines speak about the DWI Program Notification and DWI Program Activity Record in more absolute terms. Under the guidelines and in bold language, “it is imperative that these reports be completed in a timely and accurate manner.” These documents are further described as “legal records that are often referenced in both criminal and civil proceedings.”
Here, it is undisputed that none of the above-described documents was ever prepared or transmitted to the appropriate official or division of the New York State Police. Clearly, there is an admitted failure to strictly or substantially observe sobriety checkpoint guidelines. Thus, it is now within the court’s purview to determine the legal consequences of such failure.
The question of whether or not a law enforcement agency’s failure to follow its own sobriety checkpoint guidelines renders the stop unlawful under the Fourth Amendment of the United States Constitution or article I (§ 12) of the New York Constitution appears to one of first impression in New York.
In the case of People v Scott, 63 NY2d 518 [1984], the criminal court held that a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment. Generally, a seizure of an automobile requires an individualized suspicion of wrongdoing, whether on a highway or at a roadblock. It does not apply under all situtations and the United States Supreme Court has “recognized only limited circumstances in which the usual rule does not apply.” In other words, a sobriety checkpoint aimed at removing drunk drivers from the road does not violate the Fourth Amendment.
Conversely, a vehicle checkpoint whose primary programmatic purpose is indistinguishable from the general interest in crime control has been declared unconstitutional.
In the case of Indianapolis, the Criminal Court held that a city’s drug interdiction checkpoint violated the Fourth Amendment, reasoning that the connection to the roadway of the city’s anticontraband agenda was “very different from the close connection to roadway safety that was present in Sitz.” In that case, the court stated that the People have the burden of establishing that the primary programmatic objective (not the subjective intent of the participating officers) for initiating a suspicionless vehicle stop procedure was not merely to further general crime control” but that an articulable public safety concern that in the first instance justified utilization of a checkpoint at the particular chosen location must also be established.
The above said burden of proof as to the programmatic purpose is essentially derived from the constitutional principle underlying “the reasonableness of a suspicionless roadblock stop, i.e., `a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.'” Without it, a court is left “without any basis to assess `the gravity of the public concerns served by the seizure’ or `the degree to which the seizure advanced the public interest.'” As a rule, the primary programmatic purpose must be determined by examining “the underlying reason for undertaking it” as opposed to “the particular manner in which the checkpoint was conducted.” Thus, where the Police Department checked vehicles at a checkpoint for windshield stickers, driver’s licenses and registrations as part of a larger initiative aimed at detecting and deterring violent crime and drug trafficking in a specific target area, the stop violated the defendant’s Fourth Amendment rights and all items seized from the defendant were properly suppressed.
To remove the “legal stigma of ostensibly violating the Fourth Amendment proscription against warrantless and suspicionless stops,” the government must satisfy the following additional requirements: (1) a checkpoint must be “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers”; (2) “the discretion of the official in the field must be circumscribed”; (3) there must be “adequate precautions as to safety, lighting and fair warning of the existence of the checkpoint”; and, (4) the location of a fixed checkpoint must be “chosen not by the officers in the field but by officials responsible for making overall decisions as to the effective allocation of limited enforcement resources.” No burglary and no sex crimes were charged.
The said requirements, as a whole, constitute a substitute for the constitutional norm of individualized suspicion. While the list may seem formidable, law enforcement agencies have a choice of routes. One is the familiar road of individualized suspicion; the other is the less traveled and more exotic road built by Court of Appeals and U.S. Supreme Court precedents. Both roads exact constitutional tolls on their travelers.
Logic dictates that the plan must be followed, inasmuch as the plan should emanate from the higher echelons of the criminal law enforcement agency and inasmuch as the discretion of the individual officers in the field must be circumscribed. It is no plan at all if its execution is left to the whim and caprice of officers in the field. To conclude that officers in the field must follow a plan which is set in place by the higher echelons, and then to conclude that the officers in the field may cavalierly disregard certain key elements of that plan, whether intentionally or unintentionally, would be to countenance the “standardless and unconstrained discretion” and “evil” the Supreme Court spoke about in the case of Delaware v Prouse,, 440 US 648, 661 [1979]. Then again, courts need to temper this “execution” expectation with a certain measure of restraint. Not all plan deviations merit application of the draconian “fruit of the poisonous tree” doctrine. “Appellate courts have, indeed, differed on whether police must comply with written guidelines strictly or substantially.”
In the case of Commonwealth v Anderson, 406 Mass 343, 547 NE2d 1134 [1989], the Supreme Court of Massachusetts held that the Commonwealth must carefully comply with written, checkpoint guidelines and that “substantial compliance” is not the standard for a roadblock seizure. In other words, where the state police guidelines impose a two-hour limit on the duration of any roadblock unless the troop commander ordered otherwise, and where the supervisor on the scene without the troop commander’s authorization extended the duration of the roadblock by 30 minutes, the evidence was held to be lawfully suppressed. According to the court, “written guidelines xxx have been accepted as a sufficient substitute for the usual Fourth Amendment `reasonableness’ demands” and that “to allow the Commonwealth to do anything short of complying in full with its own guidelines would inject an element of discretion into the roadblock procedures and thus undercut the very foundation upon which the roadblock seizure is constitutionally justified.”
In the case of Commonwealth v Yastrop, 564 Pa 338, 768 A2d 318 [2001], the Supreme Court of Pennsylvania held that “substantial compliance with guidelines established in two earlier precedents of Pennsylvania’s highest criminal court is all that is necessary to minimize the intrusiveness of a roadblock seizure to a constitutionally acceptable level.”
The most reasonable course now is to require law enforcement agencies to adhere to a standard of substantial compliance with their own guidelines. A trivial deviation from the written guidelines does not automatically make the sobriety checkpoint an unreasonable seizure.
Here, the checkpoint at issue was indeed unconstitutional and represented an unlawful search and seizure. First, the DWI Program Notification is more than a mere ministerial act. It is the first step in obtaining the requisite “higher echelon” approval of the chosen sites. By requiring the DWI Program Notification to be sent to the Assistant Deputy Superintendent, the State Police have, in effect, designated the Assistant Deputy Superintendent as the appropriate supervisory level officer with the responsibility “for making overall decisions as to the effective allocation of limited enforcement resources.” Second, the DWI Program Activity Record is more than a redundant collection of post-checkpoint statistics. In not completing this record, courts and the State Police alike are deprived of the kind of “`empirical data’ demonstrating the effectiveness of the means chosen by law enforcement officials.”
Accordingly, the defendant’s motion to suppress the results of any chemical analysis of defendant’s breath, any and all statements attributed to her and all other evidence allegedly obtained from her is granted.
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