dissenting.
Respectfully, I dissent on defendant's assignment of error. I do not dispute the state's interest in curtailing or deterring drug sales nor do I disagree with (1) United States v. Martinez-Fuersto (1976), 428 U.S. 543 authorizing a fixed checkpoint near the border to control illegal immigration of aliens (2) nor Michigan State Police v. Setz (1990) 110 L. Ed. 2d 412 upholding neutral fixed sobriety checkpoints as reasonable and constitutional.
Here we are not given the number of motorists stopped on Friday, June 17, 1988 as they returned from (1) work (2) shopping for weekend food, etc. Aside from the one defendant, we have no information that any other has been apprehended. The defendant who was arrested for violation in "plain view" would have been just as accessible for apprehension by a narcotic detective if the defendant were walking down the street.
The first detective testified "from personal experience" that the area was a very high drug area, many, many sellers on the street and in cars and numerous dope houses in the area. Furthermore, the narcotics unit received numerous bitter complaints from residents regarding the open drug activity occurring on the street.
With all this information available, and the area localized and pinpointed, the police were assured of far more detection and apprehension by their direct intervention than by imposing a roadblock upon all the motorists in that area.
To attack the problem by roadblock is to postpone drug dealing for a day as well as delay detection. According to the second detective, their function was to stop each car, to check the occupant and the driver, to question their business in the area, to determine the purpose and destination and whether they lived on the street. This procedure could hardly be expected to elicit responses that would "weed out the people delivering the narcotics."
In this case the degree to which the seizure advanced the public interest through the apprehension of one reported violator based on the "plain view" doctrine, was disproportionate to the severity of the interferences with the individual liberty of the motorists in that roadblock. Brown v. Texas (1979), 443 U.S. 47, 50-51.
The total immobilization of vehicular traffic - albeit on a Friday afternoon and evening (4:00 p.m. to midnight) in mid June-was a substantial restraint out of proportion to the protective benefit -- the detection of one reported motorist-on a "plain view" possession of marijuana. State v. Barcia (1988), 549 A. 2d 491.
I would sustain appellant's sole assignment of error and enter final judgment in his behalf and affirm the state's sole cross-assignment of error.