State v. Gerschoffer

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Karen M. Freeman-Wilson Mark A. Kopinski
Attorney General of Indiana South Bend, Indiana

Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

STATE OF INDIANA, )
)
Appellant (Plaintiff Below), ) No. 71S05-0102-CR-106
) In the Supreme Court
v. )
)
JARROD E. GERSCHOFFER, ) No. 71A05-0003-CR-116
) In the Court of Appeals
Appellee (Defendant Below). )

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable R. W. Chamblee, Judge
Cause No. 71D08-9906-DF-686

March 5, 2002

SHEPARD, Chief Justice.

In this case the Court of Appeals interpreted Article 1, Section 11
of the Indiana Constitution to prohibit all sobriety checkpoints as
unreasonable seizures. We disagree, but affirm suppression of the evidence
obtained from the roadblock in this case because the procedures followed
did not satisfy the requirements of Section 11, a part of Indiana’s Bill of
Rights.

Facts and Procedural History

Late on the night of June 18, 1999, the Indiana State Police and the
Mishawaka Police Department jointly conducted a sobriety checkpoint on
McKinley Avenue, just west of its intersection with Grape Road, in
Mishawaka. Jarrod Gerschoffer was one of seventy drivers pulled aside for
observation. The officer who greeted Gerschoffer smelled alcohol and noted
Gerschoffer’s glassy, bloodshot eyes and slurred speech. Gerschoffer
failed three sobriety field tests, and a subsequent chemical test showed
that his blood alcohol content was 0.11.

This led the State to charge Gerschoffer with operating a vehicle
while intoxicated (OWI), as a class D felony based on a previous OWI
conviction.

Gerschoffer moved to suppress all evidence obtained from the
checkpoint, claiming improper seizure under both the Fourth Amendment of
the U.S. Constitution[1] and Article 1, Section 11 of the Indiana
Constitution.[2] After a hearing, the trial court granted the motion,
holding that although the checkpoint satisfied the Fourth Amendment, the
failure to obtain a warrant was unreasonable under Article 1, Section 11.

The Court of Appeals affirmed, holding that “a sobriety checkpoint .
. . conducted absent probable cause or reasonable suspicion of illegal
activity, constitutes an unreasonable seizure as proscribed by Article 1,
Section 11.” State v. Gerschoffer, 738 N.E.2d 713, 726 (Ind. Ct. App.
2000). We granted transfer to this Court, thus vacating that opinion. 753
N.E.2d 6 (Ind. 2001).

I. Federal Roadblock Jurisprudence: A Brief Refresher

We examine claims under the Indiana Constitution separately from
those based on federal constitutional counterparts. Ajabu v. State, 693
N.E.2d 921 (Ind. 1998); see also Price v. State, 622 N.E.2d 954 (Ind.
1993). Nonetheless, both the U.S. Supreme Court and this Court have
addressed the Fourth Amendment’s applicability to sobriety checkpoints, and
a review of federal holdings may inform our state analysis.

The U.S. Supreme Court first suggested that roadblocks might satisfy
the Fourth Amendment when it held random and discretionary stops to check
drivers’ licenses and vehicle registrations unconstitutional in Delaware v.
Prouse, 440 U.S. 648 (1979):

This holding does not preclude the . . . States from developing
methods for spot checks that involve less intrusion or that do not
involve the unconstrained exercise of discretion. Questioning of all
oncoming traffic at roadblock-type stops is one possible alternative.
We hold only that persons in automobiles on public roadways may not
for that reason alone have their travel and privacy interfered with at
the unbridled discretion of police officers.

Id. at 663 (footnote omitted).

The same year, the Court identified three factors to weigh in
assessing the constitutionality of seizures less intrusive than traditional
arrests: (1) “the gravity of the public concerns served by the seizure,”
(2) “the degree to which the seizure advances the public interest,” and (3)
“the severity of the interference with individual liberty.” Brown v.
Texas, 443 U.S. 47, 51 (1979) (random stop-and-identify statute held
unconstitutional). The Court went on to say that a central concern in
balancing these factors is “assur[ing] that an individual’s reasonable
expectation of privacy is not subject to arbitrary invasions at the
unfettered discretion of officers in the field.” Id. Therefore, “the
seizure must be carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers.” Id. (citing Prouse,
440 U.S. at 663).

Seven years later, we applied these federal principles in a Fourth
Amendment challenge to a roadblock designed to check for licenses and
registrations as well as OWI. State v. Garcia, 500 N.E.2d 158, 159-61
(Ind. 1986), cert. denied, 481 U.S. 1014 (1987).[3] We held, three-to-
two, that the OWI problem, including under-age drinking, was grave enough
to justify nontraditional enforcement methods. Id. at 161. The arrest
rate and the “obvious” deterrent effect sufficiently advanced the public
interest. Id. at 162. The average stop was only two or three minutes, and
many people turned around and avoided the roadblock after seeing it ahead,
so the level of interference was acceptable. Id.

We also considered the degree of discretion involved. Based on a
previously communicated plan, one officer flagged vehicles over in blocks
of five as soon as the previous five were released. See id. at 160. An
officer then asked each driver to produce a license or registration while
checking for indications of OWI or underage drinking. See id. at 161.

This uniformly followed procedure imposed sufficiently “explicit,
neutral limitations” upon the individual officers to satisfy the Fourth
Amendment. Id. at 162.

The U.S. Supreme Court took a similar approach and reached a similar
conclusion in Michigan Department of State Police v. Sitz, 496 U.S. 444
(1990). Sitz challenged a roadblock procedure developed by a committee
appointed under the authority of the state police, comprised of
representatives from state and local police forces, state prosecutors, and
a university transportation research institute. Id. at 447. Under the
procedure, all vehicles were stopped at the checkpoint for an average of
twenty-five seconds. Id. at 448. Only if the checkpoint officer detected
signs of intoxication would he or she ask for a license and registration.
Id. at 447.

Applying the Brown balancing test, the Sitz court held that brief,
suspicionless seizures at highway checkpoints for the purpose of combating
drunk driving do not violate the Fourth Amendment. Id. at 455; see also
City of Indianapolis v. Edmond, 531 U.S. 32, 34 (2000). It held, “No one
can seriously dispute the magnitude of the drunken driving problem or the
States’ interest in eradicating it,” and found the degree of intrusion as
measured by duration of the seizure and intensity of the questioning
slight. Sitz, 496 U.S. at 451-52 (citing United States v. Martinez-Fuerte,
428 U.S. 543 (1976) (upholding border checkpoints to detect illegal
aliens)).

The Court distinguished roving police patrols whose approach might
frighten motorists, especially those traveling alone at night on remote
roads, from checkpoints where drivers see others being similarly stopped.
Sitz, 496 U.S. at 453 (citing, inter alia, Martinez-Fuerte, 428 U.S. at
558). It also declared that nothing in Brown was intended to shift the
choice between reasonable law enforcement techniques from politically
accountable officials to the courts. Id.

The U.S. Supreme Court recently clarified federal constitutional
limitations in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), a
successful Fourth Amendment challenge to a drug interdiction roadblock.
The baseline rule is that a search or seizure is ordinarily unreasonable
absent individualized suspicion of criminal activity.[4] Edmond, 531 U.S.
at 37 (citing Chandler v. Miller, 520 U.S. 305, 308 (1997)). The Court
acknowledged that checkpoints sometimes pass constitutional muster even
though they are not based on individualized suspicion but distinguished its
prior holdings in Martinez-Fuerte, Sitz, and Prouse by saying, “In none of
these cases . . . did [the Court] indicate approval of a checkpoint program
whose primary purpose was to detect evidence of ordinary criminal
wrongdoing.” Edmond, 531 U.S. at 38.

The key distinction between Sitz and Edmond is that sobriety
checkpoints are “designed primarily to serve purposes closely related to .
. . the necessity of ensuring roadway safety.” Edmond, 531 U.S. at 41.
Narcotics checkpoints, on the other hand, are not similarly directed at
“immediate, vehicle-bound threat[s] to life and limb.” Id. at 43.

II. Section 11 and OWI Roadblocks: General Principles

The Indiana Constitution has unique vitality, even where its words
parallel federal language.[5] We resolve Indiana constitutional claims by
“examining the language of the text in the context of the history
surrounding its drafting and ratification, the purpose and structure of our
constitution, and case law interpreting the specific provisions.” Ind.
Gaming Comm’n v. Moseley, 643 N.E.2d 296, 298 (Ind. 1994) (citing State
Election Bd. v. Bayh, 521 N.E.2d 1313 (Ind. 1988)).

Indiana’s founders left few clues about the formulation of Article 1,
Section 11. The 1816 constitutional convention adopted this section in
remarkably short order with no recorded debate, in nearly the same words we
have today.[6] Moreover, historical context offers only limited insight on
the issue of roadblocks because “[t]he automobile has made an alteration in
our way of life unforeseen and unforeseeable by the Founding Fathers.”
Williams v. State, 261 Ind. 547, 553, 307 N.E.2d 457, 461 (1974).

This is not to say that we are writing on a blank slate. We have
previously held that Article 1, Section 11 must be liberally construed to
protect Hoosiers from unreasonable police activity in private areas of
their lives. Brown v. State, 653 N.E.2d 77 (Ind. 1995) (warrantless search
of defendant’s car held unreasonable under Indiana Constitution). Rather
than looking to federal requirements such as warrants and probable cause
when evaluating Section 11 claims, we place the burden on the State to show
that under the totality of the circumstances its intrusion was reasonable.
Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999) (citing Brown, 653
N.E.2d at 79-80).

In Brown, we acknowledged the tension between multiple constitutional
objectives. “[I]t may safely be said that Hoosiers regard their
automobiles as private and cannot easily abide their uninvited intrusion.”
Brown, 653 N.E.2d at 80. On the other hand, “Indiana citizens have been
concerned not only with personal privacy but also with safety, security,
and protection from crime.” Mitchell v. State, 745 N.E.2d 775, 786 (Ind.
2001).

We note the existence of some evidence that sobriety checkpoints can be
effective. A 1999 study concluded that an extensively publicized,
statewide checkpoint program in Tennessee reduced alcohol-related crashes
by more than twenty percent, the equivalent of nine fatal accidents per
month. John H. Lacey et al., Evaluation of Checkpoint Tennessee:
Tennessee’s Statewide Sobriety Checkpoint Program, Technical Report
Prepared for U.S. Department of Transportation, National Highway Traffic
Safety Administration (Jan. 1999), at
http://www.nhtsa.dot.gov/people/injury/research/ChekTenn/ChkptTN.html.

In the instant case, the Court of Appeals said, “A suspicionless
roadblock seizure is inherently random, arbitrary and capricious, and there
is nothing in the text or original meaning of Article 1, Section 11 to
suggest that the framers would have considered such a seizure as anything
other than unreasonable.” Gerschoffer, 738 N.E.2d at 723-24. We have
concluded otherwise.

A minimally intrusive roadblock designed and implemented on neutral
criteria that safely and effectively targets a serious danger specific to
vehicular operation is constitutionally reasonable, unlike the random and
purely discretionary stops we have disapproved. See Baldwin v. Reagan, 715
N.E.2d at 337 (requiring individualized suspicion of a seat belt law
violation before stopping a motorist). As Professor Akhil Reed Amar has
said, “A broader search is sometimes better--fairer, more regular, more
constitutionally reasonable--if it reduces the opportunities for official
arbitrariness, discretion, and discrimination. . . . The broader, more
evenhanded search is sometimes more constitutionally reasonable even if the
probabilities are lower for each citizen searched.” Akhil Reed Amar,
Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 809 (1994)
(arguing for a shift from traditional federal search and seizure
jurisprudence to an approach that focuses on constitutional
reasonableness).

We therefore join those jurisdictions rejecting the contention that
all roadblocks are per se violations of state constitutional
requirements.[7] The question then becomes whether this particular
roadblock was conducted in a constitutionally reasonable manner.

III. Reasonableness of This Roadblock

States that have held, as we do today, that sobriety checkpoints do
not violate their state constitutions per se have focused on reviewing the
implementation of specific roadblocks. See R. Marc Kantrowitz, Annotation,
Validity of Police Roadblocks or Checkpoints for Purpose of Discovery of
Alcoholic Intoxication – Post-Sitz Cases, 74 A.L.R. 5th 319, § 2a (2001).
These states have identified a variety of factors pertinent to assessing
the constitutionality of specific checkpoints.[8] Id. We review the
Mishawaka roadblock in light of some factors we consider significant.

Neutral Plan Approved by Appropriate Officials. Some states have
looked more favorably upon roadblocks staged pursuant to formal guidelines
adopted at an appropriate policy-making level. For example, in Boisvert,
671 A.2d at 837, a Connecticut court noted with approval that the roadblock
complied with state police guidelines promulgated by the public safety
commissioner. These guidelines required, among other things, advance
approval by ranking officers; a careful choice of location, date and time
“after considering many factors, including the safety of the public and
those conducting the operation and the potential inconvenience to the
public”; advance publicity; and assurance to drivers that the stop was
routine. Id.; see also Trumble, 483 N.E.2d 1102 (roadblock that complied
with state police guidelines was a reasonable seizure).

We agree that a properly approved, neutral plan would help support
the reasonableness of the sobriety checkpoint. Here, Sergeant Gary Coffie,
the officer in charge for the State Police, testified that he followed
written federal and state police guidelines. (R. at 85-86, 100-01.) Those
guidelines are not part of the record, however, so we cannot assess their
efficacy.

Objective, Location and Timing. “A seizure is not reasonable unless
it is well calculated to effectuate its purpose.” Garcia, 500 N.E.2d at
167 (Shepard, J., dissenting). Here, the connection between the vehicular
threat of OWI and the objectives, location and timing of the roadblock is
tenuous at best.

A press release indicated that this checkpoint was intended to catch
drunk drivers, seat belt and child restraint violations, and “other
violations.” (R. at 181.) Corporal Timothy Williams, the officer in
charge for the Mishawaka Police Department, indicated that the site
selection was intended to reduce speeding and “cruising.” (R. at 146.) He
said, “[I]t’s a good way to kind of slow traffic down, make sure everybody
is doing what they’re supposed to.” (Id.)

Williams also said that another goal was “[t]o make sure . . .
everybody’s got all the proper information with them,” including
“[l]icense, registration, insurance information.” (R. at 146.) The
Vermont Supreme Court once noted, and we agree, that “[t]he thought that an
American can be compelled to ‘show his papers’ before exercising his right
to walk the streets, drive the highways or board the trains is repugnant to
American institutions and ideals.” Record, 548 A.2d at 426 (quoting State
v. Kirk, 493 A.2d 1271, 1285 (N.J. Super. Ct. App. Div. 1985)).

Here, the State has offered a montage of objectives, including the
generic law enforcement goal of “mak[ing] sure everybody is doing what
they’re supposed to.” (R. at 146.) This sounds more like a generalized
dragnet than a minimally intrusive, neutral effort to remove impaired
drivers from the roadways before they hurt someone.

The evening’s statistics reinforce this conclusion. Seventy stops
produced fourteen traffic arrests and thirty-four warnings. (R. at 177.)
Only two citations were for OWI.[9] (Id.)

The location’s selection casts further doubt on whether this roadblock
was sufficiently related to the public danger of drunk driving. The
officers in charge sensibly chose a well-lighted, reasonably busy area that
was amenable to traffic control. (R. at 145-46.) They chose this
particular site partially because they had conducted a checkpoint in the
same location the previous winter and wanted to compare results. (R. at
136.)

When asked the reasons for the site selection, however, neither
officer indicated that drunk driving had been a particular problem at this
location. (R. at 103-04, 145-46.) Corporal Williams said only that a high
volume of general traffic violations occurred in the area. (R. at 145-46.)

The officers operated the roadblock from 11:30 p.m. until 1:30 a.m.
because “traffic is easier to handle; it’s not exactly that we were going
to get a lot of [OWI] arrests.” (R. at 107-08.) Also, businesses were
closed at that hour and shoppers were no longer out, but it was still early
enough for a “substantial amount of traffic.” (R. at 108.) Finally, the
timing was convenient based upon officer shift changes. (Id.) As with
location, the State did not link the timing to the danger being addressed.

To be constitutionally reasonable, the location and timing of
sobriety checkpoints should take into account police officer safety, public
safety, and public convenience. The roadblock should also effectively
target the public danger of impaired driving. Here, the State did not
offer any evidence of objective considerations such as an unusually high
rate of OWI-related accidents or arrests in the chosen area. The State has
therefore not shown that this roadblock was sufficiently related to the
legitimate law enforcement purpose of combating drunk driving.

Police Discretion. Many states consider the degree of discretion
exercised by field officers conducting the roadblock a critical factor.
See, e.g., Downey, 945 S.W.2d at 111-12 (requiring that Tennessee
roadblocks be “established and operated in accordance with predetermined
guidelines and supervisory authority that minimize the risk of arbitrary
intrusions on individuals and limit the discretion of law enforcement
officers at the scene”). We agree.

Here, Sergeant Coffie flagged in five vehicles at a time, then allowed
other traffic to flow through. (R. at 90-91.) As soon as all five
vehicles were cleared, Coffie flagged in five more, without regard to
vehicle type. (R. at 91, 122-24.) This procedure satisfied the Fourth
Amendment in Garcia, 500 N.E.2d at 161, and it seems a reasonably neutral
and consistent method.

Other procedures, however, were not as carefully controlled. Aside
from being told to be “professional and courteous,” officers received no
specific directive on how to approach and screen motorists. (R. at 115,
150.) Each individual officer was therefore allowed to decide whether to
immediately request license, registration, and/or insurance information
from all drivers or only from some of them based on an appearance of
impairment or other grounds. (R. at 119, 136, 150.) No standardized
instructions were given to ensure that officers addressed drivers in a
consistent manner.[10] (R. at 119-20.) Furthermore, each officer had the
discretion to decide how many and what type of sobriety tests to perform if
he or she detected alcohol. (R. at 96, 150.)

The State has therefore not shown that it provided sufficiently
explicit guidance to ensure against arbitrary or inconsistent actions by
the screening officers. This very important factor weighs against the
reasonableness of the roadblock.

Degree of Intrusion. If the officer approaching a car did not detect
any violations, the length of detention averaged four minutes. (R. at
130.) In Garcia, stops approximating two to three minutes satisfied the
Fourth Amendment. 500 N.E.2d at 162. In Sitz, the average detention
period was only twenty-five seconds. 496 U.S. at 448.

The reasonableness of this detention period is questionable. Four
minutes could certainly seem like a very long time to a law-abiding citizen
pulled off the road for observation and questioning by the police. In
light of other similar cases where the intrusion has been much briefer, it
is not clear that a well-trained officer needs this much time to assess
driver sobriety. See id.; see also Trumble, 483 N.E.2d at 1105.

In evaluating the degree of intrusion, we also consider whether the
roadblock was avoidable. The more avoidable a roadblock is, the less it
interferes with the liberty of individual drivers. A roadblock need hardly
be altogether voluntary, however, or it would have little enforcement or
deterrent value.

Because the checkpoint was near an intersection and only cars coming
from the direction of the intersection were stopped, drivers could have
theoretically turned and avoided the checkpoint. (R. at 184.) Sergeant
Coffie testified, however, that a six-by-five-foot sign announcing the
sobriety checkpoint was illuminated only “when headlights hit it.” (R. at
112.) The sign was propped against a squad car that blocked the left lane
where the checkpoint began, so as to channel cars into single file in the
right lane. (R. at 111-13, 184.)

Sergeant Coffie conceded that because the only signage was past the
roadblock’s entry point, approaching drivers may not have realized the
activity ahead (red lights and flares) was a checkpoint until the point of
no return, especially if larger vehicles blocked their view. (R. at 113-
14.) The lack of demonstrated avoidability therefore weighs slightly
against the State.[11]

Safe Conditions. The State offered testimony that the checkpoint was
located in a well-lighted area, where vehicles could be pulled off the
roadway into an adjacent parking lot without impeding traffic. This weighs
in favor of constitutionality.

Effectiveness. The officers stopped seventy of the 198 cars funneled
through the checkpoint. (R. at 127.) Fourteen arrests resulted, of which
two were for OWI.[12] (R. at 129.) This seems a fairly low percentage,
especially considering that officers administered a dozen preliminary
breath tests.[13] (R. at 178.) Both Sergeant Coffie and Corporal Williams
conceded that roving patrols produce more OWI arrests than do roadblocks.
(R. at 105, 148.)

Apprehension rates are not, however, the end of the question. As
Tennessee’s experience proves, roadblocks can effectively deter OWI, such
that even a modest arrest rate may simply reflect the fact that advance
publicity scared those who would drink and drive off the roads. See Lowe,
337 S.E.2d at 277 (“[T]he deterrent effect . . . is obvious; such a visible
project is bound to increase the perceived risk of arrest in the minds of
those drunk drivers who are never arrested.”).[14]

Here, however, we have no evidence from which to infer that the low
apprehension rate was the effect of a successful media blitz. Sergeant
Coffie sent a press release to four television stations two days before the
checkpoint date, (R. at 94-95), but sent nothing to radio stations, local
newspapers, or other print media, (R. at 106-07). No one ever determined
whether the pending roadblock was actually reported by the four stations
notified. (R. at 107.)

Law enforcement agencies cannot control what the media chooses to
report, of course, and may not have funds to pay for publicity. Here,
however, some major news sources received no notification at all, and we do
not know if television stations carried stories on the planned roadblocks.
We cannot infer, absent any proven publicity, that this checkpoint
effectively deterred potential offenders.[15]

Summary. In light of the above factors, with particular emphasis on
the high level of officer discretion and the very weak link between the
public danger posed by OWI and the objectives, location and timing of the
checkpoint, the State did not meet its burden to show that this roadblock
was constitutionally reasonable under Article 1, Section 11. The trial
court therefore correctly suppressed the fruit of this seizure.

Conclusion

We affirm the trial court’s ruling granting the motion to suppress.

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., concurs and dissents with separate opinion.

In The
INDIANA SUPREME COURT

STATE OF INDIANA, )
Appellant (Plaintiff below), )
)
v. ) 71S05-0102-CR-106
)
JARROD E. GERSCHOFFER, )
Appellee (Defendant below). )
)
________________________________________________

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable R. W. Chamblee, Judge
Cause No. 71D08-9906-DF-686
________________________________________________

On Petition To Transfer

March 5, 2002

DICKSON, Justice, concurring in part and dissenting in part:
I join Part I and, except as noted below, Part II of the majority
opinion. I respectfully dissent, however, to Part III, believing that the
particular roadblock challenged here was not unreasonable in the totality
of the circumstances.
Quoting from the dissenting opinion in State v. Garcia, 500 N.E.2d
158, 167 (Ind. 1986)(Shepard, J., dissenting), the majority declares: "A
seizure is not reasonable unless it is well calculated to effectuate its
purpose." Slip op. at 16. And near the close of Part II, the majority
asserts that one of the proper considerations in determining the
constitutional reasonableness of a roadblock is whether it "effectively
targets a serious danger specific to vehicular operation." Slip op. at 13.
Later, in Part III, the majority proceeds to consider effectiveness when
evaluating this roadblock. Slip op. at 24-26. Whether a roadblock is
"well calculated" to be efficacious is not, in my opinion, a significant
factor to be considered in the determination of roadblock reasonableness.1
Finally, I do not share the majority's critical view of the Mishawaka
roadblock's objective, location, and timing; the lack of compelled
uniformity regarding the officers' approaching and screening of motorists;
the lack of sufficient avoidability; and the lack of sufficient
effectiveness. Notwithstanding the possible excessive average length of
detention, I believe that the record establishes that the roadblock was not
unreasonable in the totality of the circumstances. In my judgment, the
trial court erred in granting the motion to suppress.

-----------------------
[1] “The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV.
[2] Article 1, Section 11’s wording is virtually identical: “The right of
the people to be secure in their persons, houses, papers, and effects,
against unreasonable search or seizure, shall not be violated; and no
warrant shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
person or thing to be seized.”
[3] Garcia did not argue that the Indiana Constitution required suppression
of the evidence. Id. at 159.
[4] The Court noted that suspicionless searches may be justified when
special needs exceed normal law enforcement requirements. Edmond, 531 U.S.
at 37 (citing Vernonia School Dist. 47J v. Acton, 515 U.S. 646
(1995)(upholding random drug testing of student athletes); Treasury
Employees v. Von Raab, 489 U.S. 656 (1989) (upholding drug tests for U.S.
Customs employees seeking transfer or promotion to certain positions);
Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602 (1989) (upholding drug
and alcohol tests for railway employees involved in train accidents or
found in violation of certain safety regulations)). Appropriately limited
administrative searches may also be allowed even absent particularized
suspicion. Edmond, 531 U.S. at 37 (citing New York v. Burger, 482 U.S. 691
(1987) (upholding warrantless site inspection of “closely regulated”
business); Michigan v. Tyler, 436 U.S. 499 (1978) (upholding inspection of
damaged premises to establish cause of fire); Camara v. Mun. Court of City
& County of S.F., 387 U.S. 523 (1967) (upholding city housing code
inspections)).
[5] “Even where an Indiana constitutional provision is substantially
textually coextensive with that from another jurisdiction . . . we may part
company with the interpretation of the Supreme Court of the United States
or any other courts based on the text, history, and decisional law
elaborating the Indiana constitutional right.” Ajabu, 693 N.E.2d at 929
(citations omitted).
[6] The Journal of the Convention of the Indiana Territory, 1816, reprinted
in 61 Ind. Mag. Hist. 77, 81 (1965), reports that the delegates convened on
Monday, June 10. On Wednesday, June 12, they appointed a dozen drafting
committees, including a committee to prepare and report a preamble and bill
of rights. Id. at 82, 97. This committee delivered its report on Friday,
June 14. Id. at 106, 111. On June 27, Article 1, Section 11 was adopted
on third reading in essentially its current form, without recorded debate.
Id. at 122-23, 134-35, 149.
[7] See, e.g., People v. Rister, 803 P.2d 483 (Colo. 1990); State v.
Boisvert, 671 A.2d 834 (Conn. App. Ct. 1996), cert. denied, 674 A.2d 1332
(1992); Commonwealth v. Trumble, 483 N.E.2d 1102 (Mass. 1985); Commonwealth
v. Yastrop, 768 A.2d 318 (Pa. 2001); State v. Downey, 945 S.W.2d 102 (Tenn.
1997); State v. DeBooy, 996 P.2d 546 (Utah 2000); State v. Record, 548 A.2d
422 (Vt. 1988). A number of other states have upheld sobriety checkpoints
by applying a more parallel Fourth Amendment and state constitutional
analysis. See, e.g., Brent v. State, 510 S.E.2d 14 (Ga. 1998); State v.
Deskins, 673 P.2d 1174 (Kan. 1983); State v. Jackson, 764 So. 2d 64 (La.
2000); Lowe v. Commonwealth, 337 S.E.2d 273 (Va. 1985), cert. denied, 475
U.S. 1084 (1986).
[8] One good example is Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987),
where the Pennsylvania Supreme Court said:
[T]he conduct of the roadblock itself can be such that it requires
only a momentary stop to allow the police to make a brief but trained
observation of a vehicle’s driver, without entailing any physical
search of the vehicle or its occupants. To avoid unnecessary surprise
to motorists, the existence of the roadblock can be so conducted as to
be ascertainable from a reasonable distance or otherwise made knowable
in advance. The possibility of arbitrary roadblocks can be
significantly curtailed by the institution of certain safeguards.
First, the very decision to hold a drunk-driver roadblock, as well as
the decision as to its time and place, should be matters reserved for
prior administrative approval, thus removing the determination of
those matters from the discretion of police officers in the field. In
this connection it is essential that the route selected for the
roadblock be one which, based on local experience, is likely to be
travelled by intoxicated drivers. The time of the roadblock should be
governed by the same consideration. Additionally, the question of
which vehicles to stop at the roadblock should not be left to the
unfettered discretion of police officers at the scene, but instead
should be in accordance with objective standards prefixed by
administrative decision.
Id. at 1043.
[9] The statistical summary breaks this number down as one “9-30-5-2 (OWI)”
and one “9-30-5-3 (PRIOR).” (R. at 177-78.) Gerschoffer was charged under
both of these statutes, so it is unclear whether anyone other than
Gerschoffer was arrested for OWI during the roadblock.
[10] Sergeant Coffie testified:
Q: . . . So you didn’t go through any specific conversation they
had to have, an actual step-by-step of what they needed to do as
they approached the car, right?
A: No, not step-by-step. There’s too many variables as far as what
an officer would observe from the occupant of that vehicle.
Q: And . . . whether or not they asked to see your license and
registration first or whether or not they asked if they had been
drinking was basically up to the officer?
A: Basically, it’s up to the officer . . .
(R. at 119.) Compare to Trumble, 483 N.E.2d at 1104-05, where troopers
were instructed to say “Good evening, how are you, this is a State Police
Sobriety checkpoint, we would like you to have a copy of the brochure on
drunk driving laws.” Id. at 1105. While handing over the brochure, the
trooper could observe the driver and the interior of the vehicle. Id. If
no problems appeared, the trooper was to say “thank you” and allow the
vehicle to proceed, for an actual stopping time of about thirty seconds.
Id.
[11] Compare to “Marion County Traffic Safety Partnership Multi-Agency
Sobriety Checkpoint Procedures,” filed as an Appendix to the Amici Curiae
brief of Bart Peterson, Jerry Barker, Jack Cottey and Scott Newman in
Support of State’s Petition to Transfer. The Marion County plan calls for
a physical layout similar to Mishawaka’s, except that the checkpoint sign
is on the opposite side of the intersection, so that approaching motorists
may turn off before reaching the checkpoint. (Amici Curiae App. at 7-8.)
Marion County’s written procedures state:
Avoiding the Checkpoint
A motorist who wishes to avoid the sobriety checkpoint site by legally
turning before entering the checkpoint area shall be allowed to do so
unless the driver engages in any unlawful, unusual or dangerous
behavior. The act of avoiding a sobriety checkpoint does not
constitute the grounds for a stop.
(Id. at 9.)
[12] Or, possibly, only one. See supra note 9.
[13] Four of these preliminary tests registered no alcohol at all; three
more registered only .01 or .02. (R. at 178.)
[14] The converse is also true, of course: the end does not justify the
means, and a high capture rate will not save a constitutionally
unreasonable roadblock.
[15] Advance publicity serves a secondary purpose as well. The degree of
intrusion is less when motorists receive advance warning of potential stops
and are not taken by surprise.
1 Efficacy is particularly problematic when evaluating police sobriety
roadblocks because advance public knowledge may significantly foster
responsible alcohol consumption, and thus yield significantly fewer
arrests. This deterrent effect cannot be measured and can only be
estimated by speculation. Yet it is clearly one of the objectives of law
enforcement and, if efficacy is considered, actual deterrence must be
included in the determination. On the other hand, extensive advance
publicity may motive drivers to take alternate routes rather than to
diminish consumption of alcohol. Efficacy is simply an unreliable and
immaterial consideration in determining whether a roadblock is unreasonable
under the Indiana Constitution.