People v. Rister

Justice QUINN

dissenting:

I dissent. Although the United States Supreme Court in Michigan Department of State Police v. Sitz, — U.S. -, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), held that a state’s use of a highway sobriety checkpoint program does not violate the Search and Seizure Clause of the United States Constitution, I would affirm the suppression ruling in this case on the basis that the Search and Seizure Clause of the Colorado Constitution, Colo. Const, art. II, § 7, prohibited the temporary seizure of the defendant when, as here, the seizure was totally unsupported by even a minimal level of individualized suspicion that he was operating a motor vehicle while under the influence of, or while impaired by, intoxicating liquor.

I.

In Sitz, the United States Supreme Court considered whether Michigan’s use of a highway sobriety checkpoint program violated the Search and Seizure Clause of the United States Constitution. In upholding the program, the Court acknowledged that a constitutional seizure occurs when a motorist is stopped at a checkpoint and subjected to preliminary questioning and observation by checkpoint officers, 110 S.Ct. at 2485; see also Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), but concluded that the temporary seizure of the motorist, along with the associated questioning and observation of the motorist by checkpoint officers, was constitutionally permissible because “the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program.” 110 S.Ct. at 2488.

This court, of course, is obligated to follow the Sitz decision as a matter of federal constitutional law. Nonetheless, the Sitz holding is remarkable for its failure to acknowledge the long-standing search and seizure principle, first enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that the temporary seizure of a person for a brief investigation is constitutionally permissible as long as there are circumstances which, although not amounting to probable cause essential for a traditional arrest, are sufficient when judged against an objective standard to support a reasonable suspicion that “criminal activity may be afoot.” 392 U.S. at 30, 88 S.Ct. at 1884. The sobriety checkpoint program in Sitz was aimed at the acquisition of incriminating evidence for use in a criminal prosecution for drunken driving. Intrusions into personal privacy or security that have as their purpose the discovery of incriminating evidence traditionally have been subjected to, at the very least, a minimal level of reasonable suspicion. See, e.g., Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (warrant-less taking of scrapings from fingernails of murder suspect, for whom police had probable cause to arrest, was constitutionally permissible when suspect appeared voluntarily at police station for questioning); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (officer may make a reasonable investigatory stop and frisk of suspect on basis of informer’s tip *492that suspect is armed and carrying narcotics).

Prior to Sitz, the only case upholding a suspicionless seizure of a motorist for temporary investigation was United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).1 In Martinez-Fuerte, the Court held that routinely stopping motorists for brief questioning of the occupants of the motor vehicle at permanent checkpoints operated by the Border Patrol for brief questioning of the occupants of the motor vehicle “may be made in the absence of any individualized suspicion” because of the demonstrated need for such enforcement technique in dealing with the problem of illegal immigration at this country’s borders. 428 U.S. at 562, 96 S.Ct. at 3085. It should be noted that the Court expressly limited its holding “to the type of stops described in this opinion.” 428 U.S. at 567, 96 S.Ct. at 3087. Those stops, as described in the opinion, were made at “permanent” checkpoints under circumstances where the stops were routine and there was little opportunity for unreasonable exercise of discretion by the Border Patrol officers. 428 U.S. at 553-54, 96 S.Ct. at 3081.

As Justice Stevens emphasized in his dissenting opinion in Sitz, there is a constitutionally significant difference between a routine stop at a permanent and clearly posted immigration checkpoint and a temporary highway sobriety checkpoint which the motorist encounters by surprise. “A motorist with advance notice of the location of a permanent checkpoint has an opportunity to avoid the search entirely, or at least prepare for, and limit, the intrusion on her privacy.” 110 S.Ct. at 2492. No such opportunity is available, however, in the case of a temporary sobriety checkpoint, which often depends for its effectiveness on the element of surprise. Id. There is another significant difference, as pointed out by Justice Stevens, between the amount and kind of discretion that an officer may exercise at these two types of checkpoints:

A check for a driver’s license, or for identification papers at an immigration checkpoint, is far more easily standardized than is a search for evidence of intoxication. [An] officer who questions a motorist at a sobriety checkpoint has virtually unlimited discretion to detain the driver on the basis of the slightest suspicion. A ruddy complexion, an unbuttoned shirt, bloodshot eyes or a speech impediment may suffice to prolong the detention. Any driver who had just consumed a glass of beer, or even a sip of wine, would almost certainly have the burden of demonstrating to the officer that her driving ability was not impaired.

Id. at 2493. Finally, many of the stops at permanent immigration checkpoints occur during daylight hours, while the sobriety checkpoints are often operated at night. Id. A seizure of the motorist, followed by interrogation and even a cursory search at night, is clearly “more offensive than a daytime stop that is almost as routine as going through a toll gate.” Id. These fears are not the sole concern of the guilty, for “[t]o be law abiding is not necessarily to be spotless” and “what begins mildly may by happenstance turn severe.” Id.

*493No one doubts the enormous tragedies caused by drunken drivers on our roads. Nor can one seriously question the important nature of the state’s interest in eliminating this social scourge. Because, however, the critical inquiry in this case is whether the state’s interests are actually furthered by subjecting the motoring public to temporary seizures of their persons, and associated questioning and observation, in the absence of reasonable individualized suspicion, what may be seriously questioned under the balancing test of Sitz is the extent to which a highway sobriety checkpoint program achieves the state objective of preventing or deterring drunken driving. Again, as observed by Justice Stevens in his dissenting opinion, there has been virtually no showing of meaningful statistical relationships between sobriety checkpoints and the actual impact on arrest rates or reduction in highway fatalities:

Because the Michigan program was patterned after an older program in Maryland, the trial judge gave special attention to that State’s experience. Over a period of several years, Maryland operated 125 checkpoints; of the 41,000 motorists passing through those checkpoints, only 143 persons (0.3%) were arrested. The number of man-hours devoted to these operations is not in the record, but it seems inconceivable that a higher arrest rate could not have been achieved by more conventional means. Yet, even if the 143 checkpoint arrests were assumed to involve a net increase in the number of drunk driving arrests per year, the figure would still be insignificant by comparison to the 71,000 such arrests made by Michigan State Police without checkpoints in 1984 alone....
Any relationship between sobriety checkpoints and an actual reduction in highway fatalities is even less substantial than the minimal impact on arrest rates. As the Michigan Court of Appeals pointed out, “Maryland has conducted a study comparing traffic statistics between a county using checkpoints and a control county. The results of the study showed that alcohol-related accidents in the checkpoint county decreased by ten percent, whereas the control county saw an eleven percent decrease; and while fatal accidents in the control county fell from sixteen to three, fatal accidents in the checkpoint county actually doubled from the prior year.”

Id. at 2491-92 (footnotes and citations omitted). Similar observations have been made by state courts in concluding that sobriety checkpoint programs have not advanced the public interest in curbing drunken driving in a manner that justifies the accompanying intrusion into personal privacy and security. E.g., State v. Henderson, 114 Idaho 293, 756 P.2d 1057 (1988); State v. Koppel, 127 N.H. 286, 499 A.2d 977 (1985); City of Seattle v. Mesiani, 110 Wash.2d 454, 755 P.2d 775 (1988).2

*494Irrespective of the highly questionable effectiveness of highway sobriety checkpoints as a deterrent mechanism for drunken driving, the United States Supreme Court in Sitz has ruled that nothing in the United States Constitution prohibits such intrusions into personal privacy and security. This court is bound by that decision as a matter of federal constitutional doctrine. What causes me to depart from this court’s opinion, however, is its adoption, in to to and without independent analysis, of the Sitz balancing test and its incorporation of that test into this state’s constitutional jurisprudence.

II.

Article II, section 7 of the Colorado Constitution states that the people shall be secure in their “persons” and “effects” from unreasonable searches and seizures. Although this constitutional provision is similar in text to the Fourth Amendment, we have interpreted the Colorado Constitution in a manner more protective of personal privacy and security than the United States Supreme Court has been willing to recognize under the United States Constitution. E.g. People v. Oates, 698 P.2d 811 (1985) (holding, contrary to Supreme Court’s analysis in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), that installation of a “beeper” in a chemical drum prior to its transfer to a buyer infringed a legitimate expectation of privacy under the Colorado Constitution and thus constituted a “search” requiring a warrant); People v. Corr, 682 P.2d 20 (Colo.), cert, denied 469 U.S. 855, 105 S.Ct. 181, 83 L.Ed.2d 115 (1984) (in absence of a grand jury subpoena, the Colorado Constitution, in contrast to the United States Constitution, requires a probable cause warrant for seizure of telephone toll records); People v. Sporleder, 666 P.2d 135 (Colo.1983) (holding, contrary to United States Supreme Court precedent, that war-rantless installation of pen register to record numbers dialed from defendant’s home telephone constitutes an unreasonable search under Colorado Constitution); Chames v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) (holding, contrary to United States Supreme Court precedent, that under Colorado Constitution a bank depositor has legitimate expectation of privacy in bank records); Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963) (Colorado Constitution, in contrast to federal constitution, requires that probable cause be supported by oath or affirmation reduced to writing). This is as it should be under our federal system, for the Bill of Rights does not establish a “ceiling” or outer limit of individual liberties, but rather establishes only a “floor” or minimum level of constitutional protections. While a state court may not go below this floor and infringe upon federally guaranteed rights by a more restrictive analysis of its state constitution, a state court has always been free to find in its state constitution greater protections against governmental intrusions than granted by the federal constitution. A state court, therefore, “as a matter of its own law,” may impose “greater restrictions on police activity” than the restrictions imposed by the United States Supreme Court under “federal constitutional standards.” Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); see Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977); Pollock, State Constitutions as Separate Sources of Fundamental Rights, 35 Rutgers L.Rev. 707 (1983); Sager, Forward: State Courts and the Strategic Space Between the Norms and Rules of Constitutional Law, 63 Tex.L.Rev. 959 (1985).

The liberty interests of Colorado citizens find their source not only in the federal constitutional and statutory law, but also in state constitutional jurisprudence and the *495legislative enactments of our General Assembly. State courts can effectively approach state constitutional interpretation in a manner more responsive to these interests than can the United States Supreme Court, which is forced to operate from a homogenized, abstracted, national vision, looking for the lowest common denominator and taking into account many of the variations from state to state and region to region. Sager, 63 Tex.L.Rev. at 976. When, as here, a state constitutional claim is properly raised, a state court has an affirmative duty to engage in an independent analysis of state constitutional principles when a critical evaluation of controlling federal precedent reveals it to be doctrinally unconvincing.

The “balancing” test adopted by the majority in this case is at odds with longstanding principles of Colorado search and seizure jurisprudence. We have held in countless cases that before an individual may be seized for a temporary investigation, three conditions must exist: (1) the law enforcement officer effecting the seizure must have a specific and articulable basis in fact for suspecting that the person has engaged in criminal activity, is presently committing a crime, or is about to do so; (2) the purpose of the temporary seizure must be reasonable; and (3) the scope and character of the seizure must be reasonably related to its purpose. E.g., People v. Wilson, 784 P.2d 325, 327 (Colo.1989); People v. Ratcliff, 778 P.2d 1371, 1376 (Colo.1989); People v. Melgosa, 753 P.2d 221, 225 (Colo.1988); People v. Carlson, 677 P.2d 310, 315 (Colo.1984); People v. Thomas, 660 P.2d 1272, 1274 (Colo.1983); People v. Tate, 657 P.2d 955, 958 (Colo.1983); People v. Schreyer, 640 P.2d 1147, 1149 (Colo.1982); People v. Casias, 193 Colo. 66, 72-77, 563 P.2d 926, 931-34 (1977); Stone v. People, 174 Colo. 504, 509, 485 P.2d 495, 497 (1971). This three-part standard for a temporary seizure of the person was developed with a conscious regard for the privacy interests of Colorado citizens under the Colorado Constitution. See, e.g., Ratcliff, 778 P.2d at 1375; Thomas, 660 at 1276-77; Schreyer, 640 P.2d at 1149.

Although the three-part test for a temporary or investigative seizure involves a balancing of the gravity of the public interest and the severity of the intrusion, the balancing or weighing aspect of the analysis is only part of the inquiry. The “balancing” factor, standing alone and devoid of the core component of reasonable individualized suspicion, is simply inadequate to support a temporary seizure under Colorado constitutional jurisprudence. See, e.g., Ratcliff, 778 P.2d at 1375-77; Thomas, 660 P.2d at 1274-76; Schreyer, 640 P.2d at 1149-50; Casias, 193 Colo, at 72-77, 563 P.2d at 931-34. The one lesson to be gleaned from our prior decisions in this area is that any balance must be struck so as to require that the officer effecting a temporary seizure act upon at least a “reasonable suspicion” that the person has engaged in, is engaging in, or is about to engage in, criminal activity. Dispensing with this “reasonable individualized suspicion” component of the three-part test is no more justified than dispensing with the probable cause prerequisite for a search warrant for incriminating evidence.

Colorado statutory law also recognizes a need for reasonable individualized suspicion before a temporary seizure of the person may be effected. § 16-3-103(1), 8A C.R.S. (1986), states:

A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions.

(Emphasis added). Although on July 5, 1986, the day on which the defendant was subjected to the highway sobriety checkpoint, Colorado statutory law provided that any licensee “shall have his driver’s license in his immediate possession at all times when operating a motor vehicle, and shall display the same upon demand by any [law enforcement] officer,” § 42-2-113, 17 C.R.S. (1984), we held in People v. McPherson, 191 Colo. 81, 550 P.2d 311 (1976), that this statute did not dispense with the reasonable individualized suspicion component of long-standing Colorado law. We there stated:

*496We do not believe that the legislature intended the statute to confer upon a police officer unlimited discretionary authority to stop any car at any time for any reason as long as he asked contemporaneously for display bf a driver’s license. A construction of the statute which would give to police officers such carte blanche authority would be inconsistent with section 16-3-103, C.R.S.1973, which specifically limits an officer’s authority to stop persons for investigation in the absence of probable cause to arrest. The clear intent of section 42-2-113 is simply to permit the officer to demand the license of the driver whose vehicle has been stopped for an otherwise proper purpose.

191 Colo, at 84, 550 P.2d at 314. Moreover, in 1987 the General Assembly amended section 42-2-113 to require a motorist to hand over his or her driver’s license “to any peace officer who has requested such person to do so if such peace officer reasonably suspects that such person is committing, has committed, or is about to commit a violation of article 2, 3, 4, 5, 6, 7, or 8 of this title.” § 42-2-113(1), 17 C.R.S. (Supp.1990) (emphasis added).

The constitutional jurisprudence and statutory law of Colorado reflect values, standards, and practices that are irreconcilable with the judicial legitimatizing of sus-picionless temporary seizures of motorists solely on the basis of balancing the gravity of the public interest against the severity of the intrusion associated with the seizure. The majority’s rejection of a reasonable individualized suspicion component as a necessary condition for a temporary seizure of the person under the Colorado Constitution results in subjecting all persons to the risk of governmental intrusions that, in my view, are antithetical to the precious “right to be let alone” contemplated by article II, section 7 of the Colorado Constitution. By adopting the “balancing” test in Sitz and engrafting that test upon the Colorado Constitution, the majority ignores the uniqueness and independence of our own constitution and denigrates the Colorado Search and Seizure Clause to an insignificant redundancy.

III.

The express purpose of the sobriety checkpoint program in this case was to detect and apprehend motorists who were operating their vehicles while intoxicated or under the influence of alcohol. The Operational Procedures Bulletin promulgated by the Chief of the Colorado State Patrol directed the checkpoint officers to stop each vehicle, approach the motorist, state that the purpose of the stop was to determine the sobriety of the driver, and to ask the driver for his or her license. The officers were directed to look for evidence of alcohol impairment, and only if no such evidence was found was the motorist to be directed to proceed on his or her way. According to the operational procedures, if the checkpoint officer observed an “odor of alcoholic beverage about the driver, slurred speech, flushed appearance, disorderly or unusual conduct, visual disorders and/or lack of muscular coordination,” and if the officer reasonably believed that the motorist was under the influence of alcohol, the officer was then required to request the driver to perform certain “psychomotor coordination tests and/or submit to a chemical test of either his blood or breath.” Although general questioning with respect to a driver’s license and the associated observation of the motorist’s demeanor and speech do not involve an intrusive search for personal characteristics hidden from public view, see Carlson, 677 P.2d at 316, the Operational Procedures Bulletin leaves no doubt that the purpose of the questioning and observation at the highway checkpoint is to discover evidence of the crime of drunken driving.

The operational procedures provided for publication of the dates on which sobriety checkpoints would be used, but the exact location and times of the checkpoints were to be kept confidential. The motorist approaching the checkpoint, therefore, would have no advance notice of any option other than to submit to the temporary seizure of his or her person for the associated questioning and observation by checkpoint officers. Moreover, even if some preliminary *497sign or warning of the sobriety checkpoint might have been posted on the road, a motorist should hardly be put to the choice of foregoing his or her intended route of travel toward a particular destination or to submit to a suspicionless sobriety examination.

Although the operational procedures stated that no action would be taken against a motorist who turned around or turned off the highway to avoid the sobriety checkpoint unless “a specific action other than merely turning around would justify pursuit,” it requires no great leap of imagination to realize that a motorist’s act of turning around or off the highway would only draw further attention to the police with the resulting risk of an arbitrary exercise of discretion that might well result in a more intensive intrusion into the motorist’s personal privacy and security. Indeed, if the facts of this case demonstrate anything, they quite clearly show that the sobriety checkpoint program places a motorist at the unfettered discretion of the checkpoint officers. When the defendant approached the checkpoint, he requested permission to make a right turn at the intersection to avoid the checkpoint examination. The checkpoint officer, however, denied the defendant’s request and directed him to proceed to the parking area, which the defendant did. Notwithstanding the fact that the guidelines provided the motorist with the right to avoid the sobriety checkpoint program by turning around or off the highway, and notwithstanding the further fact that the checkpoint officer observed nothing at this point in time that would justify either pursuit or further detention of the defendant, the defendant was nonetheless denied his right under the guidelines to avoid the sobriety checkpoint and was required instead to submit to the checkpoint examination. These facts alone, in my view, render the seizure of the defendant in this case constitutionally unreasonable.

Lastly, irrespective of the majority’s rejection of the reasonable individualized suspicion requirement for limited intrusions into personal privacy and security under the Colorado Constitution, I fail to see how the balancing process employed by the majority somehow weighs more heavily in favor of the state’s interests rather than the motorist’s right to personal privacy and security. The evidence shows that during the two and one-half hour period from 4:30 p.m. to 7:00 p.m. on July 6, 1986, the officers stopped 233 vehicles at the sobriety checkpoint without, however, arresting a single motorist for driving under the influence of, or while the motorist’s ability was impaired by, intoxicating liquor. The majority seems to find solace in the fact that “the announcement and establishment of a sobriety checkpoint undoubtedly had some effect on advancing the state’s interest in preventing drunken driving.” Maj. op. at 489. I believe Justice Stevens’ observations in his dissenting opinion in Sitz cogently put to, rest the notion that dramatizing the public interest in the prevention of alcohol-related accidents somehow tilts the constitutional balance in favor of the checkpoint program. After noting that the shock value of the program may be its most effective feature, he echoed Justice Scalia’s dissenting comments in National Treasury Employees Union v. Von Raab, 109 S.Ct. at 1401, to the effect that the “impairment of individual liberties cannot be the means of making a point.”

Even symbolism for so worthy a cause as the abolition or deterrence of drunken driving, in my view, cannot validate an otherwise unreasonable and unconstitutional seizure of the person. The traditional “roving patrol” techniques of policing our highways and roads, the abolition of plea bargaining in drunken driving cases, and stringent administrative revocation or suspension of licenses provide effective means, consistent with constitutional processes, for combatting the threat to public safety caused by the drunken driver. Unfortunately, this court “is transfixed,” as was the United States Supreme Court in Sitz, “by the wrong symbol — the illusory prospect of punishing countless intoxicated motorists — when it should keep its eyes on the road plainly marked by the Constitution,” Sitz, 110 S.Ct. at 2499 (Stevens, J., dissenting).

*498If the Search and Seizure Clause of the Colorado Constitution is to retain any vitality in today’s mobile society, it should be construed in a manner that vests a motorist on a public highway with the right to proceed to his or her destination without being required to submit to the seizure of his or her person, and associated questioning and observation of physical characteristics for evidence of intoxication, when there is a total absence of any cause whatever to suspect the motorist of drunken driving. The observations of the Rhode Island Supreme Court in Pimental v. Department of Transportation, 561 A.2d 1348, 1352 (R.I.1989), place in proper focus the true significance of this case. In invalidating on state constitutional grounds a “drunk-driving roadblock” program, implemented under guidelines promulgated by the state department of transportation, the court remarked:

Even assuming that roadblocks may have some deterrent effect, we believe that it is purchased at too high a price. Doubtless other devices may also increase the effectiveness of law enforcement, including punishment without trial, repealing of the privilege against self-incrimination, dispensing with the right to confrontation of witnesses, and elimination of trial by jury. Such techniques, however, would diminish the rights of all in order to secure the punishment of a few.

I would affirm the suppression ruling on the basis that the evidence of the defendant’s act of driving while his license had been denied was obtained as the direct result of an unconstitutional seizure of his person in violation of article II, section 7 of the Colorado Constitution.

LOHR and KIRSHBAUM, JJ., join in this dissent.

. Subsequent to Martinez-Fuerte, the Court in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), utilized the balancing test, without regard to individualized suspicion, in upholding a drug testing program for employees of the United States Custom Service who apply for promotion to positions directly involving the confiscation of drugs or to positions which require the incumbent to carry a firearm. The Court emphasized in Von Raab, however, that the testing program was not designed to serve the ordinary needs of law enforcement and was not directed to the discovery of evidence for use in a criminal prosecution. 489 U.S. at --, 109 S.Ct. at 1397. See also Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (Federal Railroad Administration regulations mandating blood and urine tests for employees involved in train accidents and authorizing railroads to administer breath and urine tests for employees who violate certain safety rules upheld under balancing test without regard to individualized suspicion). Administrative or regulatory inspection searches have long been analyzed under a balancing process that involves weighing the governmental interest against the degree of intrusion upon privacy without regard to individualized or reasonable suspicion of criminal activity. See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

. In Henderson, the Idaho Supreme Court invalidated a DUI roadblock, authorized by the Boise Police Department, under the Idaho constitutional prohibition against unreasonable searches and seizures. The court concluded that DUI roadblocks were not an efficient means of detecting or deterring drunken driving, especially in view of the Boise Chief of Police’s testimony that "the same number of officers on patrol would make more DUI arrests than the same number of officers engaged in a roadblock." 756 P.2d at 1060.

In Koppel, the New Hampshire Supreme Court invalidated a drunken driving roadblock program under the New Hampshire constitution because the roadblock stops required no individualized suspicion and the state failed to demonstrate that the roadblocks produced sufficient public benefit to outweigh their intrusion on individual rights. In the course of its opinion the court observed as follows:

The record indicates that 47 roadblocks were set up on 21 weekend nights between April 29, 1984, and October 20, 1984. A total of 1,680 vehicles were stopped, resulting in only 18 DWI arrests. During roughly the same six months, the Concord police made 175 DWI arrests by traditional methods; i.e., through the use of roving patrols.

499 A.2d at 979. But cf. Opinion of the Justices, 128 N.H. 14, 509 A.2d 744 (1986) (upholding validity under New Hampshire constitution of statutory scheme authorizing law enforcement agency to apply for a warrant for sobriety checkpoint in manner similar to application for search warrant or administrative inspection warrant, and permitting judge to issue warrant only upon express finding that proposed checkpoint would be reasonably effective means of detecting and apprehending impaired motorists and that public interest in drunken driving en*494forcement would outweigh intrusion upon individual motorists).

In Mesiani, the Washington Supreme Court invalidated Seattle's sobriety checkpoint program under the Washington Constitution. In the course of its opinion the court noted that the City of Seattle "has failed to demonstrate the need for sobriety checkpoints or that less intrusive alternatives could not achieve most of the constitutionally permissible benefits sought, such as the addition of more officers to its special enforcement unit.” 755 P.2d at 778.