dissenting.
I respectfully dissent. The stopping of the vehicle in which defendant was riding on Interstate 44 did not satisfy the requirements of Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362 (1979) or State v. Damask, 936 S.W.2d 565, 573 (Mo.banc 1996).
In order for a seizure, such as that which occurred here, to be lawful, Brawn requires “that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown, 443 U.S. at 51, 99 S.Ct. at 2637 (emphasis added). In Damask, our supreme court stated that the checkpoint “will be designed so as to minimize both interference with legitimate traffic and the amount of discretion the field officers may wield in operating the checkpoint.” Damask, 936 S.W.2d at 573-74.
Here, the plan provided for a checkpoint at the top of an overpass off of 1-44. The part of the plan on which the State relies for this defendant’s stop says, “[t]he exception of (sic) those which attempt to exit then return to the eastbound lanes, a chase car will be sent to stop them.” (emphasis added). The “attempt to exit” language is not an explicit, neutral limitation on the officer’s conduct, for it grants the officer unbridled discretion in determining what actions constitute an “attempt to exit.”
The State’s brief does not direct us to any case which involved, much less approved, a plan with the discretionary language quoted above. Nor has my independent research disclosed any. Thus, I would hold that the plan did not meet the requirements of Brown and the subsequent stop violated defendant’s Fourth Amendment rights.
The State attempts to justify this stop by arguing that “the avoidance of a law enforcement checkpoint has been found to constitute sufficient cause, arousing a reasonable suspicion, for an investigatory stop of a vehicle.” *409It relies on four cases, Brown v. Commonwealth, 17 Va.App. 694, 440 S.E.2d 619 (1994); Commonwealth v. Eaves, 13 Va.App. 162, 408 S.E.2d 925 (1991); Commonwealth v. Metz, 412 Pa.Super. 100, 602 A.2d 1328 (1992); and Stanley v. State, 191 Ga.App. 603, 382 S.E.2d 686 (1989). None of the four involved a drug checkpoint and each is easily distinguished.
In Brown v. Commonwealth, state troopers were conducting a “traffic checking detail” on a two-lane highway. The checkpoint site was on one side with three marked and one unmarked police vehicles and was designed to catch drivers who were driving without a license or whose license was suspended. A trooper saw a vehicle stop 450 feet from the checkpoint, saw the driver leave the driver’s seat and change places with a passenger from the back seat. The car then made a U-turn and went a short distance into a diner parking lot, where the officer stopped the car. The trooper asked for the former-driver’s driver’s license and learned that it was suspended. Brown v. Commonwealth, 440 S.E.2d at 620.
That court recognized that each instance of police conduct must be judged for reasonableness in light of the particular circumstances. Id. at 621. It held that the defendant’s “act of stopping, switching drivers, and making a U-turn after seeing the checkpoint had the appearance of evasive action.” Id. at 622. These actions gave the trooper a reasonable basis to suspect that the defendant’s “license was suspended or that he was an habitual offender.” Id.
Next, the State relies on Commonwealth v. Eaves. As in the previous case, an officer was conducting a checkpoint for driver’s licenses. The officer saw two vehicles essentially abreast of one another approaching him. All of a sudden, the vehicle in the left lane “put on his signal ‘right at’ a turn or deceleration lane leading into a crossover, made a U-turn, and headed back in the northbound lane in the direction from which he had come.” Commonwealth v. Eaves, 408 S.E.2d at 927. The officer testified “he stopped the vehicle because of the manner in which the operator made the U-tum, because the turn was abrupt and because the signal was given at the last moment before the turn was executed.” Id. These factors caused the officer to suspect that the driver was taking evasive action because he was operating his vehicle in violation of the licensing laws. Id. The court held that under the circumstances, the officer “possessed reasonable suspicion that [the defendant’s] purpose in turning was to avoid the roadblock” set up for checking driver’s licenses. Id.
The third case, Commonwealth v. Metz, involves a roadblock set up to check for motor vehicle registration, proof of insurance, and driver’s license. The roadblock was at the entrance to a housing project, and marked police vehicles were present. A car came up to the check area, “came to a sudden stop and immediately started to back up and pull away from the officers. The officers immediately pursued the car and stopped it.” Commonwealth v. Metz, 602 A.2d at 1329. The Metz court held “that a motorist’s avoidance or attempt to avoid a police roadblock must be coupled with other articulable facts in order to give a police officer reasonable suspicion that the motorist is in violation of the Vehicle Code or that criminal activity is afoot.” Id. at 1335.
The last case cited by the State is Stanley v. State. In that case, police officers established a roadblock in Atlanta, Georgia. They observed the defendant “drive toward the roadblock, stop abruptly, and back approximately six to eight car lengths down the street away from the roadblock.” Stanley v. State, 382 S.E.2d at 686. The officers chased the defendant and cited him for improper backing, and ultimately arrested him for DUI and other offenses. Id. The court held that the defendant’s “evasive action upon seeing a police roadblock and his backing of the automobile in apparent violation of [a Georgia statute] were ‘sufficient to provide reasonable suspicion that appellant was, or was about to be, engaged in criminal activity. The officers were authorized to stop the automobile and question appellant. Therefore, the arrest following [observation of appellant’s behavior consistent with DUI was] valid.’” Id. at 687. (internal citation omitted).
In contrast with the strong facts in those four cases involving licensing stops, the facts *410disclose here that there was a sign on the interstate saying “Drug Enforcement Checkpoint 1 Mile Ahead.” All the officer saw was a Ford pickup truck with its right turn signal on pull into the exit lane of the interstate. The vehicle then went back into the regular lane of traffic. The officer testified that based solely on “the hesitation and the change” in lanes, he sent a pursuit car to stop defendant’s car.
Certainly, the strong facts in the first three cases relied on by the State would give a reasonable basis for suspecting that a defendant’s license was suspended. And in the fourth ease, the defendant not only took evasive action, he also apparently violated a Georgia statute. "It is a quantum leap from the strong facts of those cases justifying a stop in those situations to the minimal facts present here to justify this stop. The few facts presented here do not give a reasonable basis to suspect that defendant was involved with drugs.
One final comment. In considering the third element of Brown, the Damask court said courts should look “at both the objective and subjective intrusion that the motorist encounters.” Damask, 936 S.W.2d at 573. The degree of objective intrusion looks at factors such as how long the motorist is detained and the intensity of the investigation. Id. “The degree of subjective intrusion looks at [1] the amount of discretion available to the officers in operating the checkpoint and [2] the extent to which a stop may generate concern or fright on the part of lawful travelers.” Id.
As previously pointed out, the officers operating this checkpoint had unlimited discretion to determine which vehicles attempted to exit and then returned to the regular lane. The facts in this case aptly demonstrate that the discretion was unlimited. Here, the officer acknowledged that he sent the chase car after defendant’s pickup solely on “the hesitation and the change” in lanes.
Moreover, the stop on 1-44 would generate concern or fright on the part of lawful travelers. When the stop occurred on this busy interstate, the officer asked the driver (defendant was a passenger) for his driver’s license. The driver gave the officer his license. The officer also asked defendant for some identification and he produced it.
The officer then required the driver to get out of the pickup and took him to the rear of the pickup. At that point, he told the driver “what we were doing and asked him why he attempted to exit the ramp and then veered back onto the interstate.” He then took the driver to his patrol car. The officer then engaged the driver in further questioning.
In Damask, the stops were not this intrusive. The one county’s “initial investigation was limited to a check of license and registration and questions as to whether the driver observed the checkpoint sign and why the driver exited at that point.” Id. at 574. In the other county, the “investigation was even more minimal.” Id.
A traffic stop may not require probable cause. However, it does require “at least articulable and reasonable suspicion” of a violation of the law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979). Here, the evidence does not rise to a reasonable suspicion of a violation of the law. The movement of a vehicle into and out of an exit lane does not constitute a violation of the law or give reasonable suspicion of a violation of the law. Everyday experience indicates such movements are not uncommon. The added presence of a sign does not alter that conclusion.
Instead of a reasonable suspicion, the officer merely had a hunch. However, both the United States and Missouri Constitutions require more than a hunch.
I would reverse the trial court’s judgment.