Commonwealth v. Worthy

DISSENTING OPINION

Justice SAYLOR.

Because I would hold that the Constitution requires that administrative guidelines be established in advance in order to channel the decision as to whether and when to suspend and resume checkpoint operations due to traffic congestion, I respectfully dissent.

As the majority observes, the stopping of a vehicle and its occupants constitutes a seizure for purposes of both the Fourth Amendment, see City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 453, 148 L.Ed.2d 333 (2000), and Article I, Section 8 of the Pennsylvania Constitution, see Commonwealth v. Blouse, 531 Pa. 167, 169, 611 A.2d 1177, 1178 (1992). Thus, the legality of such a stop depends on whether it is “reasonable” in a constitutional sense. As this Court explained in Commonwealth v. Beaman, 583 Pa. 636, 642, 880 A.2d 578, 582 (2005), although some measure of *487individualized suspicion is ordinarily required for any stop to be deemed constitutionally reasonable, an exception exists “where regimes of suspicionless searches or seizures are designed to serve governmental ‘special needs’ that exceed the normal demands of law enforcement,” id. at 643, 880 A.2d at 582; see id. at 643 n. 7, 880 A.2d at 582 n. 7 (collecting cases), including the need to reduce roadway deaths, injuries, and property damage caused by drunk driving. See id. at 644, 880 A.2d at 583. See generally Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 2488, 110 L.Ed.2d 412 (1990). Even in these cases, however, the need to utilize a roadblock to serve a vital governmental interest is weighed against the intrusion upon the individual’s reasonable expectation of privacy. See Delaware v. Prouse, 440 U.S. 648, 654-55, 99 S.Ct. 1391, 1396-97, 59 L.Ed.2d 660 (1979). In this regard, the elements of the Tarbert-Blouse standard, as recited by the majority, are designed to minimize interference with individual liberty by “eliminating the discretion that is problematic in random traffic stops.” Blouse, 531 Pa. at 171, 611 A.2d at 1179.

Thus, in accordance with the Tarbert-Blouse guidelines, it is necessary that the discretion of the officers at the scene concerning which vehicles to stop, and which to let through without stopping, be subject to administratively pre-approved objective standards, which both minimizes the discretion of the officers at the scene and enhances the reviewability of any such discretion that ultimately is exercised. Cf. United States v. Martinez-Fuerte, 428 U.S. 543, 559, 96 S.Ct. 3074, 3083, 49 L.Ed.2d 1116 (1976) (contrasting roving patrols with highly visible roadblocks, and observing that the unreviewable nature of the officers’ discretion inherent in the former is constitutionally problematic). See generally State v. Damask, 936 S.W.2d 565, 573-74 (Mo.1996) (“A constitutionally permissible 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.”); Commonwealth v. Worthy, 903 A.2d 576, 581 (Pa.Super.2006) (Todd, J., concurring) (expressing that the limited exception to *488the constitutional requirement of probable cause to effectuate a seizure “is so extraordinary that it may be allowed only under the most exacting standards”). The existence of such guidelines safeguards Fourth Amendment and Article I, Section 8 values by curtailing the potential for pretextual checkpoint suspensions and resumptions designed to circumvent the applicable neutral criteria governing which cars to stop.1

I recognize that a number of contingencies may occur during the operation of a roadway checkpoint, such as an auto accident or some other emergency that diverts officers’ attention away from operating the roadblock itself. It may not be feasible for a written administrative authorization to provide guidance concerning every such eventuality, and I would not hold that the Constitution demands as much. Traffic buildup at the checkpoint, however, is sui generis, in that it is always a foreseeable condition, as it stems from the nature of the activities that take place there — most notably, the systematic interruption of normal traffic flow to check for signs of intoxication. Further, establishing parameters to guide officers in determining when to pause, and when to resume, operations, appears to be a relatively straightforward undertaking, whether it is accomplished as part of the administrative authorization for the particular roadblock in question, or in some other way. In the present case, there were no such parameters available to the checkpoint supervisor, and — as is evident from the suppression transcript — this left him with no objective standards to consult in deciding when to suspend and resume operations. In this regard, although the majority *489is legitimately concerned with ensuring that the officers on the scene are able to protect motorists’ safety and minimize their delay, see Majority Opinion, at 480-83, 957 A.2d at 726-27, I see no reason why it would be difficult to address these concerns and simultaneously protect drivers’ constitutional rights through administratively-adopted suspend/resume guidelines established before the fact.

As highlighted by the majority and by then-Judge (now Madame Justice) Todd, there is nothing on this record to indicate that the supervising officer’s actions were undertaken in anything other than good faith. For purposes of the present constitutional analysis, however, the salient fact is that he was required to exercise his own unbridled discretion in determining how much congestion would have to build to require remediation, when conditions would again be deemed “normal,” and (necessarily) which cars would be the last and first to be stopped before and after waving vehicles through. As one of our sister Courts has stated:

The requirement of written guidelines [for systematic roadway checkpoints] is not merely a formality. Rather, it is the method this Court and others have chosen to ensure that the police do not act with unbridled discretion in exercising the power to stop and restrain citizens who have manifested no conduct that would otherwise justify an intrusion on a citizen’s liberty.

Campbell v. State, 679 So.2d 1168, 1172 (Fla.1996); cf. State v. Larson, 485 N.W.2d 571 (Minn.Ct.App.1992) (finding a checkpoint unconstitutional because of excessive officer discretion, where officers lacked sufficient administrative authorization for the roadblock and followed a “stop when safe” rule in deciding which cars to detain). Because, in my view, the checkpoint operation, in effect, failed to conform to the requirement that officers not be left with “unfettered discretion” to determine which cars to stop at the scene, I would conclude that it did not substantially comply with the final element of the Tarbert-Blouse guidelines. As such, I would hold that the stop in question violated Appellee’s right to be free from unreasonable searches and seizures under both the Fourth *490Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

The majority also notes its agreement with Mr. Justice Eakin’s position that “substantial — and not complete — compliance” with the TarbeH-Blouse guidelines is all that is constitutionally required. Majority Opinion, at 479-80, 957 A.2d at 725. The majority’s expression in and of itself might be unremarkable, as this Court previously has couched the constitutional mandate in terms of “substantial compliance.” See, e.g., Commonwealth v. Yastrop, 564 Pa. 338, 348, 768 A.2d 318, 323 (2001) (plurality); Blouse, 531 Pa. at 173, 611 A.2d at 1180. However, the extent of the majority’s agreement with the concurrence is not clear, and the concurrence proceeds to posit that meeting fewer than all five Tarbert-Blouse factors may constitute “substantial compliance,” as well as suggesting a corollary movement toward an overarching totality-of-the-circumstances approach such as prevails in the context of suspicion-based seizures. See Concurring Opinion, at 485-86, 957 A.2d at 729 (Eakin, J.).

This, in my view, represents a departure from the essence of TarbeH, Blouse, and their progeny. In discussing the administrative requirements, the relevant portion of Tarbert (as adopted in Blouse) clarifies that the roadblock “should” comply with each such factor, see Blouse, 531 Pa. at 172, 611 A.2d at 1180 (quoting Tarbert, 517 Pa. at 293, 535 A.2d at 1043), and this language has been adopted without change in later cases, see Beaman, 583 Pa. at 645-46 n. 9, 880 A.2d at 584 n. 9; Yastrop, 564 Pa. at 347, 768 A.2d at 323. Indeed, the requirement of prior administrative approval was further refined with the statement that “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.” Blouse, 531 Pa. at 172, 611 A.2d at 1180 (emphasis added). Moreover, the Court has maintained that Blouse approved the use of roadblocks “so long as they are conducted in conformance with the guidelines announced in Tarbert.” Beaman, 583 Pa. at 646-47, 880 A.2d at 585.2

*491The special requirements articulated in this sharply-divided line of cases arose in light of the axiom that suspicionless searches and seizures “are highly disfavored since they dispense with the traditional rule that a search, if it is to be deemed reasonable, must be either supported by a warrant based on probable cause, or justified by evidence establishing individualized suspicion of criminal misconduct.” United States v. Amerson, 483 F.3d 73, 77-78 (2d Cir.2007) (citing City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 451, 148 L.Ed.2d 333 (2000) (explaining that “[a] search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing”)). It was only in light of the compelling public interest in curbing impaired driving and the regulated character of the seizure that majorities were garnered to approve the privacy intrusions inherent in checkpoints against the serious constitutional challenges which were lodged. In my view, the suggestion of a movement away from firm enforcement of the Tarbert-Blouse criteria fosters uncertainty as to the Court’s intent, invites further litigation to test the limits of the existing decisions, and is likely to lead to more dilution. Indeed, it is not difficult to envision these guidelines traveling the route of other judicial efforts to establish brighter-line rules designed to guard constitutional values. See, e.g., Commonwealth v. Perez, 577 Pa. 360, 374, 845 A.2d 779, 787 (2004) (abrogating the Davenport/Duncan six-hour rule pertaining to prompt arraignment in favor of a totality-of-the-circumstances approach).3 Such a prospect is *492most disquieting, since it is clear that, without the guidelines, the challenges to roadblocks raised under the Pennsylvania Constitution would have been sustained in the first instance. See Blouse, 531 Pa. at 173, 611 A.2d at 1180 (“We now adopt the guidelines set forth in Tarberl, because they achieve the goal of assuring that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.”).

As a final matter, the Commonwealth argues in the alternative that suppression is not required.4 It references Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023 (1989), a decision that endorsed a case-by-case approach to suppression when an arrest was made in violation of the Municipal Police Jurisdiction Act. See also Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985) (adopting similar reasoning relative to minor infractions of the Rules of Criminal Procedure). The Commonwealth states that, “by analogy,” the same circumstances-dependent rule should apply in the context of suspicionless seizures at sobriety checkpoints. See Brief for Appellant at 24. However, it has been the consistent practice of the courts in this Commonwealth to deem evidence obtained as the result of an unconstitutional search subject to suppression, see Commonwealth v. Ruey, 586 Pa. 230, 241, 892 A.2d 802, 808 (2006) (quoting Commonwealth v. Gordon, 546 Pa. 65, 71, 683 A.2d 253, 256 (1996)), and the Commonwealth does not identify any *493authority that would suggest otherwise. As the Commonwealth recognizes, moreover, both O’Shea and Mason do not apply to instances in which “fundamental, constitutional concerns” are involved. Brief for Appellant at 23.

Although it is not entirely clear on this point, moreover, the Commonwealth appears to suggest that no such concerns are at issue because Appellee’s rights were not violated by the specific way in which he was detained. However, the TarbertBlouse requirements are not concerned only with the manner in which an individual driver is stopped, but with ensuring that the sobriety checkpoint is conducted according to neutral, objective criteria so as to comply with the demands of the Constitution. Thus, because I am persuaded that the checkpoint failed to substantially comply with Tarbert-Blouse, I would find Appellee’s detention unconstitutional. Finally, to the extent the Commonwealth avers that the police would have stopped Appellee even if they had not temporarily suspended the checkpoint, I find this contention of little relevance given my determination that the checkpoint was conducted in an unconstitutional manner.

Accordingly, as I would affirm the order of the Superior Court, I respectfully dissent.

Justice BAER joins this dissenting opinion.

. The majority concedes that a constitutional violation would ensue if temporary checkpoint suspensions were used pretextually to effect discriminatory stops, but emphasizes that “there is not one iota of evidence" that the supervising officer engaged in such conduct in the present case. Majority Opinion, at 481 n. 7, 957 A.2d at 726 n. 7. With respect, I believe this assertion misses the point. The guidelines apply to all suspicionless roadway checkpoints as a means of ensuring generally that motorists’ constitutional rights are protected, and it is illegal for the police to fail to comply with them even in instances where there is no evidence of actual misconduct. Thus, the issue is not whether any misconduct occurred, but whether the relevant constitutional principles require prior administrative guidelines for temporary pauses in checkpoint operations.

. The concurrence indicates that "[i]f all five factors must be met, this would be ‘complete compliance’ with the guidelines, not merely ‘sub*491stantial compliance’ as Blouse requires.” Concurring Opinion at 729 (emphasis in original). However, the premise that it is possible to assess substantial compliance with the factors only on a collective, as opposed to individual, basis, is faulty. Indeed, for my part I have always read the governing opinions as requiring substantial compliance with each requirement on an individual basis.

. In Perez, I wrote:

I concur in the Court’s abandonment of the “six-hour rule” governing the admissibility of a pre-arraignment confession as developed in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), in favor of a totality-of-the-circumstances approach since, as noted by the majority, the six-hour rule has become so attenuated that it no longer can consistently and effectively serve its intended function. *492See Commonwealth v. Bridges, 563 Pa. 1, 47, 757 A.2d 859, 883 (2000) (Saylor, J., concurring). This is, perhaps unfortunately, more often than not the experience with bright-line, judge-made rules having salutary underlying purposes, but which cause results in their implementation that are later deemed to be unpalatable.

Perez, 577 Pa. at 381-82, 845 A.2d at 792 (Saylor, J., concurring azid dissenting). Speakizig to the same subject izi Bridges, I wrote: “Given the present holdiztg [diluting the bright-line rule which goverzted prompt arraignment], I now favor [its] abazidonznent [over] continuation of a rule so readily capable of avoidance as to function as no mle at all; indeed, I believe that its maintenance on such terms carries with it the potential for diminishing respect for the courts’ authority in the eyes of those subject to their lawful mandates.” Bridges, 563 Pa. at 47, 757 A.2d at 883 (Saylor, J., concurring).

. The majority declines to reach this issue in light of its holding. See Majority Opinion, at 477 n. 4, 957 A.2d at 724 n. 4.