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
STATE OF INDIANA, ) ) Appellant-Plaintiff, ) ) vs. ) No. 71A05-0003-CR-116 ) JARROD E. GERSCHOFFER, ) ) Appellee-Defendant. )
OPINION FOR PUBLICATION
Brown, 443 U.S. at 50. The court subsequently held in Sitz I
that the Brown v. Texas balancing test applies to sobriety checkpoints and that
the balance of the States interest in preventing drunk driving, the extent to
which sobriety checkpoints advance that interest, and the degree of intrusion on motorists
individual rights weighs in favor of the State.
Sitz I, 496 U.S.
A central concern in assessing the competing considerations set forth in Brown v. Texas has been to make certain that an individuals reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. Brown, 443 U.S. at 51; see also Prouse, 440 U.S. at 663 (striking down random, discretionary stops to check for drivers licenses and vehicle registrations and holding 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.). In addition, 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. When stops are made pursuant to a plan that satisfies the Fourth Amendment balancing test set forth in Brown v. Texas, such stops may be made without probable cause or reasonable suspicion. Snyder, 538 N.E.2d at 963.
In State v. Garcia, 500 N.E.2d 158, 161 (Ind. 1986), cert. denied, 481 U.S. 1014 (1986), our supreme court upheld in a 3-2 decision the constitutional validity of sobriety roadblocks as an enforcement mechanism to combat drunk driving, so long as the roadblocks met the guidelines set forth in Brown v. Texas and other Fourth Amendment cases. The roadblock procedure at issue in Garcia was similar to the sobriety checkpoint here. Specifically, police officers stopped five consecutive cars at a time and asked the drivers to produce their drivers licenses or registration certificates. Id. If a violation was suspected or alcohol consumption detected, the driver was then pulled over to an adjacent parking lot for further investigation. Id. In upholding the validity of the roadblock on Fourth Amendment grounds, the court weighed the factors identified in Brown v. Texas and found that the State had a grave concern in apprehending and deterring drunken driving[.] Id. at 162. Writing for the majority, Justice Pivarnik concluded that the roadblock procedure was successful in detecting and preventing drunken driving based on the available data and that the procedure was a good example of [a] constitutionally valid roadblock operation [under the Fourth Amendment]. Id. at 163.
Accordingly, federal jurisprudence and Indiana cases applying the Fourth Amendment have made it clear that [w]here a roadblock is constitutionally established, police may stop automobiles at such roadblocks without the necessity of probable cause or reasonable suspicion of illegal activity. Covert v. State, 612 N.E.2d 592, 593-94 (Ind. Ct. App. 1993). See footnote But as then Justice Shepard observed dissenting in Garcia, the supreme court neither mentioned nor purported to decide the rights assured under Article I, Section 11 of the Indiana Constitution. Garcia, 500 N.E.2d at 172-73 (Shepard, J. dissenting).
William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90
Harv. L. Rev. 489, 502 (1977) (footnote omitted, emphasis added).
Our supreme court has explained that when examining constitutional issues, claims based upon the Indiana Constitution should be analyzed separately from claims based upon its federal constitutional counterparts. See Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996); Collins v. Day, 644 N.E.2d 72, 75 (Ind. 1994); see also Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 Ind. L. Rev. 575 (1989). Thus, [e]ven 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 v. State, 693 N.E.2d 921, 929 (Ind. 1998). Decisions of the Supreme Court and other federal courts construing similar federal constitutional provisions may be persuasive, but Indiana courts should grant neither deference, nor precedential status to such cases when interpreting provisions of our own constitution. Taylor v. State, 639 N.E.2d 1052, 1053 (Ind. Ct. App. 1994). In sum, Indiana courts have the responsibility of independent constitutional analysis. Id.
Questions arising under the Indiana Constitution should be resolved 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. Indiana Gaming Commn v. Moseley, 643 N.E.2d 296, 298 (Ind. 1994). When construing the constitution, a court should look to the history of the times, and examine the state of things existing when the constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy. Bayh v. Sonnenburg, 573 N.E.2d 398, 412 (Ind. 1991) (quoting State v. Gibson, 36 Ind. 389, 391 (1871)), cert. denied, 502 U.S. 1094 (1992). Because the intent of the framers is paramount in determining the meaning of a provision, we should consider the purpose which induced the adoption in order to ascertain what the particular constitutional provision was designed to prevent. Boehm, 675 N.E.2d at 321 (citations omitted). Keeping these rules of state constitutional construction in mind, we turn to the validity of sobriety checkpoints under Article I, Section 11.
Article I, Section 11, the search and seizure provision of the 1851 Indiana Constitution, states:
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.
Ind. Const. art. I, §11. This same provision appeared as Section 8
of the 1816 Indiana Constitution and was inserted in both constitutions without significant
debate. Moran v. State, 644 N.E.2d 536, 539 (Ind. 1994). The
framers of the 1816 Indiana Constitution intended the search and seizure provision to
prevent abuses of the police power like those experienced at the hands of
the British during colonial times.
Id. Moreover, the delegates present at
the 1850 Constitutional Convention were populist, anti-government Jacksonian Democrats who were not only
wary of police power but also of judicial authority. See Price v.
State, 622 N.E.2d 954, 962 (Ind. 1993).
It is well settled that the protections afforded by Article I, Section 11 may be more extensive than those afforded by the Fourth Amendment. See Taylor, 639 N.E.2d at 1053. In particular, while the language of Article I, Section 11 mirrors that of the Fourth Amendment, the state provision establishes an independent prohibition against unreasonable searches and seizures. Rook v. State, 679 N.E.2d 997, 1001 (Ind. Ct. App. 1997). In Moran, our supreme court noted that the first clause of Article I, Section 11 recognizes the dangers of abusive searches, with or without warrants and thus interpreted that provision as having . . . a primary and overarching mandate for protections from unreasonable searches and seizures[.] Moran, 644 N.E.2d at 539. The court reasoned that the reasonableness of the official behavior must always be the focus of our state constitutional analysis. Id. As such, rather than employ federal concepts like the warrant requirement and probable cause requirement, our separate and distinct state constitutional analysis requires that the State bear the burden of showing, in the totality of the circumstances, that the intrusion by police was reasonable. Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999) (citing Brown, 653 N.E.2d at 79-80). Article I, Section 11 is not a mere copy of the Fourth Amendment but stands on its own.
Automobiles are among the effects protected by Article I, Section 11. Brown, 653 N.E.2d at 79. Therefore, stopping a vehicle at a roadblock is a seizure under Article I, Section 11, even if the purpose of the stop is limited and the resulting detention is brief. See Smith, 638 N.E.2d at 1355; see also Sitz I, 496 U.S. at 450 (identifying roadblock stop as seizure under Fourth Amendment). The State maintains in this case that the Indiana Constitutions requirement of reasonable police behavior is satisfied by the Brown v. Texas balancing test and urges us to adopt that test as applied to sobriety checkpoints in subsequent cases under the Fourth Amendment. Given our responsibility to undertake an independent state constitutional analysis, and in accordance with the clear language of Article I, Section 11 and the intent of its framers, we decline that invitation. We conclude instead that Article I, Section 11 requires probable cause or, at a minimum, individualized suspicion of criminal activity before the police may stop a motorist, and that absent either, a stop constitutes an unreasonable seizure as proscribed by the Indiana Constitution. In so holding, we rely on the consistent recognition by our Indiana courts that either a valid warrant, probable cause, or reasonable suspicion is necessary to protect the people from abuses of police power and against unreasonable searches and seizures.
In Moran, our supreme court explained Article I, Section 11s preference for a warrant as follows:
The state standard of reasonableness frequently requires that police action occur only with a judicial sanction.
Moran, 644 N.E.2d at 539-40 (emphases added).
In Taylor, this court examined the question of whether a police detention of an individual violated Article I, Section 11. We concluded that the Indiana Constitution requires the detention to be reasonable and that even a brief police detention of an individual during investigation is reasonable only if the officer reasonably suspects that the individual is engaged in, or is about to engage in illegal activity. Taylor, 639 N.E.2d at 1054. We observed that the requirement of reasonable suspicion is satisfied where the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has or is about to occur. Id. We thus held that the provisions of Article I, Section 11 provide limitations on investigatory stops consistent with the Fourth Amendment protections articulated in Terry v. Ohio, 392 U.S. 1 (1968). Id.
Subsequently in Brown v. State, our supreme court reaffirmed Article I, Section 11s preference for a warrant when it struck down the stop of a defendants car and subsequent search of his vehicle as unconstitutional. The court said:
The existence of a valid warrant to search and seize provides a preeminent form of support for a determination that the state standard of probable cause and reasonableness was met.
Brown, 653 N.E.2d at 79-80 (emphases added). The supreme court nevertheless recognized
that the use of a valid warrant is not dispositive of the reasonableness
of a police intrusion. Id. at 79. Rather, [t]he question here
is whether, in the totality of the circumstances,
See footnote reliance by the police upon
their own information in deciding to search [defendants] car was reasonable.
at 79-80 (emphasis added).
Most recently in Baldwin, our supreme court held that a police officer may not stop a motorist for a possible seat belt violation unless that officer reasonably suspects that the driver or a passenger in the vehicle is not wearing a seat belt as required by Indiana statute. The court explained that this reasonable suspicion exists where the officer observes the driver or passenger under circumstances (e.g., bodily movement, distance, angle, lighting, weather) that would cause an ordinary prudent person to believe that the driver or passenger is not wearing a seat belt[.] Baldwin, 715 N.E.2d at 337. Writing for a unanimous court, Justice Sullivan declared that the police cannot stop a motorist without the reasonable suspicion required by [Article] I, [Section] 11[.] Id. See footnote
The fundamental and underlying principle in all of these cases is indisputable: the Indiana Constitution creates an overriding preference for a warrant and, absent a warrant, police must have probable cause or individualized suspicion of criminal activity before they may conduct a search or seizure. While the United States Supreme Court has created a sobriety roadblock exception to the requirement of probable cause or reasonable suspicion, we decline to borrow from Fourth Amendment jurisprudence on this issue. Specifically, we will not forsake the minimum requirement of individualized suspicion to allow blanket suspicionless seizures of motorists traveling Indianas public roadways. This is the only conclusion faithful to Indianas constitutional heritage and traditions and consonant with the principles set forth in Baldwin, Brown v. State, Taylor, and Moran. See Randall T. Shepard, The Maturing Nature of State Constitution Jurisprudence, 30 Val. U. L. Rev. 421, 432-33 (1996) (noting that keystone of independent state jurisprudence is development of jurisprudence faithful to states constitutional heritage and traditions).
Here, the record is uncontroverted that the police officers engaged in the sobriety checkpoint never observed Gerschoffer or any of the other sixty-nine motorists who were ordered into the checkpoint conduct themselves in a manner that would give rise to a reasonable and articulable suspicion of unlawful conduct. Indeed, the police had no knowledge or information that any motorist traveling on McKinley Avenue on the date and at the time in question had violated or might then be violating the law.
We cannot agree, as the State contends, that the Brown v. Texas balancing test is consistent with Indiana constitutional jurisprudence. Reasonableness is the touchstone of Indiana search and seizure law. In the complete absence of individualized suspicion of criminal activity, much less probable cause, the sobriety checkpoint is the very antithesis of a reasonable seizure under Article I, Section 11 and cannot be distinguished from virtually any random stop made by law enforcement officers searching for various types of felons. See Garcia, 500 N.E.2d at 172 (Shepard, J. dissenting). A suspicionless roadblock seizure is inherently random, arbitrary and capricious, and there is nothing in the text or original meaning of Article I, Section 11 to suggest that the framers would have considered such a seizure as anything other than unreasonable. The framers could not have intended for Indiana judges to abandon the constitutional principles of probable cause and later, reasonable suspicion, in favor of a three-part test invented by the federal courts.
We reject the rationalization that a sobriety checkpoint is a lawful exercise of police power simply because the guidelines for the checkpoint are designed at the supervisory level and the checkpoint is executed in the field by officers who have no independent discretion to determine who will be stopped. See Sitz I, 496 U.S. at 453; see Garcia, 500 N.E.2d at 161. No amount of control or limited discretion can justify the seizure that takes place in the complete absence of probable cause or reasonable suspicion that a motor vehicle violation has occurred. Because the right to be protected from unreasonable searches and seizures is a personal right, see Peterson v. State, 674 N.E.2d 528, 533 (Ind. 1996), cert. denied, 522 U.S. 1078 (1998), the proper inquiry is not whether the checkpoint is generally designed and administered in a neutral fashion, but whether, in its operation and effect, the seizure violates the rights of those persons who are detained. A so-called neutral roadblock is neutral only in the sense that the same unconstitutional seizure is perpetrated against all persons who are stopped.
Some courts have invoked great public concern about the danger of intoxicated drivers on our roadways as an excuse to manufacture new rules which have eroded the Fourth Amendment. See Garcia, 500 N.E.2d at 161-62; see also Sitz I, 596 U.S. at 451; Brown, 443 U.S. at 50. But our judiciary has no license to authorize the systematic violation of individual rights in the name of great public concern, a theory of federal search and seizure law that finds no basis in the text, history, or well-settled interpretation of the Indiana Constitution. We will not sacrifice the rights guaranteed under Article I, Section 11 for an indeterminate social agenda of great public concerns. See footnote
The Indiana doctrine of constitutional interpretation has been that our constitution is a fundamental instrument, not to be stretched and strained ad hoc to meet the exigencies and necessities of the moment. Finney v. Johnson, 242 Ind. 465, 472, 179 N.E.2d 718, 721 (1962). It is a basic instrument which is rigid and firm and will withstand the emotional upheavals of the time, in the interest of protecting continually the rights it guarantees. Id. Constitutional interpretation must, therefore, be grounded on neutral principles that transcend the immediate result achieved. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 15 (1959). As Justice Brennan remarked dissenting in Sitz I, [C]onsensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis. Sitz I, 496 U.S. at 459 (Brennan, J. dissenting). Indeed, our constitution was framed to be strictly observed by all public officials and particularly the courts as guardians of the citizens rights stated therein. Finney, 252 Ind. at 472, 179 N.E.2d at 721. The State cannot combat drunk driving at the expense of the Indiana Constitution.
There is much disagreement in the case law over the degree to which sobriety roadblocks actually advance the public interest. See footnote See Brown, 443 U.S. at 50; Garcia, 500 N.E.2d at 162. Some courts have concluded that roadblocks yield positive results. See, e.g., Ingersoll v. Palmer, 743 P.2d 1299, 1311-1313 (Cal. 1987); see also 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.8(d) (3d ed. 1996). Other courts have concluded that such procedures are not an efficient use of law enforcement resources and that police manpower would be better utilized if the officers required to operate a checkpoint were scattered on roving patrols throughout the community. See footnote See, e.g., State v. Henderson, 756 P.2d 1057, 1060 (Idaho 1988); Pimental v. Department of Transp., 561 A.2d 1348, 1352 (R.I. 1989). Even assuming that roadblocks were indisputably the most effective and efficient means of detecting and preventing drunken driving, See footnote that would not immunize an otherwise unlawful seizure against Article I, Section 11s requirement of probable cause or reasonable suspicion. If enough people are stopped without probable cause or reasonable suspicion, undoubtedly some percentage of them will be found to have violated the law. But we cannot endorse a constitutional rule grounded on the rationale that the end justifies the means. The efficacy of a roadblock is clearly no justification for it.
An individuals rights to liberty, privacy and free movement under Article I, Section 11 are not absolute and must be balanced against societys right to protect itself. See Taylor, 639 N.E.2d at 1054. In striking the correct balance between a citizens right to be let alone and the States legitimate interest in law enforcement, Indiana courts look to the reasonableness of the intrusion and permit brief investigatory stops based upon reasonable suspicion of criminal activity. See id. (emphasis added). There are no state constitutional grounds for the dragnet seizure of motorists without probable cause or individualized suspicion of unlawful conduct. The minimum constitutional predicate for the seizure of a vehicle in Indiana is reasonable suspicion. See footnote Nothing more is required, and nothing less is allowed. As Justice DeBruler wrote dissenting in Garcia:
[I]t is the time-honored requirement that there be an individualized, articulable suspicion of criminal intent or criminal conduct of a person, whether that person stands alone or within a group, which strikes the correct balance between the rights of the citizens or groups of citizens and their governments interest in exercising the power to seize.
Garcia, 500 N.E.2d at 163-64 (DeBruler, J. dissenting) (emphasis added).
In Indiana, there is still a presumption that Hoosiers are law-abiding citizens. Under our state constitution, a motorist is free to travel Indianas public highways without unreasonable interference from the government, See footnote and he is treated as a suspect only if his actions justify it. We will not sanction a police practice that systematically violates the presumption of innocence, a first principle of criminal law and procedure. The rights afforded under Article I, Section 11 are not mere second-class rights but indispensable freedoms. See Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jackson, J. dissenting) (discussing Fourth Amendment protections). Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. Id.