State V Kirk Continued

[7] LaFave also points up the unsoundness of the view that sobriety checkpoints must be permanent, id. at 194 n. 186, and we agree. He maintains that “police discretion can be sufficiently limited even as to temporary locations, and thus it is proper to turn our attention to precisely how that must be done.” Ibid. LaFave says on this important point of location of temporary or movable road blocks.

Quite clearly, the question of where and when a DWI roadblock is to be conducted **1280 should not be left to officers in the field. Rather, what is needed is that these roadblocks be “established by [a] plan formulated or approved by executive-level officers of the law enforcement agencies involved” which contains “standards … with regard to time, place” and similar matters. [Citing State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d [992] (1983) (Freidman, J., concurring), and State v. Olgaard, 248 N.W.2d 392 (Sup.Ct.S.D.1976) ]. This is because “in the absence of record evidence that the decision to establish the roadblock was made by anyone other than the officers in the field, the roadblock in question [has] certain characteristics of a roving patrol,” [citing State v. Olgaard, supra ], namely, an appreciable risk of an arbitrary basis for the site or time decision. Thus, a failure to have these decisions made by supervisory officials has been a factor stressed by courts in holding a particular sobriety checkpoint illegal, [citing Ekstrom and Olgaard, supra ], while other cases upholding these road blocks have placed considerable emphasis upon the fact that a high-level plan determined where they would be put and when they would be operated.” [Citing State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); State v. Coccomo, 177 N.J. 525 [ Super. 575], 427 A.2d 131 (1980); Commonwealth v. McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983).”

[Id. at 194].

There is no requirement that police obtain a judicial warrant to set up a road block but it is “open to a defendant challenging a sobriety check point to bring into question the validity of the decision as to when and where it would be operated.” Id. at 195. LaFave illustrates the point by citing State v. Coccomo, supra, where the challenge as to the location of the checkpoint failed “because it was placed on a road ‘where many bars are *45 located’ and where empirical data revealed that ‘seven fatal vehicular accidents,’ in most of which ‘alcohol abuse by the driver of a vehicle was a contributing factor,’ had occurred in the past two years.” Id. at 195.

Several cases published since the appearance of LaFave’s 1985 Supplement also continue to demonstrate the points he stresses. State v. McLaughlin, Ind.App., 471 N.E.2d 1125 (Ct.App.1984), considered a drunken driving road block set up on the Saturday of Labor Day weekend at 11 p.m. by seven uniformed officers equipped with three or four police cruisers. The court, citing Delaware v. Prouse, 440 U.S. at 662, 99 S.Ct. at 1400 considered the constitutionality of the road block on federal Fourth Amendment grounds and held it unconstitutional because it was “not conducted according to administrative guidelines that qualified as ‘previously specified Neutral Criteria’.” 471 N.E.2d at 1130. The Indiana appellate court reviewed the cases we and LaFave have discussed and observed that “since the Prouse decision, some refinements have been made in the analysis of Fourth Amendment seizure cases, both by the United States Supreme Court and by the numerous state courts that have considered road blocks seizures similar to the one presently before us.” Id. at 1134. Specifically, the court observed that on the federal side Brown v. Texas, 443 U.S. at 50-51, 99 S.Ct. at 2640, emphasized that seizures must be implemented “pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” The court noted, we assume to emphasize the closeness of the entire question, that one survey of state court cases, in which challenges were asserted to road blocks established for the purpose of detecting drivers under the influence as either a primary or secondary purpose, revealed an even split in the decisions, **1281 five upholding the road block and five not. FN5

FN5. The McLaughlin court wrote:

Five decisions have upheld, as consistent with the fourth amendment, the conduct of DUI roadblock in question. See State v. Deskins, (1983), 234 Kan. 529, 673 P.2d 1174; Kinslow v. Commonwealth, (1983) Ky.Ct.App., 660 S.W.2d 677; State v. Coccomo, (1980) 177 N.J.Super. 575, 427 A.2d 131; People v. Scott, (1983) 122 Misc.2d 731, 471 N.Y.S.2d 964; People v. Peil, (1984) 122 Misc.2d 617, 471 N.Y.S.2d 532. Five other decisions have found the conduct of the roadblock in question violative of the fourth amendment. See State ex rel. Ekstrom v. Justice Court (1983) 136 Az. 1, 663 P.2d 992; People v. Bartley, (1984) 125 Ill.App.3d 575, 80 Ill.Dec. 894, 466 N.D.2d 346; Commonwealth v. McGeoghegan, (1983) 389 Mass. 137, 449 N.E.2d 349; State v. Smith, (1984) Okla.Crim.App., 674 P.2d 562; State v. Olgaard, (1976) S.D., 248 N.W.2d 392. In addition, other courts have considered the constitutionality of roadblocks conducted for other purposes. See United States v. Prichard (10th Cir.1981) 645 F.2d 854 (evidence seized at roadblock conducted for purposes of checking drivers’ licenses and vehicle registrations held admissible); People v. Long, (1984) 124 Ill.App.3d 1030, 80 Ill.Dec. 332, 465 N.E.2d 123 (evidence of driver’s intoxication discovered at roadblock established to check driver’s licenses held admissible); State v. Hilleshiem, (1980) Iowa, 291 N.W.2d 314 (evidence seized at roadblock in city park to identify possible witnesses to ongoing park vandalism held inadmissible under fourth amendment); State v. Baldwin, (1984) [124] N.H. [770], 475 A.2d 522 (scope of questioning at roadblock held to exceed unconstitutionally its purpose, to check compliance with motor vehicle and fish and game laws); Koonce v. State, (1983) Tex.Crim.App., 651 S.W.2d 46 (evidence seized at roadblock to check drivers’ licenses held inadmissible under fourth amendment). [ Id. 471 N.E.2d at 1134-1135].

*46 The Indiana appellate court summarized the “numerous conditions and factors which must be considered in deciding whether the road block met the balancing test on the side of the State.” These factors, discussed in a leading case, State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), were

(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test. Not all of the factors need to be favorable to the state but all which are applicable to a given roadblock should be considered. Some, of course, such as unbridled discretion of the officer in *47 the field, would run afoul of Prouse regardless of other favorable factors.” 673 P.2d at 1184-1185. [471 N.E.2d at 1135-1136].

The Indiana court then held that the state had fallen short of meeting its burden that the warrantless seizure was reasonable in the circumstances. While recognizing that the public concern to be served was “very grave”, the court could find no relationship between the location of the road block and any measure of effectiveness of this law enforcement technique. The record failed to demonstrate that this more intrusive method advanced the public interest “to any greater degree than the less intrusive traditional method.” 471 N.E.2d at 1137. We must note here that there was more justification for the location of the road block in the McLaughlin case than was offered for the road block in the case before us. Nor was there any generalized advance publicity in McLaughlin geared to deter drunken drivers from driving at all. The Indiana court was also troubled by the discretion left to the officer in the field. The sergeant in charge had the discretion to locate the road block “any place in the State of Indiana.” 471 N.E.2d at 1140. The Indiana court concluded as follows.

**1282 Thus, we are left with a very close case. Despite the gravity of the public concern for identifying and apprehending drunk drivers and the moderately low level of interference with individual liberty occasioned by the roadblock procedure, the state failed to present any evidence that the roadblock procedure advanced the public interest to a greater degree than would have been achieved by traditional methods of drunk-driving law enforcement, which are to be preferred because they are based upon a requirement of individualized suspicion. See Brown v. Texas, supra; Delaware v. Prouse, supra; Terry v. Ohio, supra. The state, no doubt, had the relevant evidence available to it, having conducted eight to ten roadblocks in Tippecanoe County alone in September, 1982, and having other records to show the effectiveness of traditional methods of enforcing drunk driving laws.

Recognizing that the roadblock procedure here at issue, in which the culpable and innocent alike were subject to seizure by law enforcement agents, lies at the very fringe of the fourth amendment, we are unwilling to validate this procedure absent some evidence that it is necessary, or at least more effective than available methods of drunk driving law enforcement, which are based on individualized suspicion aroused by observed conduct. Therefore, we hold that the state failed to meet its burden of proving the reasonableness of the warrantless seizure of defendant under the fourth amendment standard announced by the United State Supreme Court in Brown v. Texas, supra, and so, *48 we affirm the trial court’s ruling that the fruits of that seizure must be suppressed. [Id. at 1141-1142].

Rightly or wrongly decided, we think this Indiana case was much closer than the case before us. From all that we can tell from the record before us, the location, time and duration of the road block on Rt. 550 late on a Saturday afternoon on October 15 was totally random and within the chance discretion of the officer on patrol. Nor was there any proof of efficacy at all and no inkling of any supervision by higher authorities.

A recent case arising in Maine, State v. Cloukey, 486 A.2d 143 (Me.Sup.Ct.1985), provides an interesting contrast to the Indiana case. Cloukey involved a road block set up in daylight for the purpose of conducting a traffic safety check. The road block was set up by a deputy sheriff and a member of the state police with the permission of the County Sheriff who knew that the proposed location was on an historically high-accident stretch of roadway. The court noted only “a modest amount of involvement” by the supervisory authority as to the road block’s location, but there was some. The court also found that Cloukey did not “involve a sobriety stop.” Id. at 147. While acknowledging that it was a close case, the Maine court approved that road block as a constitutionally “minimal intrusion”. The Maine court was convinced that the operation was not a subterfuge for drunken driving detection or a form of police harassment, and noted that although a written policy and higher-level supervision would have been preferable, it was not essential. Again, the case before us does not even have these minimal safeguards or justifications of a modicum of supervisory participation and the selection of a dangerous alcohol or accident-prone stretch of roadway. We have no way of telling if the road block could have been a subterfuge. All we know is there was no particular reason for the location, except that it was not on a main road. And we do know from the testimony of the trooper that the road block was not simply regulatory but that the stops also had as a purpose criminal investigation-to detect “anybody who appears to be intoxicated and any *49 drugs, anything in plain view of such sort.” We think the Maine Supreme Court in Cloukey summarized the Prouse standard well in this **1283 context when it said: “It would be difficult to describe a more capricious and arbitrary basis for detention than the fact that the officer had nothing better to do.” Id. at 145.

Maryland’s highest court recently approved a sobriety road block in Little v. State, 300 Md. 485, 479 A.2d 903 (1984). The road block was operated as part of a state-police operated sobriety check point program to augment conventional patrols on state roads in Harford County which had demonstrably high alcohol-related accident rates. Check points were set up from 11 p.m. to 4 a.m. on weekend nights. (The court referred to statistics showing that these were the prevalent hours of offenses). There was widespread publicity. Comprehensive regulations governing the operation were reviewed and approved by the State Police, the Attorney General and the Governor; the date, time and location of each check point required the approval of the Chief of Field Operations of the State Police. The road blocks were well-lighted and marked so that the traveling public would not be frightened. They were also carefully and adequately staffed and supervised.

[8] The Maryland high court reviewed many of the pertinent state and federal authorities and noted that “some courts have found road blocks to be unconstitutional where the authorities did not provide adequate procedures for limiting the discretion of field officers.” Id. at 909, citing State v. Hillesheim, 291 N.W.2d 314 (Io.Sup.Ct.1980) (two police officers decided to set up a road block at entrance to city park without supervisory authority); Com. v. McGeoghegan, supra; State v. Olgaard, supra; State ex rel. Ekstrom v. Justice Court, supra; State v. Smith, 674 P.2d 562 (Okla.Crim. Appeal 1984) (this temporary sobriety check point unconstitutional as likely to cause fear and surprise as operated); *50 Koonce v. State, 651 S.W.2d 46 (Tex. App.1983) (check point unconstitutional because there was no evidence of operation pursuant to objective, nondiscretionary departmental procedures). The Maryland Court observed that

A majority of courts, however, have sustained the use of roadblocks as a proper law enforcement tool. As a general rule, the constitutionality of traffic checkpoints has been upheld where: (1) the discretion of the officers in the field is carefully circumscribed by clear objective regulations established by high level administrative officials; (2) approaching drivers are given adequate warning that there is a roadblock ahead; (3) the likelihood of apprehension, fear or surprise is reduced by a display of legitimate police authority at the roadblock; and (4) vehicles are stopped on a systematic, nonrandom basis that shows drivers they are not being singled out for arbitrary reasons. [Id. 479 A.2d at 911].

The court cited State v. Deskins, supra, where the location of road block was selected by supervisory personnel and not by officers in the field, as an example of a judicially approved operation. The record before the Maryland Court revealed that the sobriety checkpoint program had been an effective technique of detecting and deterring drunk drivers. Although temporary, the road blocks were established under a systematic plan which was reasonable. There was no danger that motorists in certain locations would be singled out for harassment. No judicial warrant was needed in advance because the decision to stop motorists was not in the hands of the officer in the field, but given to the administrative decision-making of higher ranking officers. 479 A.2d at 915. We find no disagreement with the Maryland Court’s opinion in Little v. State, 479 A.2d 903. If set up properly and proven efficacious, the intrusion of a road block stopping all traffic or at consistent intervals can be constitutionally justified, but it must be justified by facts, not conjecture. We note that even the Maryland case and the Deskins **1284 case in Kansas drew dissents from judges who did not think the “candle worth the light” and believed that the record, even in these reasonably persuasive cases, did not justify the stops. Justice Davidson, dissenting in Little v. State, 479 A.2d 917, 920, pointed to Justice Stewart’s statement in Almeida-Sanchez, 413 U.S. at 274, 93 S.Ct. at 2540 where he said: “The needs of law enforcement stand in constant tension with the *51 Constitution’s protection of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to Constitutional safeguards.”

Another recent case in which a road block was held unconstitutional is Jones v. State, 459 So.2d 1068 (Ct.App.Fla.1984) ( rehearing en banc denied, December 5, 1984, 459 So.2d 1081). The road block was set up at 2:30 a.m. on July 4, 1982 on Dale Mabry Highway, a main highway in greater Tampa. The purpose was to apprehend “DUI drivers.” All northbound traffic was funnelled into one lane and every fifth vehicle was stopped when traffic was heavy and every third vehicle was stopped when traffic was light. The drivers were directed into a parking lot where five waiting officers checked credentials and determined if they were intoxicated. The Florida Court of Appeals held the road block unconstitutional, recognizing the issue as “extremely difficult.” Id. at 1070. The court noted that all cases agreed that “the State has the burden of proof to show that a road block arrest is constitutional.” Ibid. Accord State v. Valencia, 93 N.J. 126, 133, 459 A.2d 1149 (1983). The court concluded “that even the approaches taken by the New Jersey [ State v. Coccomo, supra ] and Kansas [ State v. Deskins, supra ] courts would produce a holding that petitioner’s arrest in the Florida case was unconstitutional.” Ibid. The Florida court emphasized the characteristics of a valid road block set out in U.S. v. Martinez-Fuerte, supra, including “the decision to establish it having been made by officials on a higher level than patrol officers”, id. at 1072, and observed that “nothing in Delaware v. Prouse suggests … that the criteria for constitutionally permissible roadblocks as indicated in Martinez-Fuerte were relaxed,” id. at 1073. Among the reasons for rejecting the constitutionality of this road block, the Florida Court of Appeals found there was no evidence that “the road block [was] conducted pursuant to a plan set up by supervisory personnel” with “little or no discretion in the method of operation and selection of vehicles left to the officers conducting the road *52 block”. Id. at 1079. There was no evidence of the level of law enforcement personnel making the decision regarding location and method of operation. Ibid. The record failed to address several subjects which concerned the court including the presence of warning signs, the extent of inconvenience and alarm to motorists, significant effectiveness as compared to less intrusive means, and advance warning or notice to the public as deterrence. The Florida court was impressed, as are we, by the thoughts of Justice Feldman of the Arizona Supreme Court in his concurring opinion in State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d 992, 996 (1983), where a principal factor persuading the court on the issue was “a not insubstantial amount of discretionary law enforcement activity” where “the road blocks were set up at the discretion of a local highway patrolman and were operated without specific instructions or guidelines.” Justice Feldman commented on the balance of the rights of citizens to travel unimpeded as against the rights of the police to set up road blocks when and where they liked without empirical justification.

The Terry exception to the probable cause requirement will not support the stops made in the instant cases because the roadblock stopped everyone-whether there was a founded suspicion or not. The issue here, therefore, is whether the fourth amendment permits officers to stop and question persons whose conduct **1285 is innocent, unremarkable and free from suspicion.

The question has frightening implications. The 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. If road blocks can be maintained to stop all persons, regardless of how innocent their conduct, for the purpose of investigating or apprehending drunk drivers, then presumably similar stops of all citizens could be undertaken for questioning and surveillance with regard to other crimes, such as possession of narcotics, possession of stolen property or burglary. It might be argued that if the law did permit such stops, we would have less crime. Nevertheless, our system is based on the idea that the risk of criminal activity is less of a danger than the risk of unfettered interference with personal liberty. The concept was succinctly expressed by a newspaper columnist who recently used these words in describing his opposition to roadblock stops for apprehension of drunk drivers:

I … have often thought that getting killed by some intoxicated idiot who crossed the median divider and hit me head-on would be the worst and most senseless way to die.

*53 I mourn for the parents of children who have died at the hands of drunk drivers. But none of this makes a police state acceptable. Freedom doesn’t come risk-free. I’m willing to take some risks in exchange for my freedom.

Andy Rooney, Roadblocks for Drunk Drivers Nibble Away at Our Freedoms, Chicago Tribune, reprinted in The Arizona Republic, April 4, 1983, at A7.

Justice Feldman then set out guidelines which he thought could, in the proper circumstance, constitutionally justify a road block. See 663 P.2d at 998-1001. We agree with these general principles, which describe how to constitutionally set up road blocks “in a manner calculated in advance to provide the least intrusion into the public’s freedom and sense of security.” Id. at 1001.

Significantly, one year after Judge Feldman’s remarks a unanimous Arizona Supreme Court en banc approved a Tuscon sobriety road block under the Arizona and federal constitutions consistent with his suggestions in State v. Super. Ct. In and For County of Pima, 143 Ariz. 45, 691 P.2d 1073 (1984). “The stops were constructed and operated according to an extensive command directive compiled by the Commander of the Traffic Enforcement Division …. The checkpoints were to be set up on main, high volume arteries.” Id. 691 P.2d at 1074. Most of the recommendations made by Justice Feldman were followed in the Tuscon case including command directives and “statistics compiled by the police department concerning the location of alcohol related collisions and chose[n] sites within approximately a square mile of where the highest percentage of such accidents had occurred.” Id. at 1075; advance publicity as a deterrent was abundant.

During the same month, the highest court of New York also approved a drunken-driving road block under very much the same criteria in People v. Scott, 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1 (1984). In Scott the road block was “established pursuant to a written directive of the County Sheriff.” Id. 483 N.Y.S.2d at 650, 473 N.E.2d at 2. Procedures limiting discretion and insuring safety of travelers were outlined in detail in the County Sheriff’s memorandum. The predetermined check points were systematically geared to “high accident *54 locations” and “greatest risk … weekend late evening/early morning hours” when the incident of drunken driving was statistically highest. Ibid. See also People v. John B.B., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864, cert. den. 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982) (roving patrol in remote, sparsely **1286 populated rural area condoned to thwart rash of burglaries).

We return to the observations of Judge Lehan of the Florida Court of Appeals in Jones v. State, 459 So.2d 1068, and emphasize as he did that our holding does not condone the appellant’s conduct but does mean that the courts also must “have substantial concern for the vast number of innocent motorists.” Id. at 1071.

The point is not whether drunk drivers are a danger and a serious threat to public safety. That must be conceded by any reasonable person of good faith. The point is that the public interest in apprehending drunk drivers does not justify the use of any indiscriminate law enforcement methods of investigation and apprehension. As an admittedly extreme example for the purpose of illustrating that point, no reasonable person of good faith would disagree that house to house searches of arbitrarily selected neighborhoods to discover which citizens are drunk and are about to drive or might drive, which would terrorize the citizenry in the process, would be wrong. That example is absurd in this country today may serve to emphasize what the Fourth Amendment has accomplished relative to the disregard for individual rights which had existed under British colonial rule not long before the Bill of Rights was adopted. [459 So.2d at 1078] FN6

FN6. Judge Lehan added these comments in Jones v. State

A similar type of concern was expressed by Justice Prager [dissenting] in Deskins: “If each of [the] political subdivisions [in Kansas] decides to maintain a roadblock, we could have ‘Checkpoint Charley’ at the boundary of every city and every county.” 673 P.2d at 1188. Similarly, if the Tampa police can set up a temporary roadblock of this kind for DUI purposes on Dale Mabry Highway, why could not the Tampa Police have also set up other such DUI roadblocks at various other locations in Tampa at the discretion of other sergeants (however much sergeants do deserve and have earned respect and authority)? For that matter, why could not they set up still other roadblocks for a variety of other law enforcement purposes? And if the Tampa police could do so, why not the Hillsborough County sheriff’s department, the Pinellas County sheriff’s department, the City of St. Petersburg police, and law enforcement authorities of all the various small municipalities in the area, with the end result being “Checkpoint Charleys” for innocent motorists to encounter perhaps even multiple times in the course of a drive? We, as Justice Prager, could not accept this as a way of life in our constitutional democracy.

We do not suggest that law enforcement authorities in Florida contemplate a scenario that might be indicated by the foregoing questions. We expect that the judgment of law enforcement supervisory personnel in establishing proper roadblocks, if the foregoing criteria are fulfilled, would take into account those concerns expressed by Justices Feldman and Prager which we agree are valid and important. Even a valid roadblock within the foregoing criteria should be employed with reasonable circumspection. Our democratic form of free government continues to exist because our laws do not permit restraints of that kind upon our freedoms. As is sometimes also attributed to Thomas Jefferson, “Eternal vigilance is the price of liberty.” John Philpot Curran, Speech Upon the Right of Election, (1790). [459 So.2d at 1080].

*55 [9] [10] [11] We reverse the decision of the Law Division which held the seizure of appellant Kirk constitutional. We conclude that the record does not justify the roadblock, stop and seizure of defendant. The stop was concededly designed to check for criminal violations, as well as for credentials and vehicle safety. The road block was set up by the officers in the field, solely at their discretion as to time, place and duration. There was no evidence to justify the State’s intrusion on the traveling public at this time and place. All authorities seem to agree in the many close cases we have discussed which fall to one side of the line of constitutionality or the other that the State must justify the procedures, showing both some substantial benefit to the public from the road-block stops and some appropriate control of the discretion of the officer in the field. Warrantless searches and seizures are “presumed to be invalid.” State v. Valencia, 93 N.J. 126, 133, 459 A.2d 1149 (1983); State v. Young, 87 N.J. 132, 141-142, 432 A.2d 874 (1982); **1287 State v. Patino, 83 N.J. 1, 7, 414 A.2d 1327 (1980); State v. Ercolano, 79 N.J. 25, 42, 397 A.2d 1062 (1979); State v. Sims, 75 N.J. 337, 352, 382 A.2d 638 (1978). The State has the burden of proving the “overall reasonableness and validity” of a warrantless search and seizure. Valencia 93 N.J. at 133, 459 A.2d 1149. On this record, we can only conclude that the State has failed to show that this road block *56 or check point was reasonable and justified in the circumstance. We see no reason in this record why “strong considerations of law enforcement and public safety impel a suspension of the normal high value embedded in the constitutions.” Ercolano, 79 N.J. at 42, 397 A.2d 1062. The police need not show probable cause to stop any individual driver but they must show some rational basis for deploying this type of intrusive law enforcement technique.


In conclusion, we stress that this panel has recently expressed its particular concern for the problems presented by the drunken driver in this State. This term in Division of Motor Vehicles v. Kleinert, 198 N.J.Super. 363, 368, 486 A.2d 1324 (App.Div.1985), we upheld the power of Director of Motor Vehicles to suspend the license of a New Jersey resident convicted of drunken driving in Vermont, a state not signatory to the Interstate Drivers’ License Compact. Last term in Matter of Kovalsky, 195 N.J.Super. 91, 477 A.2d 1295 (App.Div.1984), we held that the Director could suspend the license of a New Jersey resident who forfeited bail on a drunken driving charge in Georgia. See also Division of Motor Vehicles v. Lawrence, 194 N.J.Super. 1, 475 A.2d 1265 (App.Div.1983) (we upheld a New Jersey license revocation for New York drunken driving offense because the offenses of intoxicated and impaired operation were substantially similar). Concern for this social problem also has been manifested by our Supreme Court, see Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984) (social host liability for drunken driver social guest); see also State v. Dively, 92 N.J. 573, 588, 458 A.2d 502, (1983); In re Kallen, 92 N.J. 14, 28, 455 A.2d 460 (1983), and the United States Supreme Court, South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (refusal to take blood test may be constitutionally used as evidence).

The Attorney General’s brief eloquently stresses the problem of the drunken driver but also expresses commendable concern for the judicious and effective use of the check point or road block as a law enforcement tool within the strictures of the *57 applicable constitutions’ respect for individual rights. The Attorney General’s brief gives us this outline of the developing policy of establishing road blocks and check points which meet the various criteria discussed in the many cases we have surveyed.

On November 2, 1983, several weeks after defendant’s arrest, the State Police issued Official Training Bulletin 3-83, which moved away from the most crucial modification of police activity as a result of Prouse (banning completely random stops) and began to focus upon the establishment of fixed traffic spot checks as a law enforcement tool. Bulletin 3-83 set up four factors for officers to consider in selecting a traffic check location: 1) accident and violation experience, 2) volume of traffic, (3) safety and 4) deterrence against those who drive while under the influence of alcohol or other drugs. This bulletin also directed that traffic checks be conducted in accordance with the policy set forth in Official Training bulletin 1-79, i.e., stopping vehicles in increments of five, depending on traffic volume. Finally, on April 12 and 19, 1984, the New Jersey State Police released Operations Instructions 84-25 and 84-29 respectively, which no longer concerned the previously abandoned practice of random vehicle stops, but instead set forth an elaborate scheme of factors pertaining to the institution and physical characteristics of sobriety checkpoints.

As a consequence of the above circumstances, it is clear that the current State **1288 Police procedure regarding roadblocks and checkpoints is markedly different and considerably more comprehensive than the plan in effect on October 15, 1983, the date the defendant was detained. As of October 1983, only State Police Official Training Bulletin 1-79 had been issued. As previously noted, defendant attacks only the specific factors associated with the traffic check which resulted in his detention and eventual arrest on October 15, 1983. [Brief of Attorney General, p. 7-8].

The written “operations 84-25 and 84-29 instructions” issued in April 1984 by Lt. Colonel Dentino, Deputy Superintendent of the State Police, gave precise instructions for conducting sobriety check points. These instructions insured command supervisory siting and control of check points, careful procedures for moving check points, warning to motorists to allay fears of the traveler, safety of motorists, sufficient staffing to prevent undue inconvenience to motorists, and selection of sites and times designed to benefit the overall effort to cope with drunken driving. Holidays such as Memorial Day, Fourth of July, and Labor Day were targeted; site priority was recommended by the Troop Traffic Analyst and was on the basis of “areas high in alcohol-related accidents”; full reports in writing of the conduct of the road block are promptly submitted to troop *58 supervisors and commanders. Advance publicity of these efforts has been pervasive and undoubtedly has acted as a substantial deterrent to potential inebriated operators.

[12] We are satisfied that if these procedures are carefully followed, any constitutional objections will be overcome. We cannot condone the investigative type of road block we have seen in the case before us, set up by an officer in the field, obviously at a random time and location, for no specific duration, inadequately manned, and not designed for any particular preventative purpose, other than to pull drivers over to see what might turn up in the way of alcohol or drug-related criminal activity, and perhaps some regulatory violations. This is where we draw the line between rational law enforcement and random seizures based on “luck and hunch” alone, State v. Patino, 163 N.J.Super. 116, 125, 394 A.2d 365 (App.Div.1978), aff’d 83 N.J. 1, 414 A.2d 1 (1980), which inconvenience citizens without any justification of substance.