People v. Adams
Annotate this Case
No. 2--97--0079
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, ) No. 96--TR--56515
)
v. )
)
ROBERT E. ADAMS, ) Honorable
) Thomas E. Lang,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE INGLIS delivered the opinion of the court:
Following a bench trial, defendant, Robert E. Adams, appeals
his conviction of driving while license revoked (625 ILCS 5/6--
303(a)(West 1996)). Defendant argues that the court erred in
failing to suppress the evidence seized as the result of a roadblock
in violation of his constitutional rights. We agree and reverse.
Defendant was stopped at a roadblock on May 14, 1996, in
Waukegan, Illinois. The purpose of the roadblock was to determine
whether he was a city resident and whether he had a current city
sticker for his vehicle as required by the city's ordinances. As
a result, defendant was charged with driving while license revoked.
After finding defendant guilty of driving while license revoked, the
court sentenced him to 18 months' conditional discharge and ordered
him to pay a $200 fine and to perform 240 hours of community
service. The record contains no complaint against defendant for
failing to have a current city sticker.
Before the trial, defendant filed a motion to suppress evidence
which was initially denied as untimely. On the day of the trial,
the court stated it would consider the motion to suppress
simultaneously as part of the trial. The State and defendant
stipulated that defendant was stopped without a warrant to search
or arrest defendant.
At trial, Officer Louis Rodriguez testified that, on May 14,
1996, at about 9 a.m., he was a Waukegan patrol officer on "city
sticker detail" in the area of Melrose and Butrick, a four-way stop
intersection. There were four officers in uniform. They stood on
each corner next to the stop sign and observed the traffic. As a
car pulled up to the intersection, an officer would look to see if
the vehicle had a valid Waukegan city sticker on the windshield.
There were marked squad cars in the area. Sergeant Moore told the
officers to go there for the detail. His instructions were to stop
cars that entered the intersection if they did not have valid
Waukegan city stickers. There were no other instructions.
Rodriguez testified that he noticed that a red jeep driven by
defendant which stopped at the stop sign did not have a Waukegan
city sticker on the windshield. Rodriguez pulled the car over. The
officers were only allowed to issue city sticker citations to
Waukegan residents. Rodriguez had to ask defendant for his driver's
license to verify that he was a resident of Waukegan. As part of
the city sticker check, only those cars that did not have a sticker
were pulled over. Rodriguez informed defendant of the reason for
the stop. Defendant said he did not have his license with him.
Rodriguez asked for proof of insurance. After obtaining defendant's
name and date of birth, Rodriguez called in a driver's license check
and learned that the license was revoked. At trial, an abstract of
defendant's driving record was admitted into evidence which showed
defendant's license was revoked on the date in question.
On cross-examination, Rodriguez stated that Sergeant Moore was
with the officers at the intersection. Rodriguez did not speak with
the police chief or the watch commander that day. It was Moore who
"conceived" of the city sticker check that Tuesday. Rodriguez said
he saw defendant's windshield as he was driving north on Butrick.
The officer who spotted a car without the sticker was the one who
conducted the interrogation. The sole purpose of the stop was to
check the vehicle stickers. When asked if there was any publicity
given in advance of this check, Rodriguez explained that he thought
the stickers expired in April, that the residents were given at
least a month of leeway to obtain their stickers, and that the
newspaper reported the sticker requirement would be enforced.
Rodriguez acknowledged that he did not know about the enforcement
procedure until that morning. He stated he gave defendant a ticket
for not having the vehicle sticker, but he could not find a copy of
it in the file; the file did not show that defendant was issued a
ticket. Rodriguez did not have anything that reflected the
procedures to be followed in making the stop. He stated that Moore
was his supervisor.
Defendant testified that he was a Waukegan resident. He kept
all of his old Waukegan vehicle stickers on the jeep. He stated he
was not given a ticket on May 14 for not having a city vehicle
sticker. On cross-examination, defendant stated he had a 1995
sticker on his vehicle on May 14, 1996. When asked if he recalled
purchasing his 1996 sticker on May 31, he replied that he bought all
of his stickers when due. He had four trucks and bought all of his
stickers at the same time but could not recall the exact date.
Before finding defendant guilty of driving while license
revoked, the court denied his motion to suppress, taking into
consideration People v. Bartley, 109 Ill. 2d 273 (1985). In
Bartley, the supreme court held that a temporary roadblock planned
in advance and set up to check drivers' licenses and detect
motorists driving under the influence (DUI) met certain criteria so
that the roadblock did not violate the constitutional prohibition
against unreasonable searches and seizures. The supreme court
concluded that the State had a compelling interest in reducing
alcohol-related accidents and this interest outweighed the intrusion
on motorists.
Although the trial court here found the seriousness of driving
without paying a city sticker "minuscule" compared to driving under
the influence of alcohol, it nevertheless concluded that the stop
was constitutionally permissible. We must determine whether the
roadblock in this case passes constitutional muster. The State does
not dispute that it had the burden of proof to show that the
roadblock and stop were justified.
A trial court's decision regarding whether to suppress evidence
will not be overturned on review unless that decision is manifestly
erroneous. People v. Galvin, 127 Ill. 2d 153, 162 (1989). In
Illinois, a warrantless search or seizure is presumed unreasonable
per se unless it comes within a specific, well-delineated exception
to the warrant requirement, and the ultimate test of the
constitutionality of a search or seizure is its reasonableness.
People v. McGee, 268 Ill. App. 3d 32, 40 (1994). The reasonableness
of a search or seizure depends upon balancing the public's interest
against the individual's right to be free from arbitrary
interference by law officers. People v. Strawn, 210 Ill. App. 3d
783, 786 (1991).
Here, we are confronted with a limited, well-delineated
exception to the constitutional requirements of probable cause or
reasonable and individualized suspicion necessary to effectuate a
warrantless but lawful stop. See Bartley, 109 Ill. 2d at 280-81,
292. The fundamental evil to be avoided is the "roving patrol," for
the fear and annoyance attendant upon roadblock stops which operate
like roving patrols may serve to invalidate such roadblocks.
Bartley, 109 Ill. 2d at 288. Because of the potential for abuse of
the roadblock procedure--such as when officers in the field act with
unbridled discretion (see 4 W. LaFave, Search & Seizure 10.8(a),
at 678-79 (3d ed. 1996); Bartley, 109 Ill. 2d at 289), we will
carefully examine and balance the factors that have been developed
to determine the constitutionality of a roadblock.
It is well settled that a fourth amendment seizure occurs when
a vehicle is stopped at a roadblock or checkpoint. People v. Scott,
277 Ill. App. 3d 579, 583 (1996), citing Michigan Department of
State Police v. Sitz, 496 U.S. 444, 450, 110 L. Ed. 2d 412, 420, 110 S. Ct. 2481, 2485 (1990). In Sitz, the Court considered whether a
highway sobriety checkpoint program established by the Michigan
State Police department and its director was permissible under the
fourth amendment. The director appointed a committee which included
police representatives and state prosecutors who created guidelines
setting forth the procedures governing checkpoint operations, site
selection, and publicity. The Court found that United States v.
Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074
(1976), and Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979), were relevant authorities in applying a balancing test
to determine the constitutionality of a roadblock stop.
In Brown v. Texas, the Court noted that the consideration of
the constitutionality of seizures less intrusive than traditional
arrest involves (1) weighing of the gravity of the public concern
served by the seizure; (2) the degree to which the seizure advances
the public interest; and (3) the severity of the interference with
individual liberty. A central concern in balancing these competing
considerations is to assure that an individual's reasonable
expectation of privacy is not subject to arbitrary invasion solely
at the unfettered discretion of officers in the field. Brown, 443 U.S. at 50-51, 61 L. Ed. 2d at 361-62, 99 S. Ct. at 2640. The Sitz
Court began its analysis by considering the gravity of the public
interest involved and posited that no one can seriously dispute the
magnitude of the drunken driving problem and the states' interest
in eradicating it. The Court next found that the objective
intrusion, measured, for example, by the duration of the stop (25
seconds) was minimal. The Court found the subjective intrusion
(i.e., the fear, surprise, and annoyance of law-abiding motorists)
was minimized because the checkpoints were selected pursuant to
guidelines, and uniformed officers stopped every approaching car
briefly. The Court also concluded that there was empirical data
sufficient to show that the roadblock was sufficiently effective to
advance the public interest in detecting drunken drivers.
Also relying on Brown and Martinez-Fuerte (but prior to the
Sitz decision), our state supreme court adopted a similar balancing
analysis in Bartley, 109 Ill. 2d 273. The DUI roadblock there was
conducted as a joint effort of the Illinois State Police and
cooperating police departments. The decision to establish the
checkpoint was made by a state police lieutenant and a captain. The
lieutenant conducted a briefing for participating officers at the
state police headquarters. All westbound vehicles were to be
stopped and the officers were to operate according to a standard
procedure set forth in a state police manual. Before the roadblock
began, a captain contacted the media, and a television crew filmed
the briefing and the roadblock. The supreme court stated that it
was only considering the type of roadblock which can and should be
planned in advance. Bartley, 109 Ill. 2d at 285.
The Bartley court first examined the public interest involved
and found that, because DUI poses a substantial threat to the
welfare of the citizenry, the interest involved was "compelling."
The court went on to weigh this public interest against the
objective and subjective intrusions resulting from the stop. The
court next found the objective intrusion on the motorist was not
substantial as the stop was brief (15 to 20 seconds), motorists were
able to remain in their cars, and they were merely asked to produce
driving credentials.
The court then examined several factors to assess the
subjective intrusiveness of the roadblock, pointing out that the
critical factor is whether the field officers are acting with
unbridled discretion. Subjective intrusion concerns the fear,
surprise, and annoyance of citizens at being stopped. Where the
discretion of officers is circumscribed and the roadblock is
established in a safe manner, drivers have no reason to fear either
that their safety is endangered or that they are being singled out
for discriminatory treatment. Bartley, 109 Ill. 2d at 288.
According to Bartley, arbitrary enforcement and the use of
discretion by officers in the field are reduced and the subjective
intrusion minimized when (1) the decision to establish the roadblock
and the selection of the site are made by supervisory personnel
(such as a sheriff, a state police lieutenant or captain); (2) the
vehicles are stopped in a preestablished, systematic manner to avoid
any concern by motorists that they are being singled out (for
example, stopping all westbound vehicles); (3) there are preexisting
guidelines for the operation of the roadblock (such as a state
police manual); (4) there is a sufficient show of the official
nature of the operation and it is obvious that the roadblock in fact
poses no safety risk; and (5) there is advance publicity of the
intention of the police to establish the roadblock. It is clear that
vehicles may not be stopped in a random "spot check" manner.
Bartley, 109 Ill. 2d at 289-91; Scott, 277 Ill. App. 3d at 583. The
Bartley court found that these factors were generally satisfied in
the case before it; the court concluded that there was a compelling
interest in deterring DUI while the objective and subjective
intrusions were minimal so that the roadblock did not violate the
fourth amendment.
We first examine whether the public interest in the present
case was sufficient to warrant the intrusive police procedure
entailed in stopping all citizens traveling within the city,
regardless of residency, to see whether they were in current
compliance with the sticker requirement. We conclude that, although
the vehicle sticker requirement has an apparent legitimate revenue-
raising purpose, this hardly equates with the "compelling" public
safety purpose of a DUI checkpoint and does not qualify as a "grave"
public concern sufficient to warrant this type of police intrusion.
At trial, the State made no effort to explain the purpose,
nature, or importance of the public interest in enforcing this type
of city registration. The usual $20 fee itself is relatively small,
and a portion is distributed to the administrative fund to cover the
cost of collection; the remainder is apportioned and distributed to
the police fund and the street maintenance fund. See City of
Waukegan Municipal Code 21--246 through 21--255 (19__ ). The
public interest to be advanced is, in the trial judge's own words,
"minuscule" by comparison to Bartley's compelling public safety
concern of deterring DUI. It is interesting to note that this show
of police power was used to detain motorists on their way to work
during what appeared to be a 30-day grace period before any
significant penalty would attach. The ordinance appears to be
administrative and regulatory in nature rather than being directly
related to public health, safety, and the prevention of crime.
We are aware that, in People v. Taylor, 259 Ill. App. 3d 289,
291 (3d Dist. 1994), the reviewing court found that there was a
"valid public interest in enforcing a municipal revenue ordinance
which requires the purchase of motor vehicle stickers." However,
the court was unable to weigh this public interest against the other
factors concerning the degree of intrusion posed by a roadblock due
to an insufficient record. Nevertheless, the Taylor court reversed
the trial court's order suppressing evidence derived from a
roadblock. Because Taylor never weighed the public interest against
other factors as required by Bartley, we decline to follow that
decision here. We have found no other case in any other
jurisdiction where a checkpoint to enforce a city sticker ordinance
was held constitutionally permissible.
Although the length of the stop and license check is unclear
in the record, the evidence does not otherwise show that there was
a substantial objective intrusion. According to Rodriguez, he asked
defendant for licensing and insurance information, ran a license
check, and learned that defendant was a city resident subject to the
sticker requirement. However, the subjective intrusion factors--
those that arouse surprise, fear, and annoyance in the motoring
public--are problematic.
First, the decision to set up this checkpoint and select its
location appears to have been made extemporaneously by a sergeant
in the field. The leading cases that have upheld checkpoints have
explained, implicitly or explicitly, that such decisions were made
by officials or officers at the policy-making level and the
checkpoints were planned in advance. In Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481, the sobriety checkpoint was established
by the state police department, its director, and a committee which
created (presumably written) guidelines setting forth procedures
governing checkpoint operations, site selection, and publicity. In
examining whether such a checkpoint was effective in advancing the
public interest, the Court clearly implied that it was the domain
of "politically accountable officials" to decide "which among
reasonable alternative law enforcement techniques should be employed
to deal with a serious public danger." Sitz, 496 U.S. at 453, 110 L. Ed. 2d at 420, 110 S. Ct. at 2487.
In Martinez-Fuerte, the Court found that the intrusion posed
by fixed immigration checkpoints (as opposed to roving patrols) was
to some extent minimized and thus permissible under the
circumstances, and it explained in part:
"The regularized manner in which established checkpoints are
operated is visible evidence, reassuring to law-abiding
motorists, that the stops are duly authorized and believed to
serve the public interest. The location of a fixed checkpoint
is not chosen by officers in the field, but by officials
responsible for making overall decisions as to the most
effective allocation of limited enforcement resources. We may
assume that such officials will be unlikely to locate a
checkpoint where it bears arbitrarily or oppressively on
motorists as a class." (Emphasis added.) Martinez-Fuerte, 428 U.S. at 559, 49 L. Ed. 2d at 1129, 96 S. Ct. at 3083.
The Court concluded that the need for a warrant in such a case was
"reduced when the decision to 'seize' is not entirely in the hands
of the officer in the field, and deference is to be given to the
administrative decisions of higher ranking officials." Martinez-
Fuerte, 428 U.S. at 566, 49 L. Ed. 2d at 1133, 96 S. Ct. at 3086-87.
In Bartley, 109 Ill. 2d 273, one of the reasons the court found
the DUI checkpoint permissible was because the decision to establish
the checkpoint, its location, and the procedures to be followed was
made by a state police lieutenant and a captain; the roadblock was
operated according to a standard procedure set forth in a state
police manual.
In State v. Larson, 485 N.W.2d 571, 572-73 (Minn. Ct. App.
1992), the reviewing court found that a driver's license checkpoint
did not pass constitutional muster because (1) there was no evidence
that the checkpoint was authorized or the location was selected by
an officer higher than a field supervisor, a sergeant; and (2) there
were no administrative, written guidelines for the operation of the
checkpoint which would limit the discretion of officers in the
field. The court also found that the state had failed to present
evidence of the effectiveness of the checkpoint in advancing the
public interest. See State v. One 1987 Toyota Pickup, 233 Neb.
670, 447 N.W.2d 243 (1989) (checkpoint found unconstitutional where
sergeant and troopers in field established checkpoint without
involvement or approval of state patrol high command).
State v. Park, 810 P.2d 456 (Utah App. 1991), concerned a
roadblock in which all vehicles except large trucks were stopped.
The roadblock was supervised by a state highway patrol sergeant
accompanied by about 15 officers. The roadblock was publicized
earlier in local newspapers. As a result of the stop, defendant was
charged with a drug offense. At the suppression hearing, although
the sergeant testified that the roadblock was authorized by his
supervisor, there was no evidence presented that the roadblock was
carried out pursuant to a plan having explicit, neutral limitations
on the officers' conduct or that it was developed by politically
accountable officials; there was no evidence that the authorization
process involved any balancing of interests. Under the
circumstances, the reviewing court concluded that the roadblock
violated defendant's fourth amendment right as it did not conform
to the standards established in Sitz.
In Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994), relying
on Sitz, the appeals court held a city police department's sobriety
checkpoint unconstitutional where it was not expressly authorized
and implemented by a statewide, politically accountable governing
body. Cf. State v. Sanchez, 856 S.W.2d 166 (Tex. Crim. App. 1993)
(license and insurance roadblock check held unconstitutional where
officers in field acted without authorization or guidance of
superior officer and without established, authoritatively
standardized procedures concerning location and operation of
roadblock and where there was no evidence demonstrating
effectiveness of roadblock).
In the present case, Rodriguez was acting on a verbal directive
from his sergeant who was also in the field. Rodriguez was merely
to stop vehicles not having a current city sticker. There is no
evidence showing that this roadblock was established by politically
accountable or policy-making level officials. The officer had some
discretion in determining which vehicles to stop and, whether there
was a violation after stopping the motorist, he then had discretion
in determining residency and compliance. See Scott, 277 Ill. App.
3d at 583 (under circumstances, determination of driver's residence
involved use of discretion). Of course, this procedure would likely
have subjected nonoffending motorists who were not city residents
to some form of interrogation. There is no evidence that there were
preexisting, written, standardized guidelines regarding the
selection of a site, the procedures to be followed in operating the
roadblock, or the manner and length of the detention and
interrogation. There is no indication whether the site was selected
in accordance with the safety concerns of the public in mind or
whether motorists were unduly detained by traffic backups. They
would likely have been on their way to work at that time of day.
Since it could not have been clear to the motorists why some
vehicles were being pulled over while others were not, it is likely
that the stops generated the fear and annoyance that accompany being
singled out of a line of traffic.
Although there is no indication that there was any road sign
to alert approaching motorists of the checkpoint, the presence of
uniformed officers and squad cars would appear to have been
sufficient to show the official nature of the operation. However,
the State did not demonstrate whether the safety risk to the public
was considered or minimized. Furthermore, the only evidence
suggesting advance publicity about the operation was Rodriguez'
vague comment that the newspaper reported there would be some
enforcement of the sticker requirement. There is no evidence that
the public was informed there would be a roadblock. Indeed,
Rodriguez did not know of the roadblock until the morning of the
stop.
Finally, the State presented no testimony or empirical evidence
regarding the effectiveness of this procedure in advancing the
interest at stake--the enforcement of a sticker requirement which
appears to be essentially a revenue-producing device. See Brown,
443 U.S. at 51, 61 L. Ed. 2d at 360, 99 S. Ct. at 2640 (court must
weigh degree to which the seizure advances the public interest).
We recognize that "the choice among such reasonable [law
enforcement] alternatives remains with the governmental officials
who have a unique understanding of, and a responsibility for,
limited public resources, including a finite number of police
officers." Sitz, 496 U.S. at 453-54, 110 L. Ed. 2d at 422, 110 S. Ct. at 2487. However, we do not believe that courts must "blindly
defer to whatever enforcement techniques are chosen by officials"
as courts must analyze these techniques "to insure that they are in
fact reasonable" and must not abdicate their responsibility in
protecting constitutional rights. Holt, 887 S.W.2d at 19; see also
Martinez-Fuerte, 428 U.S. at 559, 49 L. Ed. 2d at 1129, 96 S. Ct.
at 3083-84 ("a claim that a particular exercise of discretion in
locating or operating a checkpoint is unreasonable is subject to
post-stop judicial review").
There are undoubtedly less intrusive methods of enforcing this
city sticker requirement, such as by checking city records, posting
or mailing notices, or issuing tickets as the result of other
legitimate traffic stops. These methods are for the appropriate law
enforcement officials to decide. At the very least, however, the
decision to use an intrusive roadblock should be made by politically
accountable public officials or higher ranking officers at the
policy-making level. There was no evidence of the number or
percentage of violators discovered in relation to the number of
motorists stopped or whether the majority of motorists stopped were
even residents subject to the ordinance. The effectiveness of this
procedure is speculative at best.
We determine that the interest in enforcing the city sticker
ordinance is less than compelling when weighed against the degree
of intrusion visited upon ordinary motorists. The State presented
insufficient evidence showing that the checkpoint (1) was authorized
and selected by policy-level or politically accountable officials;
(2) was operated pursuant to sufficiently specific, standardized,
preexisting guidelines to limit officer discretion; (3) was operated
in a safe manner; (4) was publicized clearly and in advance; and (5)
was actually effective in advancing the interest in question.
We hold that the checkpoint stop of defendant violated the
constitutional prohibition against unreasonable searches and
seizures, and the trial court's decision not to suppress the
evidence derived from that stop was manifestly erroneous. Since the
State could not have prevailed without this evidence, we reverse
defendant's conviction and sentence outright.
The judgment of the circuit court of Lake County is reversed.
Reversed.
McLAREN and HUTCHINSON, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, ) No. 96--TR--56515
)
v. )
)
ROBERT E. ADAMS, ) Honorable
) Thomas E. Lang,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE INGLIS delivered the opinion of the court:
Following a bench trial, defendant, Robert E. Adams, appeals
his conviction of driving while license revoked (625 ILCS 5/6--
303(a)(West 1996)). Defendant argues that the court erred in
failing to suppress the evidence seized as the result of a roadblock
in violation of his constitutional rights. We agree and reverse.
Defendant was stopped at a roadblock on May 14, 1996, in
Waukegan, Illinois. The purpose of the roadblock was to determine
whether he was a city resident and whether he had a current city
sticker for his vehicle as required by the city's ordinances. As
a result, defendant was charged with driving while license revoked.
After finding defendant guilty of driving while license revoked, the
court sentenced him to 18 months' conditional discharge and ordered
him to pay a $200 fine and to perform 240 hours of community
service. The record contains no complaint against defendant for
failing to have a current city sticker.
Before the trial, defendant filed a motion to suppress evidence
which was initially denied as untimely. On the day of the trial,
the court stated it would consider the motion to suppress
simultaneously as part of the trial. The State and defendant
stipulated that defendant was stopped without a warrant to search
or arrest defendant.
At trial, Officer Louis Rodriguez testified that, on May 14,
1996, at about 9 a.m., he was a Waukegan patrol officer on "city
sticker detail" in the area of Melrose and Butrick, a four-way stop
intersection. There were four officers in uniform. They stood on
each corner next to the stop sign and observed the traffic. As a
car pulled up to the intersection, an officer would look to see if
the vehicle had a valid Waukegan city sticker on the windshield.
There were marked squad cars in the area. Sergeant Moore told the
officers to go there for the detail. His instructions were to stop
cars that entered the intersection if they did not have valid
Waukegan city stickers. There were no other instructions.
Rodriguez testified that he noticed that a red jeep driven by
defendant which stopped at the stop sign did not have a Waukegan
city sticker on the windshield. Rodriguez pulled the car over. The
officers were only allowed to issue city sticker citations to
Waukegan residents. Rodriguez had to ask defendant for his driver's
license to verify that he was a resident of Waukegan. As part of
the city sticker check, only those cars that did not have a sticker
were pulled over. Rodriguez informed defendant of the reason for
the stop. Defendant said he did not have his license with him.
Rodriguez asked for proof of insurance. After obtaining defendant's
name and date of birth, Rodriguez called in a driver's license check
and learned that the license was revoked. At trial, an abstract of
defendant's driving record was admitted into evidence which showed
defendant's license was revoked on the date in question.
On cross-examination, Rodriguez stated that Sergeant Moore was
with the officers at the intersection. Rodriguez did not speak with
the police chief or the watch commander that day. It was Moore who
"conceived" of the city sticker check that Tuesday. Rodriguez said
he saw defendant's windshield as he was driving north on Butrick.
The officer who spotted a car without the sticker was the one who
conducted the interrogation. The sole purpose of the stop was to
check the vehicle stickers. When asked if there was any publicity
given in advance of this check, Rodriguez explained that he thought
the stickers expired in April, that the residents were given at
least a month of leeway to obtain their stickers, and that the
newspaper reported the sticker requirement would be enforced.
Rodriguez acknowledged that he did not know about the enforcement
procedure until that morning. He stated he gave defendant a ticket
for not having the vehicle sticker, but he could not find a copy of
it in the file; the file did not show that defendant was issued a
ticket. Rodriguez did not have anything that reflected the
procedures to be followed in making the stop. He stated that Moore
was his supervisor.
Defendant testified that he was a Waukegan resident. He kept
all of his old Waukegan vehicle stickers on the jeep. He stated he
was not given a ticket on May 14 for not having a city vehicle
sticker. On cross-examination, defendant stated he had a 1995
sticker on his vehicle on May 14, 1996. When asked if he recalled
purchasing his 1996 sticker on May 31, he replied that he bought all
of his stickers when due. He had four trucks and bought all of his
stickers at the same time but could not recall the exact date.
Before finding defendant guilty of driving while license
revoked, the court denied his motion to suppress, taking into
consideration People v. Bartley, 109 Ill. 2d 273 (1985). In
Bartley, the supreme court held that a temporary roadblock planned
in advance and set up to check drivers' licenses and detect
motorists driving under the influence (DUI) met certain criteria so
that the roadblock did not violate the constitutional prohibition
against unreasonable searches and seizures. The supreme court
concluded that the State had a compelling interest in reducing
alcohol-related accidents and this interest outweighed the intrusion
on motorists.
Although the trial court here found the seriousness of driving
without paying a city sticker "minuscule" compared to driving under
the influence of alcohol, it nevertheless concluded that the stop
was constitutionally permissible. We must determine whether the
roadblock in this case passes constitutional muster. The State does
not dispute that it had the burden of proof to show that the
roadblock and stop were justified.
A trial court's decision regarding whether to suppress evidence
will not be overturned on review unless that decision is manifestly
erroneous. People v. Galvin, 127 Ill. 2d 153, 162 (1989). In
Illinois, a warrantless search or seizure is presumed unreasonable
per se unless it comes within a specific, well-delineated exception
to the warrant requirement, and the ultimate test of the
constitutionality of a search or seizure is its reasonableness.
People v. McGee, 268 Ill. App. 3d 32, 40 (1994). The reasonableness
of a search or seizure depends upon balancing the public's interest
against the individual's right to be free from arbitrary
interference by law officers. People v. Strawn, 210 Ill. App. 3d
783, 786 (1991).
Here, we are confronted with a limited, well-delineated
exception to the constitutional requirements of probable cause or
reasonable and individualized suspicion necessary to effectuate a
warrantless but lawful stop. See Bartley, 109 Ill. 2d at 280-81,
292. The fundamental evil to be avoided is the "roving patrol," for
the fear and annoyance attendant upon roadblock stops which operate
like roving patrols may serve to invalidate such roadblocks.
Bartley, 109 Ill. 2d at 288. Because of the potential for abuse of
the roadblock procedure--such as when officers in the field act with
unbridled discretion (see 4 W. LaFave, Search & Seizure 10.8(a),
at 678-79 (3d ed. 1996); Bartley, 109 Ill. 2d at 289), we will
carefully examine and balance the factors that have been developed
to determine the constitutionality of a roadblock.
It is well settled that a fourth amendment seizure occurs when
a vehicle is stopped at a roadblock or checkpoint. People v. Scott,
277 Ill. App. 3d 579, 583 (1996), citing Michigan Department of
State Police v. Sitz, 496 U.S. 444, 450, 110 L. Ed. 2d 412, 420, 110 S. Ct. 2481, 2485 (1990). In Sitz, the Court considered whether a
highway sobriety checkpoint program established by the Michigan
State Police department and its director was permissible under the
fourth amendment. The director appointed a committee which included
police representatives and state prosecutors who created guidelines
setting forth the procedures governing checkpoint operations, site
selection, and publicity. The Court found that United States v.
Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074
(1976), and Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979), were relevant authorities in applying a balancing test
to determine the constitutionality of a roadblock stop.
In Brown v. Texas, the Court noted that the consideration of
the constitutionality of seizures less intrusive than traditional
arrest involves (1) weighing of the gravity of the public concern
served by the seizure; (2) the degree to which the seizure advances
the public interest; and (3) the severity of the interference with
individual liberty. A central concern in balancing these competing
considerations is to assure that an individual's reasonable
expectation of privacy is not subject to arbitrary invasion solely
at the unfettered discretion of officers in the field. Brown, 443 U.S. at 50-51, 61 L. Ed. 2d at 361-62, 99 S. Ct. at 2640. The Sitz
Court began its analysis by considering the gravity of the public
interest involved and posited that no one can seriously dispute the
magnitude of the drunken driving problem and the states' interest
in eradicating it. The Court next found that the objective
intrusion, measured, for example, by the duration of the stop (25
seconds) was minimal. The Court found the subjective intrusion
(i.e., the fear, surprise, and annoyance of law-abiding motorists)
was minimized because the checkpoints were selected pursuant to
guidelines, and uniformed officers stopped every approaching car
briefly. The Court also concluded that there was empirical data
sufficient to show that the roadblock was sufficiently effective to
advance the public interest in detecting drunken drivers.
Also relying on Brown and Martinez-Fuerte (but prior to the
Sitz decision), our state supreme court adopted a similar balancing
analysis in Bartley, 109 Ill. 2d 273. The DUI roadblock there was
conducted as a joint effort of the Illinois State Police and
cooperating police departments. The decision to establish the
checkpoint was made by a state police lieutenant and a captain. The
lieutenant conducted a briefing for participating officers at the
state police headquarters. All westbound vehicles were to be
stopped and the officers were to operate according to a standard
procedure set forth in a state police manual. Before the roadblock
began, a captain contacted the media, and a television crew filmed
the briefing and the roadblock. The supreme court stated that it
was only considering the type of roadblock which can and should be
planned in advance. Bartley, 109 Ill. 2d at 285.
The Bartley court first examined the public interest involved
and found that, because DUI poses a substantial threat to the
welfare of the citizenry, the interest involved was "compelling."
The court went on to weigh this public interest against the
objective and subjective intrusions resulting from the stop. The
court next found the objective intrusion on the motorist was not
substantial as the stop was brief (15 to 20 seconds), motorists were
able to remain in their cars, and they were merely asked to produce
driving credentials.
The court then examined several factors to assess the
subjective intrusiveness of the roadblock, pointing out that the
critical factor is whether the field officers are acting with
unbridled discretion. Subjective intrusion concerns the fear,
surprise, and annoyance of citizens at being stopped. Where the
discretion of officers is circumscribed and the roadblock is
established in a safe manner, drivers have no reason to fear either
that their safety is endangered or that they are being singled out
for discriminatory treatment. Bartley, 109 Ill. 2d at 288.
According to Bartley, arbitrary enforcement and the use of
discretion by officers in the field are reduced and the subjective
intrusion minimized when (1) the decision to establish the roadblock
and the selection of the site are made by supervisory personnel
(such as a sheriff, a state police lieutenant or captain); (2) the
vehicles are stopped in a preestablished, systematic manner to avoid
any concern by motorists that they are being singled out (for
example, stopping all westbound vehicles); (3) there are preexisting
guidelines for the operation of the roadblock (such as a state
police manual); (4) there is a sufficient show of the official
nature of the operation and it is obvious that the roadblock in fact
poses no safety risk; and (5) there is advance publicity of the
intention of the police to establish the roadblock. It is clear that
vehicles may not be stopped in a random "spot check" manner.
Bartley, 109 Ill. 2d at 289-91; Scott, 277 Ill. App. 3d at 583. The
Bartley court found that these factors were generally satisfied in
the case before it; the court concluded that there was a compelling
interest in deterring DUI while the objective and subjective
intrusions were minimal so that the roadblock did not violate the
fourth amendment.
We first examine whether the public interest in the present
case was sufficient to warrant the intrusive police procedure
entailed in stopping all citizens traveling within the city,
regardless of residency, to see whether they were in current
compliance with the sticker requirement. We conclude that, although
the vehicle sticker requirement has an apparent legitimate revenue-
raising purpose, this hardly equates with the "compelling" public
safety purpose of a DUI checkpoint and does not qualify as a "grave"
public concern sufficient to warrant this type of police intrusion.
At trial, the State made no effort to explain the purpose,
nature, or importance of the public interest in enforcing this type
of city registration. The usual $20 fee itself is relatively small,
and a portion is distributed to the administrative fund to cover the
cost of collection; the remainder is apportioned and distributed to
the police fund and the street maintenance fund. See City of
Waukegan Municipal Code 21--246 through 21--255 (19__ ). The
public interest to be advanced is, in the trial judge's own words,
"minuscule" by comparison to Bartley's compelling public safety
concern of deterring DUI. It is interesting to note that this show
of police power was used to detain motorists on their way to work
during what appeared to be a 30-day grace period before any
significant penalty would attach. The ordinance appears to be
administrative and regulatory in nature rather than being directly
related to public health, safety, and the prevention of crime.
We are aware that, in People v. Taylor, 259 Ill. App. 3d 289,
291 (3d Dist. 1994), the reviewing court found that there was a
"valid public interest in enforcing a municipal revenue ordinance
which requires the purchase of motor vehicle stickers." However,
the court was unable to weigh this public interest against the other
factors concerning the degree of intrusion posed by a roadblock due
to an insufficient record. Nevertheless, the Taylor court reversed
the trial court's order suppressing evidence derived from a
roadblock. Because Taylor never weighed the public interest against
other factors as required by Bartley, we decline to follow that
decision here. We have found no other case in any other
jurisdiction where a checkpoint to enforce a city sticker ordinance
was held constitutionally permissible.
Although the length of the stop and license check is unclear
in the record, the evidence does not otherwise show that there was
a substantial objective intrusion. According to Rodriguez, he asked
defendant for licensing and insurance information, ran a license
check, and learned that defendant was a city resident subject to the
sticker requirement. However, the subjective intrusion factors--
those that arouse surprise, fear, and annoyance in the motoring
public--are problematic.
First, the decision to set up this checkpoint and select its
location appears to have been made extemporaneously by a sergeant
in the field. The leading cases that have upheld checkpoints have
explained, implicitly or explicitly, that such decisions were made
by officials or officers at the policy-making level and the
checkpoints were planned in advance. In Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481, the sobriety checkpoint was established
by the state police department, its director, and a committee which
created (presumably written) guidelines setting forth procedures
governing checkpoint operations, site selection, and publicity. In
examining whether such a checkpoint was effective in advancing the
public interest, the Court clearly implied that it was the domain
of "politically accountable officials" to decide "which among
reasonable alternative law enforcement techniques should be employed
to deal with a serious public danger." Sitz, 496 U.S. at 453, 110 L. Ed. 2d at 420, 110 S. Ct. at 2487.
In Martinez-Fuerte, the Court found that the intrusion posed
by fixed immigration checkpoints (as opposed to roving patrols) was
to some extent minimized and thus permissible under the
circumstances, and it explained in part:
"The regularized manner in which established checkpoints are
operated is visible evidence, reassuring to law-abiding
motorists, that the stops are duly authorized and believed to
serve the public interest. The location of a fixed checkpoint
is not chosen by officers in the field, but by officials
responsible for making overall decisions as to the most
effective allocation of limited enforcement resources. We may
assume that such officials will be unlikely to locate a
checkpoint where it bears arbitrarily or oppressively on
motorists as a class." (Emphasis added.) Martinez-Fuerte, 428 U.S. at 559, 49 L. Ed. 2d at 1129, 96 S. Ct. at 3083.
The Court concluded that the need for a warrant in such a case was
"reduced when the decision to 'seize' is not entirely in the hands
of the officer in the field, and deference is to be given to the
administrative decisions of higher ranking officials." Martinez-
Fuerte, 428 U.S. at 566, 49 L. Ed. 2d at 1133, 96 S. Ct. at 3086-87.
In Bartley, 109 Ill. 2d 273, one of the reasons the court found
the DUI checkpoint permissible was because the decision to establish
the checkpoint, its location, and the procedures to be followed was
made by a state police lieutenant and a captain; the roadblock was
operated according to a standard procedure set forth in a state
police manual.
In State v. Larson, 485 N.W.2d 571, 572-73 (Minn. Ct. App.
1992), the reviewing court found that a driver's license checkpoint
did not pass constitutional muster because (1) there was no evidence
that the checkpoint was authorized or the location was selected by
an officer higher than a field supervisor, a sergeant; and (2) there
were no administrative, written guidelines for the operation of the
checkpoint which would limit the discretion of officers in the
field. The court also found that the state had failed to present
evidence of the effectiveness of the checkpoint in advancing the
public interest. See State v. One 1987 Toyota Pickup, 233 Neb.
670, 447 N.W.2d 243 (1989) (checkpoint found unconstitutional where
sergeant and troopers in field established checkpoint without
involvement or approval of state patrol high command).
State v. Park, 810 P.2d 456 (Utah App. 1991), concerned a
roadblock in which all vehicles except large trucks were stopped.
The roadblock was supervised by a state highway patrol sergeant
accompanied by about 15 officers. The roadblock was publicized
earlier in local newspapers. As a result of the stop, defendant was
charged with a drug offense. At the suppression hearing, although
the sergeant testified that the roadblock was authorized by his
supervisor, there was no evidence presented that the roadblock was
carried out pursuant to a plan having explicit, neutral limitations
on the officers' conduct or that it was developed by politically
accountable officials; there was no evidence that the authorization
process involved any balancing of interests. Under the
circumstances, the reviewing court concluded that the roadblock
violated defendant's fourth amendment right as it did not conform
to the standards established in Sitz.
In Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994), relying
on Sitz, the appeals court held a city police department's sobriety
checkpoint unconstitutional where it was not expressly authorized
and implemented by a statewide, politically accountable governing
body. Cf. State v. Sanchez, 856 S.W.2d 166 (Tex. Crim. App. 1993)
(license and insurance roadblock check held unconstitutional where
officers in field acted without authorization or guidance of
superior officer and without established, authoritatively
standardized procedures concerning location and operation of
roadblock and where there was no evidence demonstrating
effectiveness of roadblock).
In the present case, Rodriguez was acting on a verbal directive
from his sergeant who was also in the field. Rodriguez was merely
to stop vehicles not having a current city sticker. There is no
evidence showing that this roadblock was established by politically
accountable or policy-making level officials. The officer had some
discretion in determining which vehicles to stop and, whether there
was a violation after stopping the motorist, he then had discretion
in determining residency and compliance. See Scott, 277 Ill. App.
3d at 583 (under circumstances, determination of driver's residence
involved use of discretion). Of course, this procedure would likely
have subjected nonoffending motorists who were not city residents
to some form of interrogation. There is no evidence that there were
preexisting, written, standardized guidelines regarding the
selection of a site, the procedures to be followed in operating the
roadblock, or the manner and length of the detention and
interrogation. There is no indication whether the site was selected
in accordance with the safety concerns of the public in mind or
whether motorists were unduly detained by traffic backups. They
would likely have been on their way to work at that time of day.
Since it could not have been clear to the motorists why some
vehicles were being pulled over while others were not, it is likely
that the stops generated the fear and annoyance that accompany being
singled out of a line of traffic.
Although there is no indication that there was any road sign
to alert approaching motorists of the checkpoint, the presence of
uniformed officers and squad cars would appear to have been
sufficient to show the official nature of the operation. However,
the State did not demonstrate whether the safety risk to the public
was considered or minimized. Furthermore, the only evidence
suggesting advance publicity about the operation was Rodriguez'
vague comment that the newspaper reported there would be some
enforcement of the sticker requirement. There is no evidence that
the public was informed there would be a roadblock. Indeed,
Rodriguez did not know of the roadblock until the morning of the
stop.
Finally, the State presented no testimony or empirical evidence
regarding the effectiveness of this procedure in advancing the
interest at stake--the enforcement of a sticker requirement which
appears to be essentially a revenue-producing device. See Brown,
443 U.S. at 51, 61 L. Ed. 2d at 360, 99 S. Ct. at 2640 (court must
weigh degree to which the seizure advances the public interest).
We recognize that "the choice among such reasonable [law
enforcement] alternatives remains with the governmental officials
who have a unique understanding of, and a responsibility for,
limited public resources, including a finite number of police
officers." Sitz, 496 U.S. at 453-54, 110 L. Ed. 2d at 422, 110 S. Ct. at 2487. However, we do not believe that courts must "blindly
defer to whatever enforcement techniques are chosen by officials"
as courts must analyze these techniques "to insure that they are in
fact reasonable" and must not abdicate their responsibility in
protecting constitutional rights. Holt, 887 S.W.2d at 19; see also
Martinez-Fuerte, 428 U.S. at 559, 49 L. Ed. 2d at 1129, 96 S. Ct.
at 3083-84 ("a claim that a particular exercise of discretion in
locating or operating a checkpoint is unreasonable is subject to
post-stop judicial review").
There are undoubtedly less intrusive methods of enforcing this
city sticker requirement, such as by checking city records, posting
or mailing notices, or issuing tickets as the result of other
legitimate traffic stops. These methods are for the appropriate law
enforcement officials to decide. At the very least, however, the
decision to use an intrusive roadblock should be made by politically
accountable public officials or higher ranking officers at the
policy-making level. There was no evidence of the number or
percentage of violators discovered in relation to the number of
motorists stopped or whether the majority of motorists stopped were
even residents subject to the ordinance. The effectiveness of this
procedure is speculative at best.
We determine that the interest in enforcing the city sticker
ordinance is less than compelling when weighed against the degree
of intrusion visited upon ordinary motorists. The State presented
insufficient evidence showing that the checkpoint (1) was authorized
and selected by policy-level or politically accountable officials;
(2) was operated pursuant to sufficiently specific, standardized,
preexisting guidelines to limit officer discretion; (3) was operated
in a safe manner; (4) was publicized clearly and in advance; and (5)
was actually effective in advancing the interest in question.
We hold that the checkpoint stop of defendant violated the
constitutional prohibition against unreasonable searches and
seizures, and the trial court's decision not to suppress the
evidence derived from that stop was manifestly erroneous. Since the
State could not have prevailed without this evidence, we reverse
defendant's conviction and sentence outright.
The judgment of the circuit court of Lake County is reversed.
Reversed.
McLAREN and HUTCHINSON, JJ., concur.
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