Mullinax v. State

Bobby Joe MULLINAX v. STATE of Arkansas

CACR 95-698                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                  Opinion delivered May 1, 1996


1.   Appeal & error -- motion to suppress -- standard of review. --
     In reviewing a trial court's decision to deny an appellant's
     motion to suppress, the appellate court makes an independent
     determination based on the totality of the circumstances and
     will reverse the trial court's ruling only if it is clearly
     against the preponderance of the evidence; the appellate court
     views the evidence in the light most favorable to the
     appellee.

2.   Search & seizure -- vehicle stops -- when Fourth Amendment
     seizure occurs. -- A Fourth Amendment "seizure" occurs when a
     vehicle is stopped at a checkpoint; the question thus becomes
     whether such seizures are reasonable under the Fourth
     Amendment.

3.   Search & seizure -- vehicle stops -- permissibility judged by
     balancing effect of intrusion against promotion of legitimate
     government interest -- sobriety checkpoints do not violate
     Fourth and Fourteenth Amendments. -- The permissibility of
     vehicle stops made on less than reasonable suspicion of
     criminal activity must be judged in each case by balancing the
     effect of the intrusion on the individual's Fourth Amendment
     rights against the promotion of a legitimate government
     interest; the United States Supreme Court has held that a
     state's use of sobriety checkpoints does not violate the
     Fourth and Fourteenth Amendments to the United States
     Constitution.

4.   Search & seizure -- vehicle stops -- checkpoint balancing
     analysis. --   Consideration of the constitutionality of
     checkpoint seizures involves a weighing of the gravity of the
     public concerns served by the seizure, the degree to which the
     seizure advances the public interest, and the severity of the
     interference with individual liberty; the Fourth Amendment
     requires that a seizure must be based on specific, objective
     facts indicating that society's legitimate interests require
     the seizure of the particular individual, or that the seizure
     must be carried out pursuant to a plan embodying explicit,
     neutral limitations on the conduct of individual officers.

5.   Search & seizure -- vehicle stops -- checkpoint balancing
     analysis -- factors considered. -- Some of the various factors
     that have been considered in applying the checkpoint balancing
     analysis include: the supervision of the individual officers
     in the field; the limited discretion of the officers in
     stopping vehicles; the amount of interference with legitimate
     traffic; the subjective intrusion on the part of the
     travelers; the supervisory control over the operation; and the
     availability of a less intrusive means of promoting the
     legitimate government interest.

6.   Search & seizure -- vehicle stops -- checkpoint balancing
     analysis -- relevant matters for consideration -- roadblock
     did not constitute unreasonable seizure. -- Factors such as
     written guidelines for checkpoints, a local or statewide
     policy or program, advance publicity, data on site selection,
     and supervision at the site, are merely relevant matters to be
     considered by a court in the overall balancing process; the
     appellate court concluded, after conducting the requisite
     balancing test, that the roadblock in the case at bar did not
     constitute an unreasonable seizure under the Fourth Amendment.

7.   Search & seizure -- vehicle stops -- purpose of roadblock --
     not established as subterfuge for detection of other criminal
     activity. -- In the case at bar, the roadblock was established
     for the purpose of determining that licensed and safe drivers
     were using the public roadway; there was no evidence that the
     roadblock was established as a subterfuge for detection of any
     other criminal activity. 

8.   Search & seizure -- vehicle stops -- motorists stopped briefly
     -- level of intrusion was slight. -- Where, among other
     things, motorists were only stopped briefly at the roadblock,
     which was a checkpoint stop rather than a roving patrol, the
     level of intrusion was slight.

9.   Search & seizure -- vehicle stops -- percentage of arrests
     showed checkpoint's effectiveness. -- Where eighteen drivers'
     licenses were checked and one arrest was made, the percentage
     was sufficient to show the checkpoint's effectiveness.

10.  Constitutional law -- Fourth Amendment rights -- personal in
     nature. -- The rights secured by the Fourth Amendment are
     personal in nature; appellant did not have standing to
     challenge the seizure on the behalf of any passengers that may
     have been involved.

11.  Search & seizure -- vehicle stops -- trial court did not err
     in denying motion to suppress. -- Where the appellate court
     concluded that the roadblock was not conducted in a manner
     inconsistent with the appellant's Fourth Amendment rights or
     that the limited intrusion on those rights, to the extent that
     the intrusion advanced the public interest, outweighed the
     promotion of society's legitimate interest, it held that the
     trial court did not err in denying the appellant's motion to
     suppress.


     Appeal from Washington Circuit Court; William Storey, Judge;
affirmed.
     Doug Norwood, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     James R. Cooper, Judge.*ADVERP*CA3*
                                DIVISION I



                                        CACR95-698

                                                          May 1, 1996


BOBBY JOE MULLINAX                      APPEAL FROM THE WASHINGTON COUNTY
          APPELLANT                     CIRCUIT COURT
                                        [NO. CR94-1329]

VS.                                     HON. WILLIAM STOREY,
                                        CIRCUIT JUDGE

STATE OF ARKANSAS                       AFFIRMED
          APPELLEE





                          James R. Cooper, Judge.



     The appellant entered a conditional plea of guilty to driving
while intoxicated pursuant to Rule 24.3(b) of the Arkansas Rules of
Criminal Procedure.  The appellant was fined $250.00, ordered to
pay court costs of $403.00, and had his driver's license suspended
for ninety days.  He was also ordered to complete an alcohol safety
program and sentenced to one day in jail.  On appeal, he argues
that the trial court erred in denying his motion to suppress
because the roadblock at which he was stopped was not implemented
in a lawful manner.  We disagree and affirm.
     In reviewing a trial court's decision to deny an appellant's
motion to suppress, this Court makes an independent determination
based on the totality of the circumstances and will reverse the
trial court's ruling only if it is clearly against the
preponderance of the evidence.  Roark v. State, 46 Ark. App. 49,
876 S.W.2d 596 (1994).  We view the evidence in the light most
favorable to the appellee.  Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995).
     The appellant was stopped at a roadblock on August 11, 1994,
conducted by Springdale Police Officers Mike Bell and Mike Peters. 
Lieutenant John Lewis, supervisor and shift commander in charge at
the time, authorized the roadblock, approved the site, and gave
Officer Bell instructions on how to proceed.  Lieutenant Lewis
testified that he had previously participated in numerous
roadblocks.  He testified that he instructed the officers not to
profile certain cars or certain people, and not to stop the cars at
random.  He testified that the officers had a set procedure on how
they were going to conduct the roadblock and that he confirmed the
plan.  
     The roadblock was set up in a road construction area near a
junior high school where traffic was restricted to two lanes and
the speed limit was reduced to thirty miles an hour.  There had
been reports of reckless driving and speeding in that area. 
Officer Bell testified that there were barrels guiding the traffic
through the particular area and that they adjusted the barrels and
their vehicles to facilitate the traffic flow.  He testified that
drivers had to negotiate the barrels before they set up the
roadblock and that their presence increased visibility to the area. 
The officers carried flashlights and wore bright orange reflective
safety vests with the word "POLICE" on them in large letters.  The
blue lights and headlights were activated on the two police
vehicles utilized in conducting the roadblock.  
     Officer Bell testified that the purpose of the roadblock was
to check the sobriety of the drivers and to check for valid vehicle
registration, driver's licenses, and insurance.  He further stated
that the purpose of the roadblock was discussed with Lieutenant
Lewis.  Every vehicle approaching the roadblock was stopped for a
period of no more than thirty seconds, and every fifth vehicle was
stopped for a more detailed check that lasted less than two
minutes.  Officer Bell testified that they explained to every
vehicle what they were doing and asked every fifth driver for his
driver's license, registration, and insurance.  The officers would
call in the driver's license number, and the radio operator would
inform them if the license was valid and if there were any
outstanding warrants for that person.  The radio dispatch logs
indicated that the officers called in to check eighteen drivers'
licenses during the roadblock, which lasted for approximately one
hour.
     Officer Bell testified that he noticed the odor of intoxicants
coming from the appellant's vehicle and on the appellant's breath
when he stopped at the roadblock.  He further testified that he saw
a plastic cup in the console of the vehicle containing some ice and
liquid.  He stated that the appellant's vehicle was not one of the
fifth vehicles but that the appellant was detained for a further
check because it appeared that he had been drinking.        
     The appellant makes some twenty objections to the conduct of
the officers and the manner in which the roadblock was implemented. 
We first address his arguments that the roadblock was
unconstitutional under the Arkansas Constitution.  The appellant
contends that Article 2, Section 15, of the Arkansas Constitution
provides greater protection against unreasonable searches and
seizures than the Fourth Amendment to the United States
Constitution.  We dispose of this argument by noting that our
Supreme Court declined to make such a finding in Stout v. State,
320 Ark. 552, 898 S.W.2d 457 (1995).
     A Fourth Amendment "seizure" occurs when a vehicle is stopped
at a checkpoint.  Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).  The question thus becomes whether such seizures are
reasonable under the Fourth Amendment.  Id.  
     In Camp v. State, 26 Ark. App. 299, 764 S.W.2d 463 (1989), we
found the roadblock that was established for the purpose of
checking driver's licenses and vehicle registration was reasonable
under the Fourth Amendment.  The permissibility of vehicle stops
made on less than reasonable suspicion of criminal activity must be
judged in each case by balancing the effect of the intrusion on the
individual's Fourth Amendment rights against the promotion of a
legitimate government interest.  Camp, supra.  In Sitz, supra, the
United States Supreme Court held that a state's use of sobriety
checkpoints does not violate the Fourth and Fourteenth Amendments
to the United States Constitution.  The Supreme Court determined
that the balancing analysis in Brown v. Texas, 443 U.S. 47 (1979),
and United States v. Martinez-Fuerte, 428 U.S. 543 (1976), 
provided the governing framework for ascertaining the
reasonableness of a sobriety-checkpoint seizure.  In Brown, the
Supreme Court stated:
     Consideration of the constitutionality of such seizures
     involves a weighing of the gravity of the public concerns
     served by the seizure, the degree to which the seizure
     advances the public interest, and the severity of the
     interference with individual liberty. 

          A central concern in balancing these competing
     considerations in a variety of settings has been to
     assure that an individual's reasonable expectation of
     privacy is not subject to arbitrary invasions solely at
     the unfettered discretion of officers in the field.  To
     this end, the Fourth Amendment requires that a seizure
     must be based on specific, objective facts indicating
     that society's legitimate interests require the seizure
     of the particular individual, or that the seizure must be
     carried out pursuant to a plan embodying explicit,
     neutral limitations on the conduct of individual
     officers.

443 U.S.  at 50-51 (citations omitted).   
     Some of the various factors that have been considered in
applying the balancing analysis include:  the supervision of the
individual officers in the field, the limited discretion of the
officers in stopping vehicles, the amount of interference with
legitimate traffic, the subjective intrusion on the part of the
travelers, the supervisory control over the operation, and the
availability of a less intrusive means of promoting the legitimate
government interest.  See Michigan Dept. of State Police v. Sitz,
supra; Brown v. Texas, supra; Delaware v. Prouse, 440 U.S. 648
(1979); United States v. Martinez-Fuerte, supra; and United States
v. Brignoni-Ponce, 422 U.S. 873 (1975).  See generally, Annotation,
Validity of Routine Roadblocks by State or Local Police for Purpose
of Discovery of Vehicular or Driving Violations, 37 A.L.R.4th 10
(1985 & Supp. 1995).
     The appellant argues that many of the factors required for a
checkpoint to pass constitutional muster were absent or deficient
in the roadblock in the case at bar.  He relies on cases from other
jurisdictions that have found certain factors, such as written
guidelines, a local or statewide policy or program, advance
publicity, data on site selection, and supervision at the site, to
be constitutional prerequisites to a valid checkpoint.  However, we
find those factors to be merely relevant matters to be considered
by a court in the overall balancing process.  See e.g., People v.
Banks, 6 Cal. 4th 926, 863 P.2d 769, 25 Cal. Rptr. 524 (1993);
O'Kelley v. State, 210 Ga. App. 686, 436 S.E.2d 760 (1993); State
v. Barker, 252 Kan. 949, 850 P.2d 885 (1993); People v. Cascarano,
155 Misc. 2d 235, 587 N.Y.S.2d 529 (1992).  Thus, we conclude,
after the requisite balancing test, that the roadblock in the case
at bar did not constitute an unreasonable seizure under the Fourth
Amendment.     
     Here, the roadblock was established for the purpose of
determining that licensed and safe drivers were using the public
roadway.  "No one can seriously dispute the magnitude of the
drunken driving problem or the State's interest in eradicating it." 
Sitz, 496 U.S.  at 451.  In Camp, we noted the importance of
qualified drivers and safe vehicles using the highways and that we
were not aware of a less intrusive means of making that
determination.  There is no evidence that the roadblock in the case
at bar was established as a subterfuge for detection of any other
criminal activity.  
     The roadblock was established at a construction area where the
speed limit had been reduced and was conducted at a time when the
traffic was light.  The presence of the officers at the area did
not create a traffic hazard or unduly interfere with legitimate
traffic.  The identity of the officers and the presence of their
vehicles were obvious due to the identifying vests worn by the
officers and the flashing blue lights.  The motorists were only
stopped briefly and this was a checkpoint stop rather than a roving
patrol.  Thus, the level of intrusion was slight.  See Sitz, 496 at
452-453.
     The officers did not make random stops using unbridled
discretion but stopped vehicles based on an established procedure
that was followed during the roadblock.  The roadblock was
authorized by the supervisor in charge at the time.  Lieutenant
Lewis stated that the roadblock was set up as a safety check point
and not specifically for the detection of intoxicated drivers. 
Nevertheless, safety necessarily involves motorists who are not
driving while intoxicated.  The officers were veterans who were
trained as part of the police program in handling driving
violations.  The data reveals that eighteen drivers' licenses were
checked and one arrest was made.  This percentage is sufficient to
show the checkpoint's effectiveness.  See id. at 455.  Furthermore,
after the appellant stopped and Officer Bell detected signs of
intoxication, the officers had authority under Arkansas Rule of
Criminal Procedure 3.1 to further detain the appellant.  
     Another of the appellant's arguments is that the officers
illegally detained the drivers and their passengers in an effort to
run warrant checks on them.  However, the officers testified that
the radio dispatcher automatically checked for outstanding warrants
when they called in the driver's license numbers so it was not in
fact a further detention in order to run warrant checks.  
Moreover, the rights secured by the Fourth Amendment are personal
in nature, and the appellant does not have standing to challenge
the seizure on the behalf of any passengers that may have been
involved.  See Jones v. State, 45 Ark. App. 28, 871 S.W.2d 403
(1994). 
     Thus, under these circumstances, we conclude that the
roadblock was not conducted in a manner inconsistent with the
appellant's Fourth Amendment rights or that the limited intrusion
on those rights, to the extent that the intrusion advanced the
public interest, outweighed the promotion of society's legitimate
interest.   Therefore, we find that the trial court did not err in
denying the appellant's motion to suppress.
     Affirmed.
     Pittman and Rogers, JJ., agree.