DOW DUNLAP v. COMMONWEALTH OF KENTUCKY
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RENDERED:
APRIL 7, 2006; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002058-DG
DOW DUNLAP
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM CARROLL CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 04-XX-00009
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Dow Dunlap entered a conditional guilty plea to
driving under the influence (DUI)1 in the Carroll District Court,
and his conviction was affirmed on appeal by the Carroll Circuit
Court.
Having granted discretionary review, we conclude that
the district court did not err in denying Dunlap’s motions to
suppress evidence of his consumption of alcohol obtained during
a roadblock as a violation of KRS 189.125, which places
1
Kentucky Revised Statutes (KRS) 189A.010.
restrictions on the enforcement of the seatbelt law, or as being
unconstitutional on due process grounds.
Hence, we affirm.
On November 24, 2003, the Kentucky State Police had
planned to conduct a roadblock at the intersection of U.S.
Highway 42 and Kentucky Highway 55 in Carrollton, Carroll
County, Kentucky, between 4:00 p.m. and 6:00 p.m.
This
roadblock was planned as part of this Commonwealth’s statewide
highway safety campaign referred to as “Buckle Up Kentucky.”
The purpose of the campaign was to promote highway safety with
special emphasis on encouraging the use of seatbelts to save
lives.
The time and place of the roadblock had been previously
established by a supervisor, and Trooper Howard Rice was
designated as the officer in charge at the roadblock.
Trooper
Rice was assisted by Trooper Jeff Goins.
On November 24, 2003, shortly after the roadblock
began, Trooper Rice stopped Dunlap’s vehicle.
After Trooper
Rice approached Dunlap’s vehicle, he smelled the presence of
alcohol.
Dunlap was detained while Trooper Goins administered
several field sobriety tests, all of which Dunlap failed.
Dunlap was subsequently transported to the Carroll County
Detention Center by both Trooper Rice and Trooper Goins and
charged with DUI.
As a result of the arrest, Trooper Rice
notified the Kentucky State Police Post that the roadblock had
ended.
The roadblock did not resume.
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On March 14, 2004, Dunlap filed two motions to
suppress evidence arguing that the roadblock was in violation of
KRS 189.125 and unconstitutional.2
Dunlap argued the initial
stop was improper, making his subsequent arrest also improper.
The district court denied the motions.
On June 10, 2004, Dunlap
entered a conditional guilty plea to DUI, reserving his right to
appeal the denial of his motions to suppress.
On September 9,
2004, the Carroll Circuit Court affirmed the district court’s
judgment of conviction entered on July 10, 2004.
On October 6,
2004, Dunlap petitioned this Court for discretionary review,
which was granted by an order entered on January 21, 2005.
KRS 189.125(6) mandates that passengers in, and
operators of, a motor vehicle must be “wearing a properly
adjusted and fastened seatbelt[.]”
Section (7) states that “[a]
peace officer shall not stop or seize a person nor issue a
uniform citation for a violation of subsection (6) of [KRS
189.125] if the officer has no other cause to stop or seize the
person other than a violation of subsection (6) of [KRS
189.125].”
Dunlap argues that the language, “no other cause to
stop,” in KRS 189.125(7) makes a roadblock to check for seatbelt
compliance unlawful.
In essence, he argues that because he
could not be stopped solely for a violation of KRS 189.125, he
2
Dunlap filed a third motion to suppress the breathalyzer test because it was
improperly administered. However, this motion is not the subject of this
appeal.
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could not be detained during a roadblock if the officers had no
further belief he was breaking the law prior to the stop.
The
Commonwealth asserts that Dunlap was not stopped for violation
of KRS 189.125, but, rather, “[h]e, along with the other
motorists so stopped, [were] briefly detained for the purpose of
encouraging the public to use seatbelts and remind them that the
failure to do so is a violation of Kentucky law.”
There was no
evidence that the Kentucky State Police was stopping cars at the
roadblock to cite them for seatbelt violations.
We agree with Dunlap that one of the most fundamental
rights granted to United States citizens is to be free from
unreasonable search and seizure.
However, we also agree with
the Commonwealth that “preventing death and serious physical
injury far outweigh the interference with individual liberty.”
In determining whether KRS 189.125(7) prohibits such roadblocks,
we are guided by three principles of statutory construction.
First, a “[c]ourt’s duty in construing statutes is to ascertain
and give effect to the intent of the [Legislature]. . . .”3
The
second principle is that “[d]oubts in the construction of a
penal statute will be resolved in favor of lenity and against a
construction that would produce extremely harsh or incongruous
results or impose punishments totally disproportionate to the
3
White v. Check Holders, Inc., 996 S.W.2d 496, 497 (Ky. 1999).
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gravity of the offense” [citations omitted].4
Third, a “court
must not interpret a statute so as to bring about an absurd or
unreasonable result” [citations omitted].5
We conclude that
section (7) of KRS 189.125 prohibits a police officer from
making a routine traffic stop for a seatbelt usage violation,
but that it does not prohibit a roadblock that checks for
general motor vehicle safety violations.
Such roadblocks
advance an important highway safety interest, with limited
personal interference.
Dunlap also argues that regardless of the statutory
restrictions on a “seatbelt roadblock,” the roadblock was
unconstitutional based on the Fourth Amendment to the United
States Constitution and Section 10 of the Kentucky Constitution,
which forbid unreasonable searches and seizures of citizens.
Dunlap argues that since there was no evidence of particularized
suspicion of criminal activity, the deterrence purpose was
general, not specific.6
In support of this argument, Dunlap
4
Commonwealth v. Colonial Stores, Inc., 350 S.W.2d 465, 467 (Ky. 1961).
5
Williams v. Commonwealth, 829 S.W.2d 942, 944 (Ky.App. 1992).
6
Despite Trooper Goins’s testimony that the troopers “check[ed] for
everything in general,” we do not agree with Dunlap that the roadblock in
question was a general roadblock. While the initial purpose of the roadblock
was to check vehicles for seatbelt violations and remind motorists of the
importance of compliance with Kentucky’s seatbelt law, the troopers were
checking for any type of motor vehicle or traffic safety violation, such as
driver’s license and vehicle registration.
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cites Commonwealth v. Buchanon,7 where our Supreme Court stated
that “[i]n order to pass constitutional muster, the seizure must
be deemed reasonable, which requires ‘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’” [citation
omitted].8
Dunlap argues that law enforcement’s duty to promote
highway safety conflicts with constitutional due process rights
when it conducts unlawful roadblocks.
We are guided by the United States Supreme Court cases
of Delaware v. Prouse,9 and City of Indianapolis v. Edmond,10 in
determining the constitutionality of the roadblock.
In Prouse,
the Supreme Court stated that roadblocks to verify drivers’
licenses and vehicle registrations which are minimally intrusive
and which do not involve the unconstitutional exercise of
discretion are permissible to serve a highway safety interest.11
In Edmond, the City of Indianapolis conducted vehicle
checkpoints on Indianapolis roads “in an effort to interdict
7
122 S.W.3d 565 (Ky. 2004).
8
Id. at 568.
9
440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
10
531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).
11
Prouse, 440 U.S. at 663.
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unlawful drugs[.]”12
The Supreme Court held that the drug
interdiction roadblock violated the Fourth Amendment because its
“primary purpose” was indistinguishable from the “general
interest in crime control.”13
The Supreme Court noted in Edmond
that it had “never approved a checkpoint program whose primary
purpose was to detect evidence of ordinary criminal
wrongdoing.”14
The Supreme Court further stated as follows:
It goes without saying that our holding
today does nothing to alter the
constitutional status of the sobriety and
border checkpoints that we approved in
[Michigan Department of State Police v.
Sitz, 496 U.S. 444, 450-55, 110 S.Ct. 2481,
110 L.Ed.2d 412 (1990)] and [United States
v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct.
3074, 49 L.Ed.2d 1116 (1976)] or of the type
of traffic checkpoint that we suggested
would be lawful in Prouse. The
constitutionality of such checkpoint
programs still depends on a balancing of the
competing interests at stake and the
effectiveness of the program [citations
omitted].15
In the case before us, the Kentucky State Police had
established a Traffic Safety Checkpoint Policy, referred to as
OM-E-4, which provided general guidelines to follow when
conducting roadblocks.
While adhering to the principles
established by the United States Supreme Court, this Court has
12
Edmond, 531 U.S. at 40-41.
13
Id. at 41.
14
Id.
15
Id. at 47.
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looked to the OM-E-4 guidelines when reviewing the lawfulness of
roadblocks conducted in this Commonwealth.
In Steinbeck v.
Commonwealth,16 this Court stated as follows:
[A] state’s use of sobriety checkpoints does
not violate the Fourth and Fourteenth
Amendments to the United States Constitution
when the state is conducting such
checkpoints pursuant to a systematic plan.
This exception does not attach where the
checkpoints are random or discretionary
[citations omitted].17
Later, this Court stated in Commonwealth v. Bothman,18
as follows:
In general, a checkpoint must be established
in such a manner as to avoid the
“unconstrained discretion” inherent in
random stops, and must be reasonably
calculated to protect public safety. Other
factors to be considered are whether the
checkpoint was conducted pursuant to a
systematic plan, and whether only some
vehicles were stopped or all vehicles were
stopped [citations omitted].19
Dunlap attempts to distinguish Bothman from his case by stating
that ultimately there was no violation of OM-E-4 in Bothman.20
While the Commonwealth concedes that the Kentucky
State Police committed two procedural violations, i.e., failure
16
862 S.W.2d 912 (Ky.App. 1993).
17
Id. at 913.
18
941 S.W.2d 479 (Ky.App. 1997).
19
Id. at 481.
20
In Bothman, this Court stated there had only been “technical noncompliance.”
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to make specific media announcements21 and failure of officers to
wear reflective safety vests,22 the Commonwealth claims that
“neither of the two safety issues rise to a violation of
constitutional law.”
Despite these deficiencies, the
Commonwealth claims the roadblock in question met the following
guidelines:
(1) media announcements were made (while not
specific as to dates and times);23 (2) a pre-approved checkpoint
was used; (3) the location was safe and visible to the public;
(4) flashing blue lights were activated;24 (5) the time and
location of the checkpoint was supervisor-approved; (6) an
officer was designated as the officer in charge of the
checkpoint; (7) the officers were in uniform; (8) all vehicles
21
However, the Commonwealth claims that general announcements of such
roadblocks were highly publicized.
22
During the suppression hearing, Trooper Goins testified that he was wearing
his reflective vest during the roadblock. Dunlap argues that there was proof
on a videotape, subpoenaed for the suppression hearing, that Trooper Goins
was not wearing a reflective safety vest, despite the requirement to do so
under OM-E-4. This videotape has not been made a part of the record on
appeal and, thus, we cannot consider it. See Miller v. Commonwealth, Dept.
of Highways, 487 S.W.2d 931, 933 (Ky. 1972) (noting that when the appellate
record does not include evidence presented, we must presume that the missing
evidence supported the judgment of the circuit court). However, the
Commonwealth concedes that the officers did not wear the reflective safety
vests.
23
Trooper Goins testified that he had no written proof to offer that the
media announcements were made, but he was told that such announcements were
made.
24
Trooper Goins testified at the suppression hearing that there were flashing
lights at the roadblock and that there was sufficient length of roadway to
allow drivers a sufficient opportunity to see the lights before they
approached the roadblock.
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were stopped;25 and (9) the vehicles were inspected for obvious
safety defects and regulation violations.
We agree with the Commonwealth and conclude that the
officers conducted the roadblock according to the standards
established by OM-E-4.
“Technical noncompliance with OM-E-4,
which does not have the force of law, does not inexorably lead
to the conclusion that the establishment of the checkpoint was
violative of the constitutions of the United States or of the
Commonwealth.”26
“[A] mere violation of one factor does not
automatically result in a violation of constitutional
proportions.
The guidelines are to be applied on a case-by-case
basis in order to determine the reasonableness of each
roadblock.”27
At the roadblock at issue, all vehicles were
stopped and the roadblock was limited in duration.
Each stop
made by the officers was conducted in the most non-intrusive
manner possible.
While it is unclear from the record how many
vehicles were stopped during the duration of the roadblock or
how many warnings were given for safety violations, it is
apparent that the roadblock was reasonably effective in
detecting safety violations.
25
Trooper Goins testified that he stopped all vehicles during the roadblock.
26
Bothman, 941 S.W.2d at 481.
27
Buchanon, 122 S.W.3d 571.
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Dunlap argues that the Kentucky State Police did not
establish a reason for the roadblock as required by OM-E-4.
We
have already concluded that the purpose of the roadblock in
question was to check for highway safety concerns.
Further,
Trooper Goins testified that the basis for the roadblock was
seatbelt enforcement and this particular area (checkpoint) was
chosen because it was a high traffic area.28
We conclude that
the roadblock was solely used to promote Kentucky’s strong
interest in preventing traffic accidents and to promote the
highway safety of its citizens; and therefore, we hold that the
roadblock in question was statutorily and constitutionally
valid.
Dunlap is correct that the officers could not have
issued citations for seatbelt violations at the roadblock.
However, once the officers had reasonable suspicion that a DUI
violation had occurred in their presence, they not only had the
right but an obligation to enforce the law.
The Commonwealth is
correct that the officers had probable cause to believe that
Dunlap was committing the offense of DUI at the time he was
detained at the roadblock.
Because the roadblock was
constitutionally valid, the officers’ plain view observation of
28
This testimony was based on a memo written 18 months prior to the roadblock
which predated Trooper Goins’s employment.
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Dunlap’s suspected violation of KRS 189A.010 gave them the right
to proceed with an investigation and to charge Dunlap with DUI.29
Accordingly, the order of the Carroll Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edward M. Bourne
Owenton, Kentucky
Greg Stumbo
Attorney General
Frankfort, Kentucky
James C. Monk
Special Asst. Attorney General
Carrollton, Kentucky
29
Edmond, 531 U.S. at 48 (stating that “[o]ur holding . . . does not impair
the ability of police officers to act appropriately upon information that
they properly learn during a checkpoint stop justified by a lawful primary
purpose, even where such action may result in the arrest of a motorist for an
offense unrelated to that purpose”).
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