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06/30/94 RICKY FRANCIS ASCHER v. COMMISSIONER

June 30, 1994

RICKY FRANCIS ASCHER, RESPONDENT,
v.
COMMISSIONER OF PUBLIC SAFETY, PETITIONER, APPELLANT.



Review of Court of Appeals

Petition for Rehearing Denied August 9, 1994,

En Banc. Coyne, Tomljanovich, Keith

The opinion of the court was delivered by: Coyne

Police use of temporary roadblock to stop cars and investigate large number of drivers in the hope of discovering evidence of alcohol-impaired driving by some of them violates Minn. Const. art. I, § 10, which generally requires that police may not subject a driver to an investigative stop without first having objective, individualized articulable suspicion of criminal wrongdoing by the driver.

Heard, considered, and decided by the court en banc.

COYNE, Justice.

The issue in this appeal is whether the state has met its burden of establishing constitutional justification for police use of temporary roadblocks to stop cars and investigate a large number of drivers in the hope of discovering that some of them are alcohol-impaired. We hold that it has not met its burden and that such roadblocks violate Minn. Const. art. I, § 10.

This case arises from a roadblock that the Burnsville Police Department and the Minnesota State Patrol conducted at the intersection of Nicollet Avenue and Highway 13 in Burnsville from 10:00 p.m., Friday, August 14, 1992, to 2:00 a.m., Saturday, August 15, 1992. The supervising patrol officer testified that the location was chosen because it is a "high accident area" and a site where there is a "high incidence of DWI violations." He testified that the purposes of the roadblock were apprehension and deterrence.

Officers directed vehicles from Nicollet or Highway 13 into a "pre-screen area" just off the intersection. Signs along the road warned drivers approaching the roadblock, but the drivers could not circumvent it. Officers briefly interviewed all drivers, looking for "indicia of intoxication" and making sure each driver possessed a valid license. Those whom the police suspected of a violation were directed into a "final screen area" for further investigation, including field sobriety tests and a computer check for outstanding warrants. Initially, officers were instructed to stop all cars entering the checkpoint. Later, because of unusually heavy traffic on Highway 13, the ranking officers decided to stop only every fourth car on that road.

As the State Patrol routinely does with its enforcement measures, it notified media representatives of the roadblock. According to the supervising officer, the presence of members of the media helps reassure those who "happen to get caught up in it" and the resulting publicity helps deter potential violators. Two local television stations covered the roadblock, using lights and cameras to film parts of the procedure. All filming was done in the final screen area where those suspected of DWI were tested. Within that area, according to the supervising officer, the police "didn't tell them what they could or could not shoot."

A Burnsville police officer was performing final screenings when Ricky Ascher was directed into the final screen area. After the officer observed physical indicia of intoxication, the officer directed Ascher to perform several field sobriety tests, and then directed him to take a preliminary breath test. After placing Ascher under arrest and reading him the implied consent warning, the officer took Ascher to the police station. Ascher tried but failed to contact an attorney before finally statingthat he refused to submit to an Intoxilyzer test.

The roadblock resulted in 14 DWI arrests (1.4% of all stops), four arrests for DAR/DAS, one arrest for an open bottle violation, one arrest for cocaine possession, one arrest for driving an unregistered vehicle, and one arrest of a fugitive. In all, 2.3% of those stopped were cited or arrested. Another officer measured the delays experienced by a sample of motorists. He timed eight of the 975 vehicles and determined that the average delay among them was under 2 minutes. In preparation for the roadblock, the supervising officer consulted with senior officers in the Burnsville Police Department, the Dakota County Sheriff's Department and the State Patrol but not with any directly-elected officials.

The court of appeals reversed the order of the district court sustaining the revocation of Ascher's license; it concluded (1) that, in view of the presence of the media, the sobriety roadblock was impermissibly intrusive under the Fourth Amendment of the United States Constitution and (2) that the roadblock violated Minn. Const. art. I § 10. Ascher v. Commissioner of Pub. Safety, 505 N.W.2d 362 (Minn. App. 1993).

Until 1968 the United States Supreme Court upheld a "seizure" of the person under the Fourth Amendment only if the police officer making the seizure had probable cause. In that year the Court recognized an exception to the probable cause requirement, holding that police may temporarily seize a person to investigate suspected criminal wrongdoing if the police have objective, individualized articulable suspicion ...


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