Baker v. State

¶1dissenting.

¶2Under City of Indianapolis v. Edmond11{“Edmond”), a DUI check is a permissible purpose for a roadblock.12 Thus, Edmond’s “purpose inquiry” is inapplicable in this case. In fact, there is no constitutional issue in this case. Instead, this case involves purely an evidentiary issue. The majority concedes that the arresting officer on the scene testified that the purpose of the roadblock was “DUI checks” and that “his actions and the actions of the other officers on the scene were consistent with that purpose.” The majority concludes, however, that there must be evidence that a supervisor’s “primary purpose” for the roadblock was DUI checks. Because I disagree with this evidentiary ruling, I must respectfully dissent.

¶31. By combining (a) the LaFontaine v. State13 (“LaFontaine”) procedural criteria that the decision to implement a roadblock was made by supervisory personnel with (b) Edmond’s requirement that the purpose of a roadblock must be constitutionally permissible, the majority extrapolates a new “constitutional prerequisite”: “Edmond has elevated proof of the supervisor’s ‘primary purpose’ to a constitutional prerequisite of a lawful checkpoint.” (Emphasis supplied.) The flaw in the majority’s analysis, however, is the failure to distinguish between different constitutional burdens (read “prerequisites”) and the manner of proof by which such burdens are met.

¶4In roadblock cases, one “constitutional prerequisite” is the State’s burden to show that the roadblock was not set up so as to create an “arbitrary interference” with motorists in violation of the Fourth Amendment.14 The criteria in LaFontaine illustrate ways by which a State may prove procedurally that a roadblock was not set up in an arbitrary fashion:

[t]he decision to implement the roadblock at issue in this case was made by supervisory personnel rather than by the *708officers in the field, and the operation was carried out pursuant to specific, pre-arranged procedures requiring all passing vehicles to be stopped at the checkpoint and leaving no discretion to the officers in this regard. It is clear that the delay experienced by passing motorists was minimal, lasting only a minute or two unless a violation was noted, and that the operation was well identified as a police checkpoint.15

¶5LaFontaine’s criteria are not “constitutional prerequisites” in and of themselves. Instead, they deal with proof of roadblock procedures in order to establish lack of arbitrary interference.16

¶6Edmond, on the other hand, involves a different “constitutional prerequisite,” i.e., the State’s burden to show that the purpose of a roadblock seizure is constitutionally permissible. The proof by which the State demonstrates a constitutional purpose is articulated in Edmond as “we examine the available evidence to determine the primary purpose of the checkpoint program.”17 This is consistent with Fourth Amendment “totality of the circumstances” review.18

¶7What the majority has done herein, however, is to select one of the LaFontaine procedural criteria that prove nonarbitrary interference, i.e., a supervisor made the decision to set up the roadblock at issue, and merge it with the Edmond “constitutional prerequisite” of permissible purpose. From this amalgamation, the majority concludes that the LaFontaine procedural criteria are a “constitutional prerequisite” which goes not to prove nonarbitrary interference, but to prove permissible purpose. I submit the springboard for that leap is nonexistent.

¶8In fact, Edmond does not “modify” LaFontaine, as the majority asserts. The two cases have little to do with each other, except that both deal with roadblocks. Nonarbitrary interference á la the LaFontaine procedural criteria may be shown, yet a permissible purpose for a roadblock still goes unproved. Likewise, a constitutionally permissible purpose for a roadblock may be shown, while a nonarbitrary roadblock procedure goes unproved. Edmond and LaFontaine involve different constitutional burdens, and compliance with such burdens is proved by different evidence. Neither Edmond nor LaFontaine, nor both read together, creates a new evidentiary “constitutional prereq*709uisite” that a supervisor’s purpose for a roadblock program must be proved in order to prove the purpose of a roadblock.

¶9Additional guidance is provided in the recent case of Ferguson v. City of Charleston19{“Ferguson”). In Ferguson, the Supreme Court farther articulated the process that accompanies an Edmond evidentiary review of a “programmatic purpose.” Indeed, the Court’s opinion in Ferguson illustrates that, contrary to the majority’s opinion, a review of “purpose at the programmatic level” includes a review of the application and implementation of the program and, thus, the program’s ultimate effect. Citing Edmond, the Ferguson Court stated that “[i]n looking to the programmatic purpose, we consider all the available evidence in order to determine the relevant primary purpose.”20 The Court then went on to recognize that the Ferguson respondents’ stated purpose for the involuntary seizure/urine screening program at issue was the benign goal of getting substance-dependent women into treatment for health reasons; however, the evidence of record showed that throughout the actual application and implementation of the program, the effect was “to generate evidence for law enforcement purposes.”21 Thus — again citing Edmond — the Court held that the programmatic purpose for the drug testing/involuntary seizure was unconstitutional, despite the benign purpose stated by respondents.

¶10In an evidentiary application to the case at bar, as well as to other involuntary seizure/roadblock cases, it appears clear that, under Edmond and Ferguson, “all available evidence” demonstrating the programmatic purpose for a roadblock necessarily encompasses the field officer’s understanding of the purpose for the roadblock program and his conduct in the “application and implementation” of the program. The issue is whether the roadblock stop was otherwise implemented and conducted in a manner as to demonstrate that the stop of the vehicle was “reasonable” under the Fourth Amendment.22 We do not inquire into the motives of individual officers in performing stops; instead, we determine whether all the available evidence demonstrates that the roadblock detention objectively conforms to a constitutionally permissible purpose.23

¶11Further, it would be illogical to find that the supervisor’s primary purpose is a “constitutional prerequisite.” Consider: if a super*710visor testifies that the “primary purpose” of a roadblock was for a DUI check, but the officer manning the roadblock testifies that the purpose was for drug interdiction and that he asked drivers about drugs and weapons, the supervisor’s testimony would be in dispute as “proof” of the roadblock’s purpose under the totality of the circumstances, i.e., “the available evidence.”24 Surely the majority does not advocate that a supervisor’s testimony about primary purpose is indisputable and cannot be disproved as pretext by contrary available evidence from the officers on the scene and/or their actions with regard to the implementation of the roadblock. “If this were the case, . . . law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they [articulate] a license or sobriety check. For this reason, we examine the available evidence to determine the primary purpose of a checkpoint program.”25 It follows that if a supervisor’s testimony about an alleged “primary purpose” can be substantively disproved by other available evidence in contradiction, then the primary purpose of a roadblock can be substantively proved by other available evidence — with or without the supervisor’s testimony. When the officers’ understanding of a roadblock program and their conduct in effectuating that program demonstrate a constitutionally impermissible purpose for a roadblock detention, then the supervisor’s primary purpose for the roadblock is irrelevant, as irrelevant as was the purpose articulated by the respondents in Ferguson. “Constitutional prerequisites” do not encompass irrelevant matters.

¶122. An officer’s testimony that the purpose for a roadblock was to “check for DUI” is not hearsay. Such testimony is within the officer’s personal knowledge as to a purpose he is effectuating at a roadblock. Such testimony need not go to a supervisor’s purpose for the roadblock since, as discussed in Division 1, the supervisor’s purpose is irrelevant if the effect of the roadblock, i.e., the field officer’s conduct in applying and implementing the roadblock program, demonstrates a constitutionally impermissible purpose.

¶13Further, the officer’s testimony regarding the purpose for the roadblock is not hearsay any more than is an officer’s testimony that the decision to implement the roadblock was made by supervisory personnel.26 Both pieces of information are within the collective *711knowledge of the officers who were called to the scene by their supervisor and ordered to work the roadblock and detain vehicles pursuant thereto.27 The “collective knowledge” rule is applicable to factual situations where the collective knowledge of law enforcement officers has been relayed to and used by officers actually making or implementing a detention or seizure.28 In this case, Baker conceded that the roadblock was properly implemented by a watch supervisor: “I’ll concede that the State has satisfied that the roadblock was implemented by supervisory personnel, even though Officer Wright couldn’t remember who.”29 Officer Wright was summoned to the roadblock by that supervisor: “My supervisor comes over the radio, gives his radio unit, have the following units meet with him at a certain location for a roadblock.” The supervisor was present throughout the roadblock, and Officer Wright testified that the purpose of the roadblock was

to detect the low level DUI as far as the actual type of a DUI person on the road that not everybody else is going to see, as far as the people that’s — the low level type of people, where the average officer out on the side of the road could be behind him and not exactly detect him from the way he’s driving, but actually still be considered a less safe driver.30

¶14There is no hearsay issue with regard to Officer Wright’s personal knowledge of the purpose of a roadblock he was executing under orders from his supervisor. Wright was the one actually effectuating the purpose.

¶15I am authorized to state that Presiding Judge Andrews joins in this dissent.