Mullinax v. State

Bobby Joe MULLINAX v. STATE of Arkansas

CR 96-571                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 21, 1997


1.   Appeal & error -- petition for review following decision by
     court of appeals -- case reviewed as if originally filed in
     supreme court. -- When the supreme court grants a petition for
     review following a decision by the court of appeals, it
     reviews the case as though the appeal had originally been
     filed with it. 

2.   Motions -- motion to suppress denied at trial -- factors on
     review. -- Upon review of a trial court's denial of a motion
     to suppress, the appellate court makes an independent
     determination based upon the totality of the circumstances;
     the evidence is viewed in the light most favorable to the
     appellee, and the trial court's ruling is reversed only if it
     is clearly erroneous or against the preponderance of the
     evidence.  

3.   Search & seizure -- vehicle stops -- when seizure occurs --
     when considered reasonable and permissible. -- A Fourth
     Amendment seizure occurs when a vehicle is stopped at a
     roadblock or checkpoint; the question, under Michigan Dep't of
     State Police v. Sitz, 496 U.S. 444 (1990), is whether such
     seizures are reasonable under the Fourth Amendment; the
     permissibility of vehicle stops made on less-than-reasonable
     suspicion of criminal activity is to be judged according to a
     three-pronged balancing test; 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.

4.   Search & seizure -- vehicle stops -- required factors weighed
     by court -- roadblock was reasonable seizure under Fourth
     Amendment. -- 
     Where there was no doubt as to the magnitude of the State's
     interest in eradicating drunk driving; where the level of the
     intrusion on the motorist was slight; and where the degree to
     which the roadblock advanced the State's interest was
     sufficient in that the officers did not make random stops with
     unfettered discretion, but held a fixed roadblock, in an area
     where travel was already limited to thirty miles per hour,
     that was authorized by the shift commander and followed the
     guidelines of stopping every car and then inquiring further of
     every fifth car as to the driver's license and registration;
     the roadblock was a reasonable seizure under the Fourth
     Amendment, and the trial court did not err in refusing to
     suppress the evidence obtained against appellant at the
     roadblock.

5.   Search & seizure -- virtually identical provision of Arkansas
     constitution interpreted in same manner as provision in U.S.
     Constitution -- seizure was reasonable under Ark. Const. art.
     2,  15. -- Because Article 2, section 15, of the Arkansas
     Constitution is virtually identical to the Fourth Amendment to
     the United States Constitution, the supreme court interpreted
     Article 2, section 15, in the same manner as the United States
     Supreme Court has interpreted the Fourth Amendment; therefore,
     under the analysis used to determine whether this seizure was
     reasonable under the Fourth Amendment, the seizure was held
     reasonable under Article 2, section 15, of the Arkansas
     Constitution.        

6.   Constitutional law -- roadblocks -- no warrant necessary for
     operation of fixed roadblock. -- Appellant's contention that
     Article 2, section 15, of the Arkansas Constitution required
     a warrant to be issued prior to conducting a roadblock was
     without merit; a warrant is not required in advance for the
     operation of a fixed roadblock. 
7.   Search & seizure -- statewide program for instituting sobriety
     checkpoints not prerequisite to instituting constitutional
     roadblock. -- Appellant's contention that the Fourth Amendment
     requires a statewide administrative or statutory plan for
     implementing roadblocks was without merit; a statewide program
     is not a prerequisite to instituting a constitutional
     roadblock. 

8.   Search & seizure -- no impermissible exercise of discretion
     shown -- roadblock did not lack plan embodying explicit
     neutral limitations on conduct of individual officers -- 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;
     here, based on the testimony regarding the field officers'
     discussion of the particular procedures and location for the
     roadblock with their superior officer, the supreme court held
     that there was a plan embodying explicit, neutral limitations
     on the conduct of individual officers.  

9.   Appeal & error -- advisory opinions not issued. -- The supreme
     court does not issue advisory opinions.  

10.  Search & seizure -- sufficient cause existed to detain
     appellant -- sight and smell of alcohol supported officer's
     suspicion that appellant was driving while intoxicated. --  
     Where the arresting officer testified that he smelled
     intoxicants on appellant's breath and that he observed an open
     container in the console of appellant's vehicle, there was a
     sufficient level of individualized suspicion that appellant
     was driving while intoxicated to remove the motorist from the
     roadblock for further inquiry.


     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.

     Donald L. Corbin, Justice.
     Appellant Bobby Joe Mullinax was found guilty in Springdale
Municipal Court of driving while intoxicated; he was fined $300.00,
ordered to pay court costs of $335.25, sentenced to one day in
jail, had his driver's license suspended for ninety days, and was
ordered to complete an alcohol safety program at the Ozark Guidance
Center.  He appealed to Washington County Circuit Court and moved
to suppress the evidence gathered against him on the basis that it
was obtained at an unconstitutional roadblock.  After conducting a
hearing on Appellant's motion to suppress, the circuit court denied
the motion; Appellant then entered a conditional plea of guilty,
with the State's consent, in accordance with A.R.Cr.P. Rule
24.3(b).  The circuit court entered a written amended judgment
indicating that the entry of Appellant's plea of guilty was
conditioned on his right to appeal the suppression issue and
sentencing Appellant to pay the Springdale Municipal Court a fine
of $250.00 and court costs of $335.25.  The amended judgment also
ordered Appellant to pay court costs of $67.75 to the Washington
County Sheriff, suspended his driving privileges for ninety days,
ordered him to comply with the recommendation made by the Ozark
Guidance Center, and sentenced him to one day in jail.  
     The Arkansas Court of Appeals heard Appellant's appeal of the
suppression issue and affirmed the circuit court.  Mullinax v.
State, 53 Ark. App. 176, 920 S.W.2d 503 (1996).  We granted
Appellant's petition for review of that decision.  When this court
grants a petition for review following a decision by the court of
appeals, we review the case as though the appeal was originally
filed with this court.  Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996); Armer v. State, 326 Ark. 7, 929 S.W.2d 705 (1996). 
Upon such review, we find no error in the circuit court's denial of
Appellant's motion to suppress and affirm the judgment.
     On appeal, Appellant contends the roadblock was
unconstitutional under the Fourth Amendment to the United States
Constitution and Article 2, Section 15, of the Arkansas
Constitution of 1874.  The trial court ruled the roadblock was
constitutional because there was no profiling of vehicles, rather
every vehicle was stopped and every fifth vehicle was detained for
a more detailed check not lasting more than two minutes.  Upon
review of a trial court's denial of a motion to suppress, we make
an independent determination based upon the totality of the
circumstances; we view the evidence in the light most favorable to
the appellee, and we reverse the trial court's ruling only if it is
clearly erroneous or against the preponderance of the evidence. 
Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).
     For the sake of convenience, we recite the evidence as it was
accurately reported by the court of appeals:
          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 called in the
     driver's license numbers and the radio operator informed
     them if the licenses were valid and if there were any
     outstanding warrants. 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.

Mullinax, 53 Ark. App. at 178-79, 920 S.W.2d  at 504-05.  
     It is well settled that a Fourth Amendment seizure occurs when
a vehicle is stopped at a roadblock or checkpoint.  Michigan Dep't
of State Police v. Sitz, 496 U.S. 444 (1990) (citing United States
v. Martinez-Fuerte, 428 U.S. 543 (1976)).  According to Sitz,
"[t]he question thus becomes whether such seizures are 'reasonable'
under the Fourth Amendment."  Id. at 450.  It is also well-settled
that the permissibility of vehicle stops made on less than
reasonable suspicion of criminal activity is to be judged according
to the three-pronged balancing tests of Martinez-Fuerte, 428 U.S. 543, and Brown v. Texas, 443 U.S. 47 (1979).  Sitz, 496 U.S.  at
450.  The Supreme Court enunciated the test in Brown as follows: 
"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."  Id. at 50-51.
     The three factors to be weighed in this case are the State's
interest in preventing accidents caused by drunk drivers, the
degree to which the State's seizure or roadblock advances its
interest, and the level of intrusion on Appellant's individual
privacy that is caused by the roadblock.  First, there is no doubt
as to the magnitude of the State's interest in eradicating drunk
driving.  Sitz, 496 U.S.  at 451.  Additionally, this court has
previously indicated that the purposes of checking drivers' and
vehicle licenses are permissible purposes for a roadblock, Stobaugh
v. State, 298 Ark. 577, 769 S.W.2d 26 (1989), and the court of
appeals has upheld the constitutionality of roadblocks held for the
same purposes, Camp v. State, 26 Ark. App. 299, 764 S.W.2d 463
(1989).  Second, the level of the intrusion on the motorist is
slight.  Each motorist was stopped for anywhere from thirty seconds
to no more than two minutes.  The blue lights of the police
vehicles and the orange vests worn by the officers offered indicia
of governmental authority and made the roadblock clearly visible. 
The roadblock was held in a well-traveled area near a junior high
school.  Therefore, there was no "fear and surprise" to law-abiding
motorists.  Martinez-Fuerte, 543 U.S.  at 558.  Third, the degree to
which the roadblock advanced the state's interest is sufficient. 
The officers did not make random stops with unfettered discretion,
but held a fixed roadblock, in an area where travel was already
limited to thirty miles per hour, that was authorized by the shift
commander and followed the guidelines of stopping every car and
then inquiring further of every fifth car as to the driver's
license and registration.  Of the eighteen drivers' licenses that
were checked, one arrest was made.  Although a searching
examination of effectiveness is not required, this rate of
effectiveness is sufficient.  See Sitz, 496 U.S.  at 454-55. 
Accordingly, we conclude that the roadblock was a reasonable
seizure under the Fourth Amendment and that the trial court did not
err in refusing to suppress the evidence obtained against Appellant
at the roadblock.
     Article 2, Section 15, of the Arkansas Constitution is
virtually identical to the Fourth Amendment to the United States
Constitution.  We thus interpret Article 2, Section 15, in the same
manner as the United States Supreme Court interprets the Fourth
Amendment, Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). 
Therefore, under the foregoing analysis used to determine this
seizure was reasonable under the Fourth Amendment, we also conclude
that the seizure was reasonable under Article 2, Section 15, of the
Arkansas Constitution.        
     Appellant offers some twenty reasons why he believes this
roadblock was unconstitutional.  We find that the majority of these
reasons are merely factors to be considered in balancing the
interests at stake rather than constitutional prerequisites to a
valid roadblock.  See Sitz, 496 U.S. 444; Brown, 443 U.S. 47;
Delaware v. Prouse, 440 U.S. 648 (1979); and Martinez-Fuerte, 428 U.S. 543.  Appellant describes these factors as the effectiveness
of the roadblock, availability of a less intrusive means for
conducting the roadblock, failure to keep records during the
roadblock, no supervision and unlimited discretion of officers
conducting the roadblock, insufficient safety precautions during
the roadblock, site selection of the roadblock, lack of training of
officers conducting the roadblock, and lack of advance publicity of
the roadblock.  There are a few of Appellant's reasons, however,
that merit some discussion as follows.
     Appellant contends that Article 2, Section 15, of the Arkansas
Constitution requires a warrant to be issued prior to conducting a
roadblock.   Since the United States Supreme Court held in
Martinez-Fuerte, 428 U.S. 543, that a warrant was not required in
advance for the operation of a fixed roadblock, and since we
interpret the Arkansas Constitution similarly to the Fourth
Amendment, we conclude that no warrant was required under Article
2, Section 15.
     Appellant contends that the Fourth Amendment requires a
statewide administrative or statutory plan for implementing
roadblocks.   Appellant relies on Holt v. State, 887 S.W.2d 16
(Tex. Crim. App. 1994), which held that, in light of Sitz, sobriety
checkpoints are unconstitutional without express authorization and
implementation by a statewide governing body.  We do not find Holt
to be persuasive, in part due to the reasons expressed in the
dissenting opinion.  Holt, 887 S.W.2d  at 21 (Campbell, J.,
dissenting).  Although Sitz did involve a comprehensive statewide
program with guidelines for implementing sobriety checkpoints, we
do not interpret the Sitz decision as holding that a statewide
program is a prerequisite to instituting a constitutional
roadblock.  For other courts so concluding, see Davis v. Kansas
Dep't. of Revenue, 252 Kan. 224, 843 P.2d 260 (1992), and cases
cited therein at 252 Kan. at 229-30, 843 P.2d  at 263.
     Appellant also contends that the lack of a plan or program at
the Springdale Police Department allowed the officers to
impermissibly exercise discretion while implementing the roadblock. 
The Supreme Court stated in Brown:
          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.  See
     Delaware v. Prouse, 440 U.S. 648, 654-655 (1979); United
     States v. Brignoni-Ponce, supra, at 882.  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.  Delaware v. Prouse, supra, at 663.  See 
     United States v. Martinez-Fuerte, 428 U.S. 543, 558-562
     (1976).
Brown, 443 U.S.  at 51 (emphasis added).  Based on the testimony in
this case regarding the field officers' discussion of the
particular procedures and location for this roadblock with their
superior officer, we conclude there was a "plan embodying explicit,
neutral limitations on the conduct of individual officers."  Id.
The fact that the plan was not a statewide written plan does not
convince us that the balance weighs in favor of Appellant.
     Appellant argues further that the lack of a comprehensive
statewide program could cause a potential problem in Springdale due
to the overlapping jurisdictions of numerous law enforcement
agencies in the area.  We do not address this argument because
there is no evidence that such a problem occurred in this case, and
we do not issue advisory opinions.  State v. Banks, 322 Ark. 344,
909 S.W.2d 634 (1995).
     Appellant also contends that because he was not one of the
fifth cars systematically detained for further inquiry during the
roadblock, there was insufficient cause to detain him.  Appellant
acknowledges that Officer Bell testified that he smelled
intoxicants on Appellant's breath and that he observed an open
container in the console of Appellant's vehicle, but contends this
is not a sufficient level of individualized suspicion to remove a
motorist from the roadblock for further inquiry.
     We could not disagree more.  The Supreme Court held in
Martinez-Fuerte, 428 U.S.  at 563, that it is constitutional to
refer motorists selectively to a secondary inspection area at a
fixed checkpoint on the basis of criteria that would not sustain a
roving-patrol stop.  Officers should have wide discretion in
selecting motorists to be diverted for brief questioning.  Id. at
563-64.  Here, the roadblock was lawfully conducted.  The smell of
intoxicants coming from Appellant's vehicle and on Appellant's
breath and the sight of a container of liquor and ice in the
console of Appellant's vehicle constituted articulable facts to
support the officers' individualized suspicion that Appellant was
driving while intoxicated.  Thus, it was constitutional for
Appellant to be removed from the roadblock for further inquiry even
though his was not one of the fifth vehicles.
     Appellant contends there was no legal authority to detain a
driver while passengers were checked for outstanding warrants
because such a detention has no relation to deterring or detecting
unlicensed drivers or vehicles.  This argument is based upon
Officer Bell's testimony that if a vehicle contained passengers,
the passengers would have been made to identify themselves and to
a warrant check.  Appellant does not contend that he was detained
as a result of a warrant check on a passenger in his vehicle. 
Accordingly, we do not address this issue further as to do so would
be to issue an advisory opinion.  Banks, 322 Ark. 344, 909 S.W.2d 634.  
     In summary, considering the totality of the circumstances,
Appellant has not demonstrated that the officers conducting the
roadblock in this case committed any prohibited acts such as
profiling cars or stopping them at random.  Appellant's expectation
of privacy was not invaded solely at the unfettered discretion of
the field officers; rather, the officers acted pursuant to a plan
for a fixed checkpoint that was approved by their shift commander. 
Appellant has therefore failed to demonstrate any violation of the
Fourth Amendment to the United States Constitution or Article 2,
Section 15, of the Arkansas Constitution or any prejudice.
     The judgment of conviction is affirmed.