The Kentucky Supreme Court has recently clarified the constitutional requirements for DUI checkpoints. KLC Legal Staff has summarized the Commonwealth v. Cox case and the four factors that law enforcement must be aware of in setting up DUI checkpoints.
On December 17, 2015, the Kentucky Supreme Court ruled that the Kentucky State Police conducted an illegal DUI checkpoint that violated a motorist's state and federal constitutional rights against unreasonable searches and seizures in Commonwealth v. Cox, 2013-SC-000618-DG.
The court reiterated that, "We must err on the side of caution when dealing with the most fundamental of those rights granted to our citizens to be free from unreasonable searches and seizures…In circumstances where the practices and procedures employed by law enforcement are constitutionally ambiguous, it is our duty to protect individuals against the risk of potentially unreasonable seizure without any suspicion of wrongdoing. Though we do not require rigid compliance with the Buchanon guidelines, we cannot continue to soften the edges of what is constitutionally reasonable".
In light of this ruling, it is a good time to review the safeguards required by Commonwealth v. Buchanon, 122 S.W.3d 565 (2003), that our city law enforcement officers must follow and address why the actions of the KSP in the Cox case were found to violate constitutional principles.
The United States Supreme Court has affirmed that DUI checkpoints satisfy a strong state interest in removing drunk drivers from state highways and this state interest outweighs the brief intrusion to a private motorist at a roadblock. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450 (1990).
The Buchanon case established four general guidelines for law enforcement to ensure that Kentucky DUI checkpoints are in line with the federal Supreme Court Fourth Amendment analysis. These requirements are:
(1) Important decisions regarding location, time and procedures governing particular checkpoints should be determined by supervisory law enforcement officers, rather than field officers. Any lower ranking officer wishing to establish a checkpoint should seek supervisory permission. Locations should be chosen so as not to affect public safety and should bear some reasonable relation to the conduct that law enforcement is seeking to curtail.
(2) Law enforcement officials working the checkpoint should comply with the procedures established by their superior officers so that each motorist is dealt with in the same manner. Officers in the field should not have unfettered discretion in deciding which vehicles to stop and how each stop is handled.
(3) The nature of the checkpoint should be readily apparent to approaching motorists. At least some of the law enforcement officers present at the scene should be in uniform and with marked patrol cars. Signs warning of the checkpoint ahead are also advisable.
(4) The length of the stop is also an important factor in determining the intrusiveness of the checkpoint. Motorists should not be detained any longer than necessary to perform a cursory examination of the vehicle so as to look for signs of intoxication or to check for license and registration. If, during the initial stop, the officer has reasonable suspicion that the motorist violated the law, the motorist should be asked to pull to the side, so that other motorists may proceed.
The court in Buchanon noted that these four factors were not exhaustive and that a violation of one of the factors does not necessarily result in a constitutional violation. Notwithstanding this statement [LMR1] made by our state Supreme Court in the Cox opinion, KLC believes that Cox signals a stricter compliance view of the requirements that law enforcement will have to affirmatively establish for DUI checkpoints in the future.
The court found that the KSP met the first requirement as to time, location and procedure, though it was on ambiguous evidence. The officers conducting the roadblock did seek approval from supervising officers. The location selected was from a list of pre-approved KSP sites and the court found a presumption that the pre-approved location was related to the KSP's goals of finding intoxicated motorists.
In addition, the court found that the evidence as to the second requirement was satisfied, though the evidence as to established procedures was less clear. There was nothing to suggest that the troopers conducting the roadblock failed to follow their supervisor's directions. However, the court also noted that there was no evidence to suggest that a supervisor provided any direction or suggested procedure for treating motorists in the same manner. The court concluded that despite no apparent express policy for uniform treatment of stopped drivers at the roadblock, the facts showed that the troopers did not exercise unfettered discretion in operating the checkpoint. The troopers testified that every approaching vehicle was stopped. This portion of the case shows the importance of your local department having clearly established procedures and criteria for operating DUI checkpoints.
Finally, the court ruled that the fourth requirement as to the length of the individual stops was met in that the stops were no more intrusive than necessary to obtain license and registration and quickly ascertain if there existed a reasonable suspicion of DUI.
The reversal of Cox's conviction finding that the checkpoint violated federal and state search and seizure protections hinged on the failure of the KSP to follow the notice procedures established in the third Buchanonrequirement. The court ruled that the requirement effectively requires adequate notice and the evidence failed to establish that the checkpoint was readily apparent to approaching motorists. The court noted that the KSP troopers were already onsite at the checkpoint at the same time their supervisors approved the checkpoint and the operation began immediately upon approval. There were no warning signs posted alerting approaching motorists of the checkpoint and there was no announcement of the checkpoint to the media. The court also found fault in that although the troopers were in uniform, they were not operating emergency lights at the checkpoint. The court concluded that there was not adequate notice because the roadblock began almost simultaneously with the supervisors' approval, without any apparent concern for giving motorists prior notice of the checkpoint implicitly required by Buchanon.
In light of the Cox decision, we encourage our member cities to review their existing DUI checkpoint policies with an eye towards confirming that their policies meet the four Buchanon requirements. In addition, we encourage cities to establish documentary safeguards so that if a checkpoint is challenged, a reviewing court can easily see that the procedures and supervisory safeguards required by our federal and state constitutions as to searches and seizures in conducting a DUI checkpoint were followed.
Should you have any questions on DUI checkpoint procedure, please contact KLC Member Legal Services at 800.876.4552.