People v. Helm9/21/1981
ings seized prior to formal arrest); United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973) (voice exemplar produced for grand jury without preliminary showing of reasonable suspicion); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967) (handwriting exemplars obtained during custodial interrogation); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) (physical characteristics and voice pattern displayed at police lineup); Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (blood sample taken and analyzed over objection of driver suspected of driving while intoxicated).
Fourth Amendment analysis generally proceeds on two different levels. See United States v. Dionisio, supra. The first involves the constitutionality of the arrest or detention of the person, the second the constitutionality of the search and seizure of contraband, fruits, instrumentalities, or evidence of crime. Where a person has been seized unlawfully, evidence which is obtained as a result of this seizure is tainted and cannot be used against the person. Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) (prolonged stationhouse custody of suspect is functional equivalent of arrest and must be supported by probable cause); Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969) (dragnet seizure, unsupported by warrant based on reasonable suspicion, does not allow use of fingerprints obtained as a result). However, where a person is seized lawfully, or is lawfully in the presence of governmental officers, our inquiry turns to the nature of the search which is an incident of the primary investigatory intrusion. See Gustafson v. Florida, 414 U.S. 260, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973); United States v. Dionisio, supra ; Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The reasonableness of the search or seizure requires a balancing of the rights of the individual and the needs of society. Delaware v. Prouse, supra ; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); United States v. Robinson, supra (Marshall, J., dissenting); Terry v. Ohio, supra.
In the present case, the initial contact between the suspect and the officer was initiated by the defendant and had no Fourth Amendment implications whatsoever. There is nothing in the United States or Colorado Constitution that prevents a policeman from addressing questions to or requesting cooperation from anyone who is free to leave. United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); Terry v. Ohio, supra (White, J., concurring). But if we presume that the defendant here would have been detained if he had tried to leave the scene, after he had voluntarily engaged the attention of the officer who responded to the accident report, the officer's initial intrusion upon his privacy was justified by information that the defendant had been in an automobile accident, that he had left the scene, and that he may have been drinking when the accident took place. See United States v. Cortez, supra. From the defendant's own breath, slurred speech, and lack of coordination, the officer had reason to suspect (and, in my opinion, probable cause to believe) that he had been driving while impaired or intoxicated by alcohol.
Automobile accident investigation, like enforcement of traffic laws in general, implicates society's interest in the safety of the public roads. Intoxicated drivers create obvious hazards to themselves and others. Yet, like other drivers, their activity has been historically subject to administrative regulation through licensing and regis
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