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Simmons v. Commonwealth6/9/1989
itted). I take this language to mean that the Supreme Court was concerned about an individual field officer "willy-nilly" picking one car out of hundreds to stop. The Supreme Court, in my view, was not concerned with whether a police officer had a direct order to establish a roadblock at a particular time or place.
The discussion in Prouse concerning intrusion and police discretion suggests to me that the Court was serious when it wrote that " his holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative." Id. at 663 (emphasis added). What happened in the instant appeal is in full compliance with what the Supreme Court said in Prouse; I would not require more.
Nor is my view altered by Brown v. Texas, 443 U.S. 47 (1979), a case cited in Lowe and by the present majority. Brown was not a roadblock case; it did not even involve stopping a car. Brown concerned stopping a man who was walking in an alley and was asked
by police to identify himself. Brown is factually inapposite. Prouse is on point; I would follow Prouse.
In my view, Lowe was correctly decided. But in Lowe, this Court said only that the particular roadblock under review passed muster under the Federal Constitution. Today we say, in effect, that unless the factors which were present in Lowe are present with regard to every roadblock, those roadblocks will violate the Federal Constitution. We reach this conclusion even though the United States Supreme Court has said that a roadblock in which all cars are stopped for a license and registration check does not violate the Federal Constitution. By this opinion, the Court throws into disarray the law concerning roadblock-type checks and simultaneously creates the possibility that henceforth every roadblock will be challenged to determine who ordered it and the motivation for its use. In my view, the Court of Appeals correctly decided this case. I think further that what the majority of this Court has done is unnecessary and unwise. Therefore, I dissent.
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