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Oregon v. Boyanovsky9/15/1987
SUPREME COURT OF OREGON
SC No. S33380
1987.OR.41186 ; 304 Or. 131; 743 P.2d 711
September 15, 1987
STATE OF OREGON, PETITIONER ON REVIEW,
v.
MARK WESLEY BOYANOVSKY, RESPONDENT ON REVIEW
On review from the Court of Appeals. TC No. TM84-3967; CA No. A39414.
Dave Frohnmayer, Attorney General, Salem, argued the cause for petitioner on review. With him on the petition were Virginia L. Linder, Solicitor General, and David Schuman, Assistant Attorney General, Salem. Also on the memorandum in response to court questions was Richard D. Wasserman, Assistant Attorney General, Salem.
Kathryn A. Wood, Corvallis, filed a memorandum in response to court questions and argued the cause for respondent on review.
In Banc. Carson, J. Gillette, J., specially concurred and filed an opinion in which Jones, J., joined. Peterson, C.J., dissented and filed an opinion in which Campbell, J., joined.
Carson
This case involves the legality of a sobriety roadblock conducted to discover and arrest persons committing the crime of driving while under the influence of intoxicants and to gather evidence for use in the criminal prosecutions.
From approximately 11:00 p.m. to 2:20 a.m., on September 28-29, 1984, the Oregon State Police, in conjunction with the Benton County Sheriff's Office and the Philomath Police Department, conducted a roadblock on Highway 20 near the Philomath city limits. Its primary purpose was to detect those persons driving under the influence of intoxicants. Secondarily, it was intended to check driver licenses and vehicle registrations.
Defendant was stopped and arrested for driving under the influence of intoxicants. ORS 487.540, since renumbered as 813.010. He challenged the legality of the roadblock on statutory and constitutional grounds. He argued that the roadblock was unlawful because it took place without statutory authority or agency rules allowing and controlling such a procedure. There was testimony that the Oregon State Police have published regulations governing roadblocks, but none were offered in evidence. The trial court did not consider these.
The trial court nonetheless found that the search and seizure did not violate the state or federal constitutions. The judge "balanced" the public need for sobriety roadblocks against the individual's interest in privacy to reach this conclusion. Although the trial court expressed "extreme reluctance" in reaching its decision, it reasoned that this analysis and conclusion was compelled by State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980). The Court of Appeals reversed per curiam, relying on its decision in Nelson v. Lane County, 79 Or App 753, 720 P2d 1291 (1986), aff'd 304 Or 97, 743 P2d 692 (1987).
In Nelson v. Lane County, we recounted this court's development, since State v. Tourtillott, supra, of an examination of sources of authority before reaching the question whether a challenged police procedure is constitutional. We suggested that some "searches" and "seizures," conducted for
reasons other than the enforcement of laws by means of criminal sanctions, may be authorized by the responsible lawmakers and carried out pursuant to administrative regulations without the customary advance judicial authorization of a warrant.
This
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