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State v. Abell5/9/2003
r odor. In those cases, given the highly subjective nature of the inquiry, the decision to single out a driver for more exhaustive sobriety testing may vary substantially from one officer to the next. Thus, the failure to include any procedures or criteria to determine driver impairment is a fatal flaw in this checkpoint plan. United States v. Huguenin, 154 F.3d 547 (6th Cir. 1998) (noting that lack of appropriate operating procedures at sobriety checkpoint gave officers unfettered discretion and intruded on defendant's privacy). In the absence of reasonable suspicion, drivers have the right not to be "subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Brown, 443 U.S. at 51 (citing Prouse, 440 U.S. at 654-55).
4. Limitation on Number of Checks Permitted
Finally, the State's argument that we have not placed a limit on the number of checks permitted at a highway checkpoint does not square with our opinion in DeBooy. In DeBooy, a majority of the court cast grave doubt on the constitutionality of multiple purpose checkpoints, holding:
Multi-purpose, general warrant-like intrusions on the privacy of persons using the highways are unacceptable. The broader the authorization by the magistrate and the greater the discretion of the officer at the checkpoint, the more suspect the constitutionality of the checkpoint under article I, section 14.... This standard is necessary to safeguard the rights of the citizens of this state against unreasonable searches and seizures. DeBooy, 2000 UT 32 at -32.
We affirm that view today. Highway checkpoints are an extremely narrow exception to the general rule that reasonable suspicion is required before police are allowed to detain citizens, question them, and inspect their vehicles. Id. at . We permit checkpoints in order to advance the singular purpose of "promoting safe use of the highways." Id. Each element of the checkpoint plan must be "narrowly tailored" to serve this limited interest alone. Id. Here, the checkpoint was ostensibly a drivers license check, but included a half-dozen other checks unrelated to driver license violations. We see no justification for allowing the state to use the interest in enforcing the drivers license requirement as the predicate for permitting officers to conduct investigations for which they would otherwise need a warrant, probable cause, or reasonable suspicion. For these reasons, multiple purpose checkpoints that permit numerous independent checks related to one another only through their loose connection to the operation of a vehicle on the highway are constitutionally infirm. Id. Given our conclusion that this checkpoint does not pass muster under the Utah Constitution or the governing statute as construed in DeBooy, we have no need to consider the additional bases on which Abell believes the checkpoint can be invalidated.
IV. ROLE OF THE MAGISTRATE
In light of the conclusions we have reached in the previous sections, we believe it is important to discuss briefly the role of the magistrate in authorizing administrative vehicle checkpoints like this one. Under our checkpoint statute, the initial responsibility for ensuring that a checkpoint plan is narrowly tailored to promote highway safety, minimizes officer discretion, and protects every citizens' legitimate expectation of privacy rests with the magistrate authorizing the checkpoint. Utah Code Ann. § 77-23-104 (1999). When reviewing the checkpoint plan, the magistrate must critically consider whether the checkpoint plan's legitimate purposes are closely tied to the use and safety of the highway, and not to other law enforcement interests. To ensure that the discretion of
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