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Commonwealth v. Sharpe2/16/2001
REVERSING
Charles O. Sharpe (hereinafter appellee) was convicted in the Bell District Court following a bench trial for Driving under the Influence . On appeal, the Bell Circuit Court reversed the conviction on the ground that appellee was arrested pursuant to an illegal roadblock. We granted discretionary review. We reverse the decision of the circuit court and reinstate the judgment of the district court.
Appellee filed a motion to dismiss in district court based on an illegal road stop or illegal traffic check. Appellee claimed in his motion to dismiss that the roadblock was at a location not approved by the Kentucky State Police, that the roadblock was conducted in violation of the Kentucky State Police General Order, and that it violated constitutional requirements that it be conducted with due regard to public safety. The court held a hearing on the motion.
The roadblock in question was established by Trooper Phillip Burnett of the Kentucky State Police on June 12, 1998. Trooper Burnett testified at the hearing that the location he selected for the traffic check had been preapproved by the state police. He stated that he contacted a supervisor, Sergeant H. L. Howard, at the state police post in Harlan and received approval. The preapproved location was on U.S. 25E, just north of a tunnel. He testified that he had used that location as a roadblock before, using the same procedure to set it up and obtain approval. The roadblock was conducted by Trooper Burnett and an officer he was training. Trooper Burnett stated that they were not accompanied by a supervisor. Trooper Burnett testified that every vehicle coming through the roadblock was checked.
Sergeant Howard testified that he had supervisory authority over road checks. He related that the procedure for road checks was for an officer to contact the supervisor at the post by phone, radio, or in person; request a traffic check at a preapproved location; and obtain the approval from the supervisor. He testified that the tunnel location was on the list of preapproved locations for traffic stops. He did not have a copy of that list at the hearing. Sergeant Howard was not certain if he was the supervisor working that night who approved the traffic stop. The Commonwealth produced a dispatcher's log which reflected that Trooper Burnett called in to the Post to obtain approval, and the log showed Sergeant Howard's badge number.
At the hearing, appellee adduced evidence from Cumberland Gap Tunnel Authority employees that the roadblocks established just north of the tunnel created a potential safety hazard because of tractor trailers traveling through the tunnel at high speeds before the road block becomes visible. The witnesses testified to their observations of roadblocks at that site generally, but not to how the roadblock was conducted on June 12, 1998.
At the close of the hearing, the trial court denied the motion. The court found that while there may have been safety concerns at that site, there was no evidence that the road check was being conducted in an unsafe fashion on the night in question. The trial court found that the Commonwealth established that the road check met the required constitutional standards: 1) that the officer in the field is not given unbridled discretion and 2) that the road checks be conducted pursuant to "a systematic plan of sorts."
Following his conviction, appellee appealed the trial court's ruling on the motion to dismiss to the Bell Circuit Court. The circuit court stated that road checks should be set up according to a systematic plan which should be substantially complied with. The circuit court found that:
The evide
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