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State v. Boyea12/1/2000
edge must be evaluated under the lesser standard of reasonable suspicion. If probable cause - the level of suspicion adequate to support a custodial arrest that may last for days - is no more than a 50% likelihood, and reasonable suspicion sufficient to support a frisk is something less than probable cause, then plainly an even lower level of probability is required of a brief investigative stop that poses less intrusion than a physical search of the person. The Court would, I believe, evaluate the governmental interest involved -here, assuring that drunks are quickly removed from our roads - and balance that interest against the reasonableness of the minimal intrusion on the citizen's personal security.
The Court, in fact, performed such a balancing in Sitz, where, in evaluating Michigan's use of highway sobriety checkpoints, it weighed the intrusion on the individual's Fourth Amendment interests against the State's interest in preventing drunk driving . Sitz, 496 U.S. at 451. It found the highway sobriety checkpoint program to be in conformity with the Fourth Amendment. The Court concluded that the balance favored allowing sobriety checkpoint stops, as the "magnitude of the drunken driving problem" was beyond serious dispute, and the "weight bearing on the other scale - the measure of the intrusion on motorists stopped briefly at sobriety checkpoints - is slight." Id.; see also United States v. Brignoni-Ponce, 422 U.S. 873, 879-80 (1975) (noting that when an officer stops an automobile and questions its occupants, "the intrusion is modest").
Returning to the test established in Terry: Would the facts available to the officer at the moment of the search and seizure warrant a person of reasonable caution to believe that the action taken was appropriate? Where, as here, the level of objective justification necessary to effectuate the stop is minimal, I believe the conclusion is inescapable that it would. As the court observed in State v. Tucker, 878 P.2d 855, 858 (Kan. Ct. App. 1994), this case necessarily involves "the ever-changing equation used to balance the rights of an individual to be free from unwarranted intrusions of his or her freedom of movement and right to privacy with the right of the public to be protected from unreasonable danger. This equation and the balance change with the facts presented." The risk to the public in this case was not that an illegal drug or a concealed weapon might go undetected. This risk here was a drunk driver maneuvering a thousand pounds of steel, glass and chrome down a public road. I have no doubt that, under the totality of the circumstances presented, the Supreme Court would conclude the stop did no violence to the protections embodied in the Fourth Amendment.
The dissent asserts otherwise, suggesting that the majority opinion gives the public "the power to cause the search or seizure of a person driving a car." Post, at 1. I agree. But is that not what we invite when we encourage the public to "GET A DWI" and provide an "800" telephone number for them to call when they observe what they believe to be drunk driving? And do we not benefit when the citizenry cooperates with law enforcement to remove dangerous drivers from our highways? If the caller is wrong, if the driver is not impaired, the driver will proceed on his or her journey after a brief roadside detention. As the Court in Wardlow wrote, "in allowing such detentions, Terry accepts the risk that officers may stop innocent people." 120 S. Ct. at 677. If the caller is correct, however, a drunk driver will have been removed from the streets. As one commentator has explained: "Because the very purpose of [investigatory] stops is to clarify ambiguous situations, 'even if it was equally prob
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Vermont DUI Attorneys
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