Rehearing En Banc Denied Dec. 5, 1984.
Walter O. Hobbs, II, of Harry M. Hobbs, P.A., Tampa, for petitioner.
Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen. and Richard L. Greco, Asst. State Atty., Tampa, for respondent.
This case involves the constitutionality of an arrest made at a police roadblock maintained for the purpose of stopping motorists to ascertain and apprehend those to be charged with driving while under the influence of alcohol. At issue is whether the Fourth Amendment exclusionary rule should be applied to evidence obtained at the roadblock. This appears to be a case of first impression in this state.
Petitioner was arrested for driving while under the influence of alcoholic beverages (DUI), a violation of section 316.193, Florida Statutes (1983). He filed a pretrial motion to suppress all evidence obtained as a result of what he contends was an illegal seizure of him. The county court denied the motion. Petitioner then pleaded nolo contendere, reserving the right to appeal the denial of the motion to suppress. He appealed to the circuit court, which affirmed. He has petitioned this court to issue a writ of certiorari. We grant the petition, quash the circuit court's affirmance, and reverse the judgment of conviction. See Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977). We hold that the police roadblock at which petitioner was apprehended and on the basis of which evidence against him was obtained was an unconstitutional invasion of his rights under the Fourth Amendment to the United States Constitution proscribing
unreasonable searches and seizures.
On July 4, 1982, at about 2:30 a.m., the City of Tampa Police Department established a roadblock near the intersection of Dale Mabry Highway and Columbus Drive. The undisputed purpose of the roadblock was to apprehend DUI drivers. The three northbound lanes of Dale Mabry were blocked off to form a "funnel" requiring all traffic to travel in one lane and to pass by a police officer stationed on the roadway. That officer was instructed to stop every fifth automobile when traffic was heavy and to stop every third automobile when traffic was light. The stopped cars were directed off the roadway into an otherwise unused parking lot.
Waiting in the parking lot were five police officers who were to determine if the drivers were DUI. The only specific instruction given to those officers was to request the driver's licenses of the drivers of cars diverted from Dale Mabry into the parking lot. Each officer was left to his own method to determine whether he believed a driver was DUI.
Petitioner was the driver of a car that was diverted into the parking lot. The arresting officer requested petitioner's driver's license and began his investigation of petitioner's sobriety. The officer decided petitioner was DUI and arrested him.
We summarize our conclusions as follows:
(1) We hold that the arrest of petitioner at the roadblock was an improper seizure in violation of the Fourth Amendment.
(2) Our principal concern is not only with petitioner but with the rights of the vast bulk of those innocent citizens who may in the future be stopped at roadblocks like that involved in this case with the resulting loss of their Fourth Amendment rights to security and privacy.
(3) The subject of the validity of roadblocks, and roadblock arrests, is extremely difficult. The governing test--balancing the public interest in apprehending DUI violators against motorists' rights to security and privacy--may produce legitimate arguments either way.
(4) In arriving at our holding we follow guidelines which we believe have been set forth by the U.S. Supreme Court, although there is no controlling U.S. Supreme Court or Florida Supreme Court holding which is in point as to the precise issue of this case.
(5) Of the five cases in point in the courts of other states involving DUI roadblocks of varying descriptions, three (Massachusetts, with one dissent, South Dakota and Arizona) have held such roadblocks to be violative of the Fourth Amendment, and two (Kansas, with one dissent, and New Jersey) have held them to be proper. None of the five courts disagreed that the state has the burden of proof to show that a roadblock arrest is constitutional. Due to the scarcity of evidence in the record in the case before us, we believe that even the approaches taken by the New Jersey and Kansas courts would produce a holding that petitioner's arrest in this case was unconstitutional.
(6) Although our principal task is only to decide this case, which we have done as indicated in (1) above, we undertake in this opinion to provide at least general guidance to law enforcement authorities as to what types of DUI roadblocks may and may not produce valid arrests.
At the outset we should emphasize what our holding does not mean. It does not mean that petitioner's conduct is condoned. The issue is not to decide from hindsight whether or not the petitioner in this case was drunk and deserving of constitutional safeguards. "[H]indsight [should not be] coloring the evaluation of the reasonableness of a search or seizure." United States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074, 3086, 49 L.Ed.2d 1116, 1133 (1976). That type of erroneous approach to the issue would misconceive constitutional ramifications of cases of this kind. Since views seem to be espoused by some persons that to set free one person who has obviously committed a crime is wrong under any circumstances, we take pains at the outset of this opinion to point
out what the fundamental issue does involve.
The fundamental issue here involves those motorists who are stopped by law enforcement authorities and who are driving while not under the influence of alcohol. Those motorists comprise the vast bulk of those who have been subjected to roadblocks of this kind in the past and who would be subjected to them in the future if we were to approve the roadblock in question here. Our holding is not keyed to any special concern for petitioner's individual sensibilities. He is the fortuitous vehicle for our consideration of the liberties of others--although also of his liberties in this case and in the future hopefully under circumstances potentially less adverse to him. We have substantial concern for the vast numbers of innocent motorists. We agree with Arizona Supreme Court Justice Feldman in State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d 992 (1983), a case more fully discussed below, that
[T]he issue here ... is whether the Fourth Amendment permits officers to stop and question persons whose conduct is innocent, unremarkable and free from suspicion.
663 P.2d 997. The following additional portion of Justice Feldman's concurring opinion puts the basic constitutional aspects in perspective and is deserving of reflection by those who are concerned about criminal law enforcement:
The question has frightening implications. The thought that an American can be compelled to "show his papers" before exercising his right to walk the streets, drive the highways or board the trains is repugnant to American institutions and ideals. If roadblocks can be maintained to stop all persons, regardless of how innocent their conduct, for the purpose of investigating or apprehending drunk drivers, then presumably similar stops of all citizens could be undertaken for questioning and surveillance with regard to other crimes .... It might be argued that if the law did permit such stops, we would have less crime. Nevertheless, our system is based on the idea that the risk of criminal activity is less of a danger than the risk of unfettered interference with personal liberty. The concept was succinctly expressed by a newspaper columnist who recently used these words in describing his opposition to roadblock stops for apprehension of drunk drivers:
"I ... have often thought that getting killed by some intoxicated idiot who crossed the median divider and hit me head-on would be the worst and most senseless way to die.
I mourn for the parents of children who have died at the hands of drunk drivers. But none of this makes a police state acceptable. Freedom doesn't come risk-free. I'm willing to take some risks in exchange for my freedom."
663 P.2d at 997.
At the same time we do not question the good faith of the police officers involved in this case nor their doubtless commendable motivations.  We do not doubt their desire
to do their jobs--to apprehend criminals and protect the public--in the best ways they can. In their dealings with matters involving this area of the law they have not had the benefit of clear-cut guidance in all respects from the case law as to the proper parameters of their conduct. This has been and still is a developing area of the law. We undertake in this opinion to provide some measure of additional guidance. For that guidance we must use as the parameters of our authority interpretations placed upon the Fourth Amendment by the United States Supreme Court. We are aware of no case in which the issue here has been presented to the Florida Supreme Court.
The precise issue presented in this case--whether a warrantless police roadblock to apprehend DUI drivers by stopping cars without any articulable suspicion of illegal activity is constitutional under the Fourth Amendment--has not been widely addressed by American courts. We have found no federal or Florida case which addresses the precise issue. ...