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State v. Kirk

Decided: May 28, 1985.


On appeal from the Superior Court of New Jersey, Law Division, Cape May County.

King, Deighan and Bilder. The opinion of the court was delivered by King, P.J.A.D.


The issue here is the constitutionality of a road block or vehicle check point set up by two State Troopers on a county highway in a rural area of Cape May County at about 5:30 p.m. on Saturday, October 15, 1983. The Law Division judge denied the defendant's motion to suppress the evidence against him on the charge of drunken driving. All of the evidence against defendant was the product of the stop which was made without any probable cause or particularized suspicion of illegal activity. Defendant contends that the stop was a violation of his constitutional rights.

After denial of the motion to suppress, defendant pled guilty to driving while under the influence of alcohol, N.J.S.A. 39:4-50, was fined $250, and his license to drive was revoked for six months. No stay of the license revocation was sought and defendant has suffered that aspect of the penalty. He now appeals under R. 3:5-7(d) which preserves his right, despite the guilty plea, to appellate review of the validity of the stop and seizure of his person which he claims violated his constitutional rights.

Trooper Mayes was the only witness at the hearing on the motion to suppress. He described his duties on October 15, 1983 as "general traffic -- any traffic enforcement." He and Trooper Martinez decided to stop all traffic in both directions on County Route 550 in Dennis Township, Cape May County. This

is a two-lane road in a rural area, lightly travelled, especially at this time of year. He described his purpose as follows

What we do is we set up. At that time it was only two Troopers me and another trooper, we take both lanes north and south bound in this instance and stop every car that comes down the road asking for driver's license, registration, insurance card and at this time we also check for any equipment violation such as bald tires and such, anybody who appears to be intoxicated and any drugs, anything in plain view of such sort.

The Trooper said he picked this road because it was less traveled than a main road. This was necessary because they planned to stop all cars. He said that "you have to keep in consideration the volume of traffic on these roadways" and "we can't go on any major highways because you have traffic buildup so much that we pick a side road that is not so heavily travelled." On Route 550, the troopers would usually have no more than five cars stopped going in each direction at the same time during a road block. The first car stopped was defendant's; this was about ten minutes after the road block was set up. Immediately after defendant was arrested on suspicion of drunken driving the road block was broken down and defendant was taken to the barracks for booking. A single trooper could not operate the check point because of safety and security considerations. Only defendant Kirk and one other car had been stopped before the road block was closed down. As noted, there was no probable cause to stop defendant Kirk's vehicle. The facts supporting the trooper's decision to charge him were gleaned only after he was stopped, questioned, and given roadside tests to perform.

Trooper Mayes himself selected the place on the highway where all vehicles would be intercepted. He gave no reason or justification for the particular location. When asked: "How often do you set up these traffic checks?" the trooper replied: "There's no specific, you know, amount." He then said the determinative factor was "mostly the weather, really . . . we don't have traffic checks in downpours." He added that they were not set up on every clear day. When asked: "What determines in your mind when you're going to set up a traffic

check?", he replied: "Basically we [he and his partner trooper] just discuss it and we'll have one."

No flares or warning signs were used. There was no advance publicity given. The intercepting trooper simply stood in the middle of the road and waved down all cars from both directions. The trooper also expressed his reliance on New Jersey State Police Official Training Bulletin # 1-79,*fn1 May 10, 1979, which contained a summary of the United States Supreme Court's opinion in Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), prohibiting random stops, and an admonition to troopers to either stop every vehicle, or stop vehicles at a uniform rate, i.e., every fifth, tenth or fifteenth vehicle, when conducting a road block.


We wish to be clear that our decision is rendered on State constitutional grounds exclusively, not on federal constitutional grounds. In compliance with the admonition of Justice O'Connor in Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201, 1214 (1983), we rely on federal precedents for guidance as we would on precedents of any other jurisdiction, not because of any concept of federal constitutional compulsion. Ibid. We intend that our decision rest on "bona fide separate, adequate, and independent State grounds," not subject to federal review. Ibid. As Justice O'Connor noted in Long: "It is

fundamental that State courts be left free and unfettered by us in interpreting their state constitutions." Ibid.

Art. I, par. 7 of the New Jersey Constitution of 1947*fn2 is almost identical in wording to the Fourth Amendment to the federal Constitution.*fn3 Under our recent cases, we are free to look to our Constitution which on at least four occasions has been construed to afford greater protection to privacy interests than the parallel provision of the federal constitution. See State v. Hunt, 91 N.J. 338 (1982) (protectible interest in toll billing records); State v. Alston, 88 N.J. 211 (1981) (standing to challenge search and seizure); State v. Johnson, 68 N.J. 349 (1975) (consent to search); State v. Novembrino, 200 N.J. Super. 229 (App.Div.1985) (no "good faith" exception to exclusionary rule). Indeed, the United States Supreme Court itself has invited the several states to develop acceptable alternatives to the constitutionally infirm random traffic stop condemned in the leading federal case, Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660 (1979): "This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion."

Structural differences in the State and federal constitutions, and matters of particular state interest or local concern, are two of the factors to be considered in developing an independent body of state constitutional law. See Justice Handler's

concurring opinion in State v. Hunt, 91 N.J. 338, 365-366 (1982). See also his opinion in State v. Williams, 93 N.J. 39 (1983). See generally Brennan, "State Constitutions and the Protection of Individual Rights," 90 Harv.L.Rev. 489 (1977); "Developments In the Law -- Interpretation of State Constitutional Rights," 95 Harv.L.Rev. 1324, 1361 (1982); Pollock, "State Constitutions as Separate Sources of Fundamental Rights", 35 Rut.L.Rev. 707 (1983); Note, Fernandez, The New Jersey Supreme Court's Interpretation and Application of the State Constitution, 15 Rut.L.J. 491 (1984). We conclude, as have many other state courts, that our State Constitution, which serves only "to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives," Hunt at 365, is a more appropriate vehicle to resolve questions concerning the rights of our citizens to travel the highways of our state without police interdiction and the rights of the police to use reasonable methods to enforce our traffic laws than is the federal constitution. As the United States Supreme Court recognized in Delaware v. Prouse, this is an essentially local, not a federal concern, subject of course to the constitutionally minimum federal standards established by Delaware v. Prouse and its antecedents.


This case is one of first appellate impression in New Jersey. One Law Division opinion has approved a sobriety road block in State v. Coccomo, 177 N.J. Super. 575 (Law Div.1979), a case widely cited in other jurisdictions' discussions of this problem.*fn4 The contrast of the facts in Coccomo to the facts before us are instructive in illustrating why we conclude that the road block in the present case rests so much upon the discretion of the

officers in the field that it is unconstitutional. See infra at 40.

As Justice Clifford said in State v. Carpentieri, 82 N.J. 546, 548 (1980):

There is, of course, no question that Prouse effected a radical departure from the state of our law as it existed up until the date of that decision, for until then such random stops were expressly authorized under case law in New Jersey, see State v. Gray, 59 N.J. 563, 567 (1971); State v. Braxton, 57 N.J. 286, 287 (1970); State v. Kabayama, 98 N.J. Super. 85, 87-88 (App.Div.1967), aff'd o.b. 52 N.J. 507 (1968), and at least inferentially under our statutory law, see N.J.S.A. 39:3-29.

See also State v. Gervasio, 94 N.J. 23, 24, 31 (1983), where Justice Handler observed, "a large majority of jurisdictions approved of random [investigatory] stops prior to the Supreme Court's decision in Prouse." Id. at 30.

Our survey of Prouse, its federal antecedents, United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975), and its successor, Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), and our consideration of the decisions of our sister states, leads us to the conclusion that the road block in this case was violative of our State constitutional provision against unreasonable seizure. We conclude that the road block used in this case is really not distinguishable from the random investigatory stop condemned in Prouse. This temporary road block was set up by the exercise of absolute, unbridled discretion of the officers in the field. There was no command or supervisory participation involved. There were no limits or directions of any kind on the "when, where and how" of this road block, and no hint as to any particular "why." There was no demonstration of need or efficacy at this particular time and place. We get the distinct impression that the purpose was little more than to give the officers something to do on the particular occasion. To quote Justice White, the practical effect of the system used here was to leave the traveller "subject to the discretion of the official in the field." Camara v. Municipal

Court, 387 U.S. 523, 532, 87 S. Ct. 1727, 1732, 18 L. Ed. 2d 930 (1967) (constitutional right to insist that building inspectors obtain administrative search warrant).

In Delaware v. Prouse the Supreme Court held that random investigatory stops of motor vehicles made without probable cause or reasonable suspicion were unconstitutional. The Court granted certiorari apparently because five jurisdictions thought the Fourth Amendment permitted such stops but six thought to the contrary, 440 U.S. at 651, 99 S. Ct. at 1391. The Fourth and Fourteenth Amendments were implicated "because stopping an automobile and detaining its occupants constitute[d] a 'seizure' within the meaning of these Amendments", 440 U.S. at 653, 99 S. Ct. at 1395, citing Martinez-Fuerte, Brignoni-Ponce, and Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Prouse Court thought the essential purpose of the Fourth Amendment was to impose a standard of reasonableness upon law enforcement agents in order to safeguard the privacy and security of individuals. The Court stressed that in situations where the balance between intrusion on individual rights against the promotion of some legitimate governmental interests precluded insistence on some quantum of individualized suspicion, other safeguards are generally used to assure that reasonable privacy expectations are not subject to the whim or discretion of the official in the field. 440 U.S. at 654, 99 S. Ct. at 1396. In Prouse, Justice White alluded to the ruling in Brignoni-Ponce holding unconstitutional random stops by roving immigration patrols, stops not based on any individualized suspicion. This was in contrast to the approval of fixed road blocks strategically placed to uncover illegal immigrants approved in Martinez-Fuerte. Indeed the very question before us today, which may be fairly characterized as the "constitutionality of the roving road block", seemed to have been left open by the federal high Court in Martinez-Fuerte at least until Prouse. See 440 U.S. at 656 n. 13, 99 S. Ct. at 1397 n. 13 (judgment reserved on the permissibility of state and local road blocks for documents and credentials).

Prouse stressed that the unconstitutional aspect of roving patrols and random stops operating without probable cause or reasonable suspicion was "the unbridled discretion of law enforcement officials." Thus "standardless and unconstrainted discretion" was the "evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent." 440 U.S. at 661, 99 S. Ct. at 1400. The "grave danger of abuse of discretion" required that regulatory inspections ...

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