[228 NJSuper Page 270] This case addresses the constitutionality under both the United States Constitution and the New Jersey Constitution of a roadblock established by the State of New Jersey at the George Washington Bridge in Fort Lee, New Jersey, on September 12, 1986. Because this Court finds that the roadblock violated (a) both the Fourth Amendment to the U.S. Constitution*fn1
and Article I, paragraph 7 of the N.J. Constitution, and (b) the defendants' and others' right to travel, and (c) the Commerce Clause of the U.S. Constitution, the roadblock is constitutionally infirm and so all evidence of criminality obtained from these defendants is suppressed.
I. The Roadblock of September 12, 1986.
On Friday, September 12, 1986, at approximately 8:46 p.m., the defendants herein were traveling in an automobile from New York City to New Jersey across the George Washington Bridge. The automobile was ordered to the side of the roadway in Fort Lee, New Jersey, by law enforcement officials who had established a roadblock for the purpose of detecting persons operating vehicles who were transporting controlled dangerous substances or were under the influence of drugs or alcohol.
Larry J. McClure, the Bergen County Prosecutor, along with the chiefs of the Fort Lee, Palisades Interstate Parkway, and Bergen County police departments, determined substantially in advance of September 12, 1986, that roadblocks at the George Washington Bridge would serve useful law enforcement purposes because of the high incidence of drug activity in the area, particularly the transportation of the "crack" form of cocaine across the George Washington Bridge from the Washington Heights area of New York City into Bergen County, New Jersey. Several New Jersey newspapers had, prior to September 12, 1986, announced in various prominent articles that the Prosecutor was planning roadblocks in this area and for this purpose.
After the agreement to establish the roadblocks had been reached, the Prosecutor formulated and promulgated guidelines that would govern the implementation of the roadblocks. The Prosecutor's guidelines were adapted from those used by the New Jersey State Police to govern their drunk driving roadblock operations, which the Prosecutor believed had received judicial sanction in State v. Kirk, 202 N.J. Super. 28 (App.Div.1985).
In addition to the State Police guidelines, the Prosecutor directed the police to follow other procedures. He mandated the presence of a police officer at each checkpoint throughout the roadblock area who was specially trained in narcotics investigations and in detecting the symptoms of motorists under the influence of alcohol and drugs. He also sought to minimize inconvenience to persons stopped by notifying area hospitals in advance of the possible need to take blood and urine samples.
The roadblock here under scrutiny was the first of a series approved by the Prosecutor and it occurred on Friday, September 12, 1986. The written request of Lieutenant James Matt of the Fort Lee Police Department satisfied the Prosecutor that there was particularly heavy trafficking of crack from New York City to New Jersey between approximately 7 p.m. and 3 a.m. during the weekends. Four "checkpoints" were set up throughout the roadblock on the New Jersey side of the George Washington Bridge on September 12, 1986 in the areas where the Prosecutor believed they would yield the most significant results and at the same time the least inconvenience to the public. Each driver stopped by the police who was not ordered to the side of the roadway was given a printed brochure which warned of the personal and public risk of driving under the influence of alcohol or drugs. The roadblock was set up at 7:30 p.m. and terminated at 10:50 p.m. There was one county police captain, two county detectives, and eight uniformed police officers supervising and operating this particular checkpoint which was located in Fort Lee several hundred yards west of the point
on the public highway where the lower level of the George Washington Bridge joins New Jersey.
The first vehicle was stopped at approximately 8:00 p.m., and the next vehicle was stopped five minutes later. Vehicles were then stopped every two minutes until 8:26 p.m. After that, a vehicle was stopped approximately every minute. The roadblock was announced by signs, and traffic was funneled through the checkpoints of this roadblock by cones, flares, and lighted police vehicles. During the operation, approximately one out of every twenty vehicles was stopped briefly for a license, registration, and insurance card check and for the detection by observation of any drugs or of any driver under the influence of drugs or alcohol. When all police personnel at the roadblock were occupied, traffic, though narrowed to one lane, was allowed to pass and thus was neither counted nor stopped.
On the evening in question, a total of fifty-nine vehicles out of the many which were stopped were actually ordered off the main thoroughfare to the side of the roadway and from those vehicles nine persons were arrested. The defendants herein -- two of the nine arrestees -- were charged with possession of controlled dangerous substances, possession of drug paraphernalia, being under the influence of a controlled dangerous substance, and possession of a controlled dangerous substance in a motor vehicle. At the time the defendants' vehicle was stopped, the police observed in it a brown paper bag containing syringes and ten small packages of white powder labeled "Dynamite." Neither of these defendants was charged with operating a motor vehicle in an illegal manner. Both defendants now move to suppress the physical evidence (including urine samples which were later taken and which were positive for narcotics) obtained by the police from their search of the vehicle, asserting that the roadblock at which they were stopped was unconstitutional.
II. The Interdiction of Defendants' Fundamental Liberties.
The use by the police of a roadblock which actually stops motor vehicles on a public thoroughfare for the purpose of detecting evidence of criminality facially interdicts the constitutionally protected fundamental liberties of persons to be free from unreasonable governmental intrusion and to travel freely on public highways. The right to be free from unreasonable governmental intrusion is protected by the Fourth Amendment to the United States Constitution and, in New Jersey, by Article I, paragraph 7 of the New Jersey Constitution.*fn2 The right to travel freely is protected by the Fifth and Fourteenth Amendments to the U.S. Constitution.
The Fourth Amendment to the U.S. Constitution applies to all seizures of the person including seizures that involve only a brief detention short of traditional arrest. Whenever a police officer restrains the freedom of a person to leave, the reasonableness of such a restraint depends upon a balance between the public's interest in enforcing law and the individual's right to personal security free from arbitrary intrusions by the government. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); State v. Kirk, 202 N.J. Super. at 40. The Brignoni-Ponce
case is particularly instructive here since it invalidated the use by the federal government of roving border patrols which randomly stopped motor vehicles in order to search for the presence of illegal aliens. Prouse is similarly instructive since it invalidated random police roadblocks seeking to ferret out drunk drivers from among the driving public. In both cases the court held that no seizures may be conducted unless the government can show that it had an articulable suspicion for seizing the specific person. While the Supreme Court did not rule on and did not rule out all warrantless automobile stops where there is less than articulable suspicion, it invited trial courts to scrutinize carefully the reasonableness of all stops. Justice Powell wrote in Brignoni-Ponce at 422 U.S. at 878, 95 S. Ct. at 2578, 45 L. Ed. 2d at 614-615, that:
The Fourth Amendment applies to all seizures that involve only a brief detention short of traditional arrest, Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S. Ct. 1868 [1877-1879], 20 L. Ed. 2d 889 (1968) and the Fourth Amendment requires that the seizure be "reasonable." As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. Terry v. Ohio, supra, ...