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State v. Hester

Decided: December 24, 1990.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CLEVE HESTER, JR., DEFENDANT-RESPONDENT



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

Shebell, Havey and Skillman. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

In this case of first impression in New Jersey, we are called upon to determine the validity of the stopping of an automobile after pursuit incidental to the operation of a driving-while-intoxicated (DWI) checkpoint. The basis for the stop was that the automobile made a U-turn, otherwise lawful, at a location approximately 300 to 400 feet before a police roadblock and checkpoint established for the purpose of detecting drivers operating under the influence of alcohol. The Law Division judge, in affirming the Municipal Court's order of suppression, found "the stop of defendant's vehicle to be a violation of the Fourth Amendment of the United States Constitution and Article 1 Paragraph 7 of the New Jersey Constitution." We granted the State's motion for leave to appeal, and now reverse and remand.

The State does not appear to contest the Law Division's factual findings. We recite those findings verbatim:

During the early morning hours of September 9, 1989,*fn1 the Egg Harbor Township Police Department set up a roadblock, to detect intoxicated drivers westbound on 322. The roadblock, which had ten officers assigned to it, was set up so that traffic was funneled into one lane.

At approximately 3:20 a.m. Patrolman Taverez, who was assigned to the roadblock, observed the defendant driving his vehicle in the direction of the roadblock. The defendant was 300 to 400 feet from the roadblock when he

made a lawful U-turn and proceeded eastbound on 322. Defendant did not violate any motor vehicle regulations. Moreover, the U-turn was made at the only lawful location in the area of the roadblock.

Patrolman Taverez, upon seeing the defendant make a U-turn, drove off from his location and made a stop of the defendant's vehicle. The patrolman stopped defendant because he believed the defendant was intoxicated in that he attempted to avoid the roadblock.

After the stop the officer determined that the defendant was sober. He then asked defendant for his driving credentials and upon checking, determined that his license was revoked. Defendant was issued a summons for driving on the revoked list, pursuant to N.J.S.A. 39:3-40.

Throughout these proceedings the parties have held in abeyance the issue of the constitutional validity of the DWI roadblock.*fn2 Defendant, however, concedes that issue only for the purpose of first determining the validity of the issue presented here: whether defendant's lawful U-turn, which permitted him to avoid the roadblock, was, without more, a sufficient basis for stopping his vehicle. The Association of Criminal Defense Lawyers of New Jersey, appearing by leave as amicus curiae, asserts that "[t]his case presents the Court with the opportunity to review the practice of designating a 'pursuit vehicle' at some police sobriety checkpoints." The Association notes that this practice entails the assignment of an officer "to pull over all automobiles attempting to avoid the roadblock."

In Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), the United States Supreme Court unequivocally disapproved the use of random stops in an effort to apprehend unlicensed drivers and unsafe vehicles. Id. at 663, 99 S. Ct. at 1401, 59 L. Ed. 2d at 674. However, in Michigan State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 2486-88, 110 L. Ed. 2d 412, 422-23 (1990), the Court, in applying the balancing test ...


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