As I’ve mentioned in past posts, the U.S. Supreme Court years ago reversed a Michigan State Supreme Court decision and held that DUI roadblocks (aka "checkpoints") are not violations of the Constitution. See Are DUI Roadblocks Constitutional? Since then, a growing number of states have relied upon their own constitutions to ban the practice. See, for example, Growing Number of States Outlawing DUI Roadblocks.
Since then, it has been common practice for police to pull over any driver who appears to be avoiding a roadblock. And the question has arisen: Does turning around, say, a block ahead of the checkpoint, constitute sufficient reasonable suspicion of intoxication to justify pulling the driver over? In almost every case, the courts have held that it does not: mere avoidance is not an indication of drunk driving and so cannot be used to justify a stop and detention.
The Supreme Court of South Dakota, however, has decided that although turning around to avoid a roadblock is not enough, it becomes sufficiently "suspicious" if the turn is a wide one — even if a legal one!
South Dakota Supreme Court: Avoiding Nighttime Roadblock is Suspicious
The Newspaper.com, April 25 — Avoiding a roadblock is, in effect, sufficient justification for police to pull over a driver, the Supreme Court of South Dakota ruled last Wednesday. The justices unanimously ruled that avoidance itself technically is not enough, they approved the most minor of "suspicious" circumstances to justify pulling over any motorist who does not want to be stopped and interrogated at a checkpoint.
The decision came in the case of Ryan Rademaker, who had been driving a friend home at 1am on a Sunday. As he saw the blockade on the highway ahead, Rademaker turned off on a gravel road. A highway patrol officer issued orders to a local police officer who understood his mission was to stop Rademaker for avoiding the roadblock. The officer testified that he did not observe Rademaker violating any traffic laws, but the officer noted the driver made a "wide turn." The officer also noted, after he activated his red lights, that Rademaker might have been speeding.
The court looked to the question of whether the officer violated Rademaker’s Fourth Amendment rights and whether there was reasonable suspicion that Rademaker may have been involved in criminal activity. Rademaker cited a series of Eight US Circuit Court of Appeals decisions that concluded avoiding a roadblock is not enough to justify a traffic stop.
"In light of this line of case law, we join the Eighth Circuit in holding that avoidance of a checkpoint alone is insufficient to form a basis for reasonable suspicion," Justice Lori S. Wilbur wrote for the court. "However, the Eighth Circuit was clear that checkpoint avoidance is indeed suspicious and thus our analysis does not end here."
To uphold the conviction, the justices turned to the "totality of circumstances" doctrine to find a number of elements that are not in themselves criminal but lend enough to rationalize the officer’s actions in the court’s eyes.
"In addition to the checkpoint avoidance, the trial court also relied on two other suspicious factors: the time of day, 1 am and the police officer’s observation that Rademaker made an unusually wide, but legal, turn," Wilbur wrote. "Both this court and the Eighth Circuit have used the time of day as a ‘factor’ in determining whether reasonable suspicion exists… Likewise, this court recently held that a wide turn, even if not in violation of any traffic laws, may be sufficient in some circumstances to engender reasonable suspicion."
As a result of the high court’s finding, Rademaker’s conviction for driving under the influence of alcohol (DUI) was upheld. Alaska, Idaho, Iowa, Michigan, Minnesota, Montana, Oregon, Rhode Island, Texas, Washington, Wisconsin and Wyoming outlaw DUI roadblocks as a violation of their state constitutional protection against warrantless search and seizure.
Amazing. A turn that is legal but "unusually wide" (whatever that means) is enough to pull over a driver on suspicion of drunk driving. This is an example of what I meant in the banner at the top of this blog by "a fading Constitution".