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COMMONWEALTH PENNSYLVANIA v. JOSEPH D. TARBERT (12/29/87)

decided: December 29, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOSEPH D. TARBERT, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. WILLIAM T. DANNAKER, III, APPELLEE



Appeal from Order of Superior Court entered December 6, 1985, at No. 553 Harrisburg 1984 reversing Judgment of Sentence of Court of common Pleas of York County entered October 12, 1983, at No. 1621 Criminal Action 1983. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala and Papadakos, JJ., file concurring opinions. Flaherty, J., concurs in the result. Larsen, J., files a dissenting opinion. Hutchinson, Former J., did not participate in the decision of this case.

Author: Nix

[ 517 Pa. Page 279]

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

The instant appeals present a common issue, namely, whether the police may set up systematic roadblocks for the purpose of stopping and observing drivers to determine whether they are operating a motor vehicle under the influence of alcohol. In Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035, a panel of the Superior Court held that such roadblocks violated Article I, section 8 of the Pennsylvania Constitution, which prohibits unreasonable searches and seizures. In Commonwealth v. Dannaker, 517 Pa. 277, 535 A.2d 1035, a different panel of the Superior Court held that section 6308(b) of the Vehicle Code, 75 Pa.C.S. § 6308(b), prior to its amendment in 1985, did not authorize the police to conduct such roadblocks.

I.

A. Tarbert

The police department of York Township, York County, established a roadblock on a county road in the early morning hours of July 30, 1983. The purpose of the roadblock was to check all motorists travelling in either direction on the road to determine if they were driving under the influence of alcoholic beverages. The two police officers assigned to the roadblock were in uniform and had

[ 517 Pa. Page 280]

    driven to the site in marked police cars. Their procedure was to stop a vehicle, ask to see the operator's license and registration, and attempt to ascertain the existence of any clues that would lead them to believe that the driver might be under the influence of alcohol. When appellee Joseph D. Tarbert was stopped, the police officer who had stopped him noticed the odor of alcohol emanating from Tarbert's vehicle and observed that Tarbert's eyes were slightly bloodshot. The officer also observed that Tarbert appeared confused and that he took several seconds to produce his license and registration. The officer asked Tarbert to pull off the highway and park beside a police car. After Tarbert emerged from his car the officer approached Tarbert's vehicle and noticed an open bottle of beer near the driver's seat. The police officer then asked Tarbert to submit to three field-sobriety tests, two of which he failed. As a result, Tarbert was placed under arrest and taken to the police station where he was advised of his rights and given a breathalyzer test. The breathalyzer reading was .12 percent. Tarbert signed a copy of the test results and was released. After a jury trial before the Court of Common Pleas of York County, Tarbert was convicted of driving with a blood alcohol level of .10 percent or more in violation of section 3731(a)(4) of the Vehicle Code, 75 Pa.C.S. § 3731(a)(4) (Supp. 1987). He was sentenced to thirty days to twelve months' imprisonment and assessed a fine and the costs of prosecution. On direct appeal a panel of the Superior Court reversed the judgment of sentence, holding that the stop of Tarbert's vehicle pursuant to the roadblock violated Article I, section 8 of the Pennsylvania Constitution. Commonwealth v. Tarbert, 348 Pa. Super. 306, 502 A.2d 221 (1985). This Court subsequently granted the Commonwealth's petition for allowance of appeal.

B. Dannaker

On April 7, 1984, pursuant to a discussion among six or seven officers and the police chief, and after consultation with the district attorney, the police department of Brookhaven Township, Delaware County conducted a drunk driving

[ 517 Pa. Page 281]

    roadblock on a main artery which had been the site of prior accidents and arrests for drunk driving. The assigned police officers were in uniform and wearing orange reflection vests. The lighting in the area of the roadblock was adequate and fifteen to twenty flares had been set up along the road. Three drivers at a time were directed to an observation area where a flashlight was shined in their eyes and they were informed of the nature of the roadblock and given pamphlets concerning driving under the influence. Other traffic was permitted to pass while each group of three vehicles was being detained. Appellee William T. Dannaker, III, was among the drivers stopped for observation. The police officer who approached Dannaker's vehicle observed that Dannaker's eyes were bloodshot and the smell of alcohol was on his breath. When Dannaker was asked to step out of his car, the officer noticed that Dannaker's speech was slurred and he was having difficulty maintaining his balance. As a result of these observations Dannaker was placed under arrest and transported to police headquarters, where the officer advised him of his rights and administered a breathalyzer test. Dannaker's blood alcohol level was registered as .11 percent. In pre-trial motions Dannaker challenged the legality of the stop of his vehicle under section 6308(b) of the Vehicle Code, 75 Pa.C.S. § 6308(b). The Delaware County Court of Common Pleas granted Dannaker's motion to suppress the results of the breathalyzer test and dismissed the charges against him. The Commonwealth appealed to the Superior Court, which affirmed the suppression order. Commonwealth v. Dannaker, 352 Pa. Super. 611, 505 A.2d 1030 (1985). We granted the Commonwealth's request for allocatur.

II.

We granted review in the instant cases to determine an issue of first impression and far-reaching significance: whether police roadblocks designed to detect persons driving under the influence of alcohol are legally valid. To resolve that question we are called upon to determine whether such roadblocks are violative of this state's constitutional

[ 517 Pa. Page 282]

    prohibition against unreasonable searches and seizures, or, in the alternative, whether such roadblocks are unlawful for want of specific statutory authorization.

Article I, section 8 of the Pennsylvania Constitution provides:

§ 8. Security from searches and seizures

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. Art. I, § 8.

The role of this Court in interpreting the above constitutional protections was recently explained in Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983):

While minimum federal constitutional guarantees are "equally applicable to the [analogous] state constitutional provision," see, e.g., Commonwealth v. Platou, 455 Pa. 258, 260 n. 2, 312 A.2d 29, 31 n. 2 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974), the state has the power to provide broader standards than those mandated by the federal Constitution:

It is well settled that a state may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution, and that the rights so guaranteed may be more expansive than their federal counterparts. Prune-Yard Shopping Center v. Robins, 447 U.S. 74, 80-82, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741 (1980); see Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). See also Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971), cert. granted sub nom. Pennsylvania v. Ware, 405 U.S. 987, 92 S.Ct. 1254, 31 L.Ed.2d 453, subsequently vacated and denied, 406 U.S. 910, 92 S.Ct.

[ 517 Pa. Page 2831606]

, 31 L.Ed.2d 821 (1972) ("it appearing that the judgment below rests upon an adequate state ground"). This Court has on numerous occasions recognized the Pennsylvania Constitution to be an alternative and independent source of individual rights. See, e.g. Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Knowles, 459 Pa. 70,, 73 n. 3 327 A.2d 19, 20 N. 3 (1974); Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 451 L.Ed.2d 1146 (1974); Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961). Commonwealth v. Tate, 495 Pa. 158, 169-70, 432 A.2d 1382, 1387-1388 (1981).

This Court has not hesitated to interpret the Pennsylvania Constitution as affording greater protection to defendants than the federal Constitution. See, e.g., Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).

Id., 504 Pa. at 63-64, 470 A.2d at 466-467.

While we are mindful of the limited nature of the protections guaranteed by the federal Constitution, we nonetheless find the large body of federal Fourth Amendment jurisprudence instructive and will accord weight to federal court decisions in interpreting Pennsylvania's constitutional protections where those decisions "are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, . . . ." Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502

[ 517 Pa. Page 284]

(1977), quoted in Commonwealth v. Sell, supra, 504 Pa. at 49, 470 A.2d at 459.

It is no longer open to question that the stopping of an automobile and the detention of its occupants is a seizure subject to constitutional restraints. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). However, "one's expectation of privacy in an automobile and freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence." United States v. Martinez-Fuerte, supra, 428 U.S. at 561, 96 S.Ct. at 3084. Moreover, "[a]utomobiles, unlike homes, are subject to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements." South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). Despite the fact that the vehicle and its use are subject to such regulations, the driver and passengers do not forfeit all reasonable expectation of privacy, and may not be subjected to unfettered governmental intrusion. Delaware v. Prouse, supra.

As the text of Article I, section 8 of our state constitution makes clear, the citizens of this Commonwealth may not be subjected to "unreasonable searches and seizures." The United States Supreme Court, interpreting the Fourth Amendment's identical phrase, has indicated that a finding of "reasonableness" may, in limited circumstances, be predicated upon less than the traditional requirement of probable cause.

The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of "reasonableness" upon the exercise of discretion by government officials, including law enforcement agents, in order "'to safeguard the privacy and security of individuals against

[ 517 Pa. Page 285]

    arbitrary invasions . . . .'" Marshall v. Barlow's, Inc., 436 U.S. 307, 312 [98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528 [87 S.Ct. 1727, 1730, 18 L.Ed.2d 930] (1967). Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against "an objective standard," whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon "some quantum of individualized suspicion," other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not "subject to the discretion of the official in the field," Camara v. Municipal Court, 387 U.S., at 532 [87 S.Ct. at 1733]. See id., at 534-535 [87 S.Ct. at 1734]; Marshall v. Barlow's, Inc., supra, [436 U.S.] at 320-321 [98 S.Ct. at 1824-25]; United States v. United States District Court, 407 U.S. 297, 322-323 [92 S.Ct. 2125, 2139, 32 L.Ed.2d 752] (1972) (requiring warrants).

Delaware v. Prouse, supra, at 653-655 (footnotes omitted; emphasis added).

The balancing-of-interests approach to the determination of Fourth Amendment "reasonableness" finds its origin in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), a case involving a challenge to an ordinance permitting the code-enforcement inspection of residences. The Camara Court identified the basic purpose of the Fourth Amendment as the protection of the privacy and security of individuals against arbitrary invasions by government officials. Id. at 528, 87 S.Ct. at 173. In assessing the reasonableness of the governmental intrusion, the Court considered the strength of the public interest in effectively combatting the problem, and the ability to achieve acceptable results by other means, weighed against

[ 517 Pa. Page 286]

    the extent of the invasion of the citizen's privacy. Id. at 537, 87 S.Ct. at 1735.

In our recent decision in Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987), this Court explicitly approved, for some circumstances, the balancing-of-interests approach for determining reasonableness under Article I, section 8 of the Pennsylvania Constitution.*fn1 That case involved the warrantless deployment of a narcotics detection dog to perform a "sniff-search" in a building where the police suspected illegal drugs were being stored. We noted that the considerable utility of this law enforcement procedure would be lost if traditional warrant requirements were imposed, and found the procedure's intrusiveness to be minimal provided the police had articulable and reasonable grounds for their suspicion and were lawfully present at the site of the search:

[A] canine sniff-search is inherently less intrusive upon an individual's privacy than other searches such as wire-tapping or rummaging through one's luggage; it is unlikely to intrude except marginally upon innocent persons; and an individual's interest in being free from police harassment, annoyance, inconvenience and humiliation is reasonably certain of protection if the police must have a

[ 517 Pa. Page 287]

    reason before they may, in the circumstances of this case, utilize a ...


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