AR: DUI roadblock set up purely in the discretion of the officer on an interstate highway off-ramp was unreasonable

A DUI roadblock set up purely in the discretion of the officer on an interstate highway off-ramp was unreasonable. Whelan v. State, 2016 Ark. 343 (Oct. 20, 2016):

We also find merit in Whalen’s argument that the field officers exercised unfettered discretion in establishing and conducting the checkpoint. The United States Supreme Court has held that “[t]he 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 arbitrary invasions ….’” Prouse, 440 U.S. at 653–54 (citations omitted) (quoting Marshall v. Barlow’s Inc., 436 U.S. 307 (1978)).

In State v. Hicks, the Tennessee Supreme Court identified two factors that are critical to a finding that the field officers’ discretion was properly limited: (1) the decision to set up the roadblock in the first instance cannot have been made by the officer or officers actually establishing the checkpoint, and (2) the officers on the scene cannot decide for themselves the procedures to be used in operating the roadblock. 55 S.W.3d 515, 533 (Tenn. 2001). The Hicks Court explained that the “State must show that some authority superior to the officers in the field decided to establish the roadblock, particularly as to its time and location, and that the officers adhered to neutral standards previously fixed by administrative decision or regulation.” Id. Finally, the court stated that these factors are so essential to the reasonableness of a roadblock that the absence of either factor will result in the invalidation of the stop. Id.

We adopt the reasoning of the Tennessee Supreme Court in Hicks and hold that the State’s failure to demonstrate that the field officers’ discretion was properly limited requires this court to declare Whalen’s checkpoint stop unconstitutional. As to the first Hicks factor the decision to implement the checkpoint, including the location, time, and duration of the checkpoint, was left to the sole discretion of Corporal Lee, a field officer. Turning to the second Hicks factor, despite the State’s argument to the contrary, that the field officers’ discretion was limited because the vehicles were stopped in a preestablished, systematic fashion, the record demonstrates otherwise. The record demonstrates that all pertinent decisions regarding the procedures used in operating the checkpoint were left to the unfettered discretion of the field officers. In the present case, the State did not present any evidence regarding the limitations placed on the field officers’ discretion. Accordingly, based on the absence of some authority superior to that of the field officers who did not take part in the implementation of the checkpoint plan, there was, in effect, unfettered discretion given to the field officers. Thus, the checkpoint at issue was unconstitutional.