Bauder v. Commonwealth

Opinion of the Court by

Appellant, Mark E. Bauder, was arrested on December 26, 2005, at approximately 11:00 p.m., by Kentucky State Trooper, Eric Gibson, and charged with driving under the influence of alcohol. As part of an effort by the Kentucky State Police to deter driving while under the influence during the holiday season, a roadblock was *590established at the intersection of Kentucky Highway 300 and Kentucky Highway 34 in Parksville, Kentucky. The troopers activated their emergency lights and established a location on the sides of the intersection, but placed no markings or signs to notify the public in advance of the roadblock.

According to the testimony of Trooper Gibson, Appellant came to an abrupt stop within one hundred feet of the checkpoint and made a turn onto Mill Road, a side road leading to a fire station, cemetery, and several residences.1 It is undisputed that Appellant had a clear, unobstructed view of the roadblock. At this point, no other vehicles had proceeded through the roadblock and Appellant’s vehicle was the first one observed by the officer. Appellant used the side road to circumvent the 34/300 intersection, and he eventually turned off that road and re-entered Kentucky Highway 300 and continued on his way, effectively bypassing the roadblock.

Upon witnessing this, Trooper Gibson followed Appellant and proceeded to stop him. When Trooper Gibson approached Appellant, he noticed that Appellant smelled of alcohol and appeared to be under the influence. Trooper Gibson stated that he observed no other offenses committed by Appellant, and that he stopped Appellant based solely on his avoidance of the roadblock. Appellant admitted to attempting to bypass the roadblock, but stated that he did so out of a belief that there had been a wreck.

Prior to this day, Trooper Gibson had participated in over one hundred other such roadblocks. In his experience, Trooper Gibson noted that a vehicle turning away from a roadblock was generally indicative of the operator of that vehicle either driving while intoxicated or driving on a suspended license. While some drivers might turn to avoid an accident, this typically only happened when traffic was congested. As such, Trooper Gibson testified that when manpower allowed, he would routinely stop those drivers avoiding a police roadblock.

Appellant subsequently filed a motion to suppress the evidence obtained during the “unlawful, warrantless arrest, in the absence of probable cause.” The Boyle District Court denied Appellant’s motion to suppress and on March 17, 2007, Appellant entered a conditional guilty plea to DUI, first offense. Pursuant to a written notation on the guilty plea form, Appellant reserved the right to seek appellate review of the Boyle District Court’s ruling on his motion to suppress. By order dated August 27, 2007, the Boyle Circuit Court affirmed the trial court’s ruling and on December 17, 2007, the Court of Appeals denied discretionary review. Discretionary review was then granted by this Court.

Appellant’s primary contention on appeal is that the trial court erred in failing to suppress the evidence seized because the arresting officer had no ar-ticulable and reasonable suspicion that Appellant had violated the law prior to the stop. The undisputed facts establish that Appellant was subjected to an investigatory stop, and it is ultimately to be determined whether that stop was consistent with Appellant’s right to be free from an unreasonable seizure as protected by the Fourth Amendment to the Constitution of the United States and Section 10 of the Kentucky Constitution.

A police officer may constitutionally conduct a brief, investigatory stop *591when the officer has a reasonable, articula-ble suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A reasonable suspicion is more than an “unparticular-ized suspicion or ‘hunch.’” Id. at 27, 88 S.Ct. 1868. Reasonable suspicion, while requiring less of a showing than probable cause, requires at least a minimal level of objective justification for making the stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Accordingly, the stop of an automobile and the resulting detention of the driver are unreasonable, under the Fourth Amendment, absent a reasonable, articulable suspicion that the driver is unlicensed, or that the automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The court must consider the totality of the circumstances in determining whether a police officer had a particularized and objective basis for suspecting that a person stopped may be involved in criminal activity. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

The United States Supreme Court prescribed the proper standard of review in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Ornelas provides that the determination of a lower court regarding a suppression motion based on an alleged illegal search is subject to a two-pronged analysis. First, historical facts should be reviewed for clear error, and the facts are deemed to be conclusive if supported by substantial evidence. Id. at 699,116 S.Ct. 1657. Second, determinations of reasonable suspicion and probable cause are mixed questions of law and fact and are, therefore, subject to de novo review. Id. In addition, we are bound to give “due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id.

Appellant contends that the totality of the circumstances in this case, as established by the undisputed evidence, did not give rise to the requisite reasonable suspicion that he may have been involved in some form of criminal or otherwise unlawful activity. He argues that none of his driving maneuvers in proximity to the checkpoint were unlawful, and that the avoidance of the checkpoint itself is not unlawful. Trooper Gibson made it clear that the sole reason he stopped Appellant was because he turned his vehicle off the highway prior to the roadblock. Thus, Appellant contends that under such circumstances, neither Trooper Gibson nor any objectively reasonable police officer would believe that the pursuit and stop were appropriate.

The Court of Appeals addressed this issue with strikingly similar facts in Steinbeck v. Commonwealth, 862 S.W.2d 912 (Ky.App.1993). In Steinbeck, police had set up a roadblock to detect intoxicated drivers and it was established approximately one hundred yards from the Kentucky end of the Cairo Bridge. At around 3:15 a.m., Steinbeck was driving his pickup truck from Cairo, Illinois to his home in Ballard County, Kentucky. After exiting the bridge, but before reaching the roadblock, Steinbeck made a left-hand turn onto an “unpaved country road with no visible structures or housing along its route.” Id. After seeing Steinbeck turn, an officer got into his cruiser and conducted an investigatory stop. As in this case, the sole basis for the stop was the deputy sheriffs “belief that [Steinbeck] was attempting to avoid the checkpoint due to intoxication.” Id. at 913. This belief was based in part on the sheriffs own experience that in “every road check” that he had been a part of “every [driver] that turns [on that road] *592... has been drinking alcohol....” Id. Relying heavily on Snyder v. State, 538 N.E.2d 961 (Ind.Ct.App.1989), the Court of Appeals held that the officer had specific, reasonable, and articulable facts which allowed him to draw an inference sufficient to form a belief that Steinbeck might have been engaging in criminal activity, thus justifying the stop. Steinbeck, 862 S.W.2d at 914. This finding was based on a “totality of the circumstances” analysis:

We believe that appellant’s turn away from the sobriety checkpoint, coupled with the deputy sheriffs experience in similar instances, the time of day, and the nature of the roadway onto which the appellant turned, constitute specific, x’easonable, and articulable facts which allowed the police officer to draw an inference sufficient to form a reasonable suspicion that the driver might have been engaging in criminal activity. (Emphasis added.)

Steinbeck, 862 S.W.2d at 914.

Contrary to the opinion expressed in the dissent, we will wait for another day to determine if the act of making a turn around itself raises a specific and articula-ble fact sufficient to give rise to reasonable suspicion. Here, we apply the “totality of the circumstances” approach in Steinbeck to determine if reasonable suspicion exists. Officers may draw on their own experience and specialized training to make inferences from, and deductions about, the cumulative information available to them that might well elude an untrained person. United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Police officers are in an extraordinax-y position that requires them to make split-second determinations of reasonable suspicion, sometimes in dire and even dangerous circumstances. This determination is generally made through the prism of each officer’s own training and experience. See Ornelas, 517 U.S. at 699, 116 S.Ct. 1657 (“[A] police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the histoi’ical facts, and wheix seen together yield inferences that desex-ve deference.”). This Court has made clear that due defei'ence must be given to the reasonableness of inferences made by police officers. Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky.2002).

Certainly, there are a multitude of reasons why a driver may avoid a police roadblock, many of which may be completely innocent. Bass v. Commonwealth, 259 Va. 470, 525 S.E.2d 921, 925 (2000) (“The l'easons for which a diiver may i’e-vei'se direction other than to evade a traffic checkpoint are legion in number and are a matter of common knowledge and experience.”). However, we must apply an objective test from the viewpoint of the officer. We believe that xinder the circumstances of this case, x*easonable suspicion arose and justified Appellant’s stop by Trooper Gibson.

According to the testimony of Trooper Gibson, Appellant came to an “abrupt” stop one hundred feet fi’om the i*oadblock before turning onto a side road. See United States v. Lester, 148 F.Supp.2d 597, 603 (D.Md.2001) (“[T]he closer a mo-toi"ist is to a roadblock when he or she turns, the more objectively l-easonable it may be to infer the turn was made out of a consciousness of guilt.”). It is undisputed that Appellant’s view of the roadblock was unobstructed when he made the turn. Moi'eover, at the time of making the turn, there was no congestion along the highway and no line had yet formed at the roadblock. Indeed, Trooper Gibson testified that Appellant’s car was the first he saw after establishing the l'oadblock. It is understandable that a person may wish to avoid the delay which an encounter with *593police might entail. However, in this case, virtually no delay would have resulted since Appellant was the first driver to approach the roadblock. Furthermore, Trooper Gibson observed Appellant exit the highway, proceed down Mill Road past residential opportunities or other logical destinations, and then re-enter the highway, effectively avoiding the intersection and the police roadblock. It was obvious to the officer that this was not simply a motorist intent on innocuously pulling into his own driveway. Though Trooper Gibson may not have observed any other traffic violations on the part of Appellant, his own training and experience, coupled with the above-mentioned circumstances, reasonably indicated that Appellant was intentionally avoiding the roadblock to evade arrest or detection. As such, Trooper Gibson clearly had a reasonable suspicion, based on specific and articulable facts, that Appellant was committing a crime or otherwise engaging in unlawful activity, thus justifying the investigatory stop.

The dissent centers its argument on the right to be left alone. Surely, with over 40,000 Americans losing their lives on our highways each year, a person does not enter upon our highly regulated, highly policed, overcrowded and dangerous public highways with any attending expectation of “simply being left alone.” If such notion is to take on Constitutional proportion, then motorists would be entitled to simply blow through roadblocks with a wave and contemptuous grin. There would be no law on our highways.

For the reasons set forth herein, the judgment of the Boyle Circuit Court is hereby affirmed.