No. 2--99--1288
March 30, 2001

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JUSTICE McLAREN delivered the opinion of the court:

Following a jury trial, defendant, Robert Lidster, wasconvicted of driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 1998)). Defendant was arrested after beingstopped at an "informational roadblock" conducted by the Lombardpolice department. He appeals, contending that the trial courterred in denying his motion to quash his arrest and suppressevidence because the roadblock was an unreasonable seizure.

On August 30, 1997, Lombard police set up an "informativestop" on North Avenue, at the location of a hit-and-run accident aweek before. The officers intended to stop all eastbound trafficand pass out flyers about the accident, hoping that someone hadwitnessed the incident and could provide information about theoffender or his vehicle.

While conducting the roadblock, Detective Wayne Vasil wasstanding in the center lane of North Avenue. As each vehiclepulled up, an officer would hand the driver a flyer about theaccident. One such vehicle was defendant's Mazda minivan, whichalmost struck Vasil as defendant approached. At that point, Vasilwas not aware that defendant had violated any state law or cityordinance, although he had "some sort of feeling that somethingmight be wrong." Vasil stated that defendant's van had alreadybeen stopped pursuant to the roadblock before nearly striking him.

Vasil approached the van to ask defendant why he had almosthit him. During the ensuing conversation, Vasil began to suspectthat defendant might be under the influence of alcohol. As aresult, he directed defendant to pull onto a side street for fieldsobriety tests. Another officer conducted the tests and defendantwas arrested for driving under the influence of alcohol.

Defendant moved to quash his arrest, arguing that theroadblock was unconstitutional. The trial court denied the motion. Subsequently, a jury found defendant guilty and the court sentencedhim to court supervision. After the court denied his posttrialmotion, defendant filed a timely notice of appeal.

On appeal, defendant renews his argument that the roadblockwas unconstitutional. He contends that, under the balancing testdeveloped by the state and federal courts, the public interest inconducting the roadblock--searching for evidence about a priorcrime--did not outweigh the intrusion on the rights of innocentmotorists.

A fourth amendment seizure occurs when a vehicle is stopped ata checkpoint. Michigan Department of State Police v. Sitz, 496U.S. 444, 450, 110 L. Ed. 2d 412, 420, 110 S. Ct. 2481, 2485(1990); People v. Fullwiley, 304 Ill. App. 3d 44, 49 (1999). Whether a particular roadblock or similar device violates thefourth amendment is a question of reasonableness. People v.Bartley, 109 Ill. 2d 273, 280 (1985). The test courts havedeveloped to assess the reasonableness of a procedure involvesbalancing the intrusion on an individual's fourth amendmentinterests against the program's promotion of legitimate governmentinterests. Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d660, 667-68, 99 S. Ct. 1391, 1396 (1979). This in turn requiresthe court to weigh the gravity of the public concerns served by theseizure and the degree to which the seizure advances those interests against the severity of the interference with individualliberty. Brown v. Texas, 443 U.S. 47, 50-51, 61 L. Ed. 2d 357,361-62, 99 S. Ct. 2637, 2640 (1979); Bartley, 109 Ill. 2d at 280.

After the parties filed their briefs, the United StatesSupreme Court decided City of Indianapolis v. Edmond, 531 U.S. ___,148 L. Ed. 2d 333, 121 S. Ct. 447 (2000). There, citizens soughtto enjoin the city's use of roadblocks to search for evidence ofdrug trafficking. The court found the roadblock programunconstitutional because its sole purpose was to uncover evidenceof "ordinary criminal wrongdoing." Edmond, 531 U.S. at ___, 148 L.Ed. 2d at 343, 121 S. Ct. at 454. Noting that its roadblock caseshad recognized only a limited exception to the rule that a seizuremust be accompanied by some measure of individualized suspicion,the Edmond majority observed that the roadblocks the Court hadpreviously approved were designed to further a compelling purposesuch as promoting highway safety by targeting drunk drivers (seeSitz, 496 U.S. at 455, 110 L. Ed. 2d at 423, 110 S. Ct. at 2488) orpolicing the border to stanch the flow of illegal aliens (seeUnited States v. Martinez-Fuerte, 428 U.S. 543, 551-52, 49 L. Ed.2d 1116, 1124-25, 96 S. Ct. 3074, 3080 (1976)). Edmond, 531 U.S.at ___, 148 L. Ed. 2d at 341-42, 121 S. Ct. at 452-53. However,the Court declined "to suspend the usual requirement ofindividualized suspicion where the police seek to employ acheckpoint primarily for the ordinary enterprise of investigatingcrimes." Edmond, 531 U.S. at ___, 148 L. Ed. 2d at 345, 121 S. Ct.at 455.

Although the roadblock in this case is in some ways differentfrom the one at issue in Edmond, it is impossible to escape theconclusion that the roadblock's ostensible purpose was to seekevidence of "ordinary criminal wrongdoing." Vasil testified thatthe roadblock was set up in the hope of obtaining more informationabout a driver responsible for killing a bicyclist a week earlier. The police stopped cars near the site of the accident and at aboutthe same time of day the accident occurred in the hope that someonewho left work at that time or otherwise traveled that routeregularly might have seen the accident. The express purpose of theroadblock was to search for evidence of a crime.

Edmond did leave open the possibility that an "emergency"might justify a checkpoint the purpose of which would ordinarily beconsidered routine crime control. The Court gave as examplespreventing an imminent terrorist attack and catching a dangerouscriminal "who is likely to flee by way of a particular route." Edmond, 531 U.S. at ___, 148 L. Ed. 2d at 345, 121 S. Ct. at 455. Clearly, no such emergency was present here. The crime in questionhad occurred a week before. Moreover, the officers did not testifythat they expected even to catch the offender; they merely wantedto get a more accurate description of him. This is the type ofroutine investigative work that the police must do every day anddoes not justify the extraordinary means chosen to further theinvestigation.

One apparent concern of the Court in Edmond was that, if "theordinary enterprise of investigating crimes" (Edmond, 531 U.S. at___, 148 L. Ed. 2d at 345, 121 S. Ct. at 455)) could be the basisfor a checkpoint, there would be no theoretical limit on when suchtactics could be employed and the requirement of individualizedsuspicion would be nullified. While the crime under investigationhere, involving the death of an innocent person, is undoubtedlyserious, equally serious crimes unfortunately happen every day inmany jurisdictions. If investigating such a crime could be thebasis for a roadblock, police could stop all cars entering orleaving town virtually every day on the chance that someone mighthave seen something that would aid the investigation.

Such unbridled use of checkpoints also leaves open thepossibility of police subterfuge, using the pretense ofinvestigating some infamous crime to stop motorists based on "thegeneralized and ever-present possibility that interrogation andinspection may reveal that any given motorist has committed somecrime." Edmond, 531 U.S. at ___, 148 L. Ed. 2d at 345, 121 S. Ct.at 455. We note that in this case a second officer was stationedon a side street, apparently to prevent drivers from evading theroadblock. This tends to discredit the explanation that the policewere merely seeking information. Presumably, if a motorist werewilling to provide information to the police, he or she would notattempt to avoid the roadblock.

The State argues that the public interest in seeing the hit-and-run solved was not insubstantial and that the police tookreasonable steps to minimize the intrusion on the motorists'rights. However, assuming for the sake of argument that the policedid everything reasonably possible to minimize the intrusion,Edmond strongly suggests that a criminal investigation can never bethe basis for a roadblock, at least absent some emergencycircumstance not present here. Such an interest is simply notsufficiently weighty to counterbalance even a minimal intrusion onthe rights of drivers stopped at the checkpoint.

Finally, although not itself dispositive, some mention shouldbe made of the third element of the balancing equation, the degreeto which the seizure advances the public interest. The SupremeCourt has required that the facts on which such an intrusion isbased must "be capable of measurement against 'an objectivestandard.' " Prouse, 440 U.S. at 654, 59 L. Ed. 2d at 668, 99 S.Ct. at 1396. Generally, the choice among reasonable enforcementalternatives must be left with local governmental officials " 'whohave a unique understanding of, and a responsibility for, limitedpublic resources.' " People v. Adams, 293 Ill. App. 3d 180, 189(1997), quoting Sitz, 496 U.S. at 453-54, 110 L. Ed. 2d at 422, 110S. Ct. at 2487. However, this does not mean that the courts must

" 'blindly defer to whatever enforcement techniques are chosen byofficials' " because courts must analyze these techniques to ensurethat they are, in fact, reasonable in the context of the fourthamendment. Adams, 293 Ill. App. 3d at 189-90, quoting Holt v.State, 887 S.W.2d 16, 19 (Tex. Crim. App. 1994). Here, the Statepresented no empirical evidence of the effectiveness of such acheckpoint program. In the absence of evidence to the contrary, itseems likely that more traditional law enforcement techniques wouldhave been just as, if not more, effective than the roadblockwithout infringing on the constitutional rights of numerousmotorists, none of whom was suspected of a crime.

Because the roadblock at which defendant was apprehended didnot comply with constitutional standards, the trial court shouldhave granted defendant's motion to quash his arrest and suppressevidence. Absent this evidence, there remains no evidence tosupport his conviction for driving under the influence of alcohol.

The judgment of the circuit court of Du Page County isreversed.

Reversed.

GEIGER and BOWMAN, JJ., concur.