Constitutional Pre-Publicity of Roadside Safety Checks
The administration of Roadside Safety Checks relating to pre-publicity of same has opened up the possibility of setting aside DUI arrests stemming therefrom.
Overall Requirements for Roadside Safety ChecksAs with all Illinois Roadside Safety Checks, any Roadside Safety Check at issue is required to be carried out pursuant to the directives contained in Illinois State Police Directive ENF - 023, Roadside Safety Checks. Among other things, Directive ENF -023 III C (III.C.7.) provides as follows:
"To enhance deterrence, the Safety Education Officer, or, designee, should publicize details. The specific location of the detail may be given at the discretion of the District Commander."
As it relates to pre-publicity of the Roadside Safety Check, ENF -023 III E (III.E.3.) provides as follows:
"......a copy of the pre - and post-press releases, as well as ISP 5-267 must be sent to the Grant Compliance Section within 10 days after the detail is conducted."
Incorporated within the Operational Plan at issue is a "DUI ENFORCEMENT (DUIE) ROADSIDE SAFETY CHECK PROCEDURE", which lists the mandates and objectives regarding pre-publicity that are required. Specifically, Paragraph 4, Objective C requires:
"Provide extensive publicity which will make the public cognizant of the DUI problem and the likelihood of being detected. A news release will be issued announcing, in general terms, plans to conduct roadside safety checks."
Clearly then by its own procedures, ISP has identified that publicity is a key component of the execution of these roadblocks. However, if it can be demonstrated that ISP has failed to provide the required pre-publicity, the roadblock should be found to be unconstitutional and ripe for challenge.
Minimum Requirements that cause Roadside Safety Checks to be Constitutionally permittibleThe constitutionality of Police Roadblocks has been litigated with reference to Fourth Amendment guarantees and has been refined with respect to the intrusiveness involved and the narrow tailoring of roadblocks to minimize the impact upon the expectation of privacy and liberties of motorists. In general, through the years, courts have considered an number of factors, namely: 1) whether there were preexisting written guidelines for the operation of the checkpoint, 2) whether there was advance publicity of the intention of the police to establish the checkpoint (such as publicizing the roadblock in local newspaper or local television), 3) whether the decision to establish the checkpoint and selection of the site was made by a "politically accountable" or "policy making level" official compared to an officer in the field, 4) whether the vehicles were stopped in a pre-established, systematic manner, 5) whether there was sufficient demonstration of the "official nature" of the roadblock which would alert approaching motorists and 6) whether it is obvious that the checkpoint poses no safety risk and does not unduly backup traffic. Delaware v. Prouse, 440 US 648 (1979), United States v. Martinez-Fuente, 428 US 543 (1976), Michigan Dept. of State Police v. Stitz, 496 US 444 (1990).
In Illinois, the foregoing issues were addressed by the Illinois Supreme Court in People v. Bartley, 109 Ill. 2d 273, 486 N.E.2d 880 (1985). In keeping with other cases passing on the issue, the Bartley court determined that arbitrary enforcement and the use of discretion by officers in the field were reduced and the subjective intrusions minimized when the aforementioned criteria are met, and in particular, when there is "advance publicity of the intention of the police to establish a roadblock."
Bartley has been subsequently relied on in decisions pertaining to the issue of pre-publicity requirements in roadblocks and roadside safety checks. In People v. Adams, 293 Ill. App. 3d 180, 687 N.E.2d 536 (1997), the court relied on Bartley's advance publicity dictates in finding the roadblock at issue unconstitutional due to insufficient evidence that the checkpoint at issue was "publicized clearly and in advance". Likewise, in People v. Fullwiley, 304 Ill. App. 3d 44, 719 N.E.2d 491 (1999), a roadside safety check was found unconstitutional when, among other things, the record provided no evidence that the roadblock was publicized.