By Atty. Emmanuel Samonte Tipon

It is a holiday week-end. You have spent half the night drinking. As you drive home, you see police cars with flashing lights and a long line of cars. It is a roadblock (checkpoint). You want to avoid it. You turn onto a side road. A police car chases you with lights flashing and sirens screaming. What now?

Here is an actual case. The Police of Maui, Hawaii, established a checkpoint on Mokulele Highway south of the intersection of Mokulele Highway and Mehameha Loop. Raymond was driving on Mokulele Highway. He passed a sign  “INTOXICATION CHECKPOINT”. He turned onto Mehameha Loop, an isolated, dead end road surrounded by sugarcane fields. A police officer stationed as a “chase car” followed. The officer activated his lights and stopped Raymond who was later charged with operating a vehicle under the influence of an intoxicant (OVUII or DUI), Hawaii Revised Statutes § 291E-61(a).

Raymond, with the assistance of a Hawaii criminal lawyer moved to suppress all of the evidence and statements obtained as a result of the stop of his vehicle because (1) the purported investigatory stop of his vehicle violated article 1, section 7 of the Hawaii Constitution since it was not supported by a reasonable and articulable suspicion that defendant was engaged in criminal conduct and (2) the “chase car” police procedure of stopping all vehicles that lawfully turn onto a public way in advance of a checkpoint exceeded that statutorily authorized. The district court denied the motion. Raymond entered a conditional no contest plea. The court sentenced defendant. He appealed.

The Hawaii Supreme Court, in an opinion by Justice Simeon Acoba, a Filipino, held that the district court was wrong in denying defendant’s motion to suppress, vacated the order and remanded the case with instructions to enter an order granting defendant’s motion to suppress and allow defendant to withdraw his conditional no contest plea.  State of Hawaii v. Raymond J. Heapy, 151 P.3d 764 (Hawaii 2007).

Reasonable suspicion to justify a stop must relate to criminal activity. The criminal activity for which defendant was stopped was operating a vehicle under the influence of an intoxicant. However, the officer observed no acts indicating a violation of the statute before the stop. He therefore lacked any objective basis (specific and articulable facts) that defendant was violating the statute so as to justify the stop. Accordingly the officer had no grounds for reasonably believing criminal activity was afoot. In stopping vehicles turning in advance of the checkpoint, the procedure exceeded the authority granted to the police to establish roadblocks under HRS 291E-19 and 20 (Supp 2005). Since the stop was unlawful all evidence derived from the stop must be suppressed.

 The stop violated article 1, section 7 of the Hawaii Constitution which protects the right of the people to be secure in their persons against unreasonable seizures and invasions of privacy. A stop of a vehicle for investigatory purposes constitutes a seizure. A warrantless seizure is presumed invalid unless the prosecution proves the seizure falls within an exception. One exception is where the officer has a reasonable suspicion that the person stopped was engaged in criminal conduct. Defendant was stopped without a reasonable and articulable suspicion that he was operating a vehicle under the influence of alcohol. The only suspicion that the officer had was that defendant was attempting to avoid a roadblock, not that he was driving under the influence of an intoxicant. Mere possibility of criminal activity does not satisfy the constitutional requirement that a stop be based on suspicion that criminal activity is afoot. The fact that the defendant exhibited signs of intoxication after the stop did not retroactively justify the stop.