Thursday, December 17, 2015

Published KY Supreme Court Roadblock Decision!

Today we got a beautiful piece of artwork delivered by the Kentucky Supreme Court in the Commonwealth v. Billy Cox, a published opinion changing roadblock law in this great Bluegrass State of ours.

This case was one of the very first cases I tried as a first year lawyer.  So it’s been about eight years in the making.  And I lost the trial, so I’ve had a fire burning to turn that loss into a “W.”  Now that’s happened.  Also, I argued the case against Joe Mattingly – the Marion County Attorney, who is an exceptionally bright individual and a class act.  So it was a pleasure to work the case.

My argument was this: When roadblocks are constructed by police, they need to be done to take the discretion out of the hands of the officers in the field.  That means the start and stop times should be determined in advance, so the cops performing the roadblock have no choice in the matter.  For example, “Here comes a white guy…here comes a white guy….here comes a white guy…here comes a Mexican! The roadblock starts now.”  Also, there were some noncompliance issues with this particular roadblock.  For examples, the officers weren’t wearing safety vests, and no advance warning signs were placed out before the roadblock.

To be honest, I didn’t concentrate really heavily on the advance warning issues.  Because under previous Kentucky caselaw, courts kinda didn’t give a damn about that.

They will, now.  Which is nice.

Essentially, the Supreme Court did take some issue with the start and stop times (“undetermined durations may be symptomatic of broad discretion” p. 8).  But more importantly, and to my pleasant surprise, the Court found a huge problem with the failure to provide advance notice of the roadblock. 

The concurrence provides some spectacular language, which I believe, boldly changes roadblock law in Kentucky.  Previously, advance warning signs (like “Roadblock Ahead”) were only suggested and nearly never used.  However, they will now be absolutely necessary for a roadblock to be considered reasonable.

And, crucial to this determination, is the reasoning that roadblocks need to be a CONSENTUAL encounter with police.  THAT – is big news.  This is a major change for Kentucky caselaw.  Here are some gems from the concurring opinion on that issue:

“At the heart of that reasoning is the fact that with the presence of a sign warning of a road block ahead, if a citizen proceeds to the roadblock, he has functionally consented to the ensuing encounter with the police. It is this functional, or implied, consent that allows the roadblock stop to be reasonable despite the absence of a warrant or any individualized, articulable suspicion of criminal activity.” p. 12.

“By the same token, if proceeding to the roadblock serves as consent, then turning away from the road block is simply not consenting, and is the equivalent of requiring law enforcement to get a warrant if they wish to stop your vehicle, absent some other qualifying fact such as observable (plain-view) illegality. There is significant clarity in this reasoning that leads to a further conclusion: the purpose of the restrictions and the notice requirement is to allow a citizen to make an informed choice about whether he submits himself to the roadblock. What other purpose is there for a sign warning that a road block is ahead? It is ludicrous to say that the warning is for informational purposes only. The driver will have the information soon enough when he comes upon the road block. And how does simply knowing that a road block lies ahead help the driver? Obviously people are given information so that they may do something with it. Regarding a road block, that information is for the purpose of allowing a citizen to choose not to consent to a warrantless seizure.” p. 12-13.

Essentially, the law of Kentucky is now that you can avoid a roadblock if you don’t want to engage with police officers.  Previously, that was not allowed – and your avoidance of the roadblock was considered, in and of itself, to be reasonable suspicion to pull you over.

It’s a pretty case.  And if you’re a law nerd like me…or if you just give a damn about your individual liberties…check out the full opinion at:

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