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.
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:
http://opinions.kycourts.net/sc/2013-SC-000618-DG.pdf
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