...checkpoints at stake in court case

By Joe Gerrety, Journal and Courier

A West Lafayette hotelier is challenging the constitutionality of a sobriety checkpoint that led to his fourth arrest on suspicion of drunken driving.
His case could have statewide implications about police checkpoint procedures.

Judge Mike Morrissey of Tippecanoe Superior Court 6 could rule by the end of the week whether an April 18, 2002, sobriety checkpoint that netted four operating while intoxicated arrests passes both Indiana and U.S.
constitutional muster.

Among those arrested was Gregg S. Murphy, 41, of West Lafayette. Murphy co-owns University Inn and Conference Center in West Lafayette and the Holiday Inn Select City Centre in downtown Lafayette. He has twice before been convicted of misdemeanors for drinking and driving.

His attorneys, Nicholas Deets and Matt Sandy, argued during a daylong hearing on their motion to suppress evidence that the checkpoint -- set up by West Lafayette police on a Thursday night of Purdue Grand Prix week -- did not meet criteria established by a 2002 Indiana Supreme Court ruling.

In that case, State of Indiana vs. Gerschoffer, the state's high court ruled
4-1 that sobriety checkpoints must meet six criteria in order not to violate people's constitutional rights against unreasonable searches and seizures.

Among those criteria, police must publicize in advance the fact that they will be conducting a checkpoint, they must provide motorists with a way to avoid the checkpoint, and they must be able to show that checkpoints are effective at achieving their stated purpose -- arresting drunken drivers and deterring people from drinking and driving.

Because the state has the burden to prove the sobriety checkpoint was constitutional, deputy prosecutor Jody Donaldson presented most of the evidence at the seven-hour hearing.

He said the only error in the sobriety checkpoint, set up in the westbound lanes of Sagamore Parkway at Nighthawk Drive, was that police didn't post signs on Soldiers Home Road alerting drivers of the checkpoint.

Police did set up an electronic billboard at the foot of Sagamore Parkway hill about a mile east of the checkpoint. Many of them exited Sagamore Parkway at Soldiers Home Road to avoid the checkpoint, police testified.

But drivers who entered westbound Sagamore Parkway from Soldiers Home Road had no way of avoiding the checkpoint, Donaldson admitted. And that is what Murphy said he did.

Murphy, who testified only briefly, said he left University Inn, drove east on Cumberland Avenue and then south on Soldiers Home Road. He said he planned to check progress on the Holiday Inn, which was under construction at the time. But on his way, he changed his mind and decided to head home.

He said he turned west onto Sagamore Parkway and drove right into the checkpoint.

Telltale signs

But that account conflicted with testimony from the first police officer who approached Murphy at the checkpoint.

Officer William Gallagher said the minute Murphy wound down his car window, he could smell alcohol. When he asked Murphy where he was coming from, Gallagher said, Murphy responded, "Cox's Pub."

The karaoke bar is at Sagamore Parkway and Schuyler Avenue in Lafayette.
Murphy testified that he has never been in Cox's Pub. A test later revealed Murphy had a blood-alcohol content of 0.19 percent, well above Indiana's limit of 0.08.

In their closing arguments, Deets and Sandy characterized Gallagher's account as "implausible" and "smoke," but they stopped short of saying the officer was lying. They noted there was no reference to the conversation in any police report.

Gallagher said the reference to the bar didn't seem significant after he discovered that Murphy had an unsealed bottle of vodka on the floor of the car.

Donaldson noted that the most direct route from University Inn to Murphy's home would have taken him down U.S. 231 and Northwestern Avenue, nowhere near the sobriety checkpoint.

Deets and Sandy also argued that West Lafayette's sobriety checkpoints are largely ineffective. For every 100 vehicles stopped at recent ones, fewer than 2 OWI arrests have resulted. About 10 percent of the motorists are ticketed or arrested for other violations, such as invalid licenses, equipment violations and underage consumption of alcohol.

Two people detained during the 2002 sobriety checkpoint underwent examinations by a police drug recognition expert who released them both after investigations that lasted more than an hour each, Sandy noted.

"That's unreasonable," Sandy said.

Past arrests

The 2002 arrest was Murphy's fourth arrest on suspicion of drunken driving.
So far, only two of those arrest have resulted in convictions. Murphy has misdemeanor convictions resulting from arrests in October 1996 and June 1998. He was arrested again in June 2000, but that case was dismissed after prosecutors failed to bring it to trial within a year.

Nineteen months have passed since Murphy's latest arrest, but most of the delays have occurred because of court calendar congestion or defense motions, so there is no danger it will be dismissed based on prosecution delays.

It could, however, be dismissed if Morrissey agrees with Murphy's assertion that the sobriety checkpoint violated Murphy's constitutional rights.

If he does not, Deets said, Murphy likely will seek an interlocutory appeal, which would put the case on hold until it can be reviewed by the Indiana Court of Appeals.