:OUIlT ~~

.
..
1
IN THE JUDICIAL COURTOF THE TOHONO
O"ODHAMNATION
2
COUNTYOF PIMA, IN THE STATE OF ARIZONA
~
.:3
4
TOHONOO'ODHAMNATION
)
)
)
)
)
)
) ,
Plaintiff,
5
vs.
6
7
1. AHILL, Virginia
2. FASTHORSE,E~ily
3.
4.
5.
9
6.
7.
10
8.
9.
11 10.
11.
12 12.
, 13.
13 14.
8
!
FRANCISCO,George
HAVIER, Myra
JONES, Johnny
LEWIS, Michael
MANUEL,Thelma
MORISTO, Kenneth
PARLEY, Daniel
PATRICIO, Terry
RAMON,Clement
SAM, Delson
SEGUNDO,Marilyn
SINE, Dee
14
15
16
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
))
Defendants.
And any other similarly
situated Defendant.
CASENO.1.
~
'
CR12-1762-88
2. CR10-1491-88
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
CRO2-306-89
CR11-1495-88
CR10-1350-88
CRO2-239/240-89
CR10~1318-88
CR10-1348/1349-88
CRO2-234/235-89
CR12-1761-88
CRll-1500/1501-88
CRI0-1367-88
CR10-1333/1334/1335-88
CRO2-237/238-89
-.
OPINION AND ORDER
17
18
19
between
January
20
in this
Motion
21
of
22
dismissal
of
conducted
violate
-23
~
,
The Tohono O'odham Pol-ice
24
the
prohibits
department
1988 and January,
to,'Suppress
roadblock~
the
unreasonable
for
of
liquor
exclusion
The Defendants
1302(2)
the
a series
The defendants
cited
seek the
charges.
section
1989.
were all
and all
conducted
of
Indian
roadblocks
named and joined
law violations
the
claim
of
evidence
that
Civil
searches and seizures.
the
at one
seized
and
roadblocks
as
Rights
Act,
which
'
~nfr
~AlCOURT 25
The facts
common to
these
cases are
derived
from
a list
of
the answers provi~ed
OF TH!
tfONOo-ODHAM26by the
police
department
in
response
to
questions
provided
by
NATION
~Nd~
~~~
the Defendants.
In response to these questions we learn, that the purpose
~L 28 of the roadblocks was to detect drunk drivers.
:OUIlT
~~
The authority cited by the
.
.
..
1
Chief
of Police
to
2
commissions
3
all
4
Bureau
5
applicable
federal
laws.
6
roadblocks
consists
solely
7
and where to
8
orders
9
set
held
by the
Indian
from
high
level
11
volume of
12
to
13
Officers
14
and exterior
15
impairment
16
are
17
attempt
18
are
19
develops
20
search of the vehicle
traffic
produce
22
arrested
23
clear,
24
There
of
25
effective
26
the
directed
avoid
the
particularized
however,
Court,
28
jurisdictions.
as
wii;h
to
such,
support
and deterring
by this
it
should
is
and
talking
is
made .to
location
depending
on the
stopped
and requested
registration
documents.
and the
indications
Drivers
interior
of
alcohol
with no problems
Oncoming vehicles
with
who
and. upon being stopped
If
a driver
closed
an officer
a more thorough
areas.
show that
263 drunk drivers
were conducted.
occurred
finding
when
or command
Site
the roadblock.
arrests
regarding
deciding
public.
roadblock.
a
state
demeanor
when roadblocks
these
tribal,
directives
visible
avoiding
after
and
sergeants
are
by the officers.
the
Arizona
flares
vehicl.e
driver's
provided
any of
raised
It
the
reason for
no statistics
and
or
are
of
procedures
are pursued by officers
same period
at controlling
27
and
through
statistics
whether
The question
signs
may be conducted including
the
all
officers
Once a decision
vehicles
Drivers
suspi'cion
d'epartment
during
inspect
are cited
as to
All
license
a roadblock
enforce
given to the
stop
law enforcement
State
department
is
of day.
pass
the
officials..
the
police
There are no written
vehicle.
to
is
The
commanders or
cones,
visually
to
police
patrol
traffic
or influence
are
of
driver's
present
Police
The
and time
their
questioned
21
and charged
supervisory
by using
roadblocks
department.
no advance notice
is
to
the
set up roadblocks.
10
then
conduct of
Tohono O.odham Nation,
Affairs
up a roadblock
prepared
the
by members of
commissioned
of
support
that
at
It
were
is
roadblock
roadblocks
not
site$.
are
more
impression
for
this
authority
in
other
cases
were
found
drunk drivers.
case is
appropriate
be noted,
one of
to
however,
-2-
'first
look
that
to
no
'.
--
.
.1
1
involving
2
of
3
'on the
issue.
4
validity
of
5
440 U.S. 648,
6
for
7
under the Fourth Amendment. .It
8
among jurisdictions,
9
degree
roadblocks
jurisdictions.
664 (1979)
11
United
12
addressed
13
established
14
with
15
.f.Q..YL!., 143 Ariz.
16
Court begins its
19
-20
States
additional
gravity
factor
compliance
is
of
criteria
45,
analysis
weighs
heavily
U.S.
and pass muster
privacy
543 (1976)
the
and personal
In
Supreme Court
Border
Patrol
and
jurisdictions
Supreme Court
is
the
interests.
the
used by those
It
the conflicts
by balancing
governmental
1073 (1984).
the
spot check vehicles
judged
by
addressed
despite
in
operations
the Arizona
691 P.2d
public
legitimate
now widely
case, including
to
however, that
is
agreement
in Delaware v Prouse,
be acceptable
interests
428
squarely
stops
validity
the legality
is no uniform
suggested
might
of
checkpoint
in State
with
these
faced
v Superior
factors
the
of the case at bar.
and governing
of
it
clear,
su~ject
of
there
"roadblock-type"
promotion
issue
that
although
v Martinez-Fuerte,
the
of cases concerning
has not yet
on an individual's
the
a roadblock
consideration
in all
interest
served
by the
in favor
oof ~ne police
the cases reviewed concerned
roadblocks.
In this
department
'case this'
roadblocks
for
:the
fo 11 owi ng reasons.
2]
22
against
The first
the
that
the
intrusion
security
itself
check points
and registration
of
conclude
The Supreme Court
10
.18
The analysis
leads the Court to
sobriety
license
17
'
tribal
There
is' no doubt that
j... prOmtr't1ng'puDlic
the
safety
Tanana Q'odham Nation
on the
roads
by detecting
has a vital
interest
and prosecuting
drunk
-"
23
drivers.
24
United
25
these
26
It
States
truths.
especially
27
of
28
but
the
to
is
also
true
including
this
The case.
when the
.
that
record
drivers
driving
reservation.
however,
before
Tohono O'odham police
apprehend
drunk
is
the
violating
Court
the
epidemic
The Court
not
roadblocks
is
simply
liquor
to
in the:
has no quarrel
decided
suggests
was not
everywhere
that
on these
the true
detect
prohibition
drunk
laws.
with
facts
purpose
dri've~
It
"Ii..
!'
-3-
1
therefore
necessary
2
the true
purpose
of the
3
finds
is
in
4
to the Tohono Q'odham Nation.
it
5
not
to
determine
whether
roadblocks
is
view of the
The Tohono Q'odham Nation
6
powers as a sovereign
7
a criminal
8
Tohono O'odham Constitutiont
9
force
justice
has
and as a general
11
police
officers
12
of its
tribal
13
It
is
unique
to aid
tribe
police
at hand.
of
~he Nation's
there
is
1(c)(6).
in the enforcement
applicable
to such system.
criminal
of tribal
inherent
and administer
Operation
no doubt that
to"
The Court
and factors
powers attendant
Sec.
part
respect
possesses certain
VI,
of
a police
justice
the Nation
system
may employ
laws and in the exercise
powers.
also
intrinsic'in
.it can enact
the
sovereignty
14
that
15
peace and morals
16
an arm of
17
to aid
18
on May 2, 1988 is one such ordinance.
J9
for
20
Judicial
21
Code contains
22
complaints
23
circumstances
with
One such power is to create
Art.
proposition,
subterfuge
to the issue
as an Indian
government.
an integral
10
fatal
system 'and exercise
been
this
the
laws and regulations
of
the
Nation
prohibited
to
It
enforce
also
the
in this
of alcoholic
was prohibited.
25
legislation
26
Interior,
27
so long
State
law was not
violated.
28
Tohono O'odham Nation
responded to
this
to
regulate
as the
Indian
the
Council,
numerous ordinances
The Criminal
and penalties
1154(a).
tribes,
Code, as amended
the
of
-4-
police
penalties
department
Code.
Chapter
and is
the
and the
11 of
basis
beverages into
approval
liquor
option
of
the
the
action.
Indian
In 1953 Congress passed local
with
introduction
health,
The Legislative
of the
24
allowing
welfare,
The Code enumerates criminal
provisions
introduction
Tohono Q'odham Nation
by enacting
powers.
the defendants
see 18 U.S.C.
Nation.
that
the
the public
empowers the
law ,offenses
against
1953 the
the
of the Nation's
liquor
filed
Before
members of
cpnduct.
branch
to protect
has done just
in the exercise
of
into
18 U.S.C.
of
the
Indian
1161.
and enacted
coun.try
option
Secretary
of
reservations,
In 1982, the
Ordinance
05-82
0'
1
entitled
2
the Alcoholic
This
Ordinance
3
in
Districts
4
4 of
5
the
6
namely,
7
possession,
8
on the
record
9
within
the
the
Beverages Licensing
allows
which
have sanctioned
ordinance.
introduction
possession
Three of
of
San Xavier,
the
alcoholic
Sif
their
possession,
sale
11
the
12
when combined with
13
the
14
s~nctioned
15
to
16
this
Nations's
of
beverages
i.e.
regulate
is
and possession,
remaining
the
roadblocks
were all
considered
"dry",
It
Ordinance
Section
have sanctioned
It
districts
is not indicated
is
conducted
where
the
axiomatic
is
only
that
meaningful
The power of the Nat-ion to prohibit.
bever-ages in Districts
would
and enforce
other
to
is prohibited.
this
the power to enforce.
introduction
Districts
prohibited.
under
beverages
pursuant
consumption
In all
districts
alcohol
of alcoholic
investigate
that
those
and use of
power tQ
introduction
eleven
Oidak and San Lucy.
boundaries
of alcoholic
introduction
Nation's
but can be surmised
Ordinance.
and consumption
sale and consumption of liquor
10
be meaningless
such prohibition.
which- have not
were the
police
Clearly,
the
legally
not empowered
police
must have
power.
-17
Other legislative
Nation's
action
the
19
15-87
and
278-87.
Resolution
20
abuse
and
directed
the
21
to
develop
22
C,
cited
23
Act
24
to
25
that
26
gave
27
bootlegging,
28
unemployment etc..
of
interest
a tribal
as the
i986.
begin
the
to
continued
Resolution
15-87 declared
p1an in
Alcohol
auto
range
accidents,
this
are
war
health
of
other
alcoholism
with
P.L.
suicides,
One of the goals
and societal
-5-
committee
problem.
homicides,
action
Subtitle
and Treatment
a tribal
documented
of the tribal
and drug
99-570,
The Legislative
well
numbered
coordinating
and adopted
and drug abuse.
and confirms
Resolutions
on
a tribal
accordance
notion
and Substance Abuse Prevention
was a prevalent
a whole
of
278-87 approved
war on alcohol
to
enforcement
establishment
action
Indian
alcoholism
rise
in
which lends support
18
°,-
and Control
action
Council
This
problems
domestic
plan
found
problem
such
as
violence,
plan is to review,
1
revise
and adopt and enforce
2
VI Tribal
;)
the significance
of this
4
in
of
5
to enforce
the
6
Action
problem
It
all
.is
7
defendant's
8
these
9
finds
this
introduction,
11
the
rights
12
interests
a
second
15
of
16
effectiveness
17
record
Q.odham
to be free
inquiry
proportions
of
this
that
must
either
.to
than
is
interest
it
in
the
technique
is
that
however,
the
the
motorists
and seizures.
procedure
law enforcement
intrusive
ambly
both
beverages within
roadblock
less
the
prohibiting
outweighs
searches
available
against
The Court,
combat an egregious
enforcement
but
interested
no doubt
of alcoholic
whether
other
vitally
balanced
interest
sanctioned
is
be
way.
from unreasonable
then
goal,
a legitimate
There
Nation's
has
is
this
Goal
the problem.
and consumption
District
more effective
serious
in resolving
arguments
regarding
and has
and privacy.
possession
and rights
significantly
was
problem
means.
demonstrated
The
by the
in the case.
18
It
19
of prohibiting
20
This
21
tribes
22
of
23
This
24
introduction
25
interest
26
continued.
28
Tohono
unless
The
security
and drug abuse.
the Nation
abuse,
interest
legitimate
sale,
14
27
to
the
Nation
is clear:
and drug
legitimate
to alcohol
has been taken
objective
alcohol
may produce
10
No action
laws passed to aid
that
13
Plan.
laws relating
is
clear
policy
that
the
the Tohono Q'odham Nation has a pervasively
introduction
of alcoholic
was assumed after
to
regulate
public
was
the
the field.
It
acceptance
illustrated
by
the
reservation-wide
Interdicting
enforcement
in
demanded that
the
problem.
flow
This
of
of
Nation's
Thus,
prohibition
illegal
problem
that
alcohol
has
-6-
it
opted
there
of
clear
be
strictly
posed
been exacerbated
to
allow
Indian
of
prohibition..
sanctioning
is
has
the reservation.
is a long history
policy
disapproval
1981.
liquor
clear
the
voter
into
government
is also
and judicial
has
federal
beverages
long policy
that
liquor
the
public
enforced
and
a formidable
law
by the
unlawful
~l'
r
.1
1
transporting
2
patrons.
3
been for
4
often
5
in
6
difficulties
7
minimally
The foremost
police
effective
other
to
be the
11
laws.
The police
12
of
on the
is
in
the
hand,
proven
act
fear
liquor
15
knowledge
that
16
beverages
to'
17
illustrated
by the
number of
18
a
occurs.
The use
19
contraband
20
While
21
roadblocks
22
the
23
Confiscation
24
drinking
25
enforcement
resulted
and
Having
the
28
traditional
in
travel
facing
of
contraband
set
liquor
There
is
is
practical
roadblocks
-in
have proven
the
these
towns
certainly
no
deter
question
then,
is
of
common
buy
alcoholic
is
likewise
of
that
or
after
of
violators.
the
use of
has no doubt that
potential
the
place.
ma.ny seizures
Court
reduced
take
before
apprehension
the
advance
It
fact
cited
in
frequency
to
This
has
prohibition
to
times.
demonstration
did
the
because the
known to
liquor
roadblocks
has netted
arrests,
stops
of
scheduled
law violators
driving
roadblock
up
nearby
statistical
drunk
Other
contraband
festivities.'
liquor
of
resulting
on roads
enforcement
during
to
the
roadblocks
practice
increase
at
raids
reporters
illegal
festival
as resulted
of
driving.
transport
strategic
drink
as well
temporary
tribal
was no extensive
prospect
of
or
violators.
Too
method.
will
known to
laws has
violations.
impending
against
typically
festival-goers
liquor
there
27
is
of
the
method of
this
.1.4
26
to
day a particular
for
off
to willing
prohibition
or reported
reprisals
use of
department
good reason
festival
of
traditional
public
liquor
upon observed
most effective
sell
the
apprehending
the
by the
transporting
members who "bootleg"
have been tipped
by thi's
10
There
enforcing
to
including
used
-13
method of
attempts
be routes
or
by tribal
violators
unsuccessful
On the
alcohol
officers
however,
8
9
of contraband
drunk
drivers.,
chances of
that
this
drivers
method of
has been effective.
determined
Nati on and that
methods, the
that
the
roadblocks
thi s method proved
inquiry
advanced a legitimate
to
be more effecti
now concerns the severity
-7-
of
interest
ve than 'mor_e
the intrusion.
.
I
1
The roadblocks
must be shown to
2
rights.
3
when reviewing
the
4
as
and
5
Subjective
6
to
7
much discretion
8
decision
The Martinez-Fuerte
objective
the
is
Critical
is
left
to
set up a roadblock
with
officers
for
12
comrranders or
13
and where to
14
systematic
15
cones,
16
confident
17
had no involvement
18
feel
19
The Defendants
20
was to
21
This
22
appreGiably
23
locate
fashion
stop
that
or
the
themselves
state
an accident
of
24
unconstrained
25
driver's
26
intrusion
27
to be objective
28
The
of
but
license,
limited
registration
consi.sting
the
to
of
how
If
the
roadblock.
level
personnel
time
traffic
with
patrol
decisions
when -
in. a preestablished
use of orange traffic
of
day.
The Court
is
coming onto the roadblock
of
that
they
the
conducting
asking
a couple
or proof
the
probably
to
a stop.
not worry..
intrusion
was
Court to believe.
the
of
roa'dblocks
questions
of insurance.
questioning
to
did
subjective
would have this
officers
subjected
liquor
they thought the purpose of the roadblock.
conceding
being
contraband
that
of the stop,
of
case,
overall
were stopped
transporting
conclusion
the
reacts
prospect
less th~n the defendants
discretion
motorist
the
thereby
Courts'
apply.
In this
making
on the
unlawful
at
the
marked by the
depending
to
determination
drivers.
for
Vehicles
a majority
with
the
selected
clearly
flares
or frightened
supports
The
roadblocks.
consi-der
leave them littl~
or no discretion
of vehicles,
there is no concern
were responsible
probably
warn of
of
at locations
signs
anxious
stops
sergeants
the
IS
intrusion
criteria
was made by supervisory
11
harassing
is
to
described
how the
conducting
adequate guidance to the field
officers.to
in the method of operation
and selection.
or
on
analysis
9
10
abusive
key factors
attendant
by focusing
this
',to the
on an individual
The Supreme Court
each
examined
intrusive
established
question.
subjective,
intrusion
to
decision
severity
roadblock.
be minimally
to
was
request
The Court finds
and the
visual
not
a
this
inspection
and minimal.
Defendants
contend
that
the
-8-
officers
acted
illegally
when they
,
1
searched
2
It
.:3
of certain
4
or
5
a person
is
6
officers
could
7
situation
the
8
scene of
a roadblock
9
whether to search a certain
is
certain
vehicles
admitted
by the
vehicles.
other
basis
violating
Court
behavior
to
conduct
take
11
assess and rely
12
about the
13
activity
may be afoot"
14
probable
cause,
15
the officers
16
Moreover,
17
warrants
18
The fact
that
19
suspicion
is gratuitous
there
that
into
justify
or the
occupants
or arouse
a search
.finding
a finding
that
the
As a final
vehicle.
was not
the
case.
any number of
questioning.
lead
the
conducted.
there
Tohono
22
guidelines
23
address
the
24
of
the
roadblocks
25
to
dispel
26
amount of
discretion.
27
of warning
signs,
28
The police
staffing
any
is
in
of
the
deciding
if
of
into
no reason to
think
to search.
are
legitimate
particularized
officers
seems appropriate
for
this
"criminal
ripening
stops
the
anything
suspect
vehicles
requires
it
police
department
officers
conducting
and safety
needs
must be a decision
argument
that
suspicion.
to
develop
need not
give
establish
roadblocks.
for
the
on the
factors
should all
to
Court
such
-9-
should
The magnitude
level
officials
duration,
in the general
advance notice
general
have an unconstrained
such as location,
be outlined
recommend
The guidelines
roadblocks.
scene
to
written
made by supervisory
officers
Logistical
or flares
department
to
initial
is no requirement
at
in the least.
O'odham
police
the
this
which the officers
point
There
in
aspects of the vehicle
in selecting
that
de'partment
point,
to
Court
But,
Admittedly
the
believe
upon which the
factors
officers
to
to
cause
Officers
information
suspicions
is
this
police
21
for
of
basis
the
in these cases acted arbitrarily
the
suspicion
They may consider
further
'searches
is no probable
reasonable
or other
impairment..'
do conduct
of
account
vehicle.
alcohol
officers
no legitimate
this
the driver,
on to
to
is
of
when there
a search
convinced
of
then
amounting
law,
is
itself,
the
department
the
decide
vehicle
were no signs
The Court agrees that
10
20
police
articulable
the
when there
of
use
guidelines.
roadblocks
although
.1
1
if
the
department
2
be established
3
This
4
or the
chooses to
in
advance
of,
can publicly
or
announcement can be published
5
department
found
in other
7
interest
8
legitimate
9
of
it
sought
by the
and important
con~raband alcohol
10
and
11
demonstrated
12
is
13
of thi s techn i,que.
14
Therefore,.
not
is this
jurisdictions
'personal
as
act
-'sobriety
The
police
16
the
17
searches and seizures.
is
within
of
so ORDERED
this
the
reminding
opinion
the
that
citizens
unlike
for
alternative
Indian
this
case is
of
authority
Civil
the
The Defendant's
23rd day of October,
19
20
21
22
23
24
25
26
27
28
-10-
of
Court
interests
in privacy
technique
apprehending
of
that
the
the
prohibiting
motion to suppress
1989.
is the primary
the introduction
roadblocks
Act
notice
Tohono Q.odham Nation's
proof
and the
Rights
events.
circumstances
enforcement
methods
the
decision
their
the
of drunk drivers
the
will
of the policy.
purpose of interdicting
need
tribal
newspaper as a regular
checkpoints,
in
roadblocks
scheduled
outweighs, the defendants.
The record
.it
notices
governmental
comparably
15
guarantees
in the local
'Court's
clearly
announce 'that
day of
where deterrence
security.
available.
did
on the
can post monthly
In conclusion,
6
18
it
is
is
violators
effectiveness
Tohono Q'odham
did
not
violate
unreasonable
hereby denied.