By Julie A. Risher, Public Safety Attorney, Winston-Salem, North Carolina
A January decision of the U.S. Supreme Court sheds new light on the constitutionality of vehicle checkpoints, specifically "informational" checkpoints. This column reviews that case, Illinois v. Lidster, and vehicle checkpoints in general.
On August 30, 1997, Detective Vasil spent a few hours standing in the middle of the eastbound lanes of busy North Avenue wearing an orange reflective vest. He stopped each vehicle that passed for only 10-15 seconds to hand the driver a flyer that read: "Fatal hit and run accident. Assistance needed in identifying the vehicle and driver involved in this accident, which killed a 70-year-old bicyclist." Vasil asked drivers only what they had seen there the previous week. The officer hoped that one of the drivers was regularly on the road at this time and might have information about the fatal accident.
Suddenly, a vehicle in line swerved and almost struck Vasil, who jumped out of the way. When he approached the driver, Vasil smelled alcohol on the driver's breath and noticed that his speech was slurred. Another officer performed sobriety tests. After the tests, officers arrested the driver, Robert S. Lidster, for driving while impaired.
At trial, Lidster challenged his arrest and evidence from the stop, arguing that the information-seeking checkpoint violated his Fourth Amendment protection against unreasonable seizure. The trial court denied the motion, and the defendant appealed. The Illinois Supreme Court reversed the trial court, relying on Indiana v. Edmond.1 (In Edmond, the U.S. Supreme Court had disapproved a drug checkpoint, finding that it constituted an unreasonable seizure.2) The U.S. Supreme Court disagreed, however, and upheld the information-seeking stop as constitutionally reasonable.
To understand why the Lidster checkpoint is constitutional when the drug checkpoint is not requires review of the Court's decisions involving stops not based on individualized suspicion. The Court has recognized limited circumstances in which the Fourth Amendment's usual requirement of individualized suspicion does not apply, but all stops must be reasonable. To determine reasonableness, courts balance the public interest the stop serves and the individual's right to be free from governmental interference.
The Court has allowed certain vehicle checkpoints without individualized suspicion. Whether a vehicle checkpoint is reasonable depends on (1) the gravity of the public concern, (2) the degree to which the seizure addresses or advances the public concern, and (3) the severity of interference with individual liberty.3 Using these factors, the Court has approved vehicle stops at border checkpoints and driver's license and registration checkpoints under specific circumstances. The Court has limited law enforcement, however, by holding that checkpoints created for general crime control (including drug enforcement) are not constitutional. Illinois v. Lidster provides the latest guidance on where the constitutional line lies when officers have no particularized suspicion.
Border Patrol Checkpoints
The Court analyzed a permanent immigration checkpoint 66 miles north of the Mexican border.4 A uniformed agent visually screened all northbound vehicles, directing some to a secondary checkpoint to answer questions about citizenship and immigration status for three to five minutes. The Court considered that the extremely important national policy limiting immigration could only be served by interior checkpoints, because the vast border cannot be controlled effectively. Further, this interest outweighs the checkpoint's minimal intrusion on driver privacy. The agent's plain-view visual inspection was not a search. Even if a driver were stopped, he only answered a question or two and produced a citizenship document. Consequently, the checkpoint was constitutionally valid.
Driver's License Checkpoints
The Fourth Amendment's reasonableness standard prohibits officers from randomly stopping vehicles to check driver's licenses and registration.5 In Delaware v. Prouse, a patrolman stopped a vehicle without reasonable suspicion to check the driver's license and registration. He seized marijuana in plain view. Addressing the stop's constitutionality, the Court noted that the public interest in ensuing that motorists are licensed and cars are registered justified the checkpoint's slight intrusion on motorists. In Prouse, however, the officer had unbridled discretion regarding which cars to stop, making the checkpoint unconstitutional. By contrast, license checkpoints conducted in a systematic, predesignated manner are constitutional.
Sobriety checkpoint stops without individualized suspicion are constitutional.6 Considering a checkpoint program to detect drunk drivers, the Court noted that each stop lasted approximately 25 seconds. Officers directed any driver who showed signs of insobriety to the side and administered field tests; intoxicated drivers were arrested. The Court held that the magnitude of the government's interest in eradicating the increasing problem of drunken driving outweighed the slight intrusion the stop imposed on all motorists.
General Crime Control Checkpoints
Vehicle checkpoints for general crime control are constitutionally unreasonable.7 At an Indianapolis checkpoint to detect unlawful drugs, each driver was briefly stopped and asked to produce a driver's license and registration. The officer looked for any signs of impairment and conducted a plain view examination of the car. A narcotics detection dog walked around the outside of each vehicle. Each stop was conducted in the same manner and lasted five minutes or less. The Court concluded that a roadblock to check for narcotics was an investigation for general criminal activity. The Court noted:
We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized ever present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.Informational Checkpoints
Illinois v. Lidster asks, Are information-seeking checkpoints constitutional?8 The Court answered Yes, concluding that the substantial interest in solving a serious crime outweighed the minor intrusion the stop imposed on motorists. Applying the balancing test, the Court noted that the government's interest in solving a deadly hit-and-run accident is a grave public concern, and the checkpoint's purpose was not general crime control but investigation of a specific, particular crime. The checkpoint was narrowly tailored to advance the government interest (same location as the crime, about one week after the crime, and at approximately the same time of day). Finally, stops were extremely brief, systematic, and limited in scope to a request for information. There is no Fourth Amendment prohibition on officers simply asking citizens in a public place for voluntary cooperation in providing information. Rejecting the argument that allowing information stops would result in a proliferation of checkpoints, the Court pointed to the limitations of police resources and community intolerance of traffic interferences as inherently limiting forces.
Although the Fourth Amendment permits information-seeking checkpoints, the protection against unreasonable search and seizure still applies to the procedures used:
Information-seeking checkpoints are an important tool for law enforcement. Witnesses may not realize that they have useful information.9 Ours is a mobile society; notifying drivers about crimes may be the only way to reach potential witnesses in some cases. However, agencies should diligently follow the Court's guidance during checkpoints (stops without individualized suspicion) to avoid converting a useful law enforcement tool into an unreasonable (and therefore unconstitutional) stop.
- The crime about which information is sought must be serious.
- Checkpoints must be narrowly tailored (location, time of day, and duration) to the investigative purpose.
- All checkpoint stops must be brief and systematic; arbitrary stops are unconstitutional.
- Officers may not stop vehicles to conduct generalized interrogation.
The author gratefully acknowledges the assistance of research intern Christina E. Foglio, Wake Forest University School of Law.
1 Illinois v. Lidster, 779, N.E.2d 855 (Ill. 2002), overturned by Illinois v. Lidster, -U.S.-(2004).
2 City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).
3 Brown v. Texas, 443 U.S. 47, 99 (1979).
4 United States v. Martinez-Fuerte, 428 U.S. 543, 566, 546 (1976).
5 Delaware v. Prouse, 440 U.S. 648 (1979).
6 Michigan v. Sitz, 496 U.S. 444, 455 (1990).
7 City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
8 Illinois v. Lidster, -U.S.-(2004).
9 Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).