Nelson v Lane County - ACLU of Oregon

Nelson v. Lane County, 743 P.2d 692, 304 Or. 97 (Or., 1987)

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Page 692743 P.2d 692304 Or. 97

Lynda NELSON, Respondent on Review,v.

LANE COUNTY, David Burks, Respondents,and

Department of State Police, John C. Williams, K.E.Chichester, and Richard Geistwhite, Petitioners on Review.

Lynda NELSON, Petitioner on Review,v.

LANE COUNTY, David Burks, Department of State Police, JohnC. Williams, K.E. Chichester, and Richard

Geistwhite, Respondents on Review.Lynda NELSON, Respondent on Review,

v.LANE COUNTY, David Burks, Petitioners on Review,

andDepartment of State Police, John C. Williams, K.E.Chichester, and Richard Geistwhite, Respondents.

TC No. 16-83-05689; CA A32607; SC S33066, S33082 and S33115.Supreme Court of Oregon.

Argued and Submitted Oct. 8, 1986.Decided Sept. 15, 1987.

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[304 Or. 99] Dave Frohnmayer, Atty. Gen.,Salem, argued the cause for petitioners onreview, Dept. of State Police, John C. Williams,K.E. Chichester, and Richard Geistwhite. Withhim on the petition, additional authorities, andmemorandum in response to court's questionswere Virginia L. Linder, Sol. Gen. and RichardD. Wasserman, Asst. Atty. Gen., Salem.

Robert D. Durham, Portland, argued thecause for petitioner on review, Lynda Nelson.With him on the petition and memorandum oflaw was Kulongoski, Durham, Drummonds &Colombo, Portland.

Robert C. Cannon, Marion County LegalCounsel, Salem, argued the cause and filed theLane County memorandum of law forpetitioners on review, Lane County and DavidBurks. On the petition for review was JohnHoag, Lane County Office of Legal Counsel,Eugene.

Robert C. Cannon, Marion County LegalCounsel, Salem, filed an amicus curiae brief inbehalf of Marion County Bd. of Comm'rs,Jackson County Bd. of Com'rs, Oregon SheriffsAss'n, Oregon Ass'n of Police Chiefs, andOregon Dist. Attys. Ass'n.

Before PETERSON, C.J., and LENT,LINDE, CAMPBELL, CARSON and JONES,JJ.

[304 Or. 100] CARSON, Justice.

This is the first of three cases we decidetoday involving the legality of sobrietyroadblocks (that is, roadblocks conducted for thepurpose of discovering persons driving whileunder the influence of intoxicants). The twocompanion cases are appeals from criminalconvictions in which we held that state and localofficials violated Article I, section 9, of theOregon Constitution. State v. Boyanovsky, 304


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Or. 131, 743 P.2d 711 (1987); State v.Anderson, 304 Or. 139, 743 P.2d 715 (1987).

The present case is an appeal from a civiljudgment in which plaintiff seeks civil remediesagainst public officials. Three Oregon StatePolice officers, in conjunction with fourmembers of the Lane County Sheriff'sDepartment, conducted a sobriety roadblock inthe late evening of December 17 and the earlymorning of December 18, 1982. The roadblockwas set up on Marcola Road, between 42ndStreet and Hayden Bridge Road, and was inoperation from approximately 11 p.m. to 1:15a.m. Plaintiff was stopped, questioned about heralcohol consumption, detained for sobriety fieldtests and then released.

Plaintiff filed a complaint for declaratoryjudgment, injunctive relief and money damages,including punitive damages, alleging violationsof a state statute and the state and federalconstitutions.

Pursuant to a defense motion, the circuitcourt struck plaintiff's claims for punitivedamages from the original complaint as to theDepartment of State Police and itsSuperintendent. Later, the trial judge upheld thelegality of the roadblock and granted summaryjudgment in favor of defendants.

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The Court of Appeals affirmed in part andreversed in part. The court held the roadblockunconstitutional under Article I, section 9, of theOregon Constitution and did not decide theFourth Amendment issue. 1 The Court ofAppeals [304 Or. 101] agreed with the circuitcourt that plaintiff could not recover punitivedamages under the Oregon Tort Claims Act.ORS 30.260 to 30.300. For the reasons thatfollow, we affirm the decision of the Court ofAppeals. Nelson v. Lane County, 79 Or.App.753, 720 P.2d 1291 (1986).

I. LEGALITY OF ROADBLOCK UNDERSTATE LAW

If plaintiff had been arrested at theroadblock, or if there was evidence in the recordthat the police intended to arrest and prosecuteany drivers found to be intoxicated, this casecould be disposed of briefly. Seizures orsearches for evidence to be used in a criminalprosecution, conducted without a warrant orsuspicion of wrongdoing violate Article I,section 9, of the Oregon Constitution. See Statev. Boyanovsky, supra; State v. Anderson, supra.Here, there is no direct evidence concerning thepurpose of the roadblock. We can only infer thathad plaintiff shown signs of intoxication, shewould have faced arrest and prosecution underthe criminal laws.

Further, this is a civil action for declaratoryjudgment and tort damages. Unlike thecompanion criminal cases in which the policeseized and searched motorists without warrants,plaintiff has the burden of demonstratingclaimed illegalities. We will examine all theoriesadvanced under which the state and localofficials' conduct may be found to be lawful.

A compelled stop of a person on a publicroad, of course, requires justification. The statepresents two theories defending the roadblock.First, it argues that, for the reasons expressed inState v. Tourtillott, 289 Or. 845, 618 P.2d 423(1980), this roadblock could be upheld as amatter of constitutional law. Second, it arguesthat the roadblock is a permissible"administrative" search conducted pursuant to aproperly authorized administrative program.

In State v. Tourtillott, supra, this court waspresented with the question of theconstitutionality of a checkpoint or roadblockstop for game violations. A majority of the courtupheld a subsequent conviction for a driverlicense violation that resulted from theroadblock. Tourtillott applied a federal FourthAmendment analysis derived from dictum inDelaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct.1391, 1401, 59 L.Ed.2d 660 [304 Or. 102](1979), and from the United States SupremeCourt's automobile border search cases, UnitedStates v. Martinez-Fuerte, 428 U.S. 543, 96S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United


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States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct.2574, 45 L.Ed.2d 607 (1975). We have sincedescribed Tourtillott as a case decided "only onfourth amendment grounds, or on the basis offourth amendment analysis." State v. Caraher,293 Or. 741, 749 n. 7, 653 P.2d 942 (1982).

In Tourtillott, this court addressed theissues on the defendant's terms, considering onlythe constitutional and statutory violationsasserted. We expressly declined to determine theunraised question "whether the absence of astatute or rule specifically authorizing gamecheckpoint stops prohibits their use." 289 Or. at849 n. 4, 618 P.2d 423. Nor did the Tourtillottmajority distinguish between "administrative"and "criminal law enforcement" functions,although it drew its analysis from some of thecases that form the foundation of the UnitedStates Supreme Court's jurisprudence onadministrative search law. United States v.Martinez-Fuerte, supra; United States v.Brignoni-Ponce, supra.

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These issues are substantial ones which wefound sufficiently pressing in State v. Atkinson,298 Or. 1, 688 P.2d 832 (1984), to compelreversal and remand of a case involvingimpoundment of an automobile. This was doneto enable the state to present whatever evidenceexisted that the impoundment was authorized byresponsible policymakers and that the"noninvestigatory" inventory search wasconducted pursuant to a properly authorized andadministered program. We declined to reach thequestion whether the search otherwise violatedArticle I, section 9, without first determiningwhether the activity was authorized by law andcarried out pursuant to regulation. 2

[304 Or. 103] Plaintiff contended in thetrial court that no authority existed for theroadblock and that the police had otherwiseviolated the state and federal constitutions and astate statute. The county and state defendantsresponded that their actions were in accordance

with a procedure established in a documententitled The Oregon State Police PatrolTechnique Manual. The state submitted intoevidence the relevant pages of the manual.Defendants contended that the submitted sectionof the manual both authorized the roadblockprocedure and regulated the administration ofthe procedure so as to ensure uniform treatmentof persons stopped.

In an attempt to follow the analysis set outin State v. Atkinson, supra, the state relies uponORS 181.030 as the source of authority for thisroadblock procedure. This statute charges thestate police with the duty to enforce the criminallaws, authorizing officers to "prevent crime" and"pursue and apprehend offenders and obtainlegal evidence necessary to insure the convictionin the courts of such offenders." 3

Much criminal and regulatory lawenforcement activity takes place pursuant toauthority implied from a broad statutorydirective. A broad directive to enforce thecriminal laws, such as ORS 181.030, togetherwith the specification of crimes developed bylawmakers, implies authority to undertake tasksnecessary to carry out the delegated function. Byand large, agencies of the executive branch arefree to carry out their assigned responsibilities inways of their own choosing. Making explicit themanner in which an agency is to accomplish itstask falls to the agency head or that official'sdesignee to instruct or sub-delegate tosubordinate officials.

However, some procedures may invade thepersonal freedoms protected from governmentinterference by the constitution. Roadblocks areseizures of the person, possibly to be followedby a search of the person or the person's effects.For [304 Or. 104] this reason, the authority toconduct roadblocks cannot be implied. Beforethey search or seize, executive agencies musthave explicit authority from outside theexecutive branch.

We are familiar with this requirement in therealm of criminal law enforcement. Article I,section 9, provides a method of


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extra-executive authorization in advance ofsearches or seizures--judicial approval of aconstitutionally sufficient warrant. In State v.Weist, 302 Or. 370, 376, 730 P.2d 26 (1986), weexplained that one function of Article I, section9, "is to subordinate the power of executiveofficers over the people and their houses, papers,and effects to legal controls beyond theexecutive branch itself." Compliance with thewarrant clause, or its few exceptions as thiscourt has interpreted them, itself provides thenecessary authorization for searches or seizuresintended to discover evidence of crime.

In Atkinson, we suggested that anothermethod existed for administrative searches. 4 Weheld that an administrative search conductedwithout individualized suspicion of wrongdoingcould be valid if it were permitted by a "sourceof the authority," that is, a law or ordinanceproviding sufficient indications of the purposesand limits of executive authority, and if it werecarried out pursuant to "a properly authorizedadministrative program, designed andsystematically administered" to control thediscretion of non-supervisory officers. 298 Or. at9, 10, 688 P.2d 832.

The purpose of the search and theconsequences that flow from it are significant. InAtkinson, the purpose of the inventory was toprotect impounded property and not for"enforcement purpose[s]." 298 Or. at 8, 688 P.2d832. Preventing prospective or ongoingviolations is an administrative purpose as well,so long as the intended consequences ofnoncompliance with whatever standards theinspection is meant to uphold are noncriminal. 5

If offenders face criminal sanctions, theinspection implicates criminal law enforcementpurposes and is not [304 Or. 105]"administrative" in nature. See Brown v.Multnomah County Dist. Ct., 280 Or. 95, 570P.2d 52 (1977).

The trial judge upheld this roadblockbecause he found it to have been conducted inaccordance with a roadblock procedure set forthin the police manual. In response to plaintiff'scontentions that the manual was neither aproperly promulgated administrative rule norcomplied with in the case, defendants rely uponthe even-handed manner in which they claim tohave conducted the roadblock. They suggest that"[n]o prior legislative or administrative actionshould be required to validate a trafficcheckpoint conducted in a manner that does notinvolve the unconstrained exercise of discretionby individual officers."

While written procedures consistentlyapplied may prevent a successful constitutionalcharge of arbitrary treatment, 6 compliance withan agency's own procedures does not answer thethreshold question of authority. As we stated inState v. Atkinson, supra, in the context of aseizure of property, "[w]henever police officersobtain custody of private property for reasonsother than by consent or seizure under a warrantor incident to a lawful arrest or exigentcircumstances, the first step is to determine thesource of the authority for the custody." 298 Or.at 8-9, 688 P.2d 832.

Authority for administrative searches maybe, and often is, provided by politicallyaccountable lawmakers. As part of manyagencies' regulatory responsibilities, thelegislature has authorized reasonable inspectionsat times and places relevant to the agency'sregulatory activity. 7 Sometimes, it has [304 Or.106] required inspections to be carried out bymeans of a warrant process.

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For example, in safety and health inspections ofworkplaces, the probable cause requirement canbe met by demonstrating compliance withlegislative or administrative standards forconducting routine, periodic or area inspections.ORS 654.202 to 654.216. See also ORS433.025, 433.130 (quarantine inspections). 8


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In this case, neither the state nor the countyofficials point to a statute or ordinanceestablishing an administrative scheme allowingsobriety roadblocks to prevent driving whileintoxicated. 9 The state's reliance on ORS181.030 is misplaced. That statute sets forth onlythe general criminal law enforcement duties ofthe Oregon State Police. See 304 Or. 103 n. 3,743 P.2d 692.

Police stopped and seized plaintiff and hervehicle and interrogated her. This conduct wasunauthorized and therefore unlawful, andplaintiff is entitled to declaratory judgment. ORS28.010 to 28.160. Injunctive relief for thisplaintiff is not necessary.

[304 Or. 107] II. TORT REMEDIES

In addition to a declaration of the illegalityof the roadblock and a plea for injunctive relief,plaintiff seeks general damages of $100 andpunitive damages of $5,000. She makes herclaim for damages, in part, pursuant to theOregon Tort Claims Act, ORS 30.260 to 30.300.

ORS 30.265(1) defines a tort for purposesof liability of public bodies, officers, employeesand agents as

" * * * the breach of a legal duty that is imposedby law, other than a duty arising from contractor quasi-contract, the breach of which results ininjury to a specific person or persons for whichthe law provides a civil right of action fordamages or for a protective remedy."

The duty may derive from the commonlaw, from statute or ordinance or from ourconstitution itself. Plaintiff apparently attemptsto cover any of these alternative theories withher pleaded facts, which may state a claim forcommon law trespass, and by reference to thestop and inquire statute, ORS 131.615, and thestate constitution, Article I, section 9.

Under the common law, an unauthorizedintentional intrusion upon one's person,property, or effects is a trespass. The tort

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traditionally has encompassed a damage actionagainst police officers for exceeding theirauthority to search or seize. 10

In addition, we have recognized "statutorytort" duties in contexts where no common lawduty exists but where a statute or ordinancecreated a special duty owed by a defendant to aplaintiff, usually arising from the status of theparties or the relationship between them. SeeCain v. Rijken, 300 Or. 706, 717 P.2d 140(1986) (statute governing commitment andrelease of patients imposed a duty on hospitalserving as a community health provider to usereasonable care to protect the public); Chartrandv. Coos Bay Tavern, 298 Or. 689, 696 P.2d 513(1985) (recognizing tort recovery under statuteimplicitly creating civil liability of tavern ownerfor injuries caused by visibly intoxicatedpatrons); Nearing v. Weaver, 295 [304 Or. 108]Or. 702, 707, 670 P.2d 137 (1983) (recognizingduty to arrest imposed by statute "for the benefitof individuals previously identified by a judicialorder"); Brennen v. City of Eugene, 285 Or. 401,591 P.2d 719 (1979) (city held to duty to enforceordinance requiring adequate insurance fortaxicabs); Urban Renewal Agency v. Lackey,275 Or. 35, 549 P.2d 657 (1976) (counterclaimfor breach of duty imposed by agencyregulations held to allege a tort).

Plaintiff's claim here is that the stop andinquire statute, ORS 131.615, creates a duty forlaw enforcement officers to seize persons onlyas prescribed by that statute. 11 However, inState v. Tourtillott, supra, 289 Or. at 853, 618P.2d 423, a majority of the court construed thestop and inquire statute differently. The majorityheld that the statute provided only one way toconduct lawful stops of citizens, but it was notthe exclusive method. The statute interpreted inTourtillott has not since been amended. Thiscourt is bound by its prior interpretations ofstatute. State v. Loyer, 303 Or. 612, 614 n. 2,740 P.2d 177 (1987); State v. White, 303 Or.333, 348, 736 P.2d 552 (1987). The officers'failure to comply with the stop and inquire


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statute does not convert plaintiff's claim into astatutory tort.

The United States Supreme Court derived afederal "constitutional tort" against federalofficials from the Fourth Amendment, in theabsence of a federal common law of torts andrecognizing the potential inadequacies of statetort law when exerted against federal agents.Bivens v. Six Unknown Fed. Narcotics Agents,403 U.S. 388, 394-95, 91 S.Ct. 1999, 2003-2004, 29 L.Ed.2d 619 (1971).

However, we need not pursue thedimensions of plaintiff's alternative tort theories.As noted above, we have an inadequate recordupon which to determine the constitutionality ofthis roadblock. This case comes to us on appealfrom a summary judgment; it will be remandedto the trial court for further proceedings. Ittherefore remains open to plaintiff to develop thefactual and legal premises to support [304 Or.109] her common law and constitutional torttheories if she chooses.

Plaintiff does not dispute that the TortClaims Act precludes her from seeking punitivedamages against these defendants. ORS30.270(2). She bases her claim for punitivedamages on the federal civil rights statute, 42U.S.C. section 1983.

III. FEDERAL CIVIL RIGHTS ACTION

Title 42 U.S.C. section 1983 prohibits stateofficials operating "under color of" governmentauthority from violating any of plaintiff's "rights,privileges or immunities secured by theConstitution and laws" which she enjoys as aUnited States citizen. 12 The relevant question iswhether

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the roadblock violated plaintiff's FourthAmendment right to be free from unreasonablesearches and seizures.

The disposition by the Court of Appeals ofthe Fourth Amendment issue--finding aninadequate factual basis upon which toundertake the balancing of interests--points upone difficulty an appellate court faces when itattempts to balance its way to a constitutionalrule. If balancing competing interests were onlya way to resolve an individual case, then thequality of the evidence in a particular caseshould affect the outcome directly. If, however,balancing is meant to reach a rule of lawaddressing and controlling categories ofgovernment activity, then the role of theevidence in any particular case is thrown intoquestion. The difficulty is not new to the UnitedStates Supreme Court, but it remains unresolved,as is shown by the treatment of evidence ofdeterrence value of random license checks andavailability of more effective enforcementalternatives by the majority and dissentingopinions in Delaware v. Prouse, supra, 440 U.S.at 658-61, 665-66, 99 S.Ct. at 1402-03.

In its criminal procedure decisions inparticular, the United States Supreme Courtsometimes undertakes to assess [304 Or. 110]values difficult to reduce to quantifiable terms.For example, in cases similar to the present case,the Court purports to measure the interests ofgovernments in regulatory and criminal lawenforcement, the efficacy of the means chosen toreach goals, the degree of privacy citizens mayexpect in particular circumstances and howintrusive citizens would find particular policepractices. Although the evidence in a particularcase bears upon the Court's decision, theresulting analysis encompasses the largerprocess of choosing among values the Courtperceives as competing.

Often trial courts are called upon to assesscompeting values in individual disputes. As wehave indicated earlier in this opinion, however,we leave to state lawmakers in the first instancethe policy choices necessary to regulateadministrative searches, before examining stateconstitutional law. Nor do we perceive theUnited States Supreme Court to intend statecourts to undertake Fourth Amendmentbalancing with values drawn from interests


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unique to the state. The Supreme Court seems todirect us toward a "national standard" of FourthAmendment analysis. For this reason, we do notconsider the sufficiency of evidence supportingor explaining the interests at stake in a particularcase. Instead, and in the absence of directguidance from the United States Supreme Courtregarding a particular police practice such as asobriety roadblock, we attempt to apply valuesthe Court has already expressed in similarcontexts.

In Delaware v. Prouse, supra, the Courtaffirmed the suppression of marijuanadiscovered during a traffic stop. The stopoccurred without suspicion that the defendantwas engaged in wrongdoing. Its purpose was tocheck driver licenses and vehicle registrations.In the course of its analysis, the United StatesSupreme Court drew distinctions relevant to thepresent case. It suggested that situations existwhere the government's interest in searching andseizing without probable cause or reasonablesuspicion could exceed citizens' FourthAmendment interests. 440 U.S. at 653-54, 99S.Ct. at 1395-96. Further, in such cases the usualrequirement of individualized suspicion must bereplaced with controls on the officer's discretion.440 U.S. at 654-55, 99 S.Ct. at 1396-97. TheSupreme Court thought roadblock stops, that is,fixed checkpoints at which all cars are stopped,to be less "intrusive" than random or rovingstops. 440 U.S. at 656-57, 99 S.Ct. at 1397-98.The Court considered the states' interest inhighway safety [304 Or. 111] "vital," 440 U.S.at 658, 99 S.Ct. at 1398, but concluded thatrandom stops

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were neither sufficiently effective norsufficiently regulated to control the officer'sdiscretion. The majority's statement inexplanation of its holding is significant:"Questioning of all oncoming traffic atroadblock-type stops is one possible alternative."440 U.S. at 663, 99 S.Ct. at 1401. The

concurrence echoes this theme. 440 U.S. at 663-64, 99 S.Ct. at 1401-02.

The United States Supreme Court hasindicated that the states' interest in traffic safetyis great and that stationary roadblocks intrude onFourth Amendment interests only minimally.The primary concern becomes then whether theroadblock was administered in such a way as tocontrol the discretion of the officers. Theevidence in this case indicates that it was. Theroadblock was conducted at the direction of asupervising officer who instructed all officers inthe roadblock procedure. All drivers werestopped. The only exceptions occurred whentraffic became congested; some drivers werewaived through until congestion cleared. Thestopping officers informed motorists of thepurpose of the checkpoint and asked for driverlicenses and vehicle registrations. If there wassuspicion that the driver was under the influenceof an intoxicant, the driver was asked to performa field sobriety test. Otherwise, motorists wereable, after these inquiries, to drive on.

As we understand the United StatesSupreme Court, it would hold that this fairlyconsistent treatment of motorists would sufficeunder the Court's federal standards as the type ofsafeguard necessary to limit the officers'discretion. The Court has not indicated thatwritten standards for roadblocks are necessary.Of importance is the actual execution of theroadblock. The supervising officer relied on amanual setting forth procedures for licensecheck roadblocks. These standards weresubstantially complied with in the case.

Having found no Fourth Amendmentviolation, we need not reach the questionwhether punitive damages or attorney fees areavailable in federal civil rights actions broughtin state court.

The decision of the Court of Appeals isaffirmed. The decision of the trial court isaffirmed in part and reversed in part. The case isremanded to the trial court for furtherproceedings in accordance with this opinion.


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[304 Or. 112] JONES, Justice, speciallyconcurring.

I concur in the result for the reasons statedby Justice Gillette in his specially concurringopinions in State v. Boyanovsky, 304 Or. 131,743 P.2d 711 (1987), and State v. Anderson, 304Or. 139, 743 P.2d 715 (1987) (both decided thisdate). I agree that there was no FourthAmendment violation and, therefore, no need toreach the question whether punitive damages orattorney fees are available in federal civil rightsactions brought in state court.

PETERSON, Chief Justice, dissenting.

I disagree with the majority. The state andfederal constitutions aim to protect individualsagainst the excesses of government. Ininterpreting the constitution we must be mindfulof the legitimate needs of the government andother citizens. The majority's decision protectsthe rights of the individual stopped but fails torecognize legitimate needs of the governmentand other citizens. I therefore disagree withvirtually every holding in the majority opinioninsofar as sobriety checkpoint stops areconcerned.

Woodrow Wilson described theConstitution as follows:

"The Constitution itself is not a completesystem; it takes none but the first steps inorganization. It does little more than lay afoundation of principles. It provides with allpossible brevity for the establishment of agovernment having, in several distinct branches,executive, legislative, and judicial powers. Itvests executive power in a single chiefmagistrate, for whose election and inaugurationit makes carefully definite provision, and whoseprivileges and prerogatives it defines withsuccinct clearness; it grants specificallyenumerated powers of legislation to arepresentative Congress,

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outlining the organization of the two houses ofthat body * * *; and it establishes a SupremeCourt ample authority * * *. Here theConstitution's work of organization ends, andthe fact that it attempts nothing more is its chiefstrength. For it to go beyond elementaryprovisions would be to lose elasticity andadaptability. The growth of the nation and theconsequent development of the governmentalsystem would snap asunder a constitution whichcould not adapt itself to the measure of the newconditions of an advancing society. If it couldnot stretch itself to the measure of the times, itmust be thrown off and left behind, as a by-gonedevice; and there can, therefore, be no questionthat our Constitution has proved lasting [304 Or.113] because of its simplicity. It is a corner-stone, not a complete building; or, rather, toreturn to the old figure, it is a root, not a perfectvine." 1

The Constitution of the United States is aremarkable instrument. Though filled withelegant ambiguities, it is meant to apply toeveryday life.

The ambiguities guarantee continualtension between the departments of government.Experience has proved, however, that this verytension insures a stable government, with nodepartment gaining ascendancy over the other.This tension, which creates seeminglydestructive friction at times, has created growthin the governed society. The instrument, written200 years ago this year, was designed toaccommodate change without impairing itsinherent effectiveness.

The Bill of Rights, written several yearslater, is also written in broad, general terms. Itlimits the power of government, sometimes withclear, unmistakable clarity; at other times withunmistakable ambiguity. The Bill of Rights, noless than the document of which it became apart, also has accommodated changes. Indeed, itoften has been the catalyst for needed societalchange.

Like the original constitution, the Bill ofRights was written with a view to a maintenance


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of a proper tension between the departments ofgovernment, as well as tension between therights of the governed and the governors, atension that rarely is constant. The constitution'selasticity is part of its greatness.

The existence of rights guaranteed by theconstitution in only general terms creates, inaddition, uncertainty. The tension anduncertainty result, at times, from a conflictbetween two or more beneficial public policies.Shall the Executive Branch have the right toadminister foreign policy without interferencefrom the Legislative Branch? Does a personhave the right to speak out at any time and anyplace on any subject, without respect to the harmthat might (or will) result from the exercise offree speech?

[304 Or. 114] The Fourth Amendment is aparticularly ambiguous statement of a right--theright of persons to be free from "unreasonablesearches and seizures." What is an unreasonablesearch or seizure? Is it "unreasonable" to subjectevery person to a search before boarding apublic air carrier? Is it unreasonable to subjectevery person to a search before entering acourtroom?

The answers to these questions are anythingbut clear if one looks at only the words in theconstitution. The answers, usually but notalways, are made by courts, and often arecontroversial. The interpretations given bycourts are themselves subject to change. Thestarting point is, however, that the FourthAmendment statement in terms of the right--"theright of [all persons] to be secure * * * againstunreasonable searches and seizures"--also statesthe limitation upon the right--persons have noright to be secure from searches and seizuresthat are not unreasonable.

Or, looking at the Fourth Amendmentstrictly in terms of a limitation upon the powerof government, the governors may make somesearches and seizures of persons

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without a warrant. All courts of this land, stateand federal, recognize this. The case reportscontain thousands of reports of situationsinvolving the enforcement of the criminal law inwhich warrantless searches and seizures havebeen upheld.

Each case--every one--involves tensionbetween the right of those governed to be securefrom unreasonable searches and seizures and thelegitimate law enforcement needs of thegovernors. It is permissible for a police officer tosearch a person arrested for a felony to see if abulge in the jacket or pocket is a gun or a knife.Safety deems such a search not unreasonable.There, the tension (or conflict, if you prefer)between the rights of the governed and thegovernors, tips in favor of the latter.

What determines whether a search orseizure is unreasonable? A host of factors areimplicated, some of which will be discussedbelow. The starting point is worthy ofrestatement: The constitution itself is designedto protect the rights of those governed, the rightsof others in society, and to accommodate thelegitimate needs of the governors. Somewarrantless searches and seizures arepermissible. Others are not.

[304 Or. 115] In 1980, this court upheld acriminal conviction of a driver based uponevidence obtained at a game checkpointroadblock. The court stated the test as follows:

"The test is easily articulated. Indetermining the constitutionality of a particulargovernment procedure, the promotion of thelegitimate government interest at stake isbalanced against the individual's right to havehis or her privacy and personal security be freefrom arbitrary and oppressive interference. TheCourt has considered the following factors to beimportant:

"(1) the importance of the governmentalinterest at stake;


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"(2) the psychologically and physicallyintrusive nature of the procedure;

"(3) the efficiency of the procedure inreaching its desired goals; and

"(4) the degree of discretion the procedurevests in the individual officers.

"No one factor is held to be determinative. Aswith any balancing test, its application to aparticular set of facts may prove to be difficult."

State v. Tourtillott, 289 Or. 845, 864-65,618 P.2d 423 (1980), cert. den. 451 U.S. 972,101 S.Ct. 2051, 68 L.Ed.2d 352 (1981).

The question involved in this case has beenconsidered by a number of state and federalcourts. The answers (though not apparent fromthe majority opinion, 2 more on this later) aresurprisingly consistent. Sobriety checkpointstops, if conducted pursuant to safeguards (thatwill be discussed below), are permissiblewithout a warrant and without authorizinglegislation.

[304 Or. 116] The logical starting point is:Why was the seizure or search necessary orappropriate?

Intoxicated drivers may well create thelargest law enforcement problem in the UnitedStates.

Nationally:

Approximately 50 percent of all trafficfatalities occur in alcohol-related crashes. Thismeans that more than 20,000 lives are lost eachyear in alcohol-related crashes.

About 560,000 people are injured eachyear in alcohol-related crashes, 43,000 of themseriously.

More than half of alcohol-related fatalitiesoccur in single vehicle crashes.

About two-thirds of all people killed inalcohol-involved crashes are drivers orpedestrians who had been drinking,

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while one-third are innocent victims: drivers ornon-occupants (primarily pedestrians andpedalcyclists) and passengers in either vehicle.

The proportion of alcohol-related fatalcrashes is about three times greater at night thanduring the day. Between midnight and 4 a.m.,about 80 percent of drivers killed have beendrinking. 3

In Oregon:

In 1985, 558 persons were killed onOregon's streets and highways and 37,204persons were injured, 4,506 of them seriously. Itis estimated that at least half of these crasheswere caused by an intoxicated driver.

23,807 persons were arrested for DUII inOregon in 1985. This is 20.3% of all reportedarrests in the state.

In 1985, 11,483 persons were convicted ofDUII--about 33.5% for a second or subsequenttime. In [304 Or. 117] 1984-85, 14,503 firstoffenders entered a diversion program.

Drivers who have been drinking kill andinjure more people than all the other violentcriminals put together.

In 1986, there were 22,415 arrests forDUII and 11,331 convictions. 4

Most courts have upheld sobrietycheckpoint stops, after considering the need. Iquote from representative opinions.

"The importance of the governmentalinterest here involved is beyond question. 'Thecarnage caused by drunk drivers is welldocumented and needs no detailed recitationhere' (South Dakota v. Neville, 459 U.S. 553,558 [103 S.Ct. 916, 920, 74 L.Ed.2d 748]; see,also, Mackey v. Montrym, 443 U.S. 1, 17-18, n.9 [99 S.Ct. 2612, 2621 n. 9, 61 L.Ed.2d 321];Presidential Commission on Drunk Driving, An


- 11 -

Interim Report to the Nation [1982]; Report ofGovernor's Alcohol and Highway Safety TaskForce [1981]; Drunk Driving Reform in NewYork State, 1980-84, Report of theSubcommittee on Drunk Driving of theAssembly Transportation Committee; L 1981,ch 910, § 1 ['Because of the persistence of theproblem, it is essential that the state take furthersteps to protect those who make use of roadsfrom the needless deaths, injuries and propertydamage resulting from drunk driving']; Ifft,Curbing the Drunk Driver Under the FourthAmendment: Constitutionality of RoadblockSeizures, 71 Georgetown LJ 1457, n 1)."

People v. Scott, 63 N.Y.2d 518, 525-26,483 N.Y.S.2d 649, 473 N.E.2d 1 (1984).

"We find that no Fourth Amendment orArticle 26 violation occurred when appellantswere stopped at the sobriety checkpoint involvedin the present case. Clearly, the State has acompelling interest in controlling drunk driving.Indeed, as the record discloses, about sixtypercent of the drivers killed in automobileaccidents have elevated levels of alcohol in theirblood; nationally, fifty-five percent of all trafficfatalities are alcohol related. The magnitude ofthe problem created by intoxicated motoristscannot be exaggerated. As the Supreme Courtsaid recently in South Dakota v. Neville, 459U.S. 553, 558, 103 S Ct 916, 920, 74 L.Ed.2d748 (1983):

'The situation underlying this case--that of thedrunk [304 Or. 118] driver--occurs with tragicfrequency on our Nation's highways. Thecarnage caused by drunk drivers is welldocumented and needs no detailed recitationhere. This Court, although not having the dailycontact with the problem that the state courtshave, has repeatedly lamented the tragedy. SeeBreithaupt v. Abram, 352 U.S. 432, 439, 77S.Ct. 408, 412, 1 L.Ed.2d 448 (1957) ("Theincreasing slaughter on our highways, most ofwhich should be avoidable, now reaches theastounding figures only heard of on thebattlefield"); Tate v. Short, 401 U.S. 395, 401,91 S.Ct. 668, 672, 28 L.Ed.2d 130 (1971)(BLACKMUN, J., concurring) (deploring

"traffic irresponsibility and the frightful carnageit spews upon our highways");

Page 704

Perez v. Campbell, 402 U.S. 637, 657 and 672,91 S.Ct. 1704, 1715 and 1722, 29 L.Ed.2d 233(1971) (BLACKMUN, J., concurring) ("Theslaughter on the highways of this nation exceedsthe death toll of all our wars"); Mackey v.Montrym, 443 U.S. 1, 17-18, 99 S.Ct. 2612,2620-2621, 61 L.Ed.2d 321 (1979) (recognizingthe "compelling interest in highway safety").' "

Little v. State, 300 Md. 485, 504-05, 479A.2d 903, 912-13 (1984) 5

"Several states have considered the issue inconnection with driver's license checkroadblocks or in some cases more candidlydescribed as DUI roadblocks. It is obvious,without resort to the record or otherwise, that theproblem of the drunk driver is one of enormousmagnitude affecting every citizen who venturesforth upon the streets and highways. There canbe no doubt that there is an overwhelming publicand governmental interest in pursuing methodsto curtail the drunk driver. Most states, however,which have considered the validity ofroadblocks to 'check drivers' licenses and autoregistration' or to check for drunk drivers havefound the methods used to be violative of FourthAmendment rights and as failing to meet theimplied tests set forth in the extensive dicta inProuse. The use of a DUI roadblock hasprincipally two purposes: (1) to apprehend andremove the drunk driver from the streets beforeinjury or property damage results, and (2) inserving as a deterrent to convince the potentialdrunk driver to refrain from driving in the firstplace. As a fringe benefit the DUI roadblockalso serves to disclose other violationspertaining to licenses, vehicle defects, opencontainers, etc."

[304 Or. 119] State v. Deskins, 234 Kan.529, 536-37, 673 P.2d 1174 (1983).


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The existence of crime does not authorizepolice officers to stop and search anyone theyplease. The existence of a law enforcementproblem does not justify any means to meet thechallenge. The means chosen must be effectivein meeting the challenge, responsive to thechallenge, and not unreasonably intrusive. If lessintrusive methods are available, those methodsmust be pursued.

I am satisfied that sobriety checkpoint stopsare a reasonable response to the threat andadvance the public interest because:

1. Some drunken drivers are identified andremoved from the highways, both temporarily,and if convicted, for longer periods. The threatto public safety is reduced.

2. The detection of drunken drivers in sucha manner may be more effective than by rovingpatrols. At the hearings before the SenateCommittee on Commerce, Science andTransportation, there was evidence that one outof every 50 drivers on the highway has a bloodalcohol count of .10 or higher. 6 See also State v.Superior Court, 143 Ariz. 45, 691 P.2d 1073(1984) (increased patrols have not reducedinjuries from alcohol-related accidents). It hasbeen estimated that only one of every 2,000drunken drivers is apprehended. 7

3. Finally, and most importantly, thedeterrent effect from sobriety checkpoint stops isgreat. Publicized in advance (as many suchcheckpoint stops are), the beneficial effect isconsiderable for others using the highway, forthe intoxicated person and his or her family andloved ones, as well as for others who are awareof the governmental action and change theirconduct as a result. The perception ofimminence of detection is a substantial deterrent.Roadblock stops are an effective weapon to

Page 705

apprehend drunken drivers and to deter drunkendriving.

[304 Or. 120] Comments of other courtsconcerning the efficacy of sobriety checkpointstops include these:

"DUI roadblocks serve the public interest indifferent but related ways. On the one hand, DUIroadblocks are a safety measure, operating asone method of detecting motorists driving whileunder the influence of intoxicating liquor. Thearrest of an individual immediately removessuch driver from the public highway, eliminatingat least one immediate (albeit temporary) threatto public safety. For those suspects who aresubsequently convicted of driving while underthe influence of intoxicating liquor, pursuant tothe provisions of 23 V.S.A. § 1201 (1978 andSupp.1984), the penalties imposed under 23V.S.A. §§ 1206, 1208 (Supp.1984) will suspendor revoke their right to legally operate a motorvehicle on a public highway.

"On the other hand, DUI roadblocks act tofurther the public interest in reducing thenumber of motorists driving while under theinfluence of intoxicating liquor by acting as adeterrent to any person who might considerdriving after drinking. Once the public is awarethat DUI roadblocks are not per se illegal, andmay be utilized by state and local lawenforcement authorities, drivers are more likelyto think carefully about the possibility of beingapprehended and prosecuted for driving whileunder the influence of intoxicating liquor."

State v. Martin, 145 Vt. 562, 569-70, 496A.2d 442 (1985) (emphasis in original).

"The value of roadblocks in decreasingdrunk driving is attested by both the UnitedStates Department of Transportation and theGovernor's Alcohol and Highway Safety TaskForce. A 1983 paper on Safety Checkpoints ForDWI Enforcement issued by the Department ofTransportation's National Highway TrafficSafety Administration's Office of AlcoholCountermeasures emphasizes the importance ofinforming the public about DWI checkpointoperations as the chief means of deterringdriving while intoxicated (id., at p 26), and theGovernor's Task Force found 'that the


- 13 -

systematic, constitutionally conducted trafficcheckpoint is the single most effective action inraising the community's perception of the risk ofbeing detected and apprehended for drunkdriving' (Report, at p 103). Moreover, theSupreme Court has held deterrence to be alegitimate governmental purpose not only withrespect to legislation (South Dakota v. Neville,459 U.S., at p. 559 [103 S.Ct. at 920] supra; seeDelaware v. Prouse, 440 U.S., at p. 660 [99S.Ct. at 1399] supra ), but also with respect tocheckpoint stops (United [304 Or. 121] States v.Martinez-Fuerte, 428 U.S., at p. 557, 96 S.Ct. atp. 3082, supra; see United States v. Villamonte-Marquez, 462 U.S. 579, 588, 103 S.Ct. 2573,2579 [77 L.Ed.2d 22 (1983) ] supra ). Weconclude, therefore, as did the Maryland Courtof Appeals in Little v. State (supra ) (see, also,State v. Shankle, 58 Or.App. 134, 647 P.2d 959[1982] supra ) that deterrence by fear ofapprehension is a constitutionally proper meansof keeping drunk drivers off the highways,though it may not be with respect to pedestrians(see People v. Johnson, 63 N.Y.2d 888, 483N.Y.S.2d 201, 472 N.E.2d 1029)."

" * * * * *

"Nor, finally, is there sufficient questionabout the productivity of DWI checkpoints torequire invalidation of the procedure. Thecontrary argument is based on the effectivenessof the procedure as a means of apprehension andignores entirely its deterrent effect. There can beno question that substantial reductions haveoccurred since 1980 in the deaths, injuries anddamage resulting from drunken driving. Thus,the Report of the Subcommittee on DrunkDriving of the Assembly TransportationCommittee (at p 2) contains findings thathighway fatalities from 1980 to 1983 decreasedby 21%, while the risk of being in an accident,as measured by vehicle miles traveled, increasedby 5.5%; alcohol-involved fatal accidentsdecreased 25% from 1981 to 1983; all accidentshave

Page 706

declined by less than 1.5% since 1980, whilereported alcohol-involved accidents have fallenat almost ten times that rate (14.5%); accidentsduring bar hours have declined 21.3% since1980, while nonbar hour accidents actually haveincreased 3.6%; and fatal accidents during barhours have decreased 33% since 1980, whilenonbar hour fatal accidents have decreased only11%. The extent to which those results stemfrom legislative reforms during that period asdistinct from the deterrent effect of roadblocksand other educational and public informationprograms aimed at combatting the problem isnot revealed, but in our view is not ofconstitutional moment. It is enough that suchcheckpoints, when their use becomes known, dohave a substantial impact on the drunk drivingproblem (Little v. State, 300 Md., at p. 504, 479A.2d at 913, supra ). The State is entitled in theinterest of public safety to bring all availableresources to bear, without having to spell out theexact efficiency coefficient of each componentand of the separate effects of any particularcomponent (cf. Mackey v. Montrym, 443 U.S.,at p. 19 [99 S.Ct. at 2621] supra ). There being areasonable basis for concluding that consideringboth its detection and its deterrence effect, theDUI checkpoint procedure in question is avaluable component of [304 Or. 122] theprogram to control drunk driving, we concludethat it is a sufficiently productive mechanism tojustify the minimal intrusion involved."

People v. Scott, supra, 63 N.Y.2d at 526-28, 483 N.Y.S.2d 201, 472 N.E.2d 1029 (1985)(footnotes omitted).

If need and efficacy are established (and Ibelieve that they are), what must exist for asobriety checkpoint stop to pass muster? For theanswer to this question I look to the cases citedin the appendix.

Although a number of sobriety checkpointstops have been struck down for failure to meetthe criteria listed below, all but two courts thathave considered this question have held thatsobriety checkpoint stops are permissiblewithout statute or rule if specified criteria aremet.


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Most courts have concluded that sobrietycheckpoint roadblock stops pass constitutionalmuster if:

1. The roadblock is established andconducted pursuant to a plan formulated orapproved by executive-level officers of theapplicable law enforcement agency.

2. The plan contains reasonable standardsrespecting the time and place and manner ofconducting the stop.

3. The execution of the roadblock stopinvolves no exercise of discretion by the officersconducting it. 8

4. The roadblock must have the appearanceof regularity so that motorists are not put in fear.9

5. The length of detention must be short.

[304 Or. 123] 6. The interrogation shouldbe reasonable. 10

Page 707

I see no threat to the state or federalconstitutional rights of persons if suchprocedures are followed. Indeed, I am convincedthat the test is a reasonable one, whether viewedthrough the eyes of James Madison in 1789, ahypothetical James Madison in 1987, or John Q.and Jane F. Public in 1987.

The intrusion is not substantial. TheMaryland court's discussion on this point istypical.

"Balanced against the State's compellinginterest in detecting and deterring drunk driving,the intrusion on individual liberties caused bythe checkpoints is minimal. The checkpoints areoperated under limitations imposed by clear,carefully crafted regulations approved by highlevel administrators. The regulations severelyrestrict the discretion of the officers in the field.All vehicles are stopped; there is virtually norisk that motorists will be singled out arbitrarily.

The procedures to be followed whencommunicating with each driver are set forth indetail in the regulations; thus, the risk of policeharassment is greatly reduced. The amount offright and annoyance caused to motorists whopass through the checkpoints is minimal.Adequate advance warning of the checkpoint isgiven; motorists who do not wish to stop maymake a U-turn and follow a different route.Moreover, a driver who stops at the checkpointbut refuses to roll down the car window isallowed to proceed. The stops themselves lastless than a half a minute. Officers do notinterrogate motorists or search their vehicles.Each checkpoint is well illuminated and staffedby a sufficient number of uniformed officers toshow that it is a legitimate exercise of policeauthority. Ample [304 Or. 124] provision ismade for the safety and convenience of thepublic; operation of the checkpoints issuspended if traffic becomes congested. Thesobriety checkpoints are operated pursuant to acomprehensive set of detailed regulations; theyfunction in a manner that minimizes thepossibility of fright and inconvenience to thepublic. In this regard, we think the effect uponthe motorist resulting from the officer's use of aflashlight is greatly exaggerated by appellants."

Little v. State, supra, 300 Md at 506, 479A.2d 903.

Article I, section 9, of the OregonConstitution does not prohibit sobrietycheckpoint stops. Though the case cited abovewas decided under the Fourth Amendment, thetext of section 9 is not materially different. Aswe have done on other occasions, we are free toapply the same rule. 11

Pursuant to ORS 181.280, the legislaturehas delegated to the Superintendent of StatePolice the general authority to make instructionsand rules 12 concerning the manner in whichstate police carry out their duties as prescribed inORS 181.030 and 181.040, including theenforcement of laws relating to the operation ofvehicles on all highways such as therequirements of carrying a license and vehicleregistration while driving a motor vehicle and


- 15 -

not driving while under the influence ofintoxicants. In promulgating rules under whichofficers are to exercise their administrativeduties under the traffic laws, it was within theauthority of the State Police Superintendent toprovide for administrative inspection proceduresfor licenses, registration and sobriety of driverssimilar to those enacted by the legislature forequipment inspections. Cf. ORS 810.510(equipment inspection procedure).

Page 708

We recognized in State v. Lowry, 295 Or.337, 344 n. 6, 667 P.2d 996 (1983), thatauthorization for police action may be found inthe state police manual. I assume that the courtrealized in that case that authority forrulemaking lay with the State PoliceSuperintendent under ORS 181.280. In this case,the record includes a memorandum datedDecember 7, 1982, [304 Or. 125] reflectingamendments to the state police manual by theState Police Superintendent. I cite our statementin Lowry and the record here to demonstratethat, consistent with the legislative charge, thesource of the rules in the state police manual isthe State Police Superintendent.

With respect to roadside checkpoints, thestate police manual states in part:

"The U.S. Supreme Court, in Delaware v.Prouse (No 77-1571, 3/27/79) prohibits randomvehicle stops but permits inspection orroadblock procedures if the procedures followedare pursuant to pre-established and specificallydeclared department policy. The decision as towhich vehicle is to be stopped must not be at thediscretion of the member.

"This restriction, of course, does not applywhere a member has an articulable andreasonable suspicion that the motorist is inviolation of the motor vehicle laws.

"Prior to instituting the inspection procedure, adecision must be made as to the method ofselecting vehicles, such as:

"1. All passing vehicles will be stopped, or

"2. A designated number, such as every fifthvehicle or every tenth vehicle will be stopped, or

"3. The first passing vehicle will be stopped,with all other vehicles permitted to pass until theinspection is completed, at which time the verynext vehicle must be stopped for inspection.This procedure is then repeated until thecompletion of the inspection.

"Good judgment must prevail to insure that allof the following cardinal principles areobserved:

"1. The site selected must afford ample room foroff pavement parking and an unobstructed viewfrom either direction for a considerable distance.

"2. Motorists approaching the selected spot mustbe given timely warning to stop by means of aninanimate sign judiciously placed or by amember posted where he can do so by signal ifmore than one vehicle at one time is to be haltedand held in line.

"3. To conserve everyone's time each memberwhen taking part in an extensive inspection, willbe assigned to specific tasks to performaccording to prearranged plan. No motorist willbe detained any longer than is absolutelynecessary. Tactful handling and courteoustreatment is indispensable to an efficient andwell managed operation.

[304 Or. 126] "4. The Trooper present withgreater tenure will be in charge, except whenthree or more members are engaged a SeniorTrooper or Non-Commissioned officer will beon hand to exercise command. Regular uniformwill be warn.

"5. Unless most unusual circumstances dictatethe need, checks will not be held on Saturdayafternoons, Sundays or holidays, not duringhours of darkness, not while traffic is at its peakand not on freeways.


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"6. The rights of motorists must be given fullconsideration and extreme care exercised thatwe do not exceed the bounds of our authority.

" * * * * * "

On December 7, 1982, the State PoliceSuperintendent amended these rules and directed"all state police stations and posts [to] enter intoa cooperative effort with local sheriffs for thepurpose of organizing and conducting jointoperator's license, vehicle registrationinspection, and detection of drunk drivers." Thekey change was the lifting of all nighttime,weekend and holiday restrictions. These rulesdemonstrate that specifically declareddepartmental policy and guidelines wereformulated by the state police authorizingofficers to make sobriety checkpoint stops.

The plurality, however, places a limitationupon the powers necessarily implied by

Page 709

the nature of the police function and wouldrequire express legislative approval for somepractices:

"However, some procedures may invadethe personal freedoms protected fromgovernment interference by the constitution.Roadblocks are seizures of the person, possiblyto be followed by a search of the person or theperson's effects. For this reason, the authority toconduct roadblocks cannot be implied. Beforethey search or seize, executive agencies musthave explicit authority from outside theexecutive branch."

Nelson v. Lane County, 304 Or. 97, 103,743 P.2d 692 (1987).

Although the plurality recognizes that a"broad directive to enforce the criminal laws * ** together with the specification of crimesdeveloped by lawmakers impl[ies] authority toundertake tasks necessary to carry out thedelegated function," id. at 695, 743 P.2d 692,

under a newly fashioned rule of statutoryconstruction they would apparently limit suchimplied authority to acts which do not implicateArticle I, section 9 interests.

[304 Or. 127] I disagree. Either the policehave authority or they do not--if that is the issue.If they have such delegated authority, eitherexpress under a statute or implied by the natureof the duty imposed by the legislature, then theissue becomes one under the constitution. InState v. Atkinson, 298 Or. 1, 6, 688 P.2d 832(1984), we stated: "It is not our function todecide as a matter of policy how, and for whatpurpose, automobiles or other private propertythat come into official custody should beexamined." Similarly it is not our function todecide as a matter of policy how and for whatpurpose persons and their vehicles should beseized, so long as the actions do not violate thelaw.

The state police manual is designed toeliminate the possibilities for the "exercise ofdiscretion" by state police officers at atemporary traffic checkpoint, and as indicated bythe record in this case, the checkpoints wereadministered in compliance with the manual.The manual contains neutral criteria fordetaining motorists; the officers at thecheckpoint had no discretion in pickingmotorists for the initial stop. The requirement ofneutrality is satisfied by stopping every vehicleor by other procedures "that equate with, but areless intrusive than, a 100% roadblock," "such asstopping every 10th car to pass a given point,"Delaware v. Prouse 440 U.S. 648, 663-64, 99S.Ct. 1391, 59 L.Ed.2d 660 (1979) (Blackmun,J., concurring) quoted in State v. Tourtillot,supra, 289 Or. at 857, 618 P.2d 423 or "wavingtraffic through when a predetermined number ofcars have been backed up." Comment, 20 IdahoL.Rev. 127, 155 (1984) quoted in 4 LaFave,Search and Seizure 79 (2d ed 1987). See Peoplev. Bartley, 109 Ill.2d 273, 93 Ill.Dec. 347, 486N.E.2d 880 (1985) (all vehicles stopped excepton one occasion when traffic backed up); Lowev. Commonwealth, 230 Va. 346, 337 S.E.2d 273(1985) (all vehicles stopped except when


- 17 -

congestion occurred) cited in LaFave, supra at79 n. 127.

I read the majority opinion to hold thatsobriety checkpoint stops for the purpose ofdetecting and prosecuting crime are per seimpermissible.

I read the plurality opinion to hold thatsobriety checkpoint stops are permissible foradministrative purposes if authorized by thelegislative branch and if certain criteria--criterianot unlike those I listed above--are met. But noperson can be prosecuted for drunken driving ifthe evidence of [304 Or. 128] drunken driving isobtained in whole or in part from the roadblock.

The majority holds that sobriety checkpointstops may not be used to detect drunken driversand to obtain evidence to prosecute drunkendrivers. Only two jurisdictions, Oklahoma andPennsylvania, have reached that conclusion. Seeappendix, part III. Other courts considering thisissue have reached the conclusion that properlyexecuted sobriety roadblocks may be used todetect and prosecute drunken drivers. Seeappendix, parts I and II.

We are still a Jeffersonian democracy; I donot advocate a government run by MadameLaFarge. But times change. Intoxilyzers andsobriety checkpoint stops were not needed in1787 or 1887. But they are

Page 710

needed in 1987. Courts have reacted totechnological change by limiting "new"intrusions, intrusions possible by reason ofimproved technology. See, e.g., Katz v. UnitedStates, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d576 (1967) (telephone booth eavesdropping).Courts should and must respond to new societalproblems stemming from bigger and faster carsand more intoxicated persons using the highway.Sobriety checkpoint stops are an appropriateresponse.

The plurality either adopts or comes closeto creating the rule that acts of law enforcementofficials must be expressly authorized bylegislative act. I am troubled by the implicationsof the plurality opinion.

There is no textual source, either in theOregon or United States Constitution, for theregulatory/criminal distinction propounded bythe majority. To the contrary, the constitutionaltext, when read in conjunction with otherprovisions expressly restricted to civil cases orcriminal prosecutions, affirmatively weighsagainst that distinction. The historicalbackground of those provisions, which liesprimarily in protests against abuse of regulatorysearches by the Crown, further militates againstthe position of the majority.

I would affirm the trial court.

APPENDIX

I

Cases upholding sobriety checkpoint stops:State v. Superior Court in and for County ofPima, 143 Ariz. 45, 691 P.2d [304 Or. 129] 1073(1984); Ingersoll v. Palmer, 221 Cal.Rptr. 659,184 Cal.App.3d 1198 (1985), rev granted 224Cal.Rptr. 719, 715 P.2d 680 (1986); State v.Golden, 171 Ga.App. 27, 318 S.E.2d 693(1984); Illinois v. Bartley, 109 Ill.2d 273, 93Ill.Dec. 347, 486 N.W.2d 880 (1985); State v.Garcia, 481 N.E.2d 148, aff'd. on reh'g. 489N.E.2d 168 (Ind App 1985); State v. Riley, 377N.W.2d 242 (Iowa App.1985); State v. Deskins,234 Kan. 529, 673 P.2d 1174 (1983); Kinslow v.Commonwealth, 660 S.W.2d 677(Ky.App.1983); Little v. State, 300 Md. 485,479 A.2d 903 (1984); Massachusetts v. Trumble,396 Mass. 81, 483 N.E.2d 1102 (1985); Stark v.Perpich, 590 F.Supp. 1057 (D.Minn.1984); Statev. Coccomo, 177 N.J.Super. 575, 427 A.2d 131(1980); Opinion of the Justices, 128 N.H. 14,509 A.2d 744 (1986); People v. Scott, 63N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1(1984); State v. Alexander, 22 Ohio Misc.2d 34,489 N.E.2d 1093 (1985); Lowe v.


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Commonwealth, 230 Va. 346, 337 S.E.2d 273(1985).

II

Cases invalidating sobriety checkpointstops in particular cases but not holding thatsuch stops are per se unconstitutional: State exrel Ekstrom v. Justice Court of State, 136 Ariz.1, 663 P.2d 992 (1983); State v. Jones, 483So.2d 433 (Fla.1986); State v. McLaughlin, 471N.E.2d 1125 (Ind.App.1984); State v.McGeoghegan, 389 Mass. 137, 449 N.E.2d 349(1983); State v. Muzik, 379 N.W.2d 599(Minn.App.1985); State v. Crom, 383 N.W.2d461 (Neb.1986); State v. Koppel, 127 N.H. 286,499 A.2d 977 (1985); State v. Kirk, 202N.J.Super. 28, 493 A.2d 1271 (1985); State v.Olgaard, 248 N.W.2d 392 (SD 1976); Webb v.State, 695 S.W.2d 676 (Tex.App.1985); State v.Martin, 145 Vt. 562, 496 A.2d 442 (1985); Statev. Marchand, 104 Wash.2d 434, 706 P.2d 225(1985).

III

Cases holding sobriety checkpoint stops perse unconstitutional: Commonwealth v. Tarbert,348 Pa.Super. 306, 502 A.2d 221 (1985); Statev. Smith, 674 P.2d 562 (Okla.App.1984).

IV

Criteria established by other courts includethese:

"As a general rule, a DUI roadblock will passconstitutional muster if: (1) the initial stop andthe contact between the officers in the field andthe motorist involves an explanation [304 Or.130] of the nature of the roadblock and minimaldetention of a nonimpaired driver; (2) thediscretion of the officers in the field, as to themethod to be utilized in selecting vehicles to bestopped, is carefully circumscribed by

Page 711

clear objective guidelines established by a highlevel administrative official; (3) the guidelinesare followed in the operation of the roadblock;(4) approaching drivers are given adequatewarning that there is a roadblock ahead; (5) thelikelihood of apprehension, fear or surprise isdispelled by a visible display of legitimatepolicy authority at the roadblock; and (6)vehicles are stopped on a systematic, nonrandombasis that shows drivers they are not beingsingled out for arbitrary reasons."

State v. Martin, 145 Vt. 562, 571, 496 A.2d442 (1985) (footnote omitted).

"Numerous conditions and factors must beconsidered in determining whether a DUIroadblock meets the balancing test in favor ofthe state. Among the factors which should beconsidered are: (1) The degree of discretion, ifany, left to the officer in the field; (2) thelocation designated for the roadblock; (3) thetime and duration of the roadblock; (4) standardsset by superior officers; (5) advance notice to thepublic at large; (6) advance warning to theindividual approaching motorist; (7)maintenance of safety conditions; (8) degree offear or anxiety generated by the mode ofoperation; (9) average length of time eachmotorist is detained; (10) physical factorssurrounding the location, type and method ofoperation; (11) the availability of less intrusivemethods for combating the problem; (12) thedegree of effectiveness of the procedure; and(13) any other relevant circumstances whichmight bear upon the test. Not all of the factorsneed to be favorable to the State but all whichare applicable to a given roadblock should beconsidered."

State v. Deskins, 234 Kan. 529, 541, 673P.2d 1174 (1983).

---------------

1 The Court of Appeals wrote:

"Whether or not a roadblock of the sort involved herewould be found constitutional by the United StatesSupreme Court, the facts in this summary judgmentproceeding record do not provide sufficient


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information to undertake the balancing testsatisfactorily. We cannot decide, as a matter of law,that defendants did not violate the FourthAmendment, for there are too many unresolved factissues." Nelson v. Lane County, 79 Or.App. 753,764, 720 P.2d 1291 (1986).

2 We often have stressed the need to examinestatutory authority and the limitations imposed bythat authority before reaching any constitutionalquestion. See State v. Scharf, 288 Or. 451, 454-55,605 P.2d 690 (1980); State v. Spada, 286 Or. 305,309, 594 P.2d 815 (1979); see also State v. Greene,285 Or. 337, 346-47, 591 P.2d 1362 (1979) (Linde,J., specially concurring). In the years between Statev. Tourtillott, 289 Or. 845, 618 P.2d 423 (1980), andState v. Atkinson, 298 Or. 1, 688 P.2d 832 (1984),we reemphasized that requirement. See State v.Painter, 296 Or. 422, 426-49, 676 P.2d 309 (1984);State v. Davis, 295 Or. 227, 241, 666 P.2d 802(1983); State v. Lowry, 295 Or. 337, 343, 667 P.2d996 (1983); State v. Thompson, 294 Or. 528, 531,659 P.2d 383 (1983); see also Burt v. Blumenauer,299 Or. 55, 70, 699 P.2d 168 (1985); PlannedParenthood Assn. v. Dept. of Human Res., 297 Or.562, 564, 687 P.2d 785 (1984); Jarvill v. City ofEugene, 289 Or. 157, 168-71, 613 P.2d 1 (1980).

3 ORS 181.030 sets forth the duties of the OregonState Police in part, as follows:

"(1) The Department of State Police and eachmember of the Oregon State Police shall be chargedwith the enforcement of all criminal laws.

"(2) Each member of the state police is authorizedand empowered to:

"(a) Prevent crime.

"(b) Pursue and apprehend offenders and obtain legalevidence necessary to insure the conviction in thecourts of such offenders."

4 We used the terms "noninvestigatory," "civil" and"administrative" interchangeably in State v.Atkinson, supra, although "noninvestigatory" appearsto be a misnomer. Administrative searches can be,and often are, conducted for purposes ofinvestigation.

5 We do not mean to suggest that if, whileconducting a legally authorized and properlyadministered administrative inspection, officers cameacross evidence of another crime in plain view, that

such evidence could not be used in a criminalprosecution. If the usual prerequisites for a "plainview" seizure are met, it could be.

6 See Article I, section 20, of the OregonConstitution; State v. Freeland, 295 Or. 367, 667 P.2d509 (1983).

7 Various agencies have explicit authorization toinspect: (1) business premises, ORS 472.170(1)(liquor licensees); ORS 619.036 (meat sellingestablishments); ORS 446.066 (mobile home parks);(2) potentially dangerous machinery, ORS 460.135(elevators); ORS 480.580 (boilers and pressurevessels); (3) pollutants, ORS 453.105 (hazardoussubstances); ORS 468.095 (air and water pollution);and (4) some activities, ORS 517.770 (dredgingoperations).

The United States Supreme Court recently has noted,in a different context, that the "reasonableness" of asearch or seizure may differ under the FourthAmendment depending on the existence or absenceof a regulation governing the search or seizure.Griffin v. Wisconsin, 483 U.S. 868, ----, 107 S.Ct.3164, 3172, 97 L.Ed.2d 709 (1987).

The Oregon State Police have what appears to be anadministrative vehicle inspection power. The StatePolice are authorized by statute to "require a persondriving a vehicle * * * to stop and submit the vehicle* * * to an inspection of the mechanical conditionand equipment thereof at any location wheremembers of the Oregon State Police are conductingtests and inspections of vehicles and when signs aredisplayed requiring such stop." ORS 810.510(1). Thepurpose of such an inspection policy appears to beadministrative--to prevent ongoing, existingviolations of the vehicle equipment requirements.The results of failing to pass the inspection arenoncriminal: issuance of either a vehicle repairwarning (described in ORS 810.520), or a citation foran infraction, an offense "punishable only by a fine,forfeiture, suspension or revocation of a license orother privilege, or other civil penalty" and for whichthe offender "shall not suffer any disability or legaldisadvantage based upon conviction of crime." ORS153.270(1) and (2).

8 We need not decide when it might be necessary toinvolve judicial officials in approving anadministrative inspection involving searches orseizures to meet Article I, section 9, of the OregonConstitution, an issue that would not arise if thelegislature were to do so.


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9 For example, suppose that the legislatureauthorized an administrative checkpoint program toensure driver sobriety and authorized officials toprevent intoxicated persons from driving by meansother than criminal sanctions. Prevention then mightentail refusing to release the vehicle to theintoxicated driver, ORS 809.710, taking intoxicateddrivers to civil detoxification centers, ORS 426.460,perhaps license suspension or revocation, ORSchapter 813, or, as was done in Idaho, intoxicateddrivers could be detained until they were fit to driveor provided with transportation home. See Note,Curbing the Drunk Driver under the FourthAmendment: The Constitutionality of RoadblockSeizures, 71 Georgetown L.J. 1457, 1463 n. 32(1983).

10 Oregon adopted the common law of England in itsfirst code of laws in 1843. The origin of punitivedamages at common law was a case of trespass for anarrest without a legal warrant. Huckle v. Money, 95Eng.Rep. 768 (1763).

11 ORS 131.615(1) provides:

"A peace officer who reasonably suspects that aperson has committed a crime may stop the personand, after informing the person that the peace officeris a peace officer, make a reasonable inquiry."

12 42 U.S.C. section 1983 provides:

"Every person who, under color of any statute,ordinance, regulation, custom, or usage, of any Stateor Territory or the District of Columbia, subjects, orcauses to be subjected, any citizen of the UnitedStates or other person within the jurisdiction thereofto the deprivation of any rights, privileges, orimmunities secured by the Constitution and laws,shall be liable to the party injured in an action at law,suit in equity, or other proper proceeding for redress.* * * "

1 Wilson, Congressional Government (1885) quotedin Padover, The Living United States Constitution, 57(1953).

2 In this dissent, I have referred to the "majorityopinion" and the plurality opinion. There is, ofcourse, but one lead opinion. There are otheropinions. I read the opinions to say:

1. Five of us say that sobriety checkpoint stops forthe purpose of prosecuting drunk drivers are per seunconstitutional.

2. Three of us say that sobriety checkpoint stops areproper if authorized by the legislative branch, but thatdrunken drivers may not be prosecuted for drunkendriving as a result of evidence thereby obtained.

3. Two of us say that properly conducted sobrietycheckpoint stops are permissible to find, arrest andprosecute drunk drivers.

3 Data compiled by NHTSA/National Center forStatistics and Analysis (August 1986).

4 Data compiled by the Oregon Traffic SafetyCommission (1985).

5 The Maryland case also contains an extensivediscussion of the cases from other states. See Little v.State, 300 Md. 485, 498-503, 479 A.2d 903 (1984).

6 Federal Legislation to Combat Drunk DrivingIncluding National Driver Register, Hearings on S.671, S. 672, S. 2158 Before the Subcomm. onSurface Transportation of the Senate Comm. onCommerce, Science and Transportation, 97th Cong.,2d Sess. 112 (1982) (hereinafter "Hearings") cited in4 LaFave, Search and Seizure 73 n. 97 (2d ed 1987).

7 Hearings, supra, note 5 at 55, Quade, The DrunkDriver, 69 A.B.A.J. 1201, 1202 (1983), cited in 4LaFave, supra at 73 n. 98.

8 All cars could be stopped. Or every fifth or tenthcar could be stopped. Or all could be stopped until apredetermined number are stopped. Such alternativeswould be permissible, but are by no means exclusive.

9 Signs might be posted notifying motorists of thereason for the stop. Advance notice might bepublished in the papers or given on television andradio. The absolute minimum notice would be"adequate advance warning signs, illuminated atnight, timely informing approaching motorists of thenature of the impending intrusion." Compare State v.Hillesheim, 291 N.W.2d 314, 318 (Iowa 1980)(checkpoint stop violated Fourth Amendment;checkpoint was haphazardly located by policeofficers in field, officers attempted to stop motoristsat night, using only red lights on their vehicles andflashlight signals, there were no prewarning signs orlights nor any illumination, and there was no systemdevised to stop traffic systematically and maintainroadblock for significant period of time).

10 I commend this procedure described in Little v.State, 300 Md. 485, 491, 479 A.2d 903 (1984):


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" 'All traffic approaching the checkpoint will bestopped as long as traffic congestion does not occur.The trooper will approach each motorist and state, "Iam Trooper (John Doe ) of the Maryland StatePolice. You have been stopped at a sobrietycheckpoint set up to identify drunk drivers." If thereis no immediate evidence of intoxication, a trafficsafety brochure developed specifically for thisenforcement strategy will be given to the motorist.The trooper will suggest to the motorist that he readthe brochure at a later time for a more completeexplanation of the stop. The motorist will then beassisted to safely proceed.'

"The brochures also contain a questionnaire for themotorist to return with comments about the program.

Each checkpoint stop lasts between fifteen and thirtyseconds."

I also note that ORS 807.570 requires that all driverscarry a driver's license that must be presented uponthe request of a police officer.

11 State v. Kell, 303 Or. 89, 95, 734 P.2d 334 (1987);State v. Sparklin, 296 Or. 85, 89, 672 P.2d 1182(1983); State v. Tourtillott, 289 Or. 845, 854, 618P.2d 423 (1980).

12 The plaintiff did not raise the issue of whether therules were or had to be promulgated in accordancewith the Administrative Procedures Act at the trialcourt.

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Nelson v Lane County - ACLU of Oregon

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