State v. Orr - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State v. Orr, 91 Ohio St.3d 389, 2001-Ohio-50.]

THE STATE OF OHIO, APPELLEE, v. ORR, APPELLANT.
THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
[Cite as State v. Orr (2001), 91 Ohio St.3d 389.]
Constitutional law -- Search and seizure -- Motor vehicles -- Criteria for
determining constitutionality of a driver's license checkpoint.
(No. 00-408 -- Submitted January 10, 2001 -- Decided May 2, 2001.)
APPEAL from the Court of Appeals for Montgomery County, Nos. 17476 and
17477.
__________________
SYLLABUS OF THE COURT
In determining the constitutionality of a driver's license checkpoint, a court must
evaluate, on a case-by-case basis, the checkpoint's intrusion on privacy,
the state's interest in maintaining the checkpoint, and the extent to which
the checkpoint advances the state interest.
__________________

FRANCIS E. SWEENEY, SR., J. From June 8, 1998 through June 20, 1998,
the city of Dayton operated a system of driver's license checkpoints designed to
identify and remove unlicensed drivers and drivers with suspended licenses from
the roads. The checkpoints were set up at various locations in Dayton, including
major thoroughfares and "target enforcement areas"--districts characterized by
problems of traffic and crime. Upon arrival at a checkpoint site, the police would
set up reflective signs that warned drivers of the upcoming checkpoint. The
checkpoints were staffed by anywhere between eleven and thirteen officers.
Several police cruisers were also present at the checkpoints.

As cars entered the checkpoints, they would be stopped according to some
pattern that varied according to the amount of traffic on the road. If traffic was

SUPREME COURT OF OHIO
particularly light, every car would be stopped. Drivers who were stopped at these
checkpoints were immediately advised of the purpose of the checkpoint and were
asked to produce their driver's licenses. Drivers who produced a valid license
would have their licenses returned to them along with a pamphlet explaining the
checkpoint program and thanking them for their cooperation. The length of
detention for those possessing a valid driver's license was usually about forty-five
seconds.

Drivers who were unable to produce a valid driver's license had their
names, dates of birth, and Social Security numbers entered into the officers'
computers to check whether they possessed a valid license. If the computer
showed that a driver was properly licensed and was not wanted by the police for
any reason, the driver would be given the pamphlet, thanked, and released back
into traffic. This entire process would take an additional two minutes or so to
complete. Drivers without a valid license were cited for the violation, which
added approximately ten minutes to the overall length of detention.

On June 17, 1998, appellant Magus Orr was stopped at a driver's license
checkpoint and cited for driving without a license in violation of R.C.
4507.02(A)(1). That same night, appellant Andre Smith was stopped at a driver's
license checkpoint at another location. Smith was cited for driving without a
license in violation of R.C. 4507.02(A)(1), operating a motorcycle without the
required endorsement in violation of R.C. 4507.02(A)(3), driving with expired
license plates in violation of R.C. 4503.21, and operating a motorcycle without a
helmet--required for novice riders--in violation of R.C. 4511.53.

Both of the appellants pleaded not guilty. Each appellant also filed a
motion to suppress, claiming that his seizure was unconstitutional under the Ohio
and United States Constitutions and that all evidence obtained as a result of his
seizure should be suppressed. The trial court granted appellants' motions to
suppress. The court concluded that because the state had offered no evidence to
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January Term, 2001
suggest that the driver's license checkpoints were a necessary or effective means
of promoting roadway safety, they constituted an unreasonable search and seizure
under the Ohio and United States Constitutions. The state appealed the trial
court's decisions to the Second District Court of Appeals. In a consolidated case,
the court of appeals reversed the trial court, concluding that driver's license
checkpoints are a reasonable method by which to deal with the public danger
posed by unlicensed drivers. Orr and Smith filed a joint notice of appeal. The
cause is now before this court upon our allowance of a discretionary appeal.

We are asked to decide whether Dayton's driver's license checkpoint
program violated the search and seizure provisions of the Ohio and United States
Constitutions. For the reasons that follow, we sustain the program's
constitutionality.

The Fourth Amendment to the United States Constitution, as applied to the
states through the Fourteenth Amendment, provides, "The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized." Section 14, Article I
of the Ohio Constitution, which contains language nearly identical to its federal
counterpart, also prohibits unreasonable searches and seizures.1 Because Section
14, Article I and the Fourth Amendment contain virtually identical language, we
have interpreted the two provisions as affording the same protection. See State v.
Robinette (1997), 80 Ohio St.3d 234, 238, 685 N.E.2d 762, 766-767. The search
and seizure provisions of the Ohio and United States Constitutions are implicated

1. Section 14, Article I of the Ohio Constitution provides:

"The right of the people to be secure in their persons, houses, papers, and possessions,
against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but
upon probable cause, supported by oath or affirmation, particularly describing the place to be
searched, and the person and things to be seized."
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in this case because a vehicle stop at a highway checkpoint constitutes a "seizure"
within the meaning of the Ohio and United States Constitutions even though the
purpose of the stop is limited and the resulting detention brief. Delaware v.
Prouse (1979), 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667.

A number of federal and state courts have upheld the seizure of motorists
at driver's license checkpoints. See, e.g., United States v. McFayden
(C.A.D.C.1989), 865 F.2d 1306; United States v. Prichard (C.A.10, 1981), 645
F.2d 854; LaFontaine v. State (1998), 269 Ga. 251, 497 S.E.2d 367; State v.
Cloukey (Me.1985), 486 A.2d 143; State v. Grooms (1997), 126 N.C.App. 88, 483
S.E.2d 445. Although the United States Supreme Court has never fully considered
the constitutionality of a driver's license checkpoint, it has repeatedly suggested
in dicta that it would uphold properly administered driver's license checkpoints.
For instance, in Prouse, the United States Supreme Court held that the Fourth
Amendment prohibits a police officer from arbitrarily stopping an automobile for
the sole purpose of checking the driver's license and registration. The court
stressed, however, that this holding did not preclude states from developing
methods for spot checks, including the "[q]uestioning of all oncoming traffic at
roadblock-type stops." Prouse, 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at
673-674. Similarly, in Indianapolis v. Edmond (2000), 531 U.S. 32, ___, 121
S.Ct. 447, 457, 148 L.Ed.2d 333, 347, the Supreme Court invalidated drug
interdiction checkpoints implemented primarily to uncover evidence of criminal
wrongdoing but cautioned that its decision did nothing to alter the constitutional
status of driver's license checkpoints.

The United States Supreme Court's cases generally accord more Fourth
Amendment protection to persons who are subjected to roving-patrol stops than to
those who are stopped at roadblock, or checkpoint-type, stops like that involved in
the case at bar. The different treatment of checkpoint and roving-patrol stops
makes sense, given the essential purpose underlying the Fourth Amendment. The
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January Term, 2001
Fourth Amendment "impose[s] a standard of `reasonableness' upon the exercise
of discretion by government officials, including law enforcement agents, in order
` "to safeguard the privacy and security of individuals against arbitrary
invasions." ' " (Footnote omitted.) Prouse, 440 U.S. at 653-654, 99 S.Ct. at 1396,
59 L.Ed.2d at 667, quoting Camara v. Mun. Court of San Francisco (1967), 387
U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, 935. The crucial distinction
between roving-patrol stops and checkpoint stops is the degree to which they
intrude upon motorists' privacy and sense of security. "[T]he subjective
intrusion--the generating of concern or even fright on the part of lawful
travelers--is appreciably less in the case of a checkpoint stop." United States v.
Martinez-Fuerte (1976), 428 U.S. 543, 558, 96 S.Ct. 3074, 3083, 49 L.Ed.2d
1116, 1128. "At traffic checkpoints the motorist can see that other vehicles are
being stopped, he can see visible signs of the officers' authority, and he is much
less likely to be frightened or annoyed by the intrusion." United States v. Ortiz
(1975), 422 U.S. 891, 894-895, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623, 628. Many
motorists accept checkpoint stops as incidental to highway use. Martinez-Fuerte,
428 U.S. at 561, 96 S.Ct. at 3084, 49 L.Ed.2d at 1130, fn. 14.

In determining the constitutionality of a police checkpoint, courts evaluate
the following three factors: (1) the particular checkpoint's intrusion on privacy,
(2) the state's interest in maintaining the checkpoint, and (3) the extent to which
the checkpoint advances the state interest. Michigan Dept. of State Police v. Sitz
(1990), 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412. The United States
Supreme Court has relied upon this analysis in upholding sobriety checkpoints--
roadblocks at which drivers are checked for being under the influence of alcohol
or mind-altering drugs--and roadblocks designed to intercept illegal immigrants.
See id. (sobriety checkpoints); Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49
L.Ed.2d 1116 (immigration checkpoints). The courts of several jurisdictions have
extended the analysis to cases involving driver's license checkpoints. See, e.g.,
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SUPREME COURT OF OHIO
McFayden, 865 F.2d 1306; Cloukey, 486 A.2d 143. We agree with those
jurisdictions that have concluded that the analysis employed by the United States
Supreme Court in its cases on sobriety and immigration checkpoints is
appropriate for review of driver's license checkpoints. Therefore, we hold that in
determining the constitutionality of a driver's license checkpoint, a court must
evaluate, on a case-by-case basis, the checkpoint's intrusion on privacy, the
state's interest in maintaining the checkpoint, and the extent to which the
checkpoint advances the state interest. Applying this three-pronged analysis, we
find that Dayton's driver's license checkpoints were consistent with the search
and seizure provisions of the Ohio and United States Constitutions.

Like most checkpoint stops, Dayton's driver's license checkpoints did not
greatly intrude upon travelers' sense of privacy. Drivers approaching these
checkpoints were warned in advance of their presence. At the checkpoint, drivers
could see that they were not the only ones being stopped. Visible signs of the
officers' authority were everywhere. Each checkpoint was manned by at least
eleven officers, with police cruisers present. Drivers who were stopped were
immediately advised of the purpose of the stop. Most of those possessing a valid
license were sent on their way after only about forty-five seconds. Those who had
a valid license but could not produce it at the checkpoint were dispatched after
only a few minutes. Even those driving without a valid license were detained for
only ten minutes or so. Every driver stopped at one of Dayton's driver's license
checkpoints was given a pamphlet explaining the checkpoint program and
thanking him or her for cooperating. Clearly, these checkpoints constituted a very
limited intrusion into travelers' privacy and sense of security.

Weighing against this minimal intrusion on privacy is the state's vital
interest in using driver's license checkpoints to identify unlicensed drivers. The
state has an interest in ensuring that only those qualified to do so are permitted to
operate motor vehicles and hence that licensing requirements are being observed.
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January Term, 2001
Prouse, 440 U.S. at 658, 99 S.Ct. at 1398, 59 L.Ed.2d at 670. "Automobile
licenses are issued periodically to evidence that the drivers holding them are
sufficiently familiar with the rules of the road and are physically qualified to
operate a motor vehicle." Id. See, also, R.C. 4507.11.2 As the court of appeals
noted, "Persons who are too young or too old to drive pose a threat to the public
safety." State v. Smith (Jan. 14, 2000), Montgomery App. Nos. 17475, 17476 and
17477, unreported, at 24, 2000 WL 20882. "Persons who have had their licenses
suspended for convictions of operating a motor vehicle while under the influence
of alcohol often disregard their suspensions and drive anyway, endangering the
public." Id. In short, the state has a critical interest in protecting its citizens from
drivers who either are not qualified to drive or have been forbidden to drive
because of a record of driving offenses.3

Compounding the danger to the public from unlicensed drivers is the fact
that much of the danger is hidden from plain view. While many types of
dangerous motorists--drunk drivers, for example--exhibit erratic driving, the
unlicensed driver often displays no observable characteristics. Cloukey, 486 A.2d
at 147. Police officers on roving patrol cannot pull over a vehicle for the sole
purpose of checking the driver's license and registration. Prouse, 440 U.S. 648,
99 S.Ct. 1391, 59 L.Ed.2d 660. Therefore, without checkpoints, the only way in
which police can identify an unlicensed driver is by waiting for the driver to

2. R.C. 4507.11 provides:

"The registrar of motor vehicles shall conduct all necessary examinations of applicants
for temporary instruction permits, drivers' licenses, or motorcycle operators' endorsements. The
examination shall include a test of the applicant's knowledge of motor vehicle laws, including the
laws on stopping for school buses, a test of the applicant's physical fitness to drive, and a test of
the applicant's ability to understand highway traffic control devices."
3. According to Dayton's Police Driver's License Checkpoint Guidelines, adopted in 1998, of the
almost 3.2 million drivers in the state of Ohio, approximately 800,000 had their licenses under
some form of suspension. The introduction to the guidelines states that, in 1998, when the city of
Dayton established its checkpoint program, approximately thirty percent of the traffic citations
issued by the Dayton Police Department were for driver's license violations. It also reports that an
estimated one in eight drivers on the streets of Dayton either did not have a driver's license or
were driving under suspension.
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SUPREME COURT OF OHIO
commit a driving offense. Cloukey, 486 A.2d at 147. In at least some instances,
the offense would not even have occurred had the offending driver been detected
earlier and been removed from the roadways.

The final consideration in our three-pronged analysis is the extent to
which the driver's license checkpoints advanced the state interest. This requires us
to consider the Dayton program's effectiveness in identifying unlicensed drivers.

In one two-week period, the Dayton police stopped 2,110 motorists and
issued 224 traffic citations, resulting in a citation rate of approximately 10.6
percent. By constitutional standards, this effectiveness rate of 10.6 percent is quite
substantial. Although there was no evidence of how many of these citations were
related to licensing, even if only a fraction of the citations were issued for driving
without a valid license, the effectiveness rate in the case sub judice would still
exceed rates sustained by the United States Supreme Court in analogous
checkpoint cases. See Sitz, 496 U.S. at 455, 110 S.Ct. at 2487, 110 L.Ed.2d at 423
(1.6 percent arrest rate for drunk drivers); Martinez-Fuerte, 428 U.S. at 554, 96
S.Ct. at 3081, 49 L.Ed.2d at 1126 (apprehension of illegal aliens in 0.12 percent
of vehicles passing through checkpoint).

In sum, assessing the checkpoints' intrusion on privacy, the state's interest
in maintaining driver's license checkpoints, and the extent to which Dayton's
checkpoint program advanced the state interest, we find that Dayton's driver's
license checkpoint program was consistent with the search and seizure provisions
of the Ohio and United States Constitutions. We affirm the judgment of the court
of appeals.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.

COOK, J., concurs in judgment.
__________________
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January Term, 2001

Julia L. McNeil, Dayton Director of Law, John J. Scaccia, Chief
Administrative Counsel, and Deirdre Logan, Acting Chief Prosecutor, for
appellee.

Carl G. Goraleski and Anthony R. Cicero, Assistant Public Defenders, for
appellants.

Betty D. Montgomery, Attorney General, David M. Gormley, Associate
Solicitor, and David V. Patton, Assistant Solicitor, urging affirmance for amicus
curiae Attorney General of Ohio.

Barry M. Byron, Stephen L. Byron and John Gotherman, urging
affirmance for amicus curiae Ohio Municipal Attorneys Association.

Flanagan, Lieberman, Hoffman & Swaim and Richard Hempfling, urging
reversal for amicus curiae American Civil Liberties Union of Ohio Foundation.
__________________
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