Virginia Coalition of Police
and Deputy Sheriffs
New U.S. Supreme Court
Approves "Informational" Checkpoint
By Julie A. Risher, Public Safety Attorney, Winston-Salem, North Carolina
A January decision of the U.S. Supreme Court sheds new light on the
constitutionality of vehicle checkpoints, specifically "informational"
checkpoints. This column reviews that case, Illinois v. Lidster, and
vehicle checkpoints in general.
On August 30, 1997, Detective Vasil spent a few hours standing in the middle of
the eastbound lanes of busy North Avenue wearing an orange reflective vest. He
stopped each vehicle that passed for only 10-15 seconds to hand the driver a
flyer that read: "Fatal hit and run accident. Assistance needed in identifying
the vehicle and driver involved in this accident, which killed a 70-year-old
bicyclist." Vasil asked drivers only what they had seen there the previous week.
The officer hoped that one of the drivers was regularly on the road at this time
and might have information about the fatal accident.
Suddenly, a vehicle in line swerved and almost struck Vasil, who jumped out
of the way. When he approached the driver, Vasil smelled alcohol on the driver's
breath and noticed that his speech was slurred. Another officer performed
sobriety tests. After the tests, officers arrested the driver, Robert S. Lidster,
for driving while impaired.
At trial, Lidster challenged his arrest and evidence from the stop, arguing
that the information-seeking checkpoint violated his Fourth Amendment protection
against unreasonable seizure. The trial court denied the motion, and the
defendant appealed. The Illinois Supreme Court reversed the trial court, relying
on Indiana v. Edmond.1 (In Edmond, the U.S. Supreme
Court had disapproved a drug checkpoint, finding that it constituted an
unreasonable seizure.2) The U.S. Supreme Court disagreed, however,
and upheld the information-seeking stop as constitutionally reasonable.
To understand why the Lidster checkpoint is constitutional when the drug
checkpoint is not requires review of the Court's decisions involving stops not
based on individualized suspicion. The Court has recognized limited
circumstances in which the Fourth Amendment's usual requirement of
individualized suspicion does not apply, but all stops must be reasonable. To
determine reasonableness, courts balance the public interest the stop serves and
the individual's right to be free from governmental interference.
The Court has allowed certain vehicle checkpoints without individualized
suspicion. Whether a vehicle checkpoint is reasonable depends on (1) the gravity
of the public concern, (2) the degree to which the seizure addresses or advances
the public concern, and (3) the severity of interference with individual
liberty.3 Using these factors, the Court has approved vehicle stops
at border checkpoints and driver's license and registration checkpoints under
specific circumstances. The Court has limited law enforcement, however, by
holding that checkpoints created for general crime control (including drug
enforcement) are not constitutional. Illinois v. Lidster provides the
latest guidance on where the constitutional line lies when officers have no
Border Patrol Checkpoints
The Court analyzed a permanent immigration checkpoint 66 miles north of the
Mexican border.4 A uniformed agent visually screened all northbound
vehicles, directing some to a secondary checkpoint to answer questions about
citizenship and immigration status for three to five minutes. The Court
considered that the extremely important national policy limiting immigration
could only be served by interior checkpoints, because the vast border cannot be
controlled effectively. Further, this interest outweighs the checkpoint's
minimal intrusion on driver privacy. The agent's plain-view visual inspection
was not a search. Even if a driver were stopped, he only answered a question or
two and produced a citizenship document. Consequently, the checkpoint was
Driver's License Checkpoints
The Fourth Amendment's reasonableness standard prohibits officers from randomly
stopping vehicles to check driver's licenses and registration.5 In
Delaware v. Prouse, a patrolman stopped a vehicle without reasonable
suspicion to check the driver's license and registration. He seized marijuana in
plain view. Addressing the stop's constitutionality, the Court noted that the
public interest in ensuing that motorists are licensed and cars are registered
justified the checkpoint's slight intrusion on motorists. In Prouse, however,
the officer had unbridled discretion regarding which cars to stop, making the
checkpoint unconstitutional. By contrast, license checkpoints conducted in a
systematic, predesignated manner are constitutional.
Sobriety checkpoint stops without individualized suspicion are constitutional.6
Considering a checkpoint program to detect drunk drivers, the Court noted that
each stop lasted approximately 25 seconds. Officers directed any driver who
showed signs of insobriety to the side and administered field tests; intoxicated
drivers were arrested. The Court held that the magnitude of the government's
interest in eradicating the increasing problem of drunken driving outweighed the
slight intrusion the stop imposed on all motorists.
General Crime Control Checkpoints
Vehicle checkpoints for general crime control are constitutionally unreasonable.7
At an Indianapolis checkpoint to detect unlawful drugs, each driver was briefly
stopped and asked to produce a driver's license and registration. The officer
looked for any signs of impairment and conducted a plain view examination of the
car. A narcotics detection dog walked around the outside of each vehicle. Each
stop was conducted in the same manner and lasted five minutes or less. The Court
concluded that a roadblock to check for narcotics was an investigation for
general criminal activity. The Court noted:
We decline to suspend the usual requirement of
individualized suspicion where the police seek to employ a checkpoint
primarily for the ordinary enterprise of investigating crimes. We cannot
sanction stops justified only by the generalized ever present possibility
that interrogation and inspection may reveal that any given motorist has
committed some crime.
Illinois v. Lidster asks, Are information-seeking checkpoints
constitutional?8 The Court answered Yes, concluding that the
substantial interest in solving a serious crime outweighed the minor intrusion
the stop imposed on motorists. Applying the balancing test, the Court noted that
the government's interest in solving a deadly hit-and-run accident is a grave
public concern, and the checkpoint's purpose was not general crime control but
investigation of a specific, particular crime. The checkpoint was narrowly
tailored to advance the government interest (same location as the crime, about
one week after the crime, and at approximately the same time of day). Finally,
stops were extremely brief, systematic, and limited in scope to a request for
information. There is no Fourth Amendment prohibition on officers simply asking
citizens in a public place for voluntary cooperation in providing information.
Rejecting the argument that allowing information stops would result in a
proliferation of checkpoints, the Court pointed to the limitations of police
resources and community intolerance of traffic interferences as inherently
Although the Fourth Amendment permits information-seeking
checkpoints, the protection against unreasonable search and seizure still
applies to the procedures used:
Information-seeking checkpoints are an important tool for law enforcement.
Witnesses may not realize that they have useful information.9 Ours is
a mobile society; notifying drivers about crimes may be the only way to reach
potential witnesses in some cases. However, agencies should diligently follow
the Court's guidance during checkpoints (stops without individualized suspicion)
to avoid converting a useful law enforcement tool into an unreasonable (and
therefore unconstitutional) stop.
|The crime about which information is sought must be serious.|
|Checkpoints must be narrowly tailored (location, time of day, and
duration) to the investigative purpose. |
|All checkpoint stops must be brief and systematic; arbitrary stops are
|Officers may not stop vehicles to conduct generalized interrogation.|
The author gratefully
acknowledges the assistance of research intern Christina E. Foglio, Wake Forest
University School of Law.
1 Illinois v. Lidster, 779, N.E.2d 855
(Ill. 2002), overturned by Illinois v. Lidster, -U.S.-(2004).
2 City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).
3 Brown v. Texas, 443 U.S. 47, 99 (1979).
4 United States v. Martinez-Fuerte, 428 U.S. 543, 566, 546
5 Delaware v. Prouse, 440 U.S. 648 (1979).
6 Michigan v. Sitz, 496 U.S. 444, 455 (1990).
7 City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
8 Illinois v. Lidster, -U.S.-(2004).
9 Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).
From The Police Chief, vol. 71, no. 3, March 2004. Copyright held by the
International Association of Chiefs of Police, 515 North Washington Street,
Alexandria, VA 22314 USA.