 |
|||||
|
|
|
|
|
||
|
|
|||||
|
|
|
|
|
||
The minimal intrusion of the seizure in this informative checkpoint also distinguishes it from Edmond. Edmond did not involve a search, see 531 U. S., at 40, but the level of intrusion was significant when compared to the present case. A "sniff by a dog that simply walks around a car [may be] 'less intrusive than a typical search,' " ibid. (quoting United States v. Place, 462 U. S. 696, 707 (1983)), but it is still an effort to find evidence of criminality from a motorist rather than give him or her a leaflet about a fatal accident. In Place, the dog sniff came after a stop supported by reasonable suspicion. See 462 U. S., at 706. The issue was whether the sniff had to be supported by probable cause. See ibid. Holding that it was not a search requiring probable cause, this Court recognized that there was some intrusion, but that it fell short of a search.
"Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods." Id., at 707.
This holding is correct. Canine sniffs should not warrant extra justification under the Fourth Amendment if the stop that makes the sniff possible is already constitutional. However, the sniff in Edmond involves some intrusion that does not exist in this case.
Seizures vary in the degree of privacy they invade. Some seizures involve a total invasion of physical privacy--the death of the suspect, see, e.g., Brower, 489 U. S., at 594; Tennessee v. Garner, 471 U. S. 1, 3 (1985), while others are much less physically intrusive. See, e.g., Terry v. Ohio, 392 U. S. 1 (1968). Seizures also vary by how much they invade the individual's feelings of privacy or security. Checkpoints have a more secure Fourth Amendment foundation than roving stops because checkpoints generate apprehension in motorists due to the checkpoint's public display of authority and its application to all motorists. See Prouse, 440 U. S., at 657.
The informative checkpoint causes even less consternation than immigration, drug, or drunk driving checkpoints. Drivers subject to the informative checkpoint are not examined for evidence that they are drunk, harboring illegal aliens, or carrying illegal drugs. The fact that they are instead informed about a fatal accident on this highway and given the opportunity to help solve an unsolved crime can only further minimize the apprehension and frustration that comes with a traffic stop.
The seizure in this case lasts no more than 15 seconds, see supra, at 2, noticeably less than the two- to three-minute average in Edmond. See 531 U. S., at 36. This difference is a result of all the information that the drug checkpoint sought to extract from innocent drivers. In addition to the canine sniff, the narcotics stop also involved request for license and registration, and an open air examination of the vehicle. See id., at 35. Simply handing out leaflets will take much less time and involve much less inconvenience for the drivers.
In all prior checkpoint, special needs search, and administrative search decisions there was some adversity between the individual and those conducting the stop or search. See supra, at 11-12. They all involved some effort to determine whether the stopped or searched individuals were violating the law or official policy. Those subject to the intrusion knew that they were being probed for evidence that they had done something wrong. See, e.g., Edmond, 531 U. S., at 35 (motorist informed that he or she is being stopped at a drug checkpoint). Even so, this type of intrusion could be labeled "minimal" in an appropriate case. See Sitz, 496 U. S., at 452. In Sitz, drivers were detained for about 25 seconds and checked for evidence of intoxication. See id., at 447-448. If the Sitz intrusion is minimal, then the 10- to 15-second, nonadversarial checkpoint in the present case is less than minimal.
Stops of this brevity are commonplace on the highways. Drivers routinely make stops of this duration at traffic lights and stop signs. These traffic controls fit the definition of seizure, terminating an individual's freedom of movement through an intentionally applied show of authority. See California v. Hodari D., 499 U. S. 621, 626 (1991). The public safety interest in regulating intersections and the minimal intrusiveness of the stops ensures that the Fourth Amendment is satisfied. The present checkpoint is a slightly more elaborate version of the same intrusion. Although it does not have the pervasive safety purpose of traffic controls, the informative checkpoint has its own internal safety measures that check its potential growth. See Part II-A, supra.
A seizure can be too minimal to warrant Fourth Amendment protections. For example, testing a trace amount of a substance to determine whether it is cocaine destroys the substance. This permanent deprivation of private property is a seizure that is separate from the initial seizure of the substance. See United States v. Jacobsen, 466 U. S. 109, 124-125 (1984). If the property is already lawfully detained, then the destruction of a minimal portion of it for testing survives Fourth Amendment scrutiny. See id., at 123. "Under these circumstances, the safeguards of a warrant would only minimally advance Fourth Amendment interests." Id., at 125.
The Fourth Amendment operates on a continuum, with the greatest intrusions warranting the most protection. Searches typically require a warrant, see New York v. Burger, 482 U. S. 691, 702 (1987), while arrests require probable cause. See Atwater v. City of Lago Vista, 532 U. S. 318, 354 (2001). The lesser intrusion of the stop and frisk requires reasonable suspicion. See Terry v. Ohio, 392 U. S. 1 (1968). Searches can overcome the warrant and probable cause standard if there is a special need, see Board of Education v. Earls, 536 U. S. 822, 829 (2002), while an appropriate government interest will support a highway checkpoint after "a balancing of the competing interests at stake and the effectiveness of the program." Edmond, 531 U. S., at 47.
The present case is at the far end of that continuum. The minimal, nonadversarial intrusion makes for a less difficult experience than submitting to a sobriety, immigration, or narcotics checkpoint. This minor stop should not be treated like the more extensive seizures of the other checkpoints. While its purpose is sufficient to distinguish it from Edmond, even without this feature the reduced intrusion of the informative checkpoint also separates it from drug checkpoints.
Successfully distinguishing City of Indianapolis v. Edmond, 531 U. S. 32 (2000), see Part II, supra, does not end the analysis. Edmond relied on the improper purpose of the drug checkpoint to bypass the normal procedure for analyzing seizures that fall short of an arrest. "The reasonableness of seizures that are less intrusive than a traditional arrest [citations], depends 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' " Brown v. Texas, 443 U. S. 47, 50 (1979) (quoting Pennsylvania v. Mimms, 434 U. S. 106, 109 (1977)). This standard applies to automotive checkpoints, see Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 450 (1990), so long as they are not motivated by an improper purpose. See Edmond, 531 U. S., at 47. The Illinois Supreme Court's holding that Edmond is indistinguishable from the present case made a reasonableness analysis unnecessary for its opinion. See People v. Lidster, 779 N. E. 2d 855, 861 (2002) (citing Edmond).
Brown provides the standard for testing the constitutionality of a seizure short of an arrest. "Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." 443 U. S., at 50-51. The "central concern" of the balancing test is "to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Id., at 51. The informative checkpoint readily satisfies these concerns. Checkpoints inherently limit an officer's opportunity to exercise discretion in an arbitrary manner. See United States v. Martinez-Fuerte, 428 U. S. 543, 559 (1976). The purpose behind the informative checkpoint also limits the discretion of the police in a way that was absent in narcotics checkpoints. See Part II-A, supra.
The interest advanced by the checkpoint is substantial. This Court has already approved a checkpoint designed to catch or deter drunk drivers. See Sitz, 496 U. S., at 455. While drunk driving is a serious threat to public safety, see id., at 451, it is also true that no one is directly harmed by the act of driving while intoxicated. People frequently drive while intoxicated without harming themselves or others. Thus in 2000, there were 1,471,289 arrests for driving under the influence, while the total arrests for all serious violent crimes was 625,132. See U. S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 2001, Table 4.1, p. 342 (2002). The problem with drunk driving is the socially unacceptable risk of death or injury that accompanies intoxicated driving. This checkpoint does not address merely potentially dangerous drivers. It addresses a proven menace to road safety--someone involved in a fatal accident who left the scene of the incident.
Although the informative checkpoint is only meant to apprehend one danger, and the Sitz checkpoint could apprehend more, see Sitz, 496 U. S., 448 (two arrests), this does not invalidate the present checkpoint. Each checkpoint must be analyzed on its own facts. The Sitz checkpoint had a greater potential for abuse and driver inconvenience, due to its nationwide scope. See supra, at 9. By comparison, the officers in this case had little discretion in the timing or placement of the informative checkpoint. See supra, at 13.
The second aspect of the Brown test, the checkpoint's efficiency in advancing the public interest, is not an invitation to second-guess police practice. "This passage from Brown was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger." Id., at 453. The Fourth Amendment does not have a least intrusive means requirement. See Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 663 (1995). Police only need to employ reasonable means in order to satisfy the Fourth Amendment.
An informative checkpoint is appropriate to the difficult problem posed by a fatal hit and run accident. The two best witnesses to the accident, the driver and the victim, are missing. Unlike a human who leaves DNA evidence or a fingerprint, an automobile is unlikely to leave similar identifying evidence unless a license plate falls off during the accident. Since the killing took place on a street, drivers at the time of the accident are the best source of potential eyewitnesses. While some of these potential eyewitnesses might live nearby, there is every reason to believe that most had no ties to the area other than using the road where the accident occurred. The accident occurred near the time of a local commute. See supra, at 13. Also, the fact that one drives on a particular road is no guarantee that he or she lives near that street. Therefore, a door-to-door canvassing of the immediate area could only be marginally useful.
Publicity is the best solution. With enough publicity, an eyewitness to some part of the accident might have his or her memory jogged enough to come forward with relevant information. There are several sources of publicity--appeals to the public through the mass media, the internet, billboards, posting flyers on lampposts or other fixtures, and the informational checkpoint used in this case. Mass media appeals are cheap and widespread, but the police lack control over the content of the appeal, and it is contingent on the cooperation of local editors and publishers. The internet is cheap, but unlikely to reach actual witnesses. Advertisements are expensive and may be ignored, while posting flyers on fixtures are unlikely to reach many people. The checkpoint is not too expensive, and unlike any other means of communication, is targeted at the most fertile source of potential witnesses.
When balanced against the minimal intrusion of the stop, see Part II-B, supra, the informational checkpoint in this case is reasonable. It is an efficient way of trying to deal with a deadly driver, and it may be the only way for the victim's family to secure compensation for their loss. Nor does it pose the threat to the Fourth Amendment found in the drug checkpoint. Requiring a warrant or individualized suspicion would frustrate police efforts to inform the community, while doing little to protect individual privacy. This limited, focused attempt to inform the local population of a serious offense is reasonable. The Fourth Amendment requires no more.
The decision of the Illinois Supreme Court should be reversed.
July, 2003
Respectfully submitted,
|
|
||||
|
|
|
|
||