The opinion
[This decision has been published in Ohio Official Reports at 91 Ohio St.3d 389.]
THE STATE OF OHIO, APPELLEE, v. ORR, APPELLANT.
THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
[Cite as State v. Orr, 2002-Ohio-50.]
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.
{¶ 1} 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.
SUPREME COURT OF OHIO
{¶ 2} 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 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.
{¶ 3} 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.
{¶ 4} 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.
{¶ 5} 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
2
January Term, 2001
seizure should be suppressed. The trial court granted appellants’ motions to
suppress. The court concluded that because the state had offered no evidence to
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.
{¶ 6} 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.
{¶ 7} 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.
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.”
3
SUPREME COURT OF OHIO
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
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.
{¶ 8} 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.
{¶ 9} 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
4
January Term, 2001
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 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.
{¶ 10} 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
5
SUPREME COURT OF OHIO
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.,
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.
{¶ 11} 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.
{¶ 12} Weighing against this minimal intrusion on privacy is the state’s
vital interest in using driver’s license checkpoints to identify unlicensed drivers.
6
January Term, 2001
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.
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
{¶ 13} 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
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.
7
SUPREME COURT OF OHIO
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 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.
{¶ 14} 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.
{¶ 15} 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).
{¶ 16} 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.
8
January Term, 2001
COOK, J., concurs in judgment.
__________________
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.
__________________
9