Amicus Curiae Brief — Illinois v. Lidster

No. 02-1060

In the Supreme Court of the Anited States

STATE OF ILLINOIS, PETITIONER

Vv.

Rosvent S. LIDSTER

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D. C. 20530-0001

(202) 514-2217

eS

Neen ss

QUESTION PRESENTED

Whether an informational checkpoint, at which police

officers briefly stop all oncoming motorists to distribute

flyers that seek information concerning a hit-and-run

accident that occurred at the location of the checkpoint,

violates the Fourth Amendment as construed in City of

Indianapolis v. Edmond, 531 U.S. 32 (2002).

(I)

TABLE OF CONTENTS

RES GED GR GD cccserncsesnsesrssssssnsnecsesscsesessenenssessess

IID, ccccccreneemmeemnenemmnemsseesmmnemacsmememesnemecemesmenenenees

I GS GRINE cence

Argument:

Informational checkpoints that advance important

public safety interests and that intrude minimally

on motorists’ liberty do not violate the Fourth

REED cnn

A.

The Fourth Amendment permits vehicle check-

points where the government interests at stake

justify the measure, there are explicit constraints

on police discretion, and the intrusion on motorists

GN cncenennesenmneenneneneee

B. ‘'nformational checkpoints advance substantial

governmental interests distinct from the gen-

eral interest in crime detection, and they are

reasonable under this Court’s balancing test ..........

1. Informational checkpoints effectively promote

eee

a. Effective investigation of crime ............

b. Protection of roadway safety .................

2. Canvassing motorists to seek the volun-

tary assistance of witnesses to specific

crimes serves a public interest distinct

from the general interest in crime

GOURD ccnnsennesssscsnnnscssmnsnssnesessemnsnemnessssesmeseeneeses

3. The intrusion on motorists’ liberty is

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(IIT)

18

& 8

IV

TABLE OF AUTHORITIES

Cases: Page

Atwater v. City of Lago Vista, 532 U.S. 318

(2001) ......02++ saamnumemmmemanseane 17, 23

Breithaupt v. Abram, 352 U.S. 432 (1957) .. 14-15

Brown v. Texas, 443 U.S. 47 (1979) 7,9

Burns v. Commonwealth, 541 S.E.2d 872 (Va.),

cert. denied, 534 U.S. 1043 (2001) 13

Cady v. Dombrowski, 413 U.S. 433 (1973) .... 7

Camara v. Municipal Court, 387 U.S. 523 (1967) ........... 19, 20

Cardwell v. Lewis, 417 U.S. 583 (1974) 7

Chambers v. Maroney, 399 U.S. 42 (1970) . 7

City of Indianapolis v. Edmond, 531 U.S. 32

(2000) - passim

Colorado v. Bertine, 479 U.S. 367 (1987) ... 22

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ............ 21

Delaware v. Prowse, 440 U.S. 648 (1979) ..........00000 6, 12, 17, 25

Drushella v. City of Elgin, Illinois, No. 86 C 2307,

1987 WL 5902 (N.D. Ill. Jan. 26, 1987) 22

Ferguson v. City of Charleston, 532 U.S. 67 (2001) ........ 10, 19

Frank v. Maryland, 359 U.S. 360 (1959) 19, 22

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) ............... 7

Maryland v. Wilson, 519 U.S. 408 (1997) ..........cccccccececeeees 24

Michigan Dep't of State Police v. Sitz, 496 U.S. 444

GERI erunssnsessesmmanenasensnnmeessnmnennementenemnnn passim

Miranda v. Arizona, 384 U.S. 436 (1966) ... 21

New Jersey v. T.L.O., 469 U.S. 325 (1985) 7

New York v. Class, 475 U.S. 106 (1986) ...... = 24

Pennsylvania v. Labron, 518 U.S. 938 (1996) ...............+- 24

Pennsylvania v. Mimms, 434 U.S. 106 (1977) 0.0.2... 7

Reed v. Gardner, 986 F.2d 1122 (7th Cir.), cert.

denied, 510 U.S. 947 (1993) 22

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ............. ll

Segura v. United States, 468 U.S. 796 (1984) 26, 27

Skinner v. Railway Labor Executives’ Ass'n,

GD GE, GD ccna 17

V

Cases—Continued: Page

South Dakota v. Opperman, 428 U.S. 364 (1976) ....... 7, 22, 24

Seep Ce, Gla, Ge eee B Ge cerrerserneseseeneemn 24

United States v. Brignoni-Ponce, 422 U.S. 873

a sehen iin iliaatatastinensitee 7,17

United States v. Drayton, 536 U.S. 194 (2002) ......... 12, 21, 26

United States v. Martinez-Fuerte, 428 U.S. 543

(1976) - lata tienen titearinatimaeaes passim

United States v. Montoya de Hernandez, 473 U.S.

ee eens sedaiiaaralaa aeasnarenmaanaapenemttios 18

United States v. Ortiz, 422 U.S. 891 (1975) 0..........cccccceoee 26

United States v. Ross, 456 U.S. 798 (1982) ...........-cesssseses0: 17, 22

Wyoming v. Houghton, 526 U.S. 295 (1999) ............ccceceeeee 24

‘onstitution and statute:

ee ee passim

Prosecutorial Remedies and Other Tools to End the

Exploitation of Children Today Act of 2003, Pub. L.

No. 108-21, § 303, 117 Stat. 662-663 (to be codified at 42

TED ectnatnsinnstenstreinenstinsesennnnepenteiinaeeniniieenennnaren 14

Miscellaneous:

Bureau of Transp. Statistics, U.S. Dep’t of Transp.,

Nat'l Transp. Statistics 2002, <www.bts.gov/ publi-

cations/national_transportation_statistics/2002/pdf/

GEERIOGED cemenenngmemeneen 12

Susan Carroll, Hit-and-Run Deaths Often Go Unsolved,

The Arizona Republic (Feb. 25, 2003), <http://www.

azcentral.com/specials/specials21/articles/0225phzun

solved25.html> sreainbienennee 17

148 Cong. Rec. $8483 (daily ed. Sept. 10, 2002) ................... 14

Dep't of Police, Village of Lombard, Operation of

Departmental Vehicles, Gen. Order No. 240-20

Gem, SR, GEG cccenenssczsssensssensssssnsssssssssmmneseensenmemsmrassscnssenessese: 25

Department of Transp. and Related Agencies Appro-

priations for Fiscal Year 1998: Hearings Before the

Subcomm. on Transp. and Related Agencies of the

Senate Comm. on Appropriations, 105th Cong., 1st

ee 12

VI

Miscellaneous—Continued: Page

Fed. Highway Admin., U.S. Dep’t of Transporta-

tion, Traffic Control Devices Handbook (1983) ...........-.-. 25

Brenda Kilby, Roadblocks Used to Get Kidnapping

Information, Tulsa World (July 23, 1995), available in

1995 WL 5614662 13

Dianne Klein, Sudden Death on the Streets, Los Angeles

Times (May 1, 1994) 16

Stephen Moore & Julian L. Simon, The Greatest

Century That Ever Was: 25 Miraculous Trends

of the Past 100 Years, (Cato Inst., Policy Analysis

No. 364) (Dec. 15, 1999) 12

National Highway Traffic Safety Admin., U.S. Dep’t of

Transp.:

Traffic Safety Facts 2001: A Compilation of Motor

Vehicle Crash Data from the Fatality Analysis

Reporting System and the General Estimates

System (2002), <http://www-nrd.nhtsa.dot.gov/

pdf/nrd-30/NCSA/TSF Ann/TSF2001/.pdf.> .......... 12

Traffic Safety Fdcts 2001: Rural/Urban Compari-

son (2002), <http://www-nrd.nhtsa.dot.gov/pdf/

nrd-30/NCSA/TSF2001/2001rural.pdf> .............0++« 15

Office of Justice Programs, Dep’t of Justice, Non-

family Abducted Children: National Estimates

and Characteistics (Oct. 2002) 13

Phoenix Cops Look for Missing Girl, Associated

Press (Jan. 7, 1999) ..........ccssesereeees meeeteiatipanmnen 13

Pat Reavy et al., Sister’s Story: New Details Emerge,

Deseret News (June 19, 2002), <http://deseretnews.

com/dn/print/1,1442, 405012725,00.htm> 13

Research on the Problem of Violent Aggressive Driving:

Hearings Before the House Comm. on Transp. and

Infrastructure, Subcomm. on Surface Transp., 105th

Cong., Ist Sess. (1997) 16

Road Rage: Causes and Dangers of Aggressive

Driving: Hearing Before the Subcomm. on Surface

Transp. of the House Comm. on Transp. and Infra-

structure, 105th Cong., Ist Sess. (1997) eons 15

Vil

Miscellaneous—Continued: ° Page

Targeting Aggressive Drivers, Police Face

Tough Road, Washington Post (Feb. 20, 1997) .............++. 16

United States Dep’t of Transp., Analysis of the

Capital Beltway Crash Problem (Mar. 1996) .......-.---+-+++++ 15

Pe ES RE EE oe agree 2 -

ee

In the Supreme Court of the Anited States

No. 02-1060

STATE OF ILLINOIS, PETITIONER

Vv.

ROBERT S. LIDSTER

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case involves the validity under the Fourth

Amendment of a vehicle checkpoint whose purpose is to

allow law enforcement officers to provide information

to motorists about a crime and to seek the public’s

assistance in solving that crime. The Federal Bureau of

Investigation (generally in conjunction with local law

enforcement agencies), the United States Park Police of

the Department of the Interior’s National Park Service,

and the Department of Agriculture’s Forest Service

conduct similar informational checkpoints to seek infor-

mation about crimes committed within their respective

jurisdictions, to alert motorists to important public

safety and regulatory information, and to help locate

missing persons. Because such checkpoints are an

important and effective means of seeking information

(1)

2

and protecting the public, the federal government has a

substantial interest in this case.

STATEMENT

1. On August 30, 1997, the police department in

Lombard, Illinois, established an informational check-

point at the scene of a fatal hit-and-run accident. The

checkpoint was established in the same location as the

hit-and-run accident, on the same day and at approxi-

mately the same time one week later, with the purpose

of locating witnesses to the hit-and-run who could

“provide information about the offender or his vehicle.”

Pet. App. 23. Between six and twelve marked police

vehicles participated in the checkpoint with their lights

activated. Jd. at 2. Traffic slowed at the checkpoint so

that all of the cars individually approached a police

detective, who was wearing an orange reflective vest

bearing the word “Police.” As each car approached, the

officer handed a flyer to the driver requesting informa-

tion about the accident. Jbid. The flyer “ALERT[ed]”

motorists that there had been a “FATAL HIT & RUN

ACCIDENT,” and asked for “ASSISTANCE IN

IDENTIFYING THE VEHICLE AND DRIVER

INVOLVED IN THIS ACCIDENT WHICH KILLED A 70

YEAR OLD BICYCLIST.” J.A. 14. The flyer identified

the time and place of the accident, and described the

suspect vehicle. J.A. 14-15. The officer distributing the

flyers did not ask for the driver’s name, license, or

insurance information, nor did he ticket for plain-view

infractions like seatbelt violations. Each stop lasted

approximately 10 to 15 seconds. J.A. 31.

As respondent approached the officer at the check-

point, he “narrowly missed hitting [the] officer” with

his minivan. Pet. App. 6. After jumping out of the

way, the officer approached the vehicle to ask why the

3

driver had almost hit him. Jd. at 24. When respondent

answered, the officer smelled alcohol on his breath and

noticed that his speech was slurred. Jbid. The officer

then directed respondent to a side street, where

another officer performed a number of sobriety tests.

Ibid. After those tests, the police arrested respondent

for driving under the influence. /bid.

2. Respondent moved to quash his arrest and sup-

press evidence on the ground that the checkpoint was

unconstitutional. The trial court denied the motion. It

found that the decision to establish the checkpoint was

made by a supervisory official, the police operated the

checkpoint in a regularized manner, and the detention

was for a minimal period of time. J.A. 36-37. Respon-

dent subsequently was convicted at a bench trial of

driving under the influence of alcohol. Pet. App. 3.

The Illinois appellate court reversed. Pet. App. 23-

28. The appellate court concluded that this Court's

intervening decision in City of Indianapolis v. Ed-

mond, 531 U.S. 32 (2000), precluded the operation of the

informational checkpoint in this case because “the

express purpose of the roadblock was to search for

evidence of a crime,” Pet. App. 26, and “a criminal

investigation can never be the basis for a roadblock,” id.

at 27.

3. A divided Illinois Supreme Court affirmed. Pet.

App. 1-22. The supreme court concluded that, under

Edmond, the Fourth Amendment prohibits any check-

point the primary purpose of which is “general crime

control.” Jd. at 7. The court found no difference, for

Fourth Amendment purposes, between “a police in-

vestigation tool such as canvassing” for witnesses and a

checkpoint aimed at uncovering crimes committed by

the motorists themselves. /d. at 8.

4

Three Justices dissented. Pet. App. 12-22. Those

Justices interpreted Edmond to prohibit checkpoints

that are “designed to detect through ‘interrogation and

inspection * * * that any given motorist has com-

mitted some crime,’” id. at 16 (quoting Edmond, 531

U.S. at 44). The informational checkpoint here, in the

dissent’s view, was not subject to Edmond because it

was not aimed at “discovering that the subjects of the

seizure have committed some crime.” Pet. App. 14.

The dissenting Justices further reasoned that “can-

vassing for information about a deadly hit-and-run

crime that happened on the roadway would serve the

purpose of highway safety in a similar fashion to

checking licenses to ensure that only qualified drivers

are operating motor vehicles.” Jd. at 16.

SUMMARY OF ARGUMENT

Informational checkpoints are consistent with the

Fourth Amendment because the important public

safety interests effectively served by such checkpoints

outweigh the minimal intrusion imposed on motorists

using the public highways. This Court has long recog-

nized that the Fourth Amendment does not prevent

police officers from approaching individuals in public

places and seeking their voluntary cooperation in an

investigation. Informational checkpoints are an impor-

tant means by which, in a highly mobile society, law

enforcement officers can similarly advise motorists that

a crime has been committed and seek information and

their voluntary assistance in solving it. Informational

checkpoints are commonly used to alert the motoring

public to the disappearance of a child or to identify

witnesses to crimes committed near roadways. Pro-

viding important information to motorists about crimes

that endanger public safety and affording those

5

individuals the opportunity voluntarily to assist the

police in the investigation of those crimes promotes

responsible citizenship and is vital for law enforcement

to operate effectively in a free society.

When, as in the case at hand, informational check-

points are designed to canvas possible witnesses to

vehicular crimes committed on the public roadways, the

checkpoints also directly advance the public interest in

roadway safety, in the same manner as the sobriety

checkpoints previously upheld by this Court against

Fourth Amendment challenge. Informational check-

points are often the only practicable means of locating

witnesses to such crimes in order to assess liability

accurately and ultimately to remove dangerous drivers

from the roadway.

Those important public interests outweigh the neg-

ligible intrusion informational checkpoints impose on

motorists. As this Court has recognized, travelers on

the public roadways are already subject to a variety of

limitations on their freedom of movement and an

ongoing duty to submit to stops or inspections for

roadway safety purposes. Against that backdrop, the

10 to 15 second stop that occurred here, during which a

uniformed officer provided all drivers with a flyer

seeking information about a crime, imposes no

appreciable intrusion on motorists’ liberty. The regu-

larized manner in which the checkpoint was operated

and the informational nature of the interchange with

motorists, moreover, eliminated any subjective intru-

sion on the motorists.

The Illinois Supreme Court did not deny the impor-

tant public interests served by the informational

checkpoint, nor did it disagree with the minimally intru-

sive character of the brief stop. The court instead

concluded that the fact that tle informational check-

6

point advanced what it considered to be general crime

control purposes made it per se invalid under the

Fourth Amendment. In so holding, the court found the

informational checkpoint functionally indistinguishable

from the narcotics-detection checkpoint invalidated by

this Court in City of Indianapolis v. Edmond, 531 U.S.

32 (2000).

Edmond, however, proscribed checkpoints designed

both to uncover hitherto unknown criminal activity and

to gather evidence implicating the seized motorists in

those crimes. The narcotics checkpoint in Edmond thus

implicated the Fourth Amendment’s protection against

seizures and searches designed to incriminate the

target. The informational checkpoint conducted here

bears little relationship to such general crime-detection

checkpoints. The checkpoint sought only to educate the

traveling public about the commission of a specific,

known crime that-threatened their safety and to seek

their voluntary assistance in removing a dangerous

driver from the road. There is a significant consti-

tutional and practical difference between law-

enforcement conduct that seeks information through

voluntary cooperation, and police conduct that seeks

incrimination through individualized inspection and

targeted questioning.

ARGUMENT

INFORMATIONAL CHECKPOINTS THAT ADVANCE

IMPORTANT PUBLIC SAFETY INTERESTS AND THAT

INTRUDE MINIMALLY ON MOTORISTS’ LIBERTY DO

NOT VIOLATE THE FOURTH AMENDMENT

The “essential purpose” of the Fourth Amendment is

“to impose a standard of ‘reasonableness’ upon the

exercise of discretion by government officials.” Dela-

ware v. Prouse, 440 U.S. 648, 653-654 (1979) (footnote

7

omitted). The Fourth Amendment does not impose an

“irreducible requirement” of individualized suspicion.

United States v. Martinez-Fuerte, 428 U.S. 543, 561

(1976). Instead, the reasonableness of seizures that are

less intrusive than a traditional arrest turns on “a bal-

ance between the public interest” served by the

practice and “the individual’s right to personal secur-

ity free from arbitrary interference by law officers.”

Brown v. Texas, 443 U.S. 47, 50 (1979) (quoting Penn-

sylvania v. Mimms, 434 U.S. 106, 109 (1977) (per

curiam), and United States v. Brignoni-Ponce, 422 US.

873, 878 (1975)).

What is reasonable “depends on the context,” New

Jersey v. T.L.O., 469 U.S. 325, 337 (1985), and “(t]he fact

that automobiles occupy a special category in Fourth

Amendment case law is by now beyond doubt,” Mar-

shall v. Barlow’s, Inc., 436 U.S. 307, 315 n.10 (1978).

See also South Dakota v. Opperman, 428 U.S. 364, 367

(1976) (“This Court has traditionally drawn a distinction

between automobiles and homes or offices in relation to

the Fourth Amendment.”); Cady v. Dombrowski, 413

U.S. 433, 439 (1973) (“there is a constitutional difference

between houses and cars”) (quoting Chambers v.

Maroney, 399 U.S. 42, 52 (1970)). For more than a

quarter century, the Court has stressed that “one’s

expectation of privacy in an automobile and of freedom

in its operation are significantly different from the

traditional expectation of privacy and freedom in one’s

residence.” Martinez-Fuerte, 428 U.S. at 561. That dis-

tinction arises, in part, because of the “obviously public

nature of automobile travel,” under which cars rou-

tinely “travel{] public thoroughfares where both [their]

occupants and [their] contents are in plain view.”

n, 428 U.S. at 368; see also Cardwell v. Lewis,

417 U.S. 583, 590 (1974).

8

Against that background and this Court’s cases ad-

dressing vehicle checkpoints, the informational check-

point conducted in this case is constitutional. The

checkpoint advances important governmental interests

that are distinct from the general interest in crime

control. Balancing those objectives against the minimal

intrusiveness of the stop, the checkpoint complies with

the standard of reasonableness that this Court has

applied in upholding checkpoints in other contexts.

A. The Fourth Amendment Permits Vehicle Check-

points Where The Government Interests At

Stake Justify The Measure, There Are Explicit

Constraints On Police Discretion, And The

Intrusion On Motorists Is Limited

This Court has addressed the constitutionality of

vehicle checkpoints under the Fourth Amendment on

three occasions. In United States v. Martinez-Fuerte,

the Court upheld the Border Patrol’s use of permanent,

fixed checkpoints on roads leading to the interior of the

country. The Court found the “law enforcement needs

served by the checkpoints”—controlling the flow of

illegal aliens and smuggling—to b¢ “substantial[]},” 428

U.S. at 556-557 & n.12, while “the consequent intrusion

on Fourth Amendment interests is quite limited,” id. at

557. The checkpoint’s interference with legitimate

traffic was “minimal,” and the exercise of discretion

by officers was limited by the “regularized manner

in which established checkpoints are operated.” Jd. at

559.

In Michigan Department of State Police v. Sitz, 496

U.S. 444 (1990), the Court upheld sobriety checkpoints

at which cars were briefly stopped and drivers exam-

ined for signs of intoxication. The Court noted that the

“magnitude” of the State’s interest in combating the

9

problem of drunk driving was undisputed, id. at 451.

On the other side of the ledger, the Court found, the

intrusion on motorists stopped at sobriety checkpoints

was “minimal.” Jd. at 452. While the Court made clear

that no searching examination of the sobriety check-

point’s “effectiveness” was required in order to sustain

them, id. at 454, the Court concluded that the ability of

the checkpoints to advance the States’ interest was

sufficient to strike the balance “in favor of the state

program.” /d. at 455.

In City of Indianapolis v. Edmond, the Court invali-

dated a narcotics-detection checkpoint program the

“primary purpose” of which was “to uncover evidence

of ordinary criminal wrongdoing,” 531 U.S. at 42. While

recognizing that checkpoints could be legitimately

established for law enforcement purposes, the crucial

factor for the Court was that “the primary purpose of

the Indianapolis checkpoint is to advance the general

interest in crime control.” Jd. at 44 n.1 (emphasis

added). The Court reasoned that the intrusion on mo-

torists’ liberty occasioned by the suspicionless stops

was not justified by the “generalized and ever-present

possibility that interrogation and inspection may reveal!

that any given motorist has committed some crime.”

Id. at 44.

In all three cases, the Court evaluated the consti-

tutionality of the checkpoints by applying the Brown v.

Texas balancing test, under which the Court weighs

“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 51. See Edmond,

531 U.S. at 47 (“The constitutionality of such checkpoint

programs still depends on a balancing of the competing

interests at stake and the effectiveness of the pro-

10

gram.”); Sitz, 496 U.S. at 450 (“Martinez-Fuerte, supra,

which utilized a balancing analysis in approving high-

way checkpoints for detecting illegal aliens, and Brown

v. Texas, supra, are the relevant authorities here.”);

Martinez-Fuerte, 428 U.S. at 557-562. See also Fer-

guson v. City of Charleston, 532 U.S. 67, 83-84 n.21

(2001) (distinguishing analysis of cases involving

“special needs” searches from analysis of “roadblock

seizures,” for which the Court has “applied a balancing

test to determine Fourth Amendment reasonable-

ness”). Edmond made clear that the pursuit of “general

crime control ends,” 531 U.S. at 43, is not a sufficiently

grave public concern to support a program of

suspicionless seizures, id. at 44. But Edmond did not

preclude the use of checkpoints in all law-enforcement

situations. 531 U.S. at 44 & n.1.

B. Informational Checkpoints Advance Substantial

Governmental Interests Distinct From The

General Interest In Crime Detection, And They

Are Reasonable Under This Court's Balancing

Test

Informational checkpoints are tailored to serve im-

portant public objectives. In this case, the checkpoint

sought to provide the public with information about

criminal activity in order to locate witnesses to a hit-

and-run. Properly understood, such checkpoints serve

purposes that are distinct from general crime control,

Edmond, 531 U.S. at 43, and reviewed under the Brown

v. Texas balancing test, the important public interests

served by such checkpoints justify the minima! intrus-

ion on motorists’ liberty.

11

1. Informational Checkpoints Effectively Promote

Public Safety

While there are a variety of informational check-

points, such checkpoints can serve at least two

important purposes relevant to this case. First, they

ean assist in the location of witnesses to a crime.

Second, they can directly promote roadway safety.’

a. Effective Investigation of Crime. Informational

checkpoints enable officers to locate witnesses who

might otherwise be unaware of a crime or unaware that

they have information necessary to its solution. The

ability to question such witnesses is often critical to law

enforcement. See Schneckloth v. Bustamonte, 412 U.S.

218, 225 (1973) (discussing “the acknowledged need for

police questioning as a tool for the effective enforce-

ment of criminal laws”). Without such questioning,

“those who were innocent might be falsely accused,

those who were guilty might wholly escape prosecution,

and many crimes would go unsolved” with the result

that “the security of all would be diminished.” /bid.

Accordingly, this Court has long recognized that “(law

| Informational checkpoints also can be used to inform the

public or to seek information about situations that do not involve

criminal conduct. The federal Forest Service—which is respon-

sible for policing over 193 million acres of land, encompassing

nearly 400,000 miles of road, with just 600 officers—informs us that

it considers the use of strategically situated informational check-

points critical to its efforts to locate missing hikers, to coordinate

with motorists the most efficient and productive shared use

of National Forest System lands during times of peak demand

(such as the opening of hunting or fishing seasons), and to warn

motorists of bear attacks, fire hazards, and sudden changes in road

conditions. Those types of checkpoints clearly do not serve general

crime control interests under Edmond and are unquestionably

valid under the Fourth Amendment.

12

enforcement officers do not violate the Fourth Amend-

ment’s prohibition of unreasonable seizures merely by

approaching individuals on the street or in other public

places,” such as on public transportation, “and putting

questions to them if they are willing to listen.” United

States v. Drayton, 536 U.S. 194, 200 (2002).

Not all crimes can be investigated by approaching

individuals on the street. The United States has be-

come “the most mobile society on earth.”* Ninety-one

percent of all Americans own a car,’ and Americans

travel roughly 2.8 trillion vehicle miles annually.‘ “Many

people spend more hours each day traveling in cars

than walking on the streets.” Prouse, 440 U.S. at 662.

As a consequence, informational checkpoints are often

the only practicable means available for police to

alert an entire category of often critical potential

witnesses—passing motorists—to the fact that a crime

has been committed and that activities they witnessed

may be relevant. The need to notify drivers is espe-

2 Department of Transp. and Related Agencies Appropria-

tions for Fiscal Year 1998: Hearings Before the Subcomm. on

Transp. and Related Agencies of the Senate Comm. on Appropria-

tions, 105th Cong., Ist Sess. 56-57 (1997) (Jane F. Garvey, Acting

Administrator, Fed. Highway Admin.).

3 Stephen Moore & Julian L. Simon, The Greatest Century

That Ever Was: 25 Miraculous Trends of the Past 100 Years 22

(Cato Inst., Policy Analysis No. 364) (Dec. 15, 1999).

4 National Highway Traffic Safety Admin., U.S. Dep’t of

Transp., Traffic Safety Facts 2001: A Compilation of Motor Ve-

hicle Crash Data from the Fatality Analysis Reporting System

and the General Estimates System at inside front cover

(2002), <http://www-nrd.nhtsa.dot.gov/pdf/nrd-30/NCSA/TSF Ann

/TSF2001.pdf>; see also Bureau of Transp. Statistics, U.S. Dep’t of

Transp., National Transp. Statistics 53, Table 1-32 (2002), <http://

www .bts.gov/publications/national_transportation_statistics/2002/

pdf/entire.pdf>.

13

cially acute in policing high-speed roadways or non-

urban settings, where neighbors may be distant and

pedestrian traffic minimal. Individuals driving by an

incident may be the only witnesses to a crime, yet they

may not realize that what they saw was significant

unless and until approached by the police. See, ¢.g.,

Burns v. Commonwealth, 541 S.E.2d 872 (Va.) (up-

holding against Fourth Amendment challenge an

informational checkpoint conducted to locate witnesses

to the rape and murder of a 73-year-old woman), cert.

denied, 534 U.S. 1043 (2001).

For example, informational checkpoints are often

used in missing children cases, including in the recent

disappearance and recovery of Elizabeth Smart in

Utah. See Pat Reavy, et al., Sister’s Story: New Details

Emerge, Deseret News (June 19, 2002), <http://deseret

news.com/dn/print/1,1442,405012725,00.html>; see also

Phoenix Cops Look for Missing Girl, Associated Press

(Jan. 7, 1999) (informational checkpoint used where

child disappeared from a roadside while awaiting ice

cream truck); Brenda Kilby, Roadblocks Used to Get

Kidnapping Information, Tulsa World (July 23, 1995),

available in 1995 WL 5614662. Because nearly half of

all nonfamily child abductions involve taking the child

in a vehicle,’ it is vital that police be able to communi-

cate quickly and directly with motorist-witnesses and

to seek the assistance of the motoring public in locating

the abductor’s vehicle in the crucial hours following an

abduction or disappearance.°

5 Office of Justice Programs, Dep’t of Justice, Nonfamily Ab-

ducted Children: National Estimates and Characteristics 9 &

Table 5 (Oct. 2002).

6 Those same considerations make informational checkpoints

useful to help locate missing adults and lost Alzheimer patients.

14

Those considerations animated, in significant part,

the recent passage of federal Amber Alert legislation,

which provides federal funding for the States’ adoption

and implementation of “motorist information systems to

notify motorists about abductions of children.” See

Prosecutorial Remedies and Other Tools to End the

Exploitation of Children Today Act of 2003, Pub. L. No.

108-21, § 303, 117 Stat. 662-663 (to be codified at 42

U.S.C. 5791b). Informational checkpoints, which permit

analogous notifications on local and more rural roads,

are considered an important adjunct to the Amber

Alert program. See 148 Cong. Rec. $8438 (daily ed.

Sept. 10, 2002) (Sen. Feinstein) (“{I}f you can identify a

license plate, you may well save the life of a child.”).

In short, informational checkpoints are a critical

means by which police accomplish in a modern, highly

mobile society law-enforcement purposes that have

long been considered acceptable under the Fourth

Amendment: approaching persons on highly regulated

public roadways—a place “where [the police} ha{ve] a

right to be,” California v. Ciraolo, 476 U.S. 207, 213

(1986)—to canvas for witnesses and to seek the public’s

voluntary assistance in solving a crime.

b. Protection of roadway safety. Informational

checkpoints used to investigate crimes committed on

the public roadways and to remove dangerous and

irresponsible drivers from the road also serve the

additional purpose of directly promoting roadway

safety, in the same manner as the sobriety checkpoints

upheld by this Court in Sitz, supra. In Sitz, the Court

sustained sobriety checkpoints against a Fourth

Amendment challenge, in part, because they advanced

the significant public interest in stemming the “slaugh-

ter on our highways” caused by drunken drivers. 496

U.S. at 451 (quoting Breithaupt v. Abram, 352 U.S. 432,

15

439 (1957)). That “close connection to roadway safety,”

Edmond, 531 U.S. at 43 (discussing Sitz), warranted the

minimal intrusion on motorists occasioned by sobriety

checkpoints.

The use of informational checkpoints to solve acci-

dents caused by aggressive driving and hit-and-run

accidents serves identical public safety goals by helping

police get dangerous drivers off the roadway. Aggres-

sive drivers pose the same “type of immediate, vehicle-

bound threat to life and limb,” Edmond, 531 U.S. at 43,

as drunken drivers. In 1996, almost 42,000 people died

and more than 3 million were injured in police-reported

crashes. Those crashes cost the Nation $150.5 billion a

year. Approximately one-third of those crashes and

two-thirds of the resulting fatalities are attributed to

behavior associated with aggressive driving.’ “[A]g-

gressive driving may be a factor in more than 50 per-

cent of auto crashes, based on the experience of the

Washington Beltway.” United States Dep't of Transp.,

— of the Capital Beltway Crash Problem (Mar.

1996).

Hit-and-run drivers pose a similar threat to roadway

safety. In 2001, hit-and-run accidents accounted for

seven percent of all fatal crashes—on the order of

1000 deaths—in urban areas. National Highway Traffic

Safety Admin., U.S. Dep’t of Transp., Traffic Safety

Facts 2001: Rural/Urban Comparison 2 (2002),

<http://www-nrd.nhtsa.dot.gov/pdf/nrd-30/NCSA/TSF

2001/2001rural.pdf>. There were 18,317 hit-and-run

1 Road Rage: Causes and Dangers of Aggressive Driving:

Hearing Before the Subcomm. on Surface Transp. of the House

Comm. on Transp. and Infrastructure, 105th Cong., Ist Sess. 104

(1997) (statement of Hon. Ricardo Martinez, M.D., Administrator,

National Highway Traffic Safety Admin.).

16

injuries in 1992 in Los Angeles County alone. See

Dianne Klein, Sudden Death on the Streets, Los

Angeles Times, at Al (May 1, 1994).

For federal law enforcement agencies, like the

United States Park Police, informational checkpoints

serve a key role in investigating and solving such

crimes. That is because such incidents often occur in

locations, like federal parkways, where motorists are

the only potential witnesses. With respect to ag-

gressive driving, moreover, commission of the under-

lying vehicular offenses can take place over miles of

roadway. One of the more publicized aggressive driv-

ing incidents, which resulted in the deaths of three

people in April 1996, spanned more than seven miles of

the George Washington Memorial Parkway in Virginia,

as two drivers battled each other for at least 15 minutes

at speeds approaching 80 miles per hour.® Witnesses

that see the resulting accidents, however, may not be

able to say what led up to it, while drivers who

witnessed the earlier speeding or weaving may be

unaware that an accident ever occurred. See Targeting

Aggressive Drivers, Police Face Tough Road, The

Washington Post, at V01 (Feb. 20, 1997) (“But as police

and prosecutors step up efforts to catch and convict

aggressive drivers, they’re finding it painstaking and

difficult to conduct the investigations and build their

cases. The main problem is tracking down witnesses

who saw the aggressive behavior and who can tell a

jury who started it.”).

8 See Research on the Problem of Violent Aggressive Driving:

Hearings Before the House Comm. on Transp. and Infrastructure,

Subcomm. on Surface Transp., 105th Cong., Ist Sess. 153 (1997)

(testimony of David K. Willis, President and Chief Executive

Officer, AAA Found. for Traffic Safety).

ma —

17

For similar reasons, “(h]it-and-run cases are among

the hardest to solve, police say, because there is often

little evidence left behind.” Susan Carroll, Hit-and-

Run Deaths Often Go Unsolved, The Arizona Republic

(Feb. 25, 2003), <http://www.azcentral.com/specials/

special21/articles/0225phxunsolved25.html>. Informa-

tional checkpoints directly address those “formidable

law enforcement problems” on the public roadways,

Martinez-Fuerte, 428 US. at 552, by alerting motorist-

witnesses that an accident or crime occurred and that

any information they have might be relevant, which in

turn allows law enforcement to piece together a more

comprehensive picture of the incident, more accurately

evaluate liability issues, and more expeditiously remove

dangerous drivers from the road. In short, for solving

crime in a mobile society—especially when time is of

the essence or the crime occurs on a high-speed road-

way or in a non-urban setting—there is often an

“absence of practical alternatives” to canvassing motor-

ists through an informational checkpoint. Brignoni-

Ponce, 422 U.S. at 881; see also United States v. Ross,

456 U.S. 798, 806 (1982) (“impracticability” of otherwise

accomplishing law enforcement goals weighs in the

Fourth Amendment balance); Prouse, 440 U.S. at 655."

® The Illinois Appellate Court’s assumption that “more

traditional law enforcement techniques would have been just as, if

not more effective” (Pet. App. 28), misapprehends the difficulties

involved in investigating roadway crimes like hit-and-run acci-

dents. In any event, this Court has long refused to incorporate a

“least restrictive means” test into the Fourth Amendment’s re-

quirement of reasonableness. See Atwater v. City of Lago Vista,

532 U.S. 318, 350-351 (2001); Skinner v. Railway Labor Executives’

Ass’n, 489 U.S. 602, 629 n.9 (1989) (“It is obvious that ‘(t]he logic of

such elaborate less-restrictive-alternative arguments could raise

insuperable barriers to the exercise of virtually all search-and-

18

2. Canvassing Motorists To Seek the Voluntary Assis-

tance of Witnesses to Specific Crimes Serves a Public

Interest Distinct from the General Interest in Crime

Detection

The Illinois Supreme Court invalidated petitioner’s

informational checkpoint because, in its view, it served

only the government’s general interest in crime control,

which Edmond held was insufficient to support a

suspicionless checkpoint stop. Pet. App. 7-8. That

analysis is incorrect for at least two reasons.

First, Edmond’s prohibition on checkpoints that ad-

vance the “general interest in crime control,” 531 U.S.

at 40, did not prohibit all checkpoints designed to ad-

vance any type of criminal law enforcement interest.

Edmond identified a Fourth Amendment prohibition on

checkpoints that are designed to discover and punish

criminal activity by the stopped motorists them-

selves. That is, Edmond addressed checkpoints, like

the Indianapolis narcotics checkpoint, that are designed

to elicit, through “interrogation. and inspection,” evi-

dence “that any given motorist has committed some

crime” unknown to the officers. Jd. at 44. In describing

the constitutional flaw in the narcotics checkpoint, the

Court emphasized that the Fourth Amendment pro-

hibits a program “under which authorities might simply

stop cars as a matter of course to see if there just

happens to be a felon leaving the jurisdiction.” Jbid.;

see also id. at 41 (narcotics checkpoint’s “‘proximate

goal is to catch drug offenders’”); id. at 44 (narcotics

seizure powers’ because judges engaged in post hoc evaluations of

government conduct ‘can almost always imagine some alternative

means by which the objectives of the [government] might have

been accomplished.” (quoting Martinez-Fuerte, 428 U.S. at 556-

557 n.12, and United States v. Montoya de Hernandez, 473 U.S.

531, 542 (1985)) (citation omitted).

19

checkpoint aimed at exploiting the “generalized and

ever-present possibility” that examining any given

group of motorists would reveal some type of criminal

conduct); Ferguson, 532 U.S. at 81, 85 (finding

Edmond’s “general interest in crime control” to be

present when blood tests of hospital patients were

undertaken “for the specific purpose of incriminating

those patients”) (emphasis omitted)."°

Suspicionless seizures designed to gather evidence

against the individual seized implicate the Fourth

Amendment’s historic guarantee of

self-protection: the right to resist unauthorized en-

try which has as its design the securing of informa-

tion to fortify the coercive power of the state

against the individual, information which may be

used to effect a further deprivation of life or liberty

or property.

Frank v. Maryland, 359 U.S. 360, 365 (1959) (emphasis

added). Such searches and seizures, however, stand in

stark contrast to a brief stop of an individual that does

not target him in the detection and investigation of

crime. While such informational stops may seek to aid

law enforcement, they do not do so by seeking evidence

to be used against the person seized. See Camara v.

Municipal Court, 387 U.S. 523, 537 (1967) (“[Blecause

the inspections are neither personal in nature nor aimed

at the discovery of evidence of crime, they involve a

10 Edmond also recognized that “there are circumstances that

may justify a law enforcement checkpoint where the primary pur-

pose would otherwise, but for some emergency, relate to ordinary

crime control.” 531 U.S. at 44. The examples noted by the Court

(i.e., a checkpoint to prevent “an imminent terrorist attack”) also

focus generally on apprehension of a criminal who is himself

stopped at the checkpoint.

20

relatively limited invasion of the urban citizen’s pri-

vacy.”) (discussing Frank)."

Informational checkpoints differ from narcotics

checkpoints in precisely that respect. As in this case,

informational checkpoints are not designed to identify

general wrongdoing by the persons stopped at the

checkpoint and to collect evidence against them. In-

stead, they are designed to provide and obtain infor-

mation relevant to public safety. Informational check-

points, in other words, view motorists primarily as

allies in solving a known crime, not as potential

perpetrators of yet-to-be-discovered crimes. “(T]he

Lombard police department did not seek to interrogate

and inspect motorists to ferret out evidence that the

motorists themselves had committed crime that was as

yet unknown to police.” Pet. App. 6 (emphasis added).

“(T]he officers did not testify that they expected even

to catch the offender [at the checkpoint]; they merely

‘1 The specific holding of Frank—that health inspectors may

enter and inspect a homeowner’s premises without a warrant—

was overruled in Camara v. Municipal Court, supra. Camara

concluded that the distinction that Frank drew between the

“historic interests of ‘self protection’” furthered by the Fourth

Amendment and interests in “personal privacy” did not justify

allowing a warrantless intrusion into “the sanctity of [the] home.”

387 U.S. at 530-531. Camara also noted that “inspections of the

kind we are considering here do in fact jeopardize ‘self-protection’

interests of the homeowner,” because fire, health, and housing

codes are enforced by criminal sanctions. Jd. at 531. Camara’s

reasoning is thus consistent with the conclusion that a brief seizure

(not a search) of an automobile (not a home) at a regularized check-

point is less intrusive on Fourth Amendment interests when the

purpose of the checkpoint is to distribute and seek information

about a specific past crime by an unknown suspect, rather than to

cast about for evidence of possible ongoing crimes comitted by the

motorists themselves.

21

wanted to get a more accurate description of him.” Jd.

at 26. The concern voiced in Edmond that a

suspicionless stop might be routinely used by police to

troll for criminal activity and to identify criminals

traveling in their cars is thus not implicated here.

Second, and equally importantly, giving individuals

the opportunity voluntarily to assist the police in the

investigation of crime furthers an essential need in a

free society, and the Fourth Amendment does not pro-

hibit such interactions. “It is an act of responsible

citizenship for individuals to give whatever information

they may have to aid in law enforcement.” Miranda v.

Arizona, 384 U.S. 436, 477-478 (1966); see also Coolidge

v. New Hampshire, 403 U.S. 443, 488 (1971) (“{I]t is no

part of the policy underlying the Fourth and Four-

teenth Amendments to discourage citizens from aiding

to the utmost of their ability in the apprehension of

criminals.”). The Fourth Amendment poses no barrier

to police approaching pedestrians, bicyclists, or in-

dividuals on public transportation, offering them flyers,

and asking questions. See, e.g., Drayton, 536 U.S. at

200. Restricting an individual’s movement to ask such

questions would, of course, implicate the Fourth

Amendment. But the questions themselves do not.

Accordingly, the fact that the officer at petitioner’s

checkpoint “search[ed] for evidence of a crime” (Pet.

App. 26), in the attenuated sense that he alerted in-

dividuals (who happened to be in cars) to the fact of an

investigation and offered information about the crime,

does not make the checkpoint an ordinary crime-

detection or crime-control measure. Furthermore,

safety plainly requires that, for police to speak to a

motorist, the motorist’s car must be stationary. For

that reason, the act of briefly stopping cars at the

checkpoint was more analogous to a “routine, non-

22

criminal procedure[],” Opperman, 428 U.S. at 370 n.5,

designed “to guard the police from danger,” Colorado v.

Bertine, 479 U.S. 367, 372 (1987), than to the general

crime-control practice at issue in Edmond’s narcotics-

detection checkpoint.”

The Illinois Appellate Court suggested, without ex-

planation, that the presence of a second officer on a side

street “tend[ed] to discredit the explanation that the

police were merely seeking information.” Pet. App. 27.

Nothing in the record, however, substantiates the

court’s assertion of “police subterfuge,” ibid. Rather, it

is responsible police planning when conducting any

checkpoint to have in place a mechanism for dealing

with any motorists or pedestrians who, like respondent,

pose an immediate threat to public safety. The pre-

paration of the police to deal with such contingencies

does not make ordinary crime control the “primary

purpose” of the informational checkpoint. Edmond, 531

US. at 41."

Nor is there a danger that upholding the checkpoint

here will make such stops a ubiquitous intrusion on the

'2 In that regard, informational checkpoints resemble the types

of “noncriminal” public-safety inspections, Opperman, 428 U.S. at

368, of carriages, ships, and other modes of transportation (in-

cluding modern-day weigh stations) carried out by law enforce-

ment since the founding of the Republic, see Ross, 456 U.S. at 805;

Frank, 359 U.S. at 367-368.

‘8 Had the Lombard police department knowingly allowed

respondent to continue to drive, after exhibiting indicia of drunk-

enness and nearly running over a police officer, the department

could have opened itself to liability for any injuries or deaths

caused by respondent further down the road. See, eg., Reed v.

Gardner, 986 F.2d 1122 (7th Cir.), cert. denied, 510 U.S. 947 (1993);

Drushella v. City of Elgin, Illinois, No. 86 C 2307, 1987 WL 5902

(N.D. Ill. Jan. 26, 1987).

;

;

‘

23

traveling public. Informational checkpoints are estab-

lished in response to specific, known criminal incidents

—they do not seek to uncover otherwise unknown

criminal conduct by motorists, as did the narcotics-

detection checkpoint in Edmond. Further, the

character of the crimes susceptible to investigation

through canvassing motorists, ordinary resource limita-

tions, the case-sensitive judgments of experienced law-

enforcement investigators, and “the good sense” and

“political accountability” of law-enforcement officials,

Atwater v. City of Lago Vista, 532 U.S. 318, 353 (2001),

provide practical constraints on the frequency with

which informational checkpoints are employed. See

also Sitz, 496 U.S. at 453-454 (“(TJhe decision as to

which among reasonable alternative law enforcement

techniques [to adopt] * * * remains with the govern-

mental officials who have a unique understanding of,

and a responsibility for, limited public resources,

including a finite number of police officers.”’).

3. The Intrusion on Motorists’ Liberty Is Minimal

The constitutionality of informational checkpoints

under the Fourth Amendment turns on balancing the

important objectives that are effectively served by such

stops against the degree of intrusion on motorists.'* In

4 The petition does not challenge the Illinois Supreme Court’s

holding that the brief stop at the checkpoint constituted a seizure,

see Pet. 4, 10, and this Court has stated that “[i]t is well estab-

lished that a vehicle stop at a highway checkpoint effectuates a

seizure within the meaning of the Fourth Amendment.” Edmond,

531 U.S. at 40. See also Pet. App. 24 (Officer “Vasil stated that -

{respondent’s} van had already been stopped pursuant to the

roadblock before nearly striking him”). It may be, however, that

some informational checkpoints may be so brief or otherwise

unintrusive as not to rise to the level of a Fourth Amendment

encounter. A traffic delay alone does not amount to a seizure

24

evaluating the level of intrusion for purposes of Fourth

Amendment analysis, it is critical that automobiles,

unlike homes or offices, are already subject to a “web of

pervasive regulation.” New York v. Class, 475 U.S.

106, 112 (1986).

Automobiles * * * are subjected to pervasive and

continuing governmental regulation and controls, in-

cluding periodic inspection and licensing require-

ments. As an everyday occurrence, police stop and

examine vehicles when license plates or inspection

stickers have expired, or if other violations, such as

exhaust fumes or excessive noise, are noted, or if

headlights or other safety equipment are not in

proper working order.

Opperman, 428 U.S. at 368. See also Wyoming v.

Houghton, 526 U.S. 295, 303-305 (1999) (passengers, as

well as drivers, have a reduced expectation of privacy

in cars traveling on the public thoroughfares); Penn-

sylvania v. Labron, 518 U.S. 938, 940 (1996) (per

within the meaning of the Fourth Amendment. Traffic backups can

be caused by a wide variety of governmental action, ranging from

the normal operation of traffic lights at rush hour to investigating

and clearing a roadway accident. Maryland v. Wilson, 519 U.S.

408, 420 (1997) (Stevens, J., dissenting) (“a traffic jam caused by

construction or other state-imposed delay not directed at a parti-

cular individual” does not “constitute[] a seizure of that person”).

And a brief request to converse at a checkpoint, incident to a

slowing down of traffic, does not necessarily constitute a seizure,

any more than a request by the token collector at a toll both as to

whether a motorist had seen a particular car would constitute a

seizure. In either case, the motorists may be free to leave without

answering the authorities’ questions. Cf. Terry v. Ohio, 392 US. 1,

16 (1968) (seizure requires that an officer both “accost[{) an

individual and restrain{] his freedom to walk away”) (emphasis

added).

ye or ee

25

curiam) (noting “the individual’s reduced expectation of

privacy in an automobile, owing to its pervasive regu-

lation”). The “automobile is subject to state regulation

resulting in numerous instances of police-citizen con-

tact,” Prouse, 440 U.S. at 662, and the “practice of

stopping automobiles briefly for questioning” at a

checkpoint as part of that regulatory scheme “has a

long history evidencing its utility” and “is accepted by

motorists as incident to highway use,” Martinez-Fuerte,

428 U.S. at 560-561 n.14. For those reasons, the Court

has recognized, in other contexts, that the intrusion on

motorists “stopped briefly” at a checkpoint “is slight.”

Sitz, 496 U.S. at 451.

The objective intrusion on liberty occasioned by the

informational stop at issue here can only be character-

ized as negligible. Each stop lasted only 10 to 15

seconds. J.A. 31. That is shorter than any checkpoint

previously upheld by this Court, see Sitz, 496 U.S. at

448 (25 second stop at sobriety checkpoint); Martinez-

Fuerte, 428 U.S. at 547 (three to five minute stop at

immigration checkpoint), and is significantly shorter

than the time motorists routinely sit stopped at traffic

lights or busy intersections. See Fed. Highway Admin..,

U.S. Dep’t of Transp., Traffic Control Devices Hand-

book 4-100 (1983). The Lombard Police Department

designs its checkpoints, moreover, to avoid “undue con-

gestion” and to “maintain[] an orderly flow of traffic.”

Department of Police, Village of Lombard, Operation of

Departmental Vehicles, Gen. Order No. 240-20, at 7

(Jan. 30, 1997). And unlike the checkpoints previously

upheld by the Court, the informational checkpoint does

not involve any demand for licenses or paperwork from

the driver, any probing questioning, or any ticketing for

minor, plain-view traffic infractions like seatbelt vio-

lations. J.A. 31. No search is undertaken at all.

26

See Segura v. United States, 468 U.S. 796, 806 (1984)

(plurality opinion of Burger, C.J.) (“Different interests

are implicated by a seizure than by a search,” given the

“generally less intrusive nature of a seizure.”).

The subjective intrusion on law-abiding motorists

(Sitz, 496 U.S. at 452) was also minor. When the officer

approached the motorists, they learned that their

individual actions were not under investigation in any

way. The officer simply handed out a flyer and spoke

briefly to the motorist about the accident. Nor did

the checkpoint give officers discretion to handpick

motorists for seizure, which might create apprehension.

J.A. 24-25; ef. Sitz, 496 U.S. at 453. The presence of

marked police cruisers and uniformed officers demon-

strated the checkpoint’s official character. Pet. App. 2;

J.A. 34. Consequently, 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.” Martinez-

Fuerte, 428 U.S. at 558 (quoting United States v. Ortiz,

422 U.S. 891, 895 (1975)). In short, the regularity of the

checkpoint procedures provided “visible evidence,

reassuring to law-abiding motorists, that the stops are

duly authorized and believed to serve the public

interest,” Martinez-Fuerte, 428 U.S. at 559.

There was, therefore, “‘nothing coercive [or] con-

frontational about the encounter,’” Drayton, 536 U.S.

at 204, in this case. The informational checkpoint

served only to facilitate the roadway counterpart to the

long-accepted law enforcement technique of canvassing

for witnesses and approaching them for voluntary ques-

tioning. That conduct is not a seizure at all when ap-

plied to pedestrians and individuals on public trans-

portation. Jd. at 200-204. While the need to halt

motorists to communicate the same information to them

a

27

does (at least in some circumstances) implicate the

Fourth Amendment, the intrusion is a modest and

justifiable one.

* * * * *

In sum, the brief, non-intrusive provision of im-

portant public-safety information that occurred here

poses no real threat to motorists’ liberty. Rather, the

checkpoint in this case exemplifies the reasons for up-

holding informational checkpoints: they are a uniquely

effective means of canvassing for witnesses to specific,

known crimes, and they do not have the purpose of

general crime control directed at the motorists them-

selves. The actions of the Lombard police department

in establishing and operating the checkpoint in this case

therefore did not violate respondent’s Fourth

Amendment rights.”

'8 This case presents no question whether, even if the check-

point itself had violated respondent’s Fourth Amendment rights,

the police would still have been justified in arresting him based on

the intervening event of his erratic driving; and, if so, whether the

fact that respondent’s drunk driving was the cause of his arrest

renders the exclusionary rule for any antecedent checkpoint vio-

lation inapplicable. Cf. Segura, 468 U.S. at 815 (suppression is

inappropriate unless “the challenged evidence is in some sense the

product of illegal governmental activity”).

28

CONCLUSION

The judgment of the Illinois Supreme Court should

be reversed.

Respectfully submitted.

JULY 2003

THEODORE B. OLSON

Solicitor General

CHRISTOPHER A. WRAY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

PATTY MERKAMP STEMLER

Attorney