Nelson v. Lane County

743 P.2d 692, 304 Or. 97

• Court: Oregon Supreme Court
• Decided: September 15, 1987
• Docket: TC 16-83-05689; CA A32607; SC S33066; TC 16-83-05689; CA A32607; SC S33082; TC 16-83-05689; CA A32607; SC S33115
• Status: Published

Opinions

CARSON, J.

This is the first of three cases we decide today involving the legality of sobriety roadblocks (that is, roadblocks conducted for the purpose of discovering persons driving while under the influence of intoxicants). The two companion cases are appeals from criminal convictions in which we held that state and local officials violated Article I, section 9, of the Oregon Constitution. State v. Boyanovsky, 304 Or 131, 743 P2d 711 (1987); State v. Anderson, 304 Or 139, 743 P2d 715 (1987).

The present case is an appeal from a civil judgment in which plaintiff seeks civil remedies against public officials. Three Oregon State Police officers, in conjunction with four members of the Lane County Sheriffs Department, conducted a sobriety roadblock in the late evening of December 17 and the early morning of December 18, 1982. The roadblock was set up on Marcóla Road, between 42nd Street and Hayden Bridge Road, and was in operation from approximately 11 p.m. to 1:15 a.m. Plaintiff was stopped, questioned about her alcohol consumption, detained for sobriety field tests and then released.

Plaintiff filed a complaint for declaratory judgment, injunctive relief and money damages, including punitive damages, alleging violations of a state statute and the state and federal constitutions.

Pursuant to a defense motion, the circuit court struck plaintiffs claims for punitive damages from the original complaint as to the Department of State Police and its Superintendent. Later, the trial judge upheld the legality of the roadblock and granted summary judgment in favor of defendants. The Court of Appeals affirmed in part and reversed in part. The court held the roadblock unconstitutional under Article I, section 9, of the Oregon Constitution and did not decide the Fourth Amendment issue.¹ The Court of Appeals agreed with the circuit court that plaintiff could not recover punitive damages under the Oregon Tort Claims Act. ORS 30.260 to 30.300. For the reasons that follow, we affirm the decision of the Court of Appeals. Nelson v. Lane County, 79 Or App 753, 720 P2d 1291 (1986).

I. LEGALITY OF ROADBLOCK UNDER STATE LAW

If plaintiff had been arrested at the roadblock, or if there was evidence in the record that the police intended to arrest and prosecute any drivers found to be intoxicated, this case could be disposed of briefly. Seizures or searches for evidence to be used in a criminal prosecution, conducted without a warrant or suspicion of wrongdoing violate Article I, section 9, of the Oregon Constitution. See State v. Boyanovsky, supra; State v. Anderson, supra. Here, there is no direct evidence concerning the purpose of the roadblock. We can only infer that had plaintiff shown signs of intoxication, she would have faced arrest and prosecution under the criminal laws.

Further, this is a civil action for declaratory judgment and tort damages. Unlike the companion criminal cases in which the police seized and searched motorists without warrants, plaintiff has the burden of demonstrating claimed illegalities. We will examine all theories advanced under which the state and local officials’ conduct may be found to be lawful.

A compelled stop of a person on a public road, of course, requires justification. The state presents two theories defending the roadblock. First, it argues that, for the reasons expressed in State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980), this roadblock could be upheld as a matter of constitutional law. Second, it argues that the roadblock is a permissible “administrative” search conducted pursuant to a properly authorized administrative program.

In State v. Tourtillott, supra, this court was presented with the question of the constitutionality of a checkpoint or roadblock stop for game violations. A majority of the court upheld a subsequent conviction for a driver license violation that resulted from the roadblock. Tourtillott applied a federal Fourth Amendment analysis derived from dictum in Delaware v. Prouse, 440 US 648, 663, 99 S Ct 1391, 59 L Ed 2d 660 (1979), and from the United States Supreme Court’s automobile border search cases, United States v. Martinez-Fuerte, 428 US 543, 96 S Ct 3074, 49 L Ed 2d 1116 (1976); United States v. Brignoni-Ponce, 422 US 873, 95 S Ct 2574,45 L Ed 2d 607 (1975). We have since described Tourtillott as a case decided “only on fourth amendment grounds, or on the basis of fourth amendment analysis.” State v. Caraher, 293 Or 741, 749 n 7, 653 P2d 942 (1982).

In Tourtillott, this court addressed the issues on the defendant’s terms, considering only the constitutional and statutory violations asserted. We expressly declined to determine the unraised question “whether the absence of a statute or rule specifically authorizing game checkpoint stops prohibits their use.” 289 Or at 849 n 4. Nor did the Tourtillott majority distinguish between “administrative” and “criminal law enforcement” functions, although it drew its analysis from some of the cases that form the foundation of the United States Supreme Court’s jurisprudence on administrative search law. United States v. Martinez-Fuerte, supra; United States v. Brignoni-Ponce, supra.

These issues are substantial ones which we found sufficiently pressing in State v. Atkinson, 298 Or 1, 688 P2d 832 (1984), to compel reversal and remand of a case involving impoundment of an automobile. This was done to enable the state to present whatever evidence existed that the impoundment was authorized by responsible policymakers and that the “noninvestigatory” inventory search was conducted pursuant to a properly authorized and administered program. We declined to reach the question whether the search otherwise violated Article I, section 9, without first determining whether the activity was authorized by law and carried out pursuant to regulation.²

Plaintiff contended in the trial court that no authority existed for the roadblock and that the police had otherwise violated the state and federal constitutions and a state statute. The county and state defendants responded that their actions were in accordance with a procedure established in a document entitled The Oregon State Police Patrol Technique Manual. The state submitted into evidence the relevant pages of the manual. Defendants contended that the submitted section of the manual both authorized the roadblock procedure and regulated the administration of the procedure so as to ensure uniform treatment of persons stopped.

In an attempt to follow the analysis set out in State v. Atkinson, supra, the state relies upon ORS 181.030 as the source of authority for this roadblock procedure. This statute charges the state police with the duty to enforce the criminal laws, authorizing officers to “prevent crime” and “pursue and apprehend offenders and obtain legal evidence necessary to insure the conviction in the courts of such offenders.”³

Much criminal and regulatory law enforcement activity takes place pursuant to authority implied from a broad statutory directive. A broad directive to enforce the criminal laws, such as ORS 181.030, together with the specification of crimes developed by lawmakers, implies authority to undertake tasks necessary to carry out the delegated function. By and large, agencies of the executive branch are free to carry out their assigned responsibilities in ways of their own choosing. Making explicit the manner in which an agency is to accomplish its task falls to the agency head or that official’s designee to instruct or sub-delegate to subordinate officials.

However, some procedures may invade the personal freedoms protected from government interference by the constitution. Roadblocks are seizures of the person, possibly to be followed by a search of the person or the person’s effects. For this reason, the authority to conduct roadblocks cannot be implied. Before they search or seize, executive agencies must have explicit authority from outside the executive branch.

We are familiar with this requirement in the realm of criminal law enforcement. Article I, section 9, provides a method of extra-executive authorization in advance of searches or seizures — judicial approval of a constitutionally sufficient warrant. In State v. Weist, 302 Or 370, 376, 730 P2d 26 (1986), we explained that one function of Article I, section 9, “is to subordinate the power of executive officers over the people and their houses, papers, and effects to legal controls beyond the executive branch itself.” Compliance with the warrant clause, or its few exceptions as this court has interpreted them, itself provides the necessary authorization for searches or seizures intended to discover evidence of crime.

In Atkinson, we suggested that another method existed for administrative searches.⁴ We held that an administrative search conducted without individualized suspicion of wrongdoing could be valid if it were permitted by a “source of the authority,” that is, a law or ordinance providing sufficient indications of the purposes and limits of executive authority, and if it were carried out pursuant to “a properly authorized administrative program, designed and systematically administered” to control the discretion of non-supervisory officers. 298 Or at 9,10.

The purpose of the search and the consequences that flow from it are significant. In Atkinson, the purpose of the inventory was to protect impounded property and not for “enforcement purpose[s].” 298 Or at 8. Preventing prospective or ongoing violations is an administrative purpose as well, so long as the intended consequences of noncompliance with whatever standards the inspection is meant to uphold are noncriminal.⁵ If offenders face criminal sanctions, the inspection implicates criminal law enforcement purposes and is not “administrative” in nature. See Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977).

The trial judge upheld this roadblock because he found it to have been conducted in accordance with a roadblock procedure set forth in the police manual. In response to plaintiffs contentions that the manual was neither a properly promulgated administrative rule nor complied with in the case, defendants rely upon the even-handed manner in which they claim to have conducted the roadblock. They suggest that “[n]o prior legislative or administrative action should be required to validate a traffic checkpoint conducted in a manner that does not involve the unconstrained exercise of discretion by individual officers.”

While written procedures consistently applied may prevent a successful constitutional charge of arbitrary treatment,⁶ compliance with an agency’s own procedures does not answer the threshold question of authority. As we stated in State v. Atkinson, supra, in the context of a seizure of property, “[w]henever police officers obtain custody of private property for reasons other than by consent or seizure under a warrant or incident to a lawful arrest or exigent circumstances, the first step is to determine the source of the authority for the custody.” 298 Or at 8-9.

Authority for administrative searches may be, and often is, provided by politically accountable lawmakers. As part of many agencies’ regulatory responsibilities, the legislature has authorized reasonable inspections at times and places relevant to the agency’s regulatory activity.⁷ Sometimes, it has required inspections to be carried out by means of a warrant process. For example, in safety and health inspections of workplaces, the probable cause requirement can be met by demonstrating compliance with legislative or administrative standards for conducting routine, periodic or area inspections. ORS 654.202 to 654.216. See also ORS 433.025, 433.130 (quarantine inspections).⁸

In this case, neither the state nor the county officials point to a statute or ordinance establishing an administrative scheme allowing sobriety roadblocks to prevent driving while intoxicated.⁹ The state’s reliance on ORS 181.030 is misplaced. That statute sets forth only the general criminal law enforcement duties of the Oregon State Police. See 304 Or 103 n 3.

Police stopped and seized plaintiff and her vehicle and interrogated her. This conduct was unauthorized and therefore unlawful, and plaintiff is entitled to declaratory judgment. ORS 28.010 to 28.160. Injunctive relief for this plaintiff is not necessary.

II. TORT REMEDIES

In addition to a declaration of the illegality of the roadblock and a plea for injunctive relief, plaintiff seeks general damages of $100 and punitive damages of $5,000. She makes her claim for damages, in part, pursuant to the Oregon Tort Claims Act, ORS 30.260 to 30.300.

ORS 30.265(1) defines a tort for purposes of liability of public bodies, officers, employees and agents as

“* * * the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy.”

The duty may derive from the common law, from statute or ordinance or from our constitution itself. Plaintiff apparently attempts to cover any of these alternative theories with her pleaded facts, which may state a claim for common law trespass, and by reference to the stop and inquire statute, ORS 131.615, and the state constitution, Article I, section 9.

Under the common law, an unauthorized intentional intrusion upon one’s person, property, or effects is a trespass. The tort traditionally has encompassed a damage action against police officers for exceeding their authority to search or seize.¹⁰

In addition, we have recognized “statutory tort” duties in contexts where no common law duty exists but where a statute or ordinance created a special duty owed by a defendant to a plaintiff, usually arising from the status of the parties or the relationship between them. See Cain v. Rijken, 300 Or 706, 717 P2d 140 (1986) (statute governing commitment and release of patients imposed a duty on hospital serving as a community health provider to use reasonable care to protect the public); Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985) (recognizing tort recovery under statute implicitly creating civil liability of tavern owner for injuries caused by visibly intoxicated patrons); Nearing v. Weaver, 295 , 670 P2d 137 (1983) (recognizing duty to arrest imposed by statute “for the benefit of individuals previously identified by a judicial order”); Brennen v. City of Eugene, 285 Or 401, 591 P2d 719 (1979) (city held to duty to enforce ordinance requiring adequate insurance for taxicabs); Urban Renewal Agency v. Lackey, 275 Or 35, 549 P2d 657 (1976) (counterclaim for breach of duty imposed by agency regulations held to allege a tort).

Plaintiffs claim here is that the stop and inquire statute, ORS 131.615, creates a duty for law enforcement officers to seize persons only as prescribed by that statute.¹¹ However, in State v. Tourtillott, supra, 289 Or at 853, a majority of the court construed the stop and inquire statute differently. The majority held that the statute provided only one way to conduct lawful stops of citizens, but it was not the exclusive method. The statute interpreted in Tourtillott has not since been amended. This court is bound by its prior interpretations of statute. State v. Loyer, 303 Or 612, 614 n 2, 740 P2d 177 (1987); State v. White, 303 Or 333, 348, 736 P2d 552 (1987). The officers’ failure to comply with the stop and inquire statute does not convert plaintiffs claim into a statutory tort.

The United States Supreme Court derived a federal “constitutional tort” against federal officials from the Fourth Amendment, in the absence of a federal common law of torts and recognizing the potential inadequacies of state tort law when exerted against federal agents. Bivens v. Six Unknown Fed. Narcotics Agents, 403 US 388, 394-95, 91 S Ct 1999, 29 L Ed 2d 619 (1971).

However, we need not pursue the dimensions of plaintiffs alternative tort theories. As noted above, we have an inadequate record upon which to determine the constitutionality of this roadblock. This case comes to us on appeal from a summary judgment; it will be remanded to the trial court for further proceedings. It therefore remains open to plaintiff to develop the factual and legal premises to support her common law and constitutional tort theories if she chooses.

Plaintiff does not dispute that the Tort Claims Act precludes her from seeking punitive damages against these defendants. ORS 30.270(2). She bases her claim for punitive damages on the federal civil rights statute, 42 USC section 1983.

III. FEDERAL CIVIL RIGHTS ACTION

Title 42 USC section 1983 prohibits state officials operating “under color of’ government authority from violating any of plaintiffs “rights, privileges or immunities secured by the Constitution and laws” which she enjoys as a United States citizen.¹² The relevant question is whether the roadblock violated plaintiffs Fourth Amendment right to be free from unreasonable searches and seizures.

The disposition by the Court of Appeals of the Fourth Amendment issue — finding an inadequate factual basis upon which to undertake the balancing of interests — points up one difficulty an appellate court faces when it attempts to balance its way to a constitutional rule. If balancing competing interests were only a way to resolve an individual case, then the quality of the evidence in a particular case should affect the outcome directly. If, however, balancing is meant to reach a rule of law addressing and controlling categories of government activity, then the role of the evidence in any particular case is thrown into question. The difficulty is not new to the United States Supreme Court, but it remains unresolved, as is shown by the treatment of evidence of deterrence value of random license checks and availability of more effective enforcement alternatives by the majority and dissenting opinions in Delaware v. Prouse, supra, 440 US at 658-61, 665-66.

In its criminal procedure decisions in particular, the United States Supreme Court sometimes undertakes to assess values difficult to reduce to quantifiable terms. For example, in cases similar to the present case, the Court purports to measure the interests of governments in regulatory and criminal law enforcement, the efficacy of the means chosen to reach goals, the degree of privacy citizens may expect in particular circumstances and how intrusive citizens would find particular police practices. Although the evidence in a particular case bears upon the Court’s decision, the resulting analysis encompasses the larger process of choosing among values the Court perceives as competing.

Often trial courts are called upon to assess competing values in individual disputes. As we have indicated earlier in this opinion, however, we leave to state lawmakers in the first instance the policy choices necessary to regulate administrative searches, before examining state constitutional law. Nor do we perceive the United States Supreme Court to intend state courts to undertake Fourth Amendment balancing with values drawn from interests unique to the state. The Supreme Court seems to direct us toward a “national standard” of Fourth Amendment analysis. For this reason, we do not consider the sufficiency of evidence supporting or explaining the interests at stake in a particular case. Instead, and in the absence of direct guidance from the United States Supreme Court regarding a particular police practice such as a sobriety roadblock, we attempt to apply values the Court has already expressed in similar contexts.

In Delaware v. Prouse, supra, the Court affirmed the suppression of marijuana discovered during a traffic stop. The stop occurred without suspicion that the defendant was engaged in wrongdoing. Its purpose was to check driver licenses and vehicle registrations. In the course of its analysis, the United States Supreme Court drew distinctions relevant to the present case. It suggested that situations exist where the government’s interest in searching and seizing without probable cause or reasonable suspicion could exceed citizens’ Fourth Amendment interests. 440 US at 653-54. Further, in such cases the usual requirement of individualized suspicion must be replaced with controls on the officer’s discretion. 440 US at 654-55. The Supreme Court thought roadblock stops, that is, fixed checkpoints at which all cars are stopped, to be less “intrusive” than random or roving stops. 440 US at 656-57. The Court considered the states’ interest in highway safety “vital,” 440 US at 658, but concluded that random stops were neither sufficiently effective nor sufficiently regulated to control the officer’s discretion. The majority’s statement in explanation of its holding is significant: “Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” 440 US at 663. The concurrence echoes this theme. 440 US at 663-64.

The United States Supreme Court has indicated that the states’ interest in traffic safety is great and that stationary roadblocks intrude on Fourth Amendment interests only minimally. The primary concern becomes then whether the roadblock was administered in such a way as to control the discretion of the officers. The evidence in this case indicates that it was. The roadblock was conducted at the direction of a supervising officer who instructed all officers in the roadblock procedure. All drivers were stopped. The only exceptions occurred when traffic became congested; some drivers were waived through until congestion cleared. The stopping officers informed motorists of the purpose of the checkpoint and asked for driver licenses and vehicle registrations. If there was suspicion that the driver was under the influence of an intoxicant, the driver was asked to perform a field sobriety test. Otherwise, motorists were able, after these inquiries, to drive on.

As we understand the United States Supreme Court, it would hold that this fairly consistent treatment of motorists would suffice under the Court’s federal standards as the type of safeguard necessary to limit the officers’ discretion. The Court has not indicated that written standards for roadblocks are necessary. Of importance is the actual execution of the roadblock. The supervising officer relied on a manual setting forth procedures for license check roadblocks. These standards were substantially complied with in the case.

Having found no Fourth Amendment violation, we need not reach the question whether punitive damages or attorney fees are available in federal civil rights actions brought in state court.

The decision of the Court of Appeals is affirmed. The decision of the trial court is affirmed in part and reversed in part. The case is remanded to the trial court for further proceedings in accordance with this opinion.

1 The Court of Appeals wrote:

“Whether or not a roadblock of the sort involved here would be found constitutional by the United States Supreme Court, the facts in this summary judgment proceeding record do not provide sufficient information to undertake the balancing test satisfactorily. We cannot decide, as a matter of law, that defendants did not violate the Fourth Amendment, for there are too many unresolved fact issues.” Nelson v. Lane County, 79 Or App 753, 764, 720 P2d 1291 (1986).

2 We often have stressed the need to examine statutory authority and the limitations imposed by that authority before reaching any constitutional question. See State v. Scharf, 288 Or 451, 454-55, 605 P2d 690 (1980); State v. Spada, 286 Or 305, 309, 594 P2d 815 (1979); see also State v. Greene, 285 Or 337, 346-47, 591 P2d 1362 (1979) (Linde, J., specially concurring). In the years between State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980), and State v. Atkinson, 298 Or 1, 688 P2d 832 (1984), we reemphasized that requirement. See State v. Painter, 296 Or 422, 426-49, 676 P2d 309 (1984); State v. Davis, 295 Or 227, 241, 666 P2d 802 (1983); State v. Lowry, 295 Or 337, 343, 667 P2d 996 (1983); State v. Thompson, 294 Or 528, 531, 659 P2d 383 (1983); see also Burt v. Blumenauer, 299 Or 55, 70, 699 P2d 168 (1985); Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564, 687 P2d 785 (1984); Jarvill v. City of Eugene, 289 Or 157,168-71, 613 P2d 1 (1980).

3 ORS 181.030 sets forth the duties of the Oregon State Police in part, as follows:

“(1) The Department of State Police and each member of the Oregon State Police shall be charged with the enforcement of all criminal laws.

“(2) Each member of the state police is authorized and empowered to:

“(a) Prevent crime.

“(b) Pursue and apprehend offenders and obtain legal evidence necessary to insure the conviction in the courts of such offenders.”

4 We used the terms “noninvestigatory,” “civil” and “administrative” interchangeably in State v. Atkinson, supra, although “noninvestigatory” appears to be a misnomer. Administrative searches can be, and often are, conducted for purposes of investigation.

5 We do not mean to suggest that if, while conducting a legally authorized and properly administered administrative inspection, officers came across evidence of another crime in plain view, that such evidence could not be used in a criminal prosecution. If the usual prerequisites for a “plain view” seizure are met, it could be.

6 See Article I, section 20, of the Oregon Constitution; State v. Freeland, 295 Or 367,667 P2d 509 (1983).

7 Various agencies have explicit authorization to inspect: (1) business premises, ORS 472.170(1) (liquor licensees); ORS 619.036 (meat selling establishments); ORS 446.066 (mobile home parks); (2) potentially dangerous machinery, ORS 460.135 (elevators); ORS 480.580 (boilers and pressure vessels); (3) pollutants, ORS 453.105 (hazardous substances); ORS 468.095 (air and water pollution); and (4) some activities, ORS 517.770 (dredging operations).

The United States Supreme Court recently has noted, in a different context, that the “reasonableness” of a search or seizure may differ under the Fourth Amendment depending on the existence or absence of a regulation governing the search or seizure. Griffin v. Wisconsin, 483 US_,_, 107 S Ct 3164, 3172, 97 L Ed 2d 709 (1987).

The Oregon State Police have what appears to be an administrative vehicle inspection power. The State Police are authorized by statute to “require a person driving a vehicle * * * to stop and submit the vehicle * * * to an inspection of the mechanical condition and equipment thereof at any location where members of the Oregon State Police are conducting tests and inspections of vehicles and when signs are displayed requiring such stop.” ORS 810.510(1). The purpose of such an inspection policy appears to be administrative — to prevent ongoing, existing violations of the vehicle equipment requirements. The results of failing to pass the inspection are noncriminal: issuance of either a vehicle repair warning (described in ORS 810.520), or a citation for an infraction, an offense “punishable only by a fine, forfeiture, suspension or revocation of a license or other privilege, or other civil penalty” and for which the offender “shall not suffer any disability or legal disadvantage based upon conviction of crime.” ORS 153.270(1) and (2).

8 We need not decide when it might be necessary to involve judicial officials in approving an administrative inspection involving searches or seizures to meet Article I, section 9, of the Oregon Constitution, an issue that would not arise if the legislature were to do so.

9 For example, suppose that the legislature authorized an administrative checkpoint program to ensure driver sobriety and authorized officials to prevent intoxicated persons from driving by means other than criminal sanctions. Prevention then might entail refusing to release the vehicle to the intoxicated driver, ORS 809.710, taking intoxicated drivers to civil detoxification centers, ORS 426.460, perhaps license suspension or revocation, ORS chapter 813, or, as was done in Idaho, intoxicated drivers could be detained until they were fit to drive or provided with transportation home. See Note, Curbing the Drunk Driver under the Fourth Amendment: The Constitutionality of Roadblock Seizures, 71 Georgetown L J 1457,1463 n 32 (1983).

10 Oregon adopted the common law of England in its first code of laws in 1843. The origin of punitive damages at common law was a case of trespass for an arrest without a legal warrant. Huckle v. Money, 95 Eng Rep 768 (1763).

11 ORS 131.615(1) provides:

“A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry.”

12 42 USC section 1983 provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. * * *”