Nelson v. Lane County
| Decision Date | 15 September 1987 |
| Docket Number | No. 16-83-05689,16-83-05689 |
| Citation | 743 P.2d 692,304 Or. 97 |
| Parties | Lynda NELSON, Respondent on Review, v. LANE COUNTY, David Burks, Respondents, and Department of State Police, John C. Williams, K.E. Chichester, and Richard Geistwhite, Petitioners on Review. Lynda NELSON, Petitioner on Review, v. LANE COUNTY, David Burks, Department of State Police, John C. Williams, K.E. Chichester, and Richard Geistwhite, Respondents on Review. Lynda NELSON, Respondent on Review, v. LANE COUNTY, David Burks, Petitioners on Review, and Department of State Police, John C. Williams, K.E. Chichester, and Richard Geistwhite, Respondents. TC; CA A32607; SC S33066, S33082 and S33115. |
| Court | Oregon Supreme Court |
Dave Frohnmayer, Atty. Gen., Salem, argued the cause for petitioners on review, Dept. of State Police, John C. Williams, K.E. Chichester, and Richard Geistwhite. With him on the petition, additional authorities, and memorandum in response to court's questions were Virginia L. Linder, Sol. Gen. and Richard D. Wasserman, Asst. Atty. Gen., Salem.
Robert D. Durham, Portland, argued the cause for petitioner on review, Lynda Nelson. With him on the petition and memorandum of law was Kulongoski, Durham, Drummonds & Colombo, Portland.
Robert C. Cannon, Marion County Legal Counsel, Salem, argued the cause and filed the Lane County memorandum of law for petitioners on review, Lane County and David Burks. On the petition for review was John Hoag, Lane County Office of Legal Counsel, Eugene.
Robert C. Cannon, Marion County Legal Counsel, Salem, filed an amicus curiae brief in behalf of Marion County Bd. of Comm'rs, Jackson County Bd. of Com'rs, Oregon Sheriffs Ass'n, Oregon Ass'n of Police Chiefs, and Oregon Dist. Attys. Ass'n.
Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.
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 P.2d 711 (1987); State v. Anderson, 304 Or. 139, 743 P.2d 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 Sheriff's 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 Marcola 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 plaintiff's 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 P.2d 1291 (1986).
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 P.2d 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 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979), and from the United States Supreme Court's automobile border search cases, United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 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 P.2d 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, 618 P.2d 423. 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 P.2d 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...
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