Challenges to Random License Plate Checks Are Not Dead. How to Raise Them After Davis
by: Kkreuscher • February 8, 2011 • no comments
On September 22, 2010, the Oregon Court of Appeals issued a split, three-way en banc opinion in State v. Davis.
Davis addressed the two most common arguments challenging random license plate checks:
- that they are warrantless searches under Article I, section 9, which require probable cause or, at least, reasonable suspicion; and
- that the random checks are cognizable burdens under Article I, section 20 (privileges and immunities/equal protection) and cannot be performed in a random, standardless and haphazard manner.
The court unanimously declared that random license plate checks were not a search under Article I, section 9. So, unless the Oregon Supreme Court grants review, that issue is dead. (Recently, defendant filed a petition for review, which is currently pending before the Oregon Supreme Court. PFR available on request to Kenneth@portlandlawcollective.com.)
However, on the Art. I, section 20, argument, the court split three ways. The lead opinion of four judges disposed of the argument only on factual grounds, i.e., that the deputy did not actually impose the "burden" of being criminally investigated in a random manner. (As an aside, the dissenting four judges disagreed that the deputy's conduct of the checks was unconstitutionally arbitrary).
As a result, if the officer performed the checks in a standardless, arbitrary, random, ad hoc manner, then you can and should still argue for suppression. That is, in short, conduct cross-exam on whether, and argue that, the officer conducted the license plate check in an impermissibly random manner, and move for suppression of all evidence derived from the search and subsequent stop.
Briefing on the Art. I, section 20, argument follows:
Contents |
Argument
THE OFFICER VIOLATED DEFENDANT'S RIGHTS UNDER ARTICLE I, SECTION 20.
A. Introduction: The Officer violated Article I, section 20, by conducting a random, ad hoc investigation into defendant's DMV records.
Article I, section 20, commands that a state official may not grant "any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." The grant or denial of a privilege must be "equally available to all persons similarly situated, or, in the constitutional phrase, 'upon the same terms.'" State v. Freeland, 295 Or at 381
A government official violates the guarantees of Article I, section 20, if the official "distribute[s] a benefit or burden in a haphazard, random, standardless, ad hoc fashion-that is, without any 'coherent, systematic policy.'" State v. Walton, 215 Or App 628, 632-33,170 P3d 1122 (2007) (quoting Freeland, 295 Or at 375); see also State v. Clark, 291 Or 231, 239, 630 P2d 810 (1981) (prohibiting government officials from applying laws in a manner that "den[ies] privileges or immunities to an individual person without legitimate reasons related to that person's individual situation").
An Article I, section 20, violation has two fundamental elements: (1) a state actor imposed a burden upon a citizen (or denied a privilege); and (2) that decision was not bound by a "coherent, systematic policy" ensuring even application to all persons similarly situated. Freeland, 295 Or at 375; State v. Scott, 96 Or App 451, 455, 773 P2d 394 (1989); See also Walton, 215 Or App at 632-33 (An Article I, section 20, violation "occurs when the state distributes a benefit or burden in a haphazard, random, standardless, ad hoc fashion"). In the present case, Deputy The Officer violated defendant's rights under Article I, section 20, by conducting a random, suspicionless investigation into his personal, criminal, and administrative history by running his license plate number through a mobile data terminal.
B. The Officer imposed a burden on defendant.
In the present case, [Facts follows .] Nothing about defendant's conduct was suspicious or otherwise indicated that he was involved in criminal activity or driving in violation of traffic laws. On the contrary, defendant's actions were consistent with an everyday citizen enjoying the benefits of the public marketplace.
Notwithstanding defendant's apparently innocent conduct, The Officer investigated defendant's administrative, personal, and criminal history by running his license plate number through the DMV database. That use of government databases to scrutinize defendant's background imposed a substantial burden upon defendant.
Admittedly, case law is somewhat silent as to what degree of state conduct will constitute a burden sufficient to trigger the protections of Article I, section 20. But see Clark 291 Or at 235 (holding that the decision of a prosecutor to proceed by an indictment instead of a preliminary hearing is subject to the requirements of Article I, section 20, because "the procedures afforded in a preliminary hearing are potentially important to an accused, whether or not they are advantageous in a particular instance.") (emphasis added). In this case, the officer's conduct placed a substantial burden on defendant. In particular, all citizens have a right to be free of unwarranted governmental scrutiny. See Olmstead v. United States, 277 US 438, 478, 48 S Ct 564, 72 L Ed 944 (1928) (Brandeis, J., dissenting, "The right to be left alone [is] the most comprehensive of rights[,] and the right most valued by civilized [people]."); Machado-Miller, 180 Or App at 594 (recognizing "the right to be let alone" as a fundamental and protected liberty right "deeply rooted in this nation's traditions"). Furthermore, citizens also have a limited right to enjoy some-level of anonymity in their daily affairs. See United States v. Lopez, 73 US 427, 470-71, 83 S Ct 1381, 10 L Ed 2d 462 (1963) (Brennan, J. dissenting, explaining that the U.S. Supreme Court has implicitly recognized in a number of cases "that the First Amendment freedoms may include the right, under certain circumstances, to anonymity").
Indeed, in State v. Davis, the Court of Appeals[ .]
Here, the Officer engaged in a fishing expedition into defendant's personal, criminal, and administrative history, simply because the officer saw the defendant driving. That conduct placed a distinct and real burden on defendant's ability to be left alone and to anonymously go about his daily affairs. Indeed, such investigation not only undercut defendant's ability to move freely through the public sphere without being subject to substantial scrutiny, but it also led to a criminal prosecution, one of the most severe burdens the government may impose on a citizen. In the end, The Officer's decision to target defendant with such scrutiny imposed a distinct burden on his ability to be left alone and to anonymously go about his affairs, and therefore, that decision was subject to the requirements of Article I, section 20. Cf. Clark, 291 Or at 235 (holding that the denial of "potentially important" procedures was subject to Article I, section 20).
The state may argue that the decision to run a simple background check of defendant while he was within the public sphere did not impose a significant burden. In particular, the state may suggest that a person who chooses to move about the public thoroughfares is always subject to the common scrutiny of the occasional onlooker - The Officer among them - and such scrutiny does not amount to the type of burden that triggers the protections of Article I, section 20. The state would be wrong.
Specifically, in the present case, The Officer imposed more than the ordinary scrutiny of a coffee shop patron engaged in "people watching." Moreover, The Officer's scrutiny was not similar to the overly protective neighbor who writes down the license plate numbers of cars not regularly seen in the neighborhood "just in case" some "funny business" happens later. Instead, The Officer employed information databases exclusively available to government officials. Those databases provided information above and beyond that available from an on-the-street observation. Furthermore, those databases allowed The Officer to obtain that information simultaneous to his observations of defendant. Consequently, that type of scrutiny provided instantaneous insights into defendant's background that no other citizen would be able to glean by observing him travel down the street. Such enhanced scrutiny is a far cry from the conventional observations of a watchful public.
C. Article I, section 20, required that The Officer's decision to investigate defendant be guided by a systematic and coherent policy that ensures even application.
Article I, section 20, requires that a government official's decision to impose a burden on an individual must be guided by a systematic and coherent policy that ensures even application. Freeland, 295 Or at 380-82. Specifically, an official may not impose a burden based on "ad hoc decisions that * * * do not uniformly rest upon meaningful criteria[,]" so individuals in like circumstances are treated alike. Freeland, 295 Or at 381.
In Freeland, the Oregon Supreme Court reviewed whether a district attorney's policy for determining whether to charge a felony crime via an indictment or a preliminary hearing satisfied the requirements of Article I, section 20. 295 Or 367. In that case, the district attorney's policy was to leave the decision whether to proceed by indictment or preliminary hearing to the discretion of the assigned deputy. Id. at 380. The deputies, in turn, made that decision based on the changing logistical considerations of each case, such as timing, evidence availability, and docket constraints. Id
The court explained that the deputy attorneys' decisions to use different charging procedures in different cases would satisfy Article I, section 20, only if the decisions "adhere[d] to sufficiently consistent standards" that reflected "a coherent, systematic policy." Id. at 375. The court held that the district attorney's policy on whether to proceed by indictment or preliminary hearing did not reflect such coherence, because individual deputies made those decisions on an ad hoc basis depending on the changing logistics of each case. Id. at 380-81. The court explained:
"[E]ven without * * * ad hominem discrimination, the present case falls within the principle that equal treatment may not be denied 'haphazardly' by ad hoc decisions that * * * do not 'uniformly rest on meaningful criteria that indeed make the privileges of a preliminary hearing equally available to all persons similarly situated, or, in the constitutional phrase, 'upon the same terms.'"
Id. at 381.
In sum, Article I, section 20, requires that the discretionary decisions of government officials (that grant a privilege or impose a burden) be evenly applied. State v. Clark, 291 Or 231, 245, 630 P2d 810 (1981). To be sure, Article I, section 20, does not forbid the mere exercise of discretion. But, it does forbid certain acts of discretion. In particular, under Article I, section 20, the lawful exercise of discretion only extends to the discretion to develop policies or practices for "even application" and does not allow discretion to "treat each case on an ad hoc basis." Freeland, 295 Or at 377-78.
Here, the Officer's decision to investigate defendant failed the requirements of Article I, section 20. The Officer saw defendant driving. The Officer did not believe or suspect that defendant had committed a traffic infraction or a crime. Tr 7-8. Nonetheless, the Officer decided, at "random," to run defendant's license plate number in the DMV database. The Officer did not impose the same scrutiny on all other vehicles either in the parking lot or coming out of the parking lot. Nor did he impose the same scrutiny on a certain type of vehicle, such as every third car he saw driving down the road. Moreover, the law enforcement agency does not have a written or spoken policy governing the Officer's decision.
Consequently, the Officer's decision to investigate defendant was not guided by a "systematic and coherent policy" that ensures "even application." Freeland, 295 Or 380-82. On the contrary, the Officer chose to conduct the investigation for no other reason than defendant happened to be coming out of the parking lot at the same time that the Officer was entering it and at the same time that the Officer decided to do a "random" license plate investigation. That ad hoc basis for the Officer's decision to scrutinize defendant's background, obviously does "not uniformly rest upon meaningful criteria" so that individuals in like circumstances are treated alike. Freeland, 295 Or at 381; see also State v. Atkinson, 298 Or 1, 7, 10, 688 P2d 832 (1984) (holding, under Article I, section 9, that a law enforcement officer must strictly follow the specific standards and guidelines when conducting an inventory in order ensure a uniform and systematic inventory policy); State v. Lecarros, 187 Or App 105, 111, 66 P3d 543 (2003) (holding that a temporary, suspicionless, administrative stop of a boat to check for life preservers was unlawful under Article I, section 9, because the decision to stop the craft in the first place was left to the individual decision-making of the seizing officers).
In the end, the Officer's decision to scrutinize defendant's background was haphazard and ad hoc - described by the deputy himself as "random." Accordingly, his discretionary decision to do so holds no promise of "even application" among similarly situated individuals and, thereby, violated Article I, section 20. Freeland, 295 Or at 377-78, 381.
Lastly, in case the Oregon Supremes take review, you may also want to continue to brief the Art. I, section 9, argument. (Briefing available on request to Kenneth@portlandlawcollective.com)
