[1994/oagheade.htm]

OAG 94-26

April 20, 1994

Norman Nezelkewicz

Director of Transportation

Kentuckiana Regional Planning and Development Agency

11520 Commonwealth Drive

Louisville, Kentucky 40299

Dear Mr. Nezelkewicz :

We have been asked to provide an opinion stating whether it is permissible for the Kentuckiana Regional Planning and Development Agency to conduct a highway use survey by stopping vehicles and asking the drivers to answer questions.

We conclude that the planned survey is illegal. Our conclusion reaffirms the position taken by the Indiana Department of Transportation. That agency's legal staff concluded that the project in question violates rights protected by the U.S. Constitution, which is of course equally applicable to all states. A copy of the Indiana legal opinion is attached.

The fundamental law at issue is the fourth amendment to the Constitution, which states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." The stopping of a vehicle under color of government authority has always been considered a seizure. "There can be no question that the stopping of a vehicle and the detention of its occupants constitutes a 'seizure' within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979). Therefore the legal issue invariably is whether a particular seizure was unreasonable.

The Prouse case holds that the general purpose of the fourth amendment is to impose a standard of reasonableness on the exercise of discretion by government officers. "Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 655. The Court ruled that stopping a vehicle to check the driver's license and vehicle registration is illegal "except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered." Id. at 663. The Court summarized its holding by saying that "persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers." Id.

It is our opinion that the governmental units involved in the proposed survey cannot show a legitimate governmental interest sufficient to overcome motorists' legitimate expectation of privacy in their vehicles. As the Court stated in Prouse,

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. [P]eople are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles.

440 U.S. at 661-62.

We agree with the Indiana counsel's statement that "potential also exists for civil liability if accidents should result from diverting the flow of traffic." Additionally, because protected constitutional rights are involved, liability could be asserted under 42 U.S.C. � 1983. It is our understanding that the information sought in the survey could be obtained through less obtrusive means. Therefore we fail to see any governmental interest that outweighs the motorists' reasonable expectation of privacy. Because the balancing of interests clearly favors the constitutional right to privacy, we conclude that the proposed survey may not be undertaken by stopping motorists on the highway.

Sincerely,

Chris Gorman

Attorney General