Civil Division - New Castle County
November 13, 2003
The Honorable Colin R.J. Bonini
State Senator, 16th District
Delaware State Senate
Dover, DE 19901
Re: Random Motor Vehicle License Plate Checks
Dear Senator Bonini:
You have requested an opinion concerning the constitutionality of “[t]he practice of randomly running the license plates of motor vehicles by either state or local police officers[.]” We conclude as a general matter of law that conducting random checks of motor vehicle license plates is a lawful police activity.
An individual’s right to be free from unreasonable governmental searches and seizures is secured by the Fourth Amendment of the United States Constitution. See Terry v. Ohio, 392 U.S. 1, 8 (1968); Woody v. State, 765 A.2d 1257, 1262 (Del. 2001). The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend. IV. This protection applies to the states through the Fourteenth
Amendment. See Mapp v. Ohio, 367 U.S. 643, 655 (1961).
The right of the citizens of Delaware to be free from such intrusion is further secured by Article I, Section 6 of the Delaware Constitution, which provides that: “The people shall be secure in their persons, houses, papers and possession, from unreasonable searches and seizures . . . .” Del. Const. art. I, Section 6.
While no Delaware court has directly addressed the legality of the police practice of performing random license and registration checks, we find that such law enforcement activity does not implicate the protections of the Fourth Amendment of the U.S.
Constitution or Article I, Section 6 of the Delaware Constitution. In reaching this conclusion, we adopt the reasoning of courts in several jurisdictions that have specifically held the activity in question to be constitutional. See, e.g., State v. Donis, 723 A.2d 35 (N.J. 1998); Wilkinson v. State, 743 N.E. 2d 1267 (Ind. 2001); State v. Bjerke, 697 A.2d 1069 (R.I. 1997); State v. Rendina, 2002 WL 1489554 (Ohio App. 11 Dist. 2002); People v. Brand, 390 N.E. 2d 65 (Ill. App. 1 Dist. 1979).
The cited cases recognize that a random check of a license plate is not a “search” under the Fourth Amendment because it does not involve any intrusion upon or interruption of travel, or any attempt to restrain or detain the motorist. See State v. Rendina, 2002 WL 1489554 at p. 2. Additionally, license plates are displayed in plain view and the information provided by the vehicle owner when the plates are obtained is already within the states’ custody and control through their Divisions of Motor Vehicles. See State v. Bjerke, 697 A.2d at 1073; State v. Segars, 799 A.2d 541, 547 (N.J. 2002).
Our conclusion that checking license plates is a permissible law enforcement activity is also consistent with the United States Supreme Court’s decision in Delaware v. Prouse, 440 U.S. 648 (1979). In that case, the Court held that the State of Delaware may develop methods for spot checks of motor vehicles that involve less intrusion than random vehicle stops or that do not involve unconstrained exercise of discretion, such as questioning of all oncoming traffic at roadblock-type stops. Id. at 663. Since the practice of checking license plates does not involve stopping motor vehicles, it clearly constitutes a less intrusive, permissible law enforcement activity under the reasoning of Prouse.
It must be noted, however, that while motor vehicle license plate checks are lawful if they are truly random, such checks may not be used as a pretext to affect a stop that is actually based on impermissible motives or criteria such as race. See Segars, 799 A.2d at 547. Stated differently, before stopping a motor vehicle or making an arrest, a police officer must have a reasonable suspicion to believe an individual is committing, has committed or is about to commit a crime. See Prouse, 440 U.S. at 663.
In conclusion, we find that law enforcement officers may lawfully conduct random motor vehicle license plate checks provided the checks are not based upon impermissible motives or criteria. Additionally, following a license plate check, before a vehicle stop is undertaken or the freedom of a motorist is otherwise restrained, an officer must possess an articulable and reasonable suspicion that the operator or an occupant of the vehicle was or is in violation of the law.
If you have any questions, please do not hesitate to contact this office.
Very truly yours,
Keith R. Brady Assistant State Solicitor
Malcolm S. Cobin
cc The Honorable M. Jane Brady, Attorney General
Philip G. Johnson, Opinion Coordinator
Bc: Deborah Puzzo