USA. v. Davis, 00-3050

• Decision Date: 16 November 2001
• Docket Number: No. 00-3050,00-3050
• Citation: 270 F.3d 977
• Parties: (D.C. Cir. 2001) United States of America, Appellee v. Mark Stephen Davis, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 977

270 F.3d 977 (D.C. Cir. 2001)

United States of America, Appellee v. Mark Stephen Davis, Appellant

No. 00-3050

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2001

Decided November 16, 2001

Appeal from the United States District Court for the District of Columbia (99cr00204-01)

A.J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant. Gregory L. Poe, Assistant Federal Public Defender, entered an appearance.

Catherine A. Szilagyi, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney at the time the brief was filed, and John R. Fisher, Elizabeth Trosman and Neil H. MacBride, Assistant U.S. Attorneys. Mary-Patrice Brown, Assistant U.S. Attorney, entered an appearance.

Before: Randolph, Rogers, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

The police stopped Mark Davis at a roadblock in 1999, arrested him for traffic offenses, searched him and his automobile, and recovered evidence of his drug dealing, for which the grand jury indicted him. After the district court denied Davis's motion to suppress, he entered a conditional plea of guilty to possession with intent to distribute crack cocaine. The issue in Davis's appeal is whether the roadblock complied with the Supreme Court's interpretation of the Fourth Amendment to the Constitution in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), decided after Davis had noted his appeal, and with United States v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989), on which the district court relied in denying the motion to suppress.

The roadblock had been set up as part of the Metropolitan Police Department's "Summer Mobile Force." The evidence at the suppression hearing consisted of the testimony of one government witness--a sergeant assigned to this task force-and a sheaf of internal police documents, submitted by the defense, describing the Summer Mobile Force. The circumstances of Davis's stop and arrest at the roadblock need not be recited in detail. The events occurred early in the evening in a southwest D.C. neighborhood. Safety flares lined the street. Forty to fifty officers and seven to ten marked police cars were at the scene. All vehicles approaching the roadblock were stopped. Davis pulled over as directed when he drove up to the checkpoint. The officers determined that the car Davis was driving had a forged inspection sticker and that the temporary registration Davis produced had been altered. After the police arrested him for these and other traffic violations, they discovered crack cocaine on his person and drug paraphernalia in his car.

The government and the defense agree that if the roadblock complied with the Fourth Amendment, the police acted constitutionally in stopping Davis (a "seizure") and in arresting and searching him. The controversy centers on the roadblock's "primary purpose," as the Supreme Court put it in Edmond, 531 U.S. at 40-46, or its "principal purpose," as we put it in McFayden, 865 F.2d at 1312.

The Supreme Court has derived a principle from the Fourth Amendment: a search or seizure of a person must be based on individualized suspicion of wrongdoing. E.g., Terry v. Ohio, 392 U.S. 1 (1968); Delaware v. Prouse, 440 U.S. 648, 654-55 (1979); but see Brown v. Texas, 443 U.S. 47, 51 (1979). As exceptions to this principle, the Court has upheld the constitutionality of vehicle checkpoints near the border to intercept illegal aliens (United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976)), and roadblocks aimed at apprehending drunk drivers (Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990)). The Court has indicated that roadside truck weigh-stations and roadblocks to check drivers' licenses and vehicle registrations would also qualify as exceptions to the general principle. Delaware v. Prouse, 440 U.S. at 663 & n.26; Edmond, 531 U.S. at 39. Concerned that its exceptions would swallow the principle of individualized suspicion, 531 U.S. at 46-47, the Court in Edmond laid down a line: "When law enforcement authorities pursue primarily general crime control purposes at checkpoints ... stops can only be justified by some quantum of individualized suspicion." Id. at 47. Even if the police check licenses at the roadblock, their stopping of vehicles would violate the Fourth Amendment when the "primary purpose of the checkpoint program" is the "discovery and interdiction of illegal narcotics." Id. at 46, 34.

To the statements from Edmond just quoted, the Court added this qualifier in a footnote: "Because petitioners concede that the primary purpose of the Indianapolis checkpoints is narcotics detection, we need not decide whether the State may establish a checkpoint program with the primary purpose of checking licenses or driver sobriety and a secondary purpose of interdicting narcotics." Id. at 47 n.2. The footnote seems divorced from the rest of the opinion. Throughout the text the Court states again and again that when the "primary purpose" of a roadblock is general crime control it is unconstitutional. Id. at 38, 41, 42, 44, 46, 47, 48. This more than suggests that if the "primary purpose" had been for a purpose the Court had already endorsed--such as detecting drunk drivers, or checking licenses--the roadblock would be constitutional. The record in Edmond suggested that enforcement of the drug laws was not simply Indianapolis's primary reason for establishing the checkpoint program, but its only reason. A sign near each of the checkpoints announced: " 'NARCOTICS CHECKPOINT __ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP.' " Id. at 35-36. If the city's only purpose was narcotics enforcement, it is hard to explain why the Court framed the inquiry in terms of its "primary" purpose, unless the Court believed that it would be constitutional for a State to "establish a checkpoint program with the primary purpose of checking licenses or driver sobriety and a secondary purpose of interdicting narcotics." Id. at 47 n.2.

In any event, the question left open by the Edmond footnote has been answered by our decision in McFayden. Police stopped the defendant in McFayden at a checkpoint operated in the same manner as the one in this case. The defendant, while retrieving his license or registration, took actions that led the police to narcotics in his car. 865 F.2d at 1309. Although decided before Edmond, McFayden also described the issue as whether "the principal purpose of the roadblock was to regulate vehicular traffic by allowing police to check drivers' licenses and vehicle registrations." Id. at 1312. The court answered yes and found the roadblock constitutional on this ground, and because it satisfied several other criteria, even though it "facilitated a narcotics enforcement effort," id. at 1307. The checkpoint in McFayden was part of "Operation Cleansweep," a program "designed to attack the problem of drug dealing in D.C." Id. at 1308. The police determined where to place roadblocks "on the basis of community complaints about traffic and narcotics problems"; citizens in the vicinity of the McFayden roadblock complained about "speeding automobiles." Id. at 1308, 1312. In general, "traffic congestion is one serious problem that results from street drug sales in the District of Columbia." Buyers stop illegally, double-park, make U-turns, speed and disrupt the flow of traffic in the neighborhood. Id. at 1308, 1312. The roadblock in McFayden had a principal purpose of controlling the traffic problems associated with drug dealing and "[w]hatever advantage was gained in drug enforcement was coincidental to the principal purpose of the traffic roadblocks." Id. at 1313. While the McFayden court cautioned (id. at 1312) that it might not sustain a roadblock if it were a "subterfuge," "purportedly established to check licenses" but "located and conducted in such a way as to indicate that its principal purpose was the detection of crimes unrelated to licensing," it rejected the proposition that a roadblock must have as its sole purpose the checking of licenses and registrations. See 4 Wayne R. LaFave, Search and Seizure § 10.8(a), at 679-80 (3d ed. 1996), and the 2001 supplement thereto at 122-23.

Here the district court made several "essential findings" as Rule 12(e), Fed. R. Crim. P., required. One of the court's findings was: "The roadblock at issue was conducted in a systematic and nondiscriminatory fashion, for the principal purpose of vehicular regulation in conjunction with a police program to increase police presence and to curb drug activity." Another was that "[t]here is no evidence of subterfuge in this record." The court treated the purpose of the roadblock as a question of fact, as did the Supreme Court in Edmond. 531 U.S. at 40-41. See also Ferguson v. City of Charleston, 121 S. Ct. 1281, 1290-91 & n.20 (2001); Galberth v. United States, 590 A.2d 990, 1000 n.12 (D.C. 1991). Factual findings on suppression motions may be set aside only if clearly erroneous, see, e.g., Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v. Garrett, 959 F.2d 1005, 1007 (D.C. Cir. 1992); United States v. Magnum, 100 F.3d 164, 170 n.8 (D.C. Cir. 1996); United States v. Hill, 131 F.3d 1056, 1059 n.2 (D.C. Cir. 1997). As in civil cases, the clearly erroneous standard applies to Rule 12(e) findings based not only on testimony but also on documents. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-76 (1985); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2587 (2d ed. 1995).

The district court's findings rested, so far as we can tell, on the testimony of the government's sole witness. This officer said that before setting up the roadblock, the police received information about "incidents" in the southwest neighborhood where they arrested Davis. Community groups and church "activists"...