U.S. v. Green

• Citation: 293 F.3d 855
• Decision Date: 11 June 2002
• Docket Number: No. 01-50536.,01-50536.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emma Lucille GREEN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

293 F.3d 855

UNITED STATES of America, Plaintiff-Appellee, v. Emma Lucille GREEN, Defendant-Appellant.

No. 01-50536.

United States Court of Appeals, Fifth Circuit.

June 11, 2002.

Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, Banurekha Ramachandran, U.S Dept. of Justice, Washington, DC, for Plaintiff-Appellee.

M. Carolyn Fuentes, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before KING, Chief Judge, and HIGGINBOTHAM and EMILIO M. GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Emma Lucille Green was stopped at a roadblock checkpoint on Fort Sam Houston in San Antonio and found to be without license or proof of insurance. She attempted to flee and military police arrested her and impounded the car. Crack cocaine was found during an inventory search of the car resulting in a charge of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Green entered a conditional plea of guilty and now appeals the district court's denial of her motion to suppress the evidence found in her vehicle, alleging it is the fruit of an unreasonable search in violation of the Fourth Amendment.

I

In the late evening hours of February 11, 2000 and until the early morning of February 12, 2000, at Fort Sam Houston in San Antonio, Texas, military police operated a "Force Protection Vehicle Checkpoint." At this particular checkpoint, which was administered in accordance with a standard operating procedure, every sixth car traveling north on New Braunfels Avenue would be stopped at its intersection with Hood Street and directed into an adjacent parking lot. The checkpoint was marked by signs, cones, and flares, and the military police operating the checkpoint were in uniform.

Emma Lucille Green's car was stopped as a sixth vehicle at the checkpoint. Operating at all times in accordance with the standard operating procedure, military police asked her for her driver's license and proof of insurance. Green's inability to produce either of these documents violated Texas law. The officers then ran a criminal background check and license plate check on the car, discovering that Green had no driver's license and the car was not hers. At this point the officers asked her to exit the car. Green refused and attempted to flee. She was apprehended and arrested. The car was impounded and, in a standard inventory search, officers found the nine rocks of crack cocaine on the front seat in a plastic bag.

Green moved to suppress the drug evidence as the fruit of an unreasonable seizure in violation of the Fourth Amendment. Finding that the checkpoint served national security purposes and was reasonable, the district court denied her motion to suppress. Green then pled guilty to the offense, reserving her right to appeal. She was sentenced to 24 months of imprisonment followed by a four-year term of supervised relief.

II

In an appeal from the denial of a motion to suppress, we review questions of law de novo and factual findings of the district court for clear error.¹

A

We first make it plain that after determining the validity of the programmatic purpose, the scope of our inquiry extends to only what occurred when Green was stopped. It does not, despite Green's urging, extend to an abstract consideration of the scope of searches of other vehicles.² With a valid programmatic purpose,³ the stop of Green's vehicle was lawful, and it was not searched in a relevant sense⁴ until after the military police had probable cause to arrest her and impound her vehicle. It was then subjected an inventory search and the drugs were discovered.⁵

B

A checkpoint-type stop of an automobile is a seizure constrained by the Fourth Amendment.⁶ A suspicionless seizure is ordinarily unreasonable and therefore a violation of the Fourth Amendment.⁷ The Supreme Court has upheld suspicionless stops of vehicles at immigration⁸ and sobriety⁹ checkpoints, and suggested that, while roving patrols do not pass muster, discretionless stops designed to check a driver's license and registration are permissible.¹⁰

While it initially rejected such an approach,¹¹ the Supreme Court recently held, in City of Indianapolis v. Edmond¹² that a narcotics checkpoint violated the Fourth Amendment because its "primary purpose" was indistinguishable from the "general interest in crime control."¹³ "Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety."¹⁴ To be valid a checkpoint, then, must reach beyond general crime control — either targeting a special problem such as border security or a problem peculiar to the dangers presented by vehicles.

Green argues that the purpose of this checkpoint was merely to make individuals on the base aware of security procedures. Green relies on a memorandum establishing the checkpoints, which states, in part:

The checks will be conducted to reinforce installation security awareness and to emphasize to personnel, having access to the installation, the security posture which is being maintained.¹⁵

However, this same memorandum also incorporates the Standard Operating Procedure for the Installation Force Protection Vehicle Checkpoints, which clearly states its goals:

1. protect national security by deterring domestic and foreign acts of terrorism;

2. maintain readiness and effectiveness;

3. deter the entrance of persons carrying explosives;

4. protect federal property; and

5. ensure the safety of the soldiers, civilian employees, retirees and family members on the installation.¹⁶

The parties appear to dispute what our standard of review should be with respect to the primary purpose of the checkpoint. Green argues that de novo review should apply, relying on the Supreme Court's review of the purpose of a drug-testing regime in its recent decision in Ferguson v. City of Charleston.¹⁷ The Government argues that the purpose of a checkpoint is a factual finding that should be reviewed for clear error.

We first note that Ferguson, while it cites to Edmond, is a case involving the "special needs" doctrine in regards to searches, not roadblock seizures. The Court, in fact, distinguished Ferguson on these grounds, stating that "[t]his case also differs from the handful of seizure cases in which we have applied a balancing test to determine Fourth Amendment reasonableness."¹⁸ The extent to which the inquiry into purpose demanded by Edmond and the "special needs" doctrine is the same is still an open question. In any event, the Court did not clearly state that in either case was the question one of mixed fact and law which would require de novo review.

We agree with the D.C. Circuit that the primary purpose of a checkpoint is a finding of fact reviewed for clear error.¹⁹ We conclude that the district court did not clearly err in its finding that "[t]his was a legal checkpoint set up by the military installation to inspect vehicles and make sure they had valid license, registration, proof of insurance, security at the military installation."

C

Given a purpose of ensuring the security as well as traffic safety at the installation we must, however, ask whether this purpose is distinct from the general interest in crime control. If not, then the teaching of Edmond is that the checkpoint system at issue violates the Fourth Amendment. We believe that this case differs substantially from Edmond in two respects. First, the protection of the nation's military installations from acts of domestic or international terrorism is a unique endeavor, akin to the policing of our borders, and one in which a greater degree of intrusiveness may be allowed.²⁰ Second, those cases focusing not on unique, national challenges, but instead on road safety,²¹ are concerned with dangers specifically associated with vehicles and therefore justify suspicionless checkpoint seizures. Since we know from painful experience that vehicles are often used by terrorists to transport and deliver explosives in the form of "car bombs," and that military installations have historically faced greater risk than civilian communities of such a bombing, vehicles pose a special risk.

We conclude that the purpose of this suspicionless checkpoint stop was not the "general interest in crime control." Rather its more narrow purpose was to the protect a military post, distinct from a general law enforcement mission. We must then proceed to the balancing of interests that the Court requires in order to determine whether this stop was valid under the Fourth Amendment.

III

"Roadblock seizures are consistent with the Fourth Amendment if they are `carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.'"²² The Court's decisions require us to balance the objective and subjective intrusion on the individual against the Government interest and the extent to which the program can reasonably be said to advance that interest.²³

The degree of objective intrusion is "measured by the duration of the seizure and the intensity of the investigation."²⁴ In this case the objective intrusion was virtually identical to that upheld in Michigan Department of State Police v. Sitz²⁵ and United States v. Martinez-Fuerte.²⁶ Green's car was stopped and she was directed to pull into an adjacent parking lot. She was asked for her license and proof of insurance and was unable to produce either. The total duration of the stop before probable cause to arrest Green arose was considerably less than the three to five minutes that the Court found minimal in Martinez-Fuerte.²⁷ The seizure of Green was only minimally intrusive under the objective prong of this test.

As to subjective intrusion, the touchstone is the "potential for generating fear and surprise."²⁸ Everyone...