U.S. v. Yousif

• Citation: 308 F.3d 820
• Decision Date: 07 October 2002
• Docket Number: No. 01-2288.,01-2288.
• Parties: UNITED STATES of America, Appellee, v. Salwan YOUSIF, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

308 F.3d 820

UNITED STATES of America, Appellee, v. Salwan YOUSIF, Appellant.

No. 01-2288.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2002.

Filed: October 7, 2002.

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Howard B. Eisenberg (argued), Milwaukee, WI, for appellant.

Sam C. Bertolet, argued, Asst. U.S. Atty., St. Louis, MO (Mary Jane Lyle, on the brief), for appellee.

Before McMILLIAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MCMILLIAN, Circuit Judge.

Salwan Yousif appeals from a final judgment entered in the United States District Court for the Eastern District of Missouri upon his conditional plea of guilty to one count of possession with intent to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). On appeal, Yousif challenges the district court's denial of his motion to suppress physical evidence and statements obtained by law enforcement officers when his vehicle was stopped and searched at a drug interdiction checkpoint. For reversal, Yousif argues that, although the district court correctly held that the drug interdiction checkpoint program violated the Fourth Amendment under City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (Edmond), and that he was stopped illegally, the district court erred in concluding that he voluntary consented to the search of his vehicle so as to purge the taint of the primary illegality. The government argues, in response, that no Fourth Amendment violation occurred and, even if one did, the district court correctly held that Yousif's voluntary consent to the search of his vehicle purged the taint of the constitutional violation. For the reasons discussed below, we hold that the district court erred in denying Yousif's motion to suppress. Accordingly, we vacate the judgment of the district court and remand the case to the district court for further proceedings consistent with this opinion.

Jurisdiction

Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed.R.App.P. 4(b).

Background

On April 27, 2000, Yousif was indicted in the district court on one count of possession with intent to distribute over 100 kilograms of marijuana. Yousif moved to suppress physical evidence and statements, and the matter was referred to a magistrate judge. Based upon the evidence presented at an evidentiary hearing, the magistrate judge issued a report containing detailed findings of fact and recommended conclusions of law. United States v. Yousif, 4:00 CR 208 (E.D.Mo. Sept. 15, 2000) (Yousif) (hereinafter "Mag. Rep. I") The following is a summary of the background facts, as found by the magistrate judge. Id. at 1-8.

On April 13, 2000, the Missouri Highway Patrol (MHP) and the Phelps County Sheriff's Department set up a drug interdiction checkpoint at the end of the exit ramp leading uphill from eastbound Interstate Highway 44 ("I-44") to Sugar Tree Road in Phelps County, Missouri (hereinafter "the Sugar Tree Road checkpoint"). The Sugar Tree Road checkpoint was a so-called "ruse checkpoint" because signs were placed along the highway warning travelers that they were approaching a drug checkpoint further down the highway, yet the checkpoint was actually located on the ramp which exited the highway a short distance past the signs. The Sugar Tree Road exit was chosen as a site for a ruse checkpoint because law enforcement officers believed that I-44 was a commonly used route for transporting drugs, there was little use of the Sugar Tree Road exit for commercial or local traffic, and the end of the ramp was not visible from the highway.

Operation of the Sugar Tree Road checkpoint was governed by a set of standard procedures set forth in a memorandum issued by the MHP on April 4, 2000 (hereinafter "the MHP memorandum"). Pursuant to the MHP memorandum, the following procedures were implemented. Approximately one-quarter mile west of the Sugar Tree Road exit, signs were placed on each shoulder of the road, stating: "Drug Enforcement Checkpoint 1/4 Mile Ahead." Further down the road, approximately 100 yards west of the Sugar Tree Road exit, more signs were placed alongside of the road, stating: "Drug Dogs in Use Ahead." The checkpoint was set up at the end of the Sugar Tree Road exit ramp, out of view from I-44. At least two fully marked MHP patrol cars were located at the checkpoint. When a vehicle would arrive at the checkpoint, at least one uniformed officer would approach the driver and ask for his or her driver's license, registration, and — if required by the state of registration — proof of insurance. The officer would also record the license plate number of the vehicle and ask the driver if he or she saw the signs and why he or she exited the highway. Upon perceiving any indication of illegal activity, the officer would question the driver further. If there were any reason to believe that the vehicle contained illegal drugs or other contraband, the officer would ask for consent to search the vehicle. If consent were denied, but the officer still had a reasonable suspicion of unlawful activity, the officer would ask the occupants to step out of the vehicle. The officer would then turn off the ignition and have a drug dog walk around the exterior of the vehicle. If the dog failed to alert, and the officer had no other reason to hold the vehicle and its occupants, they would be allowed to leave.

On April 13, 2000, officers with the MHP and Phelps County Sheriff's Department had set up the Sugar Tree Road checkpoint as described above. Shortly before 3:00 p.m., MHP Patrolman Richard Lisenbe observed Yousif's Ford Explorer with Oklahoma license plates turn from I-44 onto the Sugar Tree Road exit ramp. Lisenbe was dressed in uniform and standing with other officers at the top of the ramp. A sign indicating the presence of a police checkpoint, as well as two MHP patrol cars, were clearly visible to the vehicle as it approached the end of the Sugar Tree Road exit ramp. The Explorer slowed, coming nearly to a stop halfway up the ramp. Lisenbe waved his arm directing the driver, Yousif, to proceed forward. After the Explorer stopped at the checkpoint, as directed, Lisenbe and two other officers approached the vehicle. Upon reaching the open driver's side window, Lisenbe noticed a strong berry-like odor. Lisenbe asked Yousif for his driver's license, registration, and proof of insurance. Yousif produced an Arizona driver's license and a rental agreement for the vehicle. According to Lisenbe, Yousif's hands were shaking and he nearly dropped his license as he was trying to hand it over. Lisenbe considered it unusual for a rental car to have such a strong odor. When Lisenbe asked Yousif why he had exited the highway, Yousif's wife, who was in the passenger seat, volunteered that they had exited to let their dog relieve itself.

Lisenbe asked Yousif if he had anything illegal in the vehicle, including narcotics. Yousif said he did not. Lisenbe then asked Yousif if he consented to a search of the vehicle and its contents, and Yousif told him to go ahead. At that point, Yousif's wife asked Lisenbe if he could search without a warrant. Lisenbe replied, in Yousif's presence, that the police could conduct a search if they were given consent or had probable cause. Yousif's wife then said: "That's OK, I was just asking." No threats or promises were made by any of the officers in order to obtain Yousif's consent to the vehicle search, and neither he nor his wife objected.

Lisenbe opened the back of the Explorer and found six large black suitcases under a blanket and pillows. Inside the suitcases were bundles of green plant material appearing to be marijuana. Lisenbe then placed Yousif and his wife under arrest and advised them of their Miranda rights. Lisenbe asked them if they understood these rights, and they said that they did. Lisenbe asked Yousif and his wife if they wanted to cooperate with investigators, and Yousif said he did. Lisenbe motioned over two plain-clothed police officers. In Yousif's presence, Lisenbe informed the two officers that marijuana had been found in the car, that Yousif was willing to make a statement, and that Yousif had been read his Miranda rights. Yousif said nothing. Lisenbe also showed the officers the marijuana found in the back of the Explorer.

The two officers walked Yousif to a motor home which the officers were using as an on-site office. Inside the motor home, one of the officers began questioning Yousif, and Yousif began providing information regarding his involvement with the marijuana. While the interview was proceeding, Lisenbe interrupted and stated that, because of the need to secure the marijuana, they should continue the interview at the Highway Patrol Troop I Headquarters in Rolla, Missouri. Accordingly, Yousif, his wife, and the Explorer were taken to the Troop I headquarters in Rolla, where the interview was resumed.

While Yousif was being questioned by one of the officers at the Troop I headquarters, Yousif asked whether he should speak with an attorney. The officer responded that he had a right to speak with an attorney and, if he so desired, the interview would be terminated. The officer further stated: "That was told to you when you were read your rights." At that point, Yousif denied having been read his Miranda rights. The officer then reminded him that he had been read his Miranda rights by Lisenbe while they were at the Sugar Tree Road checkpoint. Yousif again denied having been advised of his rights. The interviewing officer then sent another officer to find Lisenbe, to specifically ask Lisenbe whether Yousif had been read his Miranda rights. Lisenbe confirmed that he had. The officer questioning Yousif read Yousif his Miranda rights a second time, and again asked him if he understood them. Yousif said that he did...