U.S. v. Faulkner

• Decision Date: 13 June 2006
• Docket Number: No. 05-10405.,05-10405.
• Citation: 450 F.3d 466
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald E. FAULKNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.3d 466

UNITED STATES of America, Plaintiff-Appellee, v. Donald E. FAULKNER, Defendant-Appellant.

No. 05-10405.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2006.

Filed June 13, 2006.

Mark A. Lizarraga, Assistant Federal Public Defender, Fresno, CA, for the defendant-appellant.

Stanley A. Boone, Assistant United States Attorney, Fresno, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, Senior Judge, Presiding. D.C. No. CR-04-05077-REC.

Before STEPHEN REINHARDT, RICHARD A. PAEZ, and RICHARD C. TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge.

Donald E. Faulkner ("Faulkner") appeals the district court's denial of his motion to suppress evidence. Faulkner was cited for driving while his license was suspended and for driving in possession of an open container of alcohol. During a stop at an information station operated by the Bureau of Land Management ("BLM") located on federal land in California, Chief Ranger Ed Ruth ("Ruth") observed a one quart, open container of beer in Faulkner's car. During the stop, Ruth learned that Faulkner's driver's license was suspended. We must decide in this case whether the brief stop of Faulkner at the checkpoint¹ was a valid seizure under the Fourth Amendment. We conclude that it was and affirm.

I

The following facts are drawn from the evidence presented at the suppression hearing before the district court and on the court's factual findings in support of its ruling.

In the summer of 2001, Ruth established an information station on federal land approximately 165 feet after entering the BLM's² Paradise Recreation Area ("Paradise") in Three Rivers, California. Ruth, the Chief Ranger for the BLM in Bakersfield responsible for managing the BLM's law enforcement program, personally staffed the information station 98 to 99 percent of the time. The information station consisted of orange cones, a stop sign, a uniformed ranger, and an official ranger vehicle with a light bar and siren parked adjacent to the roadway. There was sufficient space on the Paradise approach road for a vehicle to turn around before reaching the information station, as several drivers had successfully done in the past.

Ruth stopped every vehicle for approximately 20 seconds to inform the occupants of newly promulgated regulations governing the use and enjoyment of Paradise and to provide them with a litter bag. A list of the regulations governing activity at Paradise was printed on the litter bag. Among other things, the BLM regulations prohibited campfires and the possession of alcoholic beverages, and required all litter to be placed in a container. The BLM spent $2,500 to purchase 5,000 preprinted litter bags in advance of this activity.

Ruth established the information station to "provide information to visitors to the recreation area of the regulations governing its use." This was partly in response to prior complaints about intoxicated motorists, increased litter, illegal fires, underage consumption of alcohol and controlled substances, and gang activity. Ruth had determined that visitors were not reading the informational bulletin boards erected within Paradise that listed prohibited conduct. Ruth concluded that with only two other law enforcement employees for his entire district, no reasonable alternative existed to notify the visitors, since Ruth and his small staff could not visit each campsite or adequately patrol three different recreation areas, the roadways, and the beaches adjacent to the rivers.

At the information station, Ruth sometimes asked visitors if they possessed alcohol. If the occupants responded in the affirmative, he would permit them to leave the area or drop off the alcohol with him and retrieve it upon leaving. Ruth testified that he had previously issued citations for possessing alcohol on "only one or two occasions"—for being a minor in possession of alcohol. He sometimes asked visitors to open a cooler to show that they were not bringing alcohol onto federal land.

At approximately 4:00 p.m. on June 1, 2003, Ruth stopped Faulkner and his wife at the information station. When Ruth approached the vehicle he immediately noticed in plain view a one quart, open-container of beer. Ruth retrieved the alcohol and ordered Faulkner to pull off the road and produce a valid driver's license. Faulkner then informed Ruth that he did not have a license and a subsequent check revealed that his license had been suspended since October 30, 2002. During a "cursory visual search" of the vehicle's interior for additional open containers of alcohol, Ruth observed some marijuana and smoking paraphernalia. Ruth cited Faulkner under the Assimilative Crimes Act, 18 U.S.C. § 13, and implementing federal regulations for driving while his license was suspended, in violation of 43 C.F.R. § 8341.1(d) and California Vehicle Code § 14601.1(a), and for driving in possession of an open container of alcohol, in violation of 43 C.F.R. § 8341.1(d) and California Vehicle Code § 23223(a). Faulkner filed a motion to suppress the evidence. After an evidentiary hearing, the district court denied Faulkner's motion, ruling that the stop at the information station was constitutional because its primary purpose was to "provide information to visitors to the recreation area of the regulations governing its use...." Faulkner and the government then entered into a conditional plea agreement pursuant to Rule 11(c) of the Federal Rules of Criminal Procedure, whereby Faulkner pled guilty but reserved the right to appeal the denial of his motion to suppress. On March 16, 2005, Faulkner was sentenced to one year of probation. This timely appeal followed.

II

A

A district court's denial of a motion to suppress evidence is reviewed de novo. United States v. Bynum, 362 F.3d 574, 578 (9th Cir.2004). The factual findings underlying the denial of the motion are reviewed for clear error. Id.

B

"`[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person....'" Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (internal citation omitted) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). The Supreme Court has been clear that although not every encounter between a police officer and a citizen is a seizure, United States v. Mendenhall, 446 U.S. 544, 553, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); Sibron v. New York, 392 U.S. 40, 61, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), "the Fourth Amendment governs `seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime—`arrests' in traditional terminology." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). But "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Id. at 19 n. 16, 88 S.Ct. 1868. Indeed, the Supreme Court has "conclude[d] that a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870.

Chief Ranger Ruth was a commissioned federal law enforcement officer; he was uniformed, armed with a firearm, and entrusted with an official government vehicle with a siren and light bar that was parked nearby. Cf. id. at 555, 100 S.Ct 1870 ("On the facts of this case, no `seizure' of the respondent occurred. . . . The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her.... They requested, but did not demand to see the respondent's identification...."). While imparting campground use rules to recreation area visitors, he also had the authority to enforce the law and make arrests. Ruth, "by show of authority," erected a station with orange cones, a stop sign, and his official government vehicle to restrain Faulkner's liberty. Indeed, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave" the information station. See id. at 554, 100 S.Ct. 1870. Ruth established the information station with a show of authority to restrain for 20 seconds the liberty of each motorist entering Paradise. See Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (ruling that a police checkpoint established for the purpose of stopping motorists for 10-15 seconds to distribute a flyer and "ask them for information about a recent hit-and-run accident" is a seizure). Thus, Chief Ranger Ruth "seized" Faulkner within the meaning of the Fourth Amendment and we apply Fourth Amendment jurisprudence to examine whether this seizure without a warrant was constitutional.

C

There are two steps we must take in determining whether the stop at the information station is constitutional. First, we must determine whether the primary purpose of the information station was to advance "the general interest in crime control." City of Indianapolis v. Edmond, 531 U.S. 32, 48, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). If so, then the stop at the information station is per se invalid under the Fourth Amendment. If not, then we must determine whether the stop at the information station was a reasonable seizure. Brown, 443 U.S. at 50, 99 S.Ct. 2637.

D

The district court found that the "primary purpose of the information station was . . . to provide information to visitors to the recreation area of the regulations governing its use, which include but are not limited to the possession or consumption of alcohol." This finding is reviewed for clear error. Byn...