U.S. v. Prichard, s. 79-2280

• Citation: 645 F.2d 854
• Decision Date: 11 May 1981
• Docket Number: Nos. 79-2280,79-2281,s. 79-2280
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Glenn PRICHARD and Brian De Palma, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 854

645 F.2d 854

UNITED STATES of America, Plaintiff-Appellee, v. William Glenn PRICHARD and Brian De Palma, Defendants-Appellants.

Nos. 79-2280, 79-2281.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Jan. 28, 1981.

Decided April 1, 1981.

Rehearing Denied May 11, 1981.

R. E. Thompson, U. S. Atty., Albuquerque, N. M. (Don J. Svet, Asst. U. S. Atty., Albuquerque, N. M., with him on brief), for plaintiff-appellee.

Robert C. Hill, Miami, Fla. (Max P. Engel, Miami, Fla., with him on brief), of Engel, Aronson, Fried & Cohn, Miami, Fla., for defendants-appellants.

Before McWILLIAMS, BARRETT and SEYMOUR, Circuit Judges.

McWILLIAMS, Circuit Judge.

The central issue in this appeal is whether the search of a Ford Bronco, which resulted in the seizure of 86 pounds of cocaine having an estimated street value of $20,000,000, was lawful.

William Glenn Prichard and Brian David De Palma were charged by indictment with possession with an intent to distribute a quantity of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Prior to trial, the defendants filed a motion to suppress wherein they sought to suppress, among other things, the use at trial of all physical evidence, including contraband, seized by New Mexico state police in a search of the Ford Bronco. After a five-day evidentiary hearing, the trial court denied the motion to suppress. A jury convicted both defendants and each appeals.

As indicated, the hearing on the motion to suppress was an extended one. The transcript of that hearing discloses that on July 29, 1979, at about noon, two New Mexico state police officers established a roadblock on Interstate Highway 40 approximately eight miles east of Moriarty, New Mexico. The stated purpose of the roadblock was to conduct a routine driver's license and car registration check. The officers candidly conceded, however, that if they observed indicia of other crimes during their check of drivers' licenses and vehicle registrations, they intended to enforce the law. The roadblock was conducted with the knowledge and permission of the officers' supervisor. The officers testified that it was their intent to stop all westbound vehicles, except for semi-trucks, which had already been stopped at a port of entry. When the cars began to "pile up," however, the officers would wave all of the stopped cars through in order to prevent the situation from becoming unduly hazardous. One officer estimated that they would allow no more than ten cars to back up before they waved all of the stopped cars on through. After they cleared the area, the officers would begin to stop cars again.

It was in this setting that at about two o'clock on the afternoon of July 29, 1979, Officer Jeff Faison, one of the New Mexico state police officers, stopped a 1979 Ford Bronco. Prichard was driving the Bronco and De Palma was the only passenger. On request, Prichard produced a valid California driver's license and a temporary registration of the vehicle in California in the name of "R. English." Prichard told Officer Faison that he had borrowed the car to go to a wedding in Memphis, Tennessee. Faison then attempted to make a NCIC computer check in order to determine whether the vehicle had been stolen, but the computer was out of order. Faison asked for the phone number and address of the registered owner, R. English, but neither Prichard nor De Palma gave him any information. Faison then requested, and received, permission to look in the glove compartment of the Bronco for identification. Inside the glove compartment, Faison found a Florida temporary transportation permit, an insurance card, and a warranty plan all made out to a Jack Taylor of Lake Worth, Florida, and a Florida Highway Patrol Inspection form made out to Friendly Ford. Faison also noticed a California license plate lying behind the passenger seat and detected a pungent odor emanating from the rear of the vehicle. Faison asked Prichard what the smell was, and, according to Faison, Prichard "flinched."

Faison then directed the two to stand away from the vehicle, and he called for assistance from his fellow officer. According to the officers, they asked for, and received, consent to search the vehicle. Faison then got into the vehicle and climbed over the seat into the back of the Bronco. There he found a can of rose-scented odorant which had tipped over and formed a puddle. He also noticed several screws laying on the floor carpet and a loose side panel. Faison removed the loose panel and located ten bricks of what he initially believed to be marijuana. A field test, however, revealed that the substance was cocaine. A subsequent search of the Bronco, after it had been towed to a garage, disclosed nine additional bricks of cocaine. In searching the vehicle at the garage, Faison also discovered: (1) a roll of masking tape in an ice chest in the rear of the Bronco, the torn end of which matched the masking tape wrapping on one package of cocaine; (2) a baggie of cocaine, under the carpet of the Bronco on the front passenger side, which matched the cocaine in the nineteen bricks; and (3) a strainer screen, in the console between the seats, which is used to "fluff" cocaine in preparation for use.

It is defense counsel's position that the motion to suppress the use at trial of the physical evidence taken from the car, including the nineteen bricks of cocaine, should have been granted on any one of several grounds. In this regard, the defendants' primary argument is that the roadblock stop of the Bronco violated their Fourth Amendment rights and that the subsequent search of the vehicle was tainted by the illegal stop. The first issue, then, is whether the initial stop of the Bronco was lawful.

Counsel for the defendants relies heavily on Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), in support of the argument that the roadblock stop of the Bronco was unconstitutional. In our view, Prouse does not support the defendants' position. Indeed, Prouse supports the conclusion that the roadblock stop of the Bronco was lawful.

It is true that in Prouse the Supreme Court held that absent at least an articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not properly registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. 440 U.S. at 663, 99 S.Ct. at 1401. The court, however, also expressed the following caveat to the general rule above set forth:

This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. Id. (emphasis added). (footnote omitted).

In our view, the roadblock stop of the Ford Bronco does not run afoul of the rule of Prouse. While this may not have been a "100% roadblock" of the type referred to in Prouse, it is nonetheless a long way from the selective,...