U.S. v. Hurst, 95-10053
| Decision Date | 29 December 1995 |
| Docket Number | No. 95-10053,95-10053 |
| Citation | 73 F.3d 371 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Mark HURST, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: SCHROEDER, FLETCHER, and RYMER, Circuit Judges.
Appellant Mark Hurst challenges the District Court's denial of his motion to suppress evidence seized by the United States at a roadblock inside Yosemite National Park. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm.
Seventeen automobile burglaries occurred in Yosemite National Park between July 12 and July 20, 1994. Similarities among the burglaries included the method of entry, the types of items taken, the type of vehicles entered, and the location of the break-ins. At approximately 1:30 a.m. on July 21, 1994, a caller to the park's 911 service reported hearing the breaking of glass coming from a parked vehicle similar to those burglarized earlier and seeing a figure lurking in the bushes nearby. The incident was reported to have occurred in a parking lot near the prior burglaries. (Subsequent investigation revealed that the caller had in fact witnessed a bear breaking into an automobile by smashing a window.) Park ranger Christopher Pergiel was notified of the call at 1:35 a.m. and drove to the only legal exit from the area. When he arrived at about 1:40 a.m., Pergiel parked so that oncoming drivers would not see his patrol car until they were a hundred yards away; when a vehicle approached, Pergiel turned on his flashing lights, stood in the road shining his flashlight in order to stop the vehicle, and questioned its occupants. Pergiel stopped five vehicles in this way, including, at about 2:00 a.m., one driven by Hurst. Pergiel observed both that Hurst was wearing athletic gloves, which struck him as unusual for one driving a car particularly given the warm temperature, and that the rear of the vehicle contained a good deal of assorted equipment and clothing. When Hurst got out of the vehicle to retrieve his driver's license from the trunk, Pergiel noticed on the floorboard a large flathead screwdriver that seemed to match the general description of the burglary tool used in the other break-ins. Pergiel obtained permission to search the vehicle from its owner, Hurst's passenger, and discovered numerous items that appeared to match the description of property reportedly stolen in the previous burglaries. Pergiel then arrested the two men and a subsequent search of Hurst's home, authorized by warrant, turned up additional property matching that reported stolen in the burglaries.
Hurst was indicted for receiving stolen property, 18 U.S.C. Sec. 662, and larceny and aiding and abetting, 18 U.S.C. Secs. 661 and 2. His motion to suppress all of the evidence against him on the grounds that the stop was an unconstitutional seizure was denied. Hurst pled guilty, preserving for appeal the question of the constitutionality of the stop and subsequent search, and was sentenced to five concurrent terms of 16 months imprisonment, a $250 special assessment, and three years supervised release.
Generally, motions to suppress are reviewed de novo. United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.1994). The district court's factual findings are reviewed for clear error. Id., 23 F.3d at 1539.
The roadblock in this case was not a checkpoint such as the ones considered in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), and Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), in which the Court approved checkpoints that stop drivers without individualized suspicion in order to detect aliens in the country illegally or drunk drivers. At the same time, Pergiel's roadblock differs from the stops evaluated in Delaware v. Prouse, 440 U.S. 648 (1979), and United States v. Brignoni-Ponce, 422 U.S. 873 (1975), in which the Court held discretionary spot checks of automobiles by roving patrols unconstitutional where officers, without an articulable and reasonable suspicion of a violation of the law, sought to check for license and registration compliance or for the legality of the occupants' presence in the country.
The roadblock challenged here must be analogized to the checkpoints considered in Martinez-Fuerte and Sitz under our decision in United States v. O'Mara, 963 F.2d 1288 (9th Cir.1992), where
park rangers, having received reports of illegal firearms discharges in the Joshua Tree National Monument, began stopping all outgoing cars along the only exit route from the campground area where the discharges were reported. Their purpose was to question exiting visitors briefly. Witnesses had furnished descriptions of suspects and the park rangers were also looking for persons fitting these descriptions.
Id. at 1291. The rangers eventually stopped a vehicle occupied by two persons who matched the witnesses' descriptions, and a subsequent search of the vehicle revealed several weapons. This court upheld the lawfulness of the seizure under the rationale of Sitz, where the Supreme Court evaluated the constitutionality of sobriety checkpoints by applying the balancing test of Brown v. Texas, 443 U.S. 47 (1979): "Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Id., at 50-51. The O'Mara decision thus dictates that this balancing test provides the proper standard for reviewing the roadblock seizure challenged by Hurst.
Appellant's attempts to distinguish O'Mara from the facts of this case are not persuasive. While Pergiel, unlike the officers in O'Mara, did not have a description of the suspects in the crime or of any vehicle such suspects might have been using, he did know the method of entry...
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