GALBERTH v. U.S., No. 89-382

Docket NºNo. 89-1008
Citation590 A.2d 990
Case DateApril 30, 1991
CourtCourt of Appeals of Columbia District
590 A.2d 990
Russell GALBERTH and Jay Taylor, Appellants, v. UNITED STATES, Appellee.
Nos. 89-382 and 89-1008.
District of Columbia Court of Appeals.
Argued September 11, 1990.
Decided April 30, 1991.

Appeal from the Superior Court of the District of Columbia, Herbert B. Dixon, J.

John M. Copacino, with whom V.C. Lindsay, appointed by this court, was on the brief, for appellant Russell Galberth.

David A. Reiser, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant Jay Taylor.

Kathleen A. Felton, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Helen M. Bollwerk, Robert M. Kruger and William M. Blier, Asst. U.S. Attys., were on the brief, for appellee.

Arthur B. Spitzer and Elizabeth Symonds were on the brief, for amicus curiae, American Civil Liberties Union of the National Capital Area.

Before ROGERS, Chief Judge, and FERREN and TERRY, Associate Judges.

ROGERS, Chief Judge:


In these consolidated appeals appellants Russell Galberth and Jay Taylor appeal their convictions on the ground that the trial court erred in denying their motions to suppress evidence that was discovered after they were stopped at police traffic roadblocks.1 Guided by Supreme Court precedent, we balance the government interest served by the roadblocks against the liberty interests of the individuals seized. We therefore conclude that appellant Galberth's conviction must be reversed, given Judge Dixon's finding that the roadblock at which Galberth was stopped was designed to combat violence and illegal drug activity. We further conclude that Judge Huhn's findings do not clearly indicate the principal purpose of the roadblock at which appellant Taylor was stopped. We therefore remand for further findings in appellant Taylor's case.

I.

The two roadblocks at issue were established in connection with Operation CleanSweep, a police department program instituted in August 1986 to address illegal drug trafficking, particularly sales in open air markets, and accompanying violence in the District of Columbia. The program was governed by the Field Operations Bureau which developed a manual for each police district containing guidelines for the various law enforcement techniques employed by Operation Clean Sweep. The facts of the two roadblocks differ:

Galberth roadblock.

Appellant Galberth was stopped at the roadblock at Montello Avenue and Queen Street, N.E., on December 5, 1989. Officer Cephas, a field officer assigned to the roadblock, testified that he received orders that all cars were to be stopped from 9:30 a.m. until 11:30 a.m. and the drivers asked for their licenses and registrations. Eight to ten officers were present, in uniform, and some were wearing visibility jackets; 5 to 6 marked police cars were also on the scene. Officer Cephas's instructions were that if any questions arose, then he was to run a Washington Area Law Enforcement Service (WALES) computer check to see if the driver had a valid license. No barriers, signs, or traffic cones were used to mark the roadblock, but Officer Cephas estimated that the police officers could be seen from about midway up the block. Officer Cephas testified that persons were stopped for approximately 2 to 3 minutes if there was no problem with their license.

The roadblock at Montello and Queen was part of a special operation in the Trinidad area of the city announced by the Mayor to "cut down on the violence and homicides and narcotics trafficking in the Trinidad area, [by] attacking it from three different angles," — roadblocks, undercover operations, and high visibility "saturation" patrols. Captain O'Donnell, the coordinator for Operation Clean Sweep for the Fifth District, testified that the roadblock program was designed to deal with "traffic problems such as speeding automobiles, vehicles frequenting the area committing traffic violations to purchase narcotics, stolen automobile traffic in the neighborhood, and things of that nature." As he explained, a high volume of narcotics trafficking brings with it a similarly heavy amount of automobile traffic, since many people come to the open air drug markets by car. Captain O'Donnell's commanding officer delegated to him the responsibility to select a site for the roadblocks, to notify his commanding officer of his selection, to assign a supervisor on the scene, and to periodically inspect the roadblock while it was in operation.

O'Donnell selected the Montello Avenue site because he knew from personal observation as well as citizen complaints that the area was plagued by heavy traffic created when individuals looking to buy drugs parked illegally for a brief period, and then sped away after making their purchase. The evidence he offered (in addition to his own observations) relating to traffic congestion, however, was that in the past three years there had been over 100 citizen complaints about drugs, traffic, abandoned cars, and trash in the area of Montello and Queen.

O'Donnell instructed Sergeant Bullock to operate the roadblock from 9:30 a.m. to 11:30 a.m., and then to conduct a high visibility saturation patrol in the Trinidad area. Captain O'Donnell inspected the roadblock while it was in operation, and explained that although the roadblock guidelines suggest using flares, flashing warning lights, or flashlights to increase the roadblock's visibility,2 he saw no need for them in this case because it was daytime and the police could be seen 100 yards before a car entered the intersection. In addition, an escape route was available, allowing cars to turn down Holbrook Terrace and avoid passing through the roadblock.

Sergeant Bullock's report indicated that 226 cars, coming from three directions, were stopped, four arrests were made (three for no permit and one for operatingafter suspension), and seventeen traffic violation citations were issued.

Appellant Galberth was stopped at the roadblock and asked by Officer Cephas for his driver's license and registration. Galberth told the officer that he did not have his driver's license and that he must have forgotten to bring it. Cephas asked for Galberth's social security number, and the resulting computer check indicated that Galberth's license had expired in 1983. Cephas ordered Galberth out of the van and placed him under arrest for not having a valid operating permit. As Officer Cephas was patting Galberth down, he felt an object in Galberth's front coat that he thought might be a gun. Reaching into the pocket, Cephas found a .38 caliber revolver.

Galberth testified that he did not see the police until he reached the stop sign at the intersection, and that there was no way that he could avoid being pulled over by the police. Mr. Lucas, a passenger in the van that Galberth was driving, testified that he too first noticed the police as the van approached the intersection about 50-75 feet before they came upon the police at the intersection. Lucas saw no visibility jackets, cones or flares, although he did see police officers talking to people in other cars in the area.

Judge Dixon denied the motion to suppress the gun. The judge found that there was a substantial police presence and that the officers were wearing visibility jackets. He further found that an organized and defined procedure had been used in setting up the roadblock and that no discretion had been left in the hands of individual police officers in the field. In addition, Judge Dixon found that the intrusion on each motorist's liberty was minimal. He also found, however, that the primary purpose of the roadblock was to deter drug traffic and violence in connection with Operation Clean Sweep, and that while relieving the traffic problems at Montello and Queen may have been one factor that went into the determination about where to locate the roadblock, traffic alone would not have caused the police to set up a roadblock. He nevertheless ruled that the roadblock sufficiently advanced the government's interest.

Taylor roadblock.

Lieutenant Denesio testified that he selected sites at 14th and Quincy Streets, N.W. and 14th and Allison Streets, N.W., for roadblocks on the evening of February 16, 1988, because of high drug activity in the neighborhood that involved heavy vehicular traffic along the public streets. Since being assigned to the Fourth District in September 1987, he had received numerous complaints and eyewitness reports that resulted in identification of 40 large volume street drug sale locations within the Fourth District. He explained that site selection had two purposes: traffic enforcement and disruption of narcotics trafficking. Traffic enforcement was important in his view because "a lot of people from the suburbs . . . come into the city to purchase their drugs." Drug arrests were not the goal of the roadblocks; rather, their primary purpose was to disrupt drug traffic.

Lieutenant Denesio testified that usually within a week or two before the roadblock was to be set up, he filed an enforcement activity report with Captain Stewart informing him of the planned roadblock locations and procedures. His instructions for the on-site supervisor left the supervisor no discretion about the location of the roadblock. Although Denesio conceded that no advance publicity warned the public that an Operation Clean Sweep roadblock was going to be operating in the "general neighborhood at around that particular time," Assistant Chief Fulwood testified that the police department had given the public ample notice of the roadblocks through "almost weekly" news conferences and community meetings attended by the mayor, the police chief and Assistant Chief Fulwood, as well as information disseminated through district commanders and the Fourth District Advisory Council, and "untold numbers of public announcements about 'Operation Clean Sweep' and its impact. . . ."

Captain Stewart was the Clean Sweep Coordinator for the Fourth...

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26 practice notes
  • Williamson v. US, No. 90-883.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 21, 1992
    ...Gomez v. United States, 597 A.2d 884, 888 (D.C.1991); Cauthen v. United States, 592 A.2d 1021, 1022 (D.C.1991); Galberth v. United States, 590 A.2d 990, 995 (D.C.1991); In re T.T.C., 583 A.2d 986, 989 (D.C.1990); Smith v. United States, 558 A.2d 312, 318 (D.C.1989) (en banc) (Ferren, J., co......
  • Edmond & Palmer v. Goldsmith, No. 98-4124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 7, 1999
    ...Huguenin, 154 F.3d 547, 554-55 (6th Cir. 1998); United States v. Morales-Zamora, 974 F.2d 149 (10th Cir. 1992); Galberth v. United States, 590 A.2d 990 (D.C. 1991), and Wilson v. Commonwealth, 509 S.E.2d 540 (Va. App. 1999), which held them illegal, with Merrett v. Moore, 58 F.3d 1547 (11th......
  • Edmond v. Goldsmith, No. IP 98-1400-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 18, 1998
    ...checkpoint, the primary purpose of which was actually drug interdiction, to be constitutional); but see Galberth v. United States, 590 A.2d 990 (D.C.App.1991) (checkpoint for drugs and firearms The checkpoints in this case fall in the third category. They obviously are not "pretext" roadblo......
  • Mills v. District of Columbia, Civil No. 08-1061 (RJL).
    • United States
    • U.S. District Court — District of Columbia
    • October 30, 2008
    ...whether any arrests were made during the second Trinidad NSZ. 9. On this factor plaintiffs draw attention to Galberth v. United States, 590 A.2d 990 (D.C. 1991), in which the D.C. Court of Appeals found unconstitutional a MPD checkpoint also in Trinidad aimed at combating "violence, drugs, ......
  • Request a trial to view additional results
25 cases
  • Williamson v. US, No. 90-883.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 21, 1992
    ...Gomez v. United States, 597 A.2d 884, 888 (D.C.1991); Cauthen v. United States, 592 A.2d 1021, 1022 (D.C.1991); Galberth v. United States, 590 A.2d 990, 995 (D.C.1991); In re T.T.C., 583 A.2d 986, 989 (D.C.1990); Smith v. United States, 558 A.2d 312, 318 (D.C.1989) (en banc) (Ferren, J., co......
  • Edmond & Palmer v. Goldsmith, No. 98-4124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 7, 1999
    ...Huguenin, 154 F.3d 547, 554-55 (6th Cir. 1998); United States v. Morales-Zamora, 974 F.2d 149 (10th Cir. 1992); Galberth v. United States, 590 A.2d 990 (D.C. 1991), and Wilson v. Commonwealth, 509 S.E.2d 540 (Va. App. 1999), which held them illegal, with Merrett v. Moore, 58 F.3d 1547 (11th......
  • Edmond v. Goldsmith, No. IP 98-1400-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 18, 1998
    ...checkpoint, the primary purpose of which was actually drug interdiction, to be constitutional); but see Galberth v. United States, 590 A.2d 990 (D.C.App.1991) (checkpoint for drugs and firearms The checkpoints in this case fall in the third category. They obviously are not "pretext" roadblo......
  • Mills v. District of Columbia, Civil No. 08-1061 (RJL).
    • United States
    • U.S. District Court — District of Columbia
    • October 30, 2008
    ...whether any arrests were made during the second Trinidad NSZ. 9. On this factor plaintiffs draw attention to Galberth v. United States, 590 A.2d 990 (D.C. 1991), in which the D.C. Court of Appeals found unconstitutional a MPD checkpoint also in Trinidad aimed at combating "violence, drugs, ......
  • Request a trial to view additional results
1 books & journal articles
  • A Roadblock Too Far?
    • United States
    • Journal of Contemporary Criminal Justice Nbr. 19-2, May 2003
    • May 1, 2003
    ...legal change. Chapel Hill:University of North Carolina Press.Ferguson v. City of Charleston, 532 U.S. 67 (2001).Galberth v. United States, 590 A.2d 990 (D.C. 1991), appeal after remand, 595 A.2d1007 (D.C. 1991).Gottlieb, S. E. (1996). Three justices in search of a character: The moral agend......

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