State v. Damask, Nos. 78826

CourtUnited States State Supreme Court of Missouri
Writing for the CourtROBERTSON; HOLSTEIN; WHITE; WHITE
Citation936 S.W.2d 565
Decision Date17 December 1996
Docket Number78843,Nos. 78826
PartiesSTATE of Missouri, Appellant, v. Richard J. DAMASK, Respondent. STATE of Missouri, Appellant, v. Linda ALVAREZ and Maximo Garcia, Respondents.

Page 565

936 S.W.2d 565
65 USLW 2455
STATE of Missouri, Appellant,
v.
Richard J. DAMASK, Respondent.
STATE of Missouri, Appellant,
v.
Linda ALVAREZ and Maximo Garcia, Respondents.
Nos. 78826, 78843.
Supreme Court of Missouri,
En Banc.
Dec. 17, 1996.
Rehearing Denied Jan. 21, 1997.

Page 567

Penny M. Melton, Assistant Franklin County Prosecuting Attorney, Union, for Appellant, in No. 78826.

Daniel E. Leslie, Union, for Respondent, in No. 78826.

Jeremiah W. (Jay) Nixon, Attorney General, Theodore A. Bruce, Assistant Attorney General, Jefferson City, Thomas M. Johnson, Hickory County Prosecuting Atty., Hermitage, Pat J. Merriman, Assistant Greene County Prosecuting Attorney, Springfield, John J. Garrabrant, Texas County Prosecuting Atty., Houston, for Appellant, in No. 78843.

Thomas D. Carver, Springfield, Scott McBride, Rolla, for Respondents, in No. 78843.

ROBERTSON, Judge.

The question we decide is whether drug enforcement traffic checkpoints operated by law enforcement officials in Franklin and Texas Counties are constitutional under the Fourth Amendment to the United States Constitution and article I, section 15 of the Missouri Constitution. Because the checkpoints were operated in a nondiscriminatory fashion as to the initial stops and because the checkpoints effectively advance an important state interest with minimal intrusion to motorists, we find such checkpoints constitutional. The trial courts' decisions to suppress the evidence seized, based on their readings that the initial checkpoint stops violated the Fourth Amendment, are therefore reversed.

I.

These cases arise out of two different traffic checkpoint operations. Because the cases present similar legal issues, we consolidate the cases for purposes of opinion. The relevant facts of each case are reported individually.

Page 568

A.

State v. Damask, No. 78826

On November 22, 1994, the Franklin County Sheriff's Department set up a drug enforcement checkpoint at the eastbound I-44 exit 242 where Highway AH crosses I-44 by an overpass. Franklin County had been operating such checkpoints since June 1994 in an attempt to thwart drug trafficking along I-44, a known drug corridor. The checkpoint under scrutiny began operating at 4:00 a.m. and ended at noon.

The sheriff's department placed two signs that read "DRUG ENFORCEMENT CHECKPOINT 1 MILE AHEAD" approximately one-quarter mile west of exit 242, on both sides of the eastbound lanes of I-44. Exit 242 is in a remote area and offers no services to travelers. Eastbound travelers arrive at exit 242 after recently passing exits offering gas, food and lodging services. A motorist would have little reason to leave I-44 at exit 242 unless he/she was a local resident.

Contrary to the signs along the highway, the sheriff's deputies set up the checkpoint at the top of the eastbound exit 242 ramp. Eastbound cars exiting I-44 there climbed the ramp, came to the existing stop sign, and found a uniformed officer waiting. The officer approached the car and informed the driver that the sheriff's department was conducting a drug enforcement checkpoint. Fully marked law enforcement vehicles were directly in front of and thus clearly visible to the stopped driver. The officer checked for a valid driver's license and registration. The officer also asked the motorist the reasons he or she exited there. If the motorist's response and other observations did not arouse reasonable suspicion of drug trafficking, the officer permitted the motorist to proceed. If the circumstances aroused reasonable suspicion, the officer asked the driver for permission to search the vehicle and its contents. If the driver refused, the officers used a drug-sniffing dog to conduct an olfactory examination of the exterior of the automobile. All of these actions followed guidelines prepared by Corporal Michael Schatz of the Franklin County sheriff's department. Corporal Schatz designed the guidelines to channel the officers' conduct to avoid discretionary decisions in the initial stop.

At about 4:20 a.m. on November 22, the first vehicle passed through the checkpoint. The officers approached the Mercury Marquis bearing Nevada license plates and found Richard Damask in the driver's position. Consistent with the written procedure, a uniformed officer approached Damask. Deputy Hotsenpiller, dressed in camouflage gear, also approached the car and questioned Damask. Damask produced a valid Nevada driver's license. When asked why he exited, Damask hesitated and then responded that he was turning around and going back to the last exit to get something to eat. The officers saw empty fast food bags in the car and a cup of warm coffee on the seat beside Damask. Damask appeared nervous, admitted seeing the checkpoint sign and, when asked whether he had drugs, alcohol, or firearms in the car, responded that he had a bottle of alcohol. Hotsenpiller asked for permission to search the car. Damask refused. An officer approached with a police dog to conduct the exterior "sniff" of the car. The dog alerted to the trunk. Inside the trunk, officers found a red duffle bag containing ham-shaped packages that looked like (and actually were) marijuana. The officers arrested Damask. The entire stop and search took approximately five minutes.

The Franklin County sheriff's department continued to operate the checkpoint until noon. A total of sixty-six cars passed through the checkpoint. Each stop averaged two minutes. The officers searched approximately ten cars, including Damask's. Only Damask was arrested.

The state charged Damask with a felony count of possession of marijuana with the intent to distribute, deliver or sell. Damask filed a motion to suppress the evidence, claiming that the stop was unconstitutional and that Mapp v. Ohio, 1 required exclusion of the products of the search. After a preliminary hearing, the trial court sustained the motion. The State brought an interlocutory

Page 569

appeal of the trial court's ruling. The Court of Appeals, Eastern District, affirmed, holding that the checkpoint operation violated the Fourth Amendment.

B.

State v. Alvarez and Garcia, No. 78843

In the second case, Texas County deputy sheriffs stopped Maximo Garcia and Linda Alvarez at a drug interdiction checkpoint on a ramp permitting exit from U.S. 60 to U.S. 63 in Texas County. Although this was the first Texas County checkpoint, Texas County authorities conducted it pursuant to written policies and procedures they adopted after consultation with the Phelps County 2 sheriff, who had operated some twenty to twenty-five checkpoints on the Sugartree exit from I-44 over the previous eighteen months. The Phelps County checkpoints resulted in the seizure of thirty loads of contraband, in addition to other arrests for smaller quantities of drugs. 3 The Texas County sheriff approved the plans before the checkpoint was implemented and the Phelps County sheriff and one of his deputies observed and offered advice on operation of the Texas County checkpoint.

According to the plan, the deputies placed a 4' X 4' sign indicating a "drug checkpoint ahead" 250 yards west of the U.S. 63 exit ramp from U.S. 60. The deputies set up the checkpoint along U.S. 60 because of information the Phelps County sheriff had received from previously arrested drug couriers that drug smugglers had been advised to avoid I-44. U.S. 60 is the major alternative west-east highway across southern Missouri. This particular exit permitted law enforcement officers to wait at a stop sign at the bottom of the exit ramp without being seen by motorists as they passed the sign on U.S. 60. Drivers who wished to avoid the advertised checkpoint could take the exit to U.S. 63, not realizing that the checkpoint awaited them at the exit. No services were advertised at the exit.

All officers at the checkpoint wore uniforms, with the apparent exception of one officer who wore camouflage gear. As each exiting vehicle stopped at the existing stop sign at the bottom of the exit ramp, two officers approached the driver, explained the purpose of the checkpoint and asked the driver's destination, from whence the driver had come, and whether the driver saw the checkpoint sign. The officers allowed any driver who did not want to talk to the officers to proceed. Only if the officer developed a reasonable suspicion of criminal activity from exposure to the motorist did officers check the driver's license, registration, and insurance. Officers were instructed to look for persons who gave conflicting statements in response to questions, who had no identifiable reason for taking the exit or who acted nervously. If, during the brief questioning, the officers developed a reasonable suspicion of criminal activity, the officers asked the person if he or she had any drugs in his or her possession. Law enforcement officers stopped all drivers who exited. Most stops lasted approximately sixty seconds.

Garcia and Alvarez were traveling in a Ford Bronco with Texas plates. They took the exit from U.S. 60 and stopped behind two cars that had already stopped at the stop sign. When the officers approached the Bronco, they noticed a strong smell of deodorant or perfume. In response to the standard question, Alvarez, who appeared nervous, replied that she was going to Branson. When told she was going the wrong way, Garcia interjected that they were actually going to Bertrand, Missouri, and that Alvarez was tired and confused. Parties traveling to Bertrand would have no reason to take the U.S. 63 exit. Alvarez maintained that she had been told to exit U.S. 60 by a flagman, but there was no flagman on that highway.

Alvarez could not produce a driver's license. The officers asked her to pull over to the side of the road. While her name and date of birth were checked, officers walked two drug dogs around the vehicle. The dogs alerted to the spare tire and left tailgate of the Bronco. The officers asked permission

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  • Edmond & Palmer v. Goldsmith, No. 98-4124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 7, 1999
    ...509 S.E.2d 540 (Va. App. 1999), which held them illegal, with Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995), and State v. Damask, 936 S.W.2d 565 (Mo. 1996), which held them legal. This is our first case. Because it was decided by the district court on a very skimpy stipulation of facts, o......
  • White v. Dir. Of Revenue, No. SC 90400.
    • United States
    • United States State Supreme Court of Missouri
    • August 3, 2010
    ...the trial court when reviewing whether probable cause existed under the constitutions of the United States and Missouri. State v. Damask, 936 S.W.2d 565, 570 (Mo. banc 1996) (Missouri's search and seizure protections are coextensive with the federal constitutional protections). In Ornelas v......
  • 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
    ...they are upheld because the official guidelines cover the narcotics purpose, thus limiting officer discretion. See State v. Damask, 936 S.W.2d 565 (Missouri 1996). The courts also recognize a compelling public interest in stopping the flow of illicit drugs. The third category includes narco......
  • State v. Williams
    • United States
    • Court of Appeal of Missouri (US)
    • November 16, 1999
    ...a reasonableness standard on the discretion exercised by law enforcement officials in conducting searches and seizures. State v. Damask, 936 S.W.2d 565, 570-71 (Mo. banc 1996) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 State v. Kriley, 976 S.W.2d ......
  • Request a trial to view additional results
25 cases
  • Edmond & Palmer v. Goldsmith, No. 98-4124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 7, 1999
    ...509 S.E.2d 540 (Va. App. 1999), which held them illegal, with Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995), and State v. Damask, 936 S.W.2d 565 (Mo. 1996), which held them legal. This is our first case. Because it was decided by the district court on a very skimpy stipulation of facts, o......
  • White v. Dir. Of Revenue, No. SC 90400.
    • United States
    • United States State Supreme Court of Missouri
    • August 3, 2010
    ...the trial court when reviewing whether probable cause existed under the constitutions of the United States and Missouri. State v. Damask, 936 S.W.2d 565, 570 (Mo. banc 1996) (Missouri's search and seizure protections are coextensive with the federal constitutional protections). In Ornelas v......
  • 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
    ...they are upheld because the official guidelines cover the narcotics purpose, thus limiting officer discretion. See State v. Damask, 936 S.W.2d 565 (Missouri 1996). The courts also recognize a compelling public interest in stopping the flow of illicit drugs. The third category includes narco......
  • State v. Williams
    • United States
    • Court of Appeal of Missouri (US)
    • November 16, 1999
    ...a reasonableness standard on the discretion exercised by law enforcement officials in conducting searches and seizures. State v. Damask, 936 S.W.2d 565, 570-71 (Mo. banc 1996) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 State v. Kriley, 976 S.W.2d ......
  • Request a trial to view additional results

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