U.S. v. Gabriel
| Citation | 405 F.Supp.2d 50 |
| Decision Date | 05 December 2005 |
| Docket Number | No. CR-04-76BW.,CR-04-76BW. |
| Parties | UNITED STATES of America v. Joshua D. GABRIEL, Defendant. |
| Court | United States District Courts. 1st Circuit. United States District Court (Maine) |
Daniel J. Perry, Office of the U.S. Attorney, Portland, ME, for United States of America.
ORDER ON MOTION TO SUPPRESS
Joshua D. Gabriel, a Canadian citizen driving an SUV with New Jersey plates and two hockey bags containing leafs, not sticks, came upon a traffic checkpoint as he neared the city of Bangor, Maine over 70 air miles from the nearest port of entry. The United States Border Patrol had set up the temporary checkpoint just north of Bangor and after Mr. Gabriel was referred to secondary inspection, his bags were found to contain marijuana. He was arrested and indicted for an alleged violation of federal drug laws. He now challenges the constitutionality of this search. Concluding the search passes constitutional muster, this Court finds the Government's minimal intrusion was reasonable in light of the public interest at stake. This Court denies Defendant's motion to suppress.
Joshua D. Gabriel was indicted on September 14, 2004 for the knowing and intentional possession of marijuana with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). (Docket # 11).1 On November 5, 2004, Mr. Gabriel filed a motion to suppress and the Government responded on January 3, 2005. Def.'s Mot. to Suppress Evid. (Docket # 28)(Def.'s Mot.); Gov.'s Resp. in Opp'n. to Def.'s Mot. to Suppress Evid. (Docket # 33)(Gov.'s Resp.). Upon referral under 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Kravchuk held an evidentiary hearing on March 9, 2005 and issued a Report and Recommended Decision on March 29, 2005. (Docket # 52)(Rec.Dec.). Magistrate Judge Kravchuk concluded that the Government had not met its burden to show that the seizure withstood the strictures of the Fourth Amendment. Rec. Dec. at 15. She also determined, alternatively, that if the seizure were constitutional, the evidence should not be suppressed because the stop and referral to the secondary inspection area were minimally intrusive, there was reasonable suspicion to question the Defendant, and it was reasonable for the Agent to conclude that the Defendant consented to a continued seizure and search. Rec. Dec. at 16-17. Both parties objected (Docket # 58, 59), and this Court ordered a hearing, which was held on November 3, 2005.2
On September 2, 2004, Joshua D. Gabriel was traveling alone south on I-95 in a light blue Chrysler Pacifica SUV with New Jersey plates, when he came upon a Border Patrol checkpoint just north of Bangor, Maine.4 After stopping his vehicle, Border Patrol Agent Christopher McGrath confirmed that Mr. Gabriel was a Canadian citizen and noticed two very large hockey bags in the rear passenger area of the automobile. He referred Mr. Gabriel from primary to secondary inspection for a document check and canine sniff.
When he reached secondary inspection, Mr. Gabriel was met by Senior Border Patrol Agent Keehn. Agent Keehn approached the blue SUV and addressed Mr. Gabriel through the open driver's side window. Mr. Gabriel identified himself as a Canadian citizen and gave Agent Keehn his driver's license. The back seats in the SUV were down and Agent Keehn noticed a large hockey bag in the back. He asked Mr. Gabriel where he was coming from and Mr. Gabriel replied that he had been checking out schools in Presque Isle, Maine. This struck Agent Keehn as odd since it was September and school had already started. Further, Mr. Gabriel seemed "kinda nervous" and avoided making eye contact.
Agent Keehn focused on the hockey bag in the back. He noticed the bag, which had wheels, had grass stains across the bottom as if it had been dragged across a lawn or field. Agent Keehn asked Mr. Gabriel what was in the bag without indicating which bag. In response, Mr. Gabriel reached onto the floorboard of the passenger seat and grabbed a backpack, telling Agent Keehn that it contained clothes. Agent Keehn then asked, "What's in the other bag?", again, however, failing to state which bag. Mr. Gabriel retrieved a duffle bag behind the front passenger seat. Agent Keehn said, Mr. Gabriel replied, "Just stuff." Agent Keehn asked if he could look into the hockey bag and Mr. Gabriel consented. The agent's inspection revealed the presence of marijuana. Mr. Gabriel was arrested and now stands charged with violating federal drug law.
In his motion, Mr. Gabriel attacks the constitutionality of the border checkpoint itself, noting that the checkpoint was not located at the border and arguing that the Old Town checkpoint was not the functional equivalence of a border. He further contends the "need for, location of and procedures employed" at the border checkpoint violated the Fourth Amendment. Mr. Gabriel argues that the initial referral from primary to secondary inspection and his continued questioning and detention there were without sufficient individualized suspicion. Finally, Mr. Gabriel claims his consent to the search of the vehicle was not voluntary, and the search was not otherwise justified. Def.'s Mot. at 1-2.
Based on the evidence at the March 9, 2005 hearing, Magistrate Judge Kravchuk recommended that Mr. Gabriel's motion be granted. Mr. Gabriel squarely placed at issue the Government's justification for the checkpoint and although the Government had produced evidence of the structure and operation of the checkpoint, the Magistrate Judge found the Government's evidence wanting on its programmatic purpose, "the `why' as opposed to the `how'", and on its efficacy. Rec. Dec. at 14. The Government produced a paucity of evidence as to whether the checkpoint supported a "legitimate immigration-related purpose". Id. Border Patrol Agent Kai Libby testified that usually the Chief sets up the checkpoints to coincide with the presence of migrant farm workers at the end of the agricultural season. But, Magistrate Judge Kravchuk expressed no small amount of skepticism about whether a checkpoint on September 2 would have coincided with the end of any known agricultural season in Maine. Id. at 11-12, 14. Further, there was only a general reference to data to support the efficacy of the checkpoint: whether the checkpoint "actually advances the programmatic purpose...." Id. at 12.
Magistrate Judge Kravchuk was careful to note that she was not suggesting that the Old Town checkpoint was unconstitutional, only that the Government had "failed to meet its burden of proof on the issues of programmatic purpose and efficacy." Id. at 15 n. 14. If the checkpoint was constitutional, the Magistrate Judge concluded that all remaining issues, the initial stop, the referral to secondary inspection, reasonable suspicion for questioning, and consent, favored the Government. Id. at 16-18.
At the November 3, 2005 evidentiary hearing, the parties stipulated into evidence the transcript of the March 9, 2005 suppression hearing and the Government presented an additional witness. Robert W. Gilbert, Chief Patrol Agent of the United States Border Patrol, Houlton, Maine, testified; Chief Gilbert oversaw Border Patrol activities in Maine and ordered the Old Town checkpoint. Affidavit of Robert W. Gilbert . Chief Gilbert testified that the primary goal of the Border Patrol is "to apprehend terrorists and the weapons that illegally enter into the United States and also to deter any illegal entries ... as well as contraband."
According to Chief Gilbert, the Border Patrol conducted the checkpoint as part of "Operation Ironclad — 04", a nationwide Border Patrol action to deal with the "threat of potential terrorist activity against the American people and other U.S. interests." CBP/OBP Operation Ironclad — 04 (Gov.Ex. 4). See also Operation Ironclad 04 Houlton Sector (Gov.Ex. 6); Situation 04-HQBOR-07-002 (Gov.Ex. 7).5 The Ironclad mission was "to actively search for Weapons of Mass Effect, undocumented and Special Interest Aliens, smugglers of contraband and individuals that may have been of interest to other law enforcement agencies that participated in the operation". After Action Report 04-HQBOR-07-002 Ironclad Phase II 2004, Old Town, Maine (Gov.Ex. 9). Chief Gilbert noted that the President had elevated the threat level to Orange in December 2003 and the checkpoint was in part a Border Patrol response to the heightened threat level.
More specifically, there was a concern that terrorists could seek to disrupt the Democratic National Convention (DNC) and Republican National Party Convention (RNC). According to Chief Gilbert, the Border Patrol operated one checkpoint in Old Town from July 25-29, 2004 to coincide with the DNC, which was scheduled in Boston from July 26-29, 2004, and a second from August 28 through September 3, 2004, to coincide with the RNC, which was scheduled in New York City from August 30-September 2, 2004.6 Affidavit at ¶ 13. Chief Gilbert testified:
Phase I, the July checkpoint, resulted in eight apprehensions: seven foreign nationals and one United...
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