U.S. v. Lester, CR. 99-1242JKB.

• Citation: 148 F.Supp.2d 597
• Decision Date: 19 June 2001
• Docket Number: No. CR. 99-1242JKB.,CR. 99-1242JKB.
• Parties: UNITED STATES of America, v. Christopher LESTER.
• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)

Page 597

148 F.Supp.2d 597

UNITED STATES of America, v. Christopher LESTER.

No. CR. 99-1242JKB.

United States District Court, D. Maryland.

June 19, 2001.

Captain Michael D. Mierau, Jr. for the United States of America.

James Wyda, Esquire, Federal Public Defender, Kathryn Frey Balter, Esquire, Assistant Federal Public Defendant, for defendant.

MEMORANDUM OPINION AND ORDER

GAUVEY, United States Magistrate Judge.

The defendant, Christopher Lester, stands charged with two misdemeanors: driving while intoxicated in violation of Maryland Transportation Article, section 21-902, and driving in violation of a restricted license in violation of Maryland Transportation Article, section 16-113(h), which statutes have been assimilated into federal law. 18 U.S.C. § 13. Pursuant to Fed. R. Cr. P. 12(b)(3), defendant moves to suppress any and all tangible and derivative evidence and statements seized from Mr. Lester's person and car on the grounds that the stop was made without a warrant, probable cause or reasonable suspicion in violation of the Fourth Amendment to the United States Constitution. The precise issue is whether Mr. Lester's U-turn, lawfully executed 1,500 feet away from a temporary gate check set up at a point of entry into a military installation for security reasons, gives rise to reasonable, articulable suspicion to justify the stop of his vehicle by military police.

Based on the following findings of fact and discussion of the applicable law set forth below, the Court grants the motion and finds that the vehicle stop in question was not based on a justified, articulable suspicion and therefore violated the defendant's rights under the Fourth Amendment to the Constitution. Consequently, all evidence gathered from the illegal stop shall be suppressed as "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

FACTS¹

The Court makes the following findings of fact:

(1) On August 22, 1999, Sgt. Reid and two other military police officers were performing duties in conjunction with a gate check set up at the Rockenbach Road entrance to Ft. George G. Meade military base.

(2) The Rockenbach Road entrance does not contain a permanent gate. Rather, this entrance to the military base is designated by two brick signs located on either side of the roadway. Those brick signs indicate simply "Ft. Meade." The boundaries of Ft. Meade begin before the Rockenbach entrance; however, there is no signage that Mr. Lester would have necessarily seen, alerting him to the fact that he had entered the military base, before the brick signage.

(3) The purpose of the gate check on August 22, 1999, was to check personnel identification and vehicle registration on all vehicles entering the military installation through this entrance. Only cars entering the military base (or traveling southbound) were subject to the check. The gate check was set up pursuant to a heightened security alert known as Threat Condition Alpha. Threat Condition Alpha or "Threat-Con" issued in response to terrorist threats on the United States Government.

(4) The gate check was located at the bottom of a low grade hill. An approaching motorist would be unable to see the Ft. Meade gate check until he or she was at the crest of the hill approximately 2000 feet from the brick signs. Flares were set up in the roadway by the signs at the bottom of the hill. There was no notice of the gate check or the purpose of the gate check prior to the check itself, and nothing at the check reveals the purpose of the check.

(4) There are no intersecting roads between the crest of the hill and the gate check.

(5) One of the patrol cars at the Rockenbach entrance, was situated on the shoulder of the road, next to one of the brick signs; a second patrol car was situated in the outer lane adjacent to the first. Both patrol cars had flashing lights on. The third patrol car, Sgt. Reid's, was parked near the top of the hill approximately 1500 feet away from the brick signs (toward the outer perimeter of Ft. Meade), and approximately 500 feet from the crest of the hill.

(6) On August 22, 1999, at 3:05 a.m., Sgt. Reid stopped defendant's vehicle (which had been traveling southbound toward the Ft. Meade signs) after defendant executed a u-turn on the crest of the grade of the hill. Sgt. Reid stated that he stopped the defendant's vehicle because he "believed that the defendant was attempting to avoid the gate check and that this avoidance was motivated by criminal activity." However, Sgt. Reid observed no erratic or unsafe driving other than the question of the timing of the u-turn. When the defendant executed the u-turn, he was approximately 1500 feet away from the gate check. Upon contact with the defendant, Sgt. Reid detected alcohol on defendant's breath. The defendant performed poorly on the field sobriety tests, and the breathalyzer test resulted in a .15 BrAC.

(7) Sgt. Reid filled out three violation notices: one for violation of Maryland Transportation Article, section 21-902, driving under the influence, a second for violation of Maryland Transportation Article, section 16-113, driving on a restricted license, and a third for violation of Maryland Transportation Article, section 21-602(b), making a prohibited u-turn on the crest of the hill.

(8) The charge of making a prohibited u-turn on the crest of the hill was dismissed on the government's motion as a u-turn is legal if the vehicle is visible from 500 feet in either direction when the u-turn is made. The government has conceded that there is reasonable doubt as to whether the vehicle was not visible from 500 feet in either direction. Consequently, the government does not argue that probable cause existed to stop the defendant's vehicle for this traffic violation.

ANALYSIS

The question presented is whether defendant's U-turn, executed 1,500 feet before an unannounced gate check or roadblock designed to prevent entry of terrorists or other persons presenting a security risk to the military installation, provided reasonable suspicion to validate the vehicle stop under Terry v. Ohio. The Government does not argue that this stop presents one of those "limited circumstances where suspicionless stops are permissible [such as highway sobriety checkpoints or border patrol checkpoints]." United States v. Wilson, 205 F.3d 720, 723 (4th Cir.2000). Nor does the Government argue that Sgt. Reid had probable cause or reasonable articulable suspicion that Mr. Lester had violated a traffic law, specifically an illegal u-turn. United States v. Whren, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Hassan El, 5 F.3d 726, 729 (4th Cir. 1993). "Rather, the Government takes the position that based on the defendant's u-turn, reasonable suspicion existed to facilitate a Terry stop," (Opposition, n. 2 & 3) as "Sgt. Reid believed that the defendant was attempting to avoid the gate check and that this avoidance was motivated by criminal activity." (Opposition, 3). A u-turn alone, the Government contends, provides sufficient suspicion under plenary state authority. (Id.)

A. GENERAL PRINCIPLES OF FOURTH AMENDMENT JURISPRUDENCE

The Government not only misreads the state authority it cites as establishing a per se rule, but more fundamentally ignores Supreme Court precedent eschewing a per se rule, and steadfastly retaining a totality of the circumstances approach. A review of key Supreme Court cases demonstrates the error of the Government's position.

Because courts consider a traffic stop to be a limited seizure, the reasonableness of the stop is assessed under the standards enunciated in the Supreme Court decision of Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny: the officer must have a reasonable suspicion, based on articulable facts, of criminal activity. See United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. King, 119 F.3d 290, 293-94 (4th Cir.1997). Articulable suspicion is less than what is required for probable cause,² but there must be at least a "minimal level of objective justification" for making the stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Accord United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ("An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.") This reasonable suspicion standard is based largely on the common sense and experience of the investigating officer. See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000); United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993). "While `reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. The officer must be able to articulate more than an `inchoate and unparticularized suspicion or hunch of criminal activity.'" Wardlow, 120 S.Ct. at 675-76 (2000).

Whether there is reasonable suspicion under Terry depends on the totality of the circumstances. "But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account." See United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); United States v. Brugal, 209 F.3d 353, 359 (4th Cir.2000).

B. A U-TURN PRIOR TO A ROADBLOCK DOES NOT CONSTITUTE REASONABLE SUSPICION PER SE UNDER TERRY

Counsel for both sides cite to cases largely in state courts that have dealt with avoidance of police roadblocks or sobriety check points. The Government argues this Court should join the majority of states that have determined "a turn made to avoid a road check does by itself provide reasonable...