US v. Ziegler, CR 93-20007 JW.

• Decision Date: 08 September 1993
• Docket Number: No. CR 93-20007 JW.,CR 93-20007 JW.
• Citation: 831 F. Supp. 771
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Paul M. ZIEGLER, Defendant-Appellee.

831 F. Supp. 771

UNITED STATES of America, Plaintiff-Appellant, v. Paul M. ZIEGLER, Defendant-Appellee.

No. CR 93-20007 JW.

United States District Court, N.D. California.

September 8, 1993.

Parker Singh, Asst. U.S. Atty., Evan W. Jones, Sp. Asst. U.S. Atty., San Jose, CA, for plaintiff-appellant.

John A. Turner, Marina, CA, for defendant-appellee.

ORDER REVERSING MAGISTRATE JUDGE'S ORDER

WARE, District Judge.

Plaintiff-Appellant United States of America ("Plaintiff") appeals Magistrate Judge Garrett's January 7, 1993 order granting Defendant-Appellee Paul M. Ziegler's ("Defendant") motion to suppress evidence of driving under the influence of alcohol obtained when Defendant was stopped at a sobriety checkpoint. Because the Court finds that the Magistrate Judge erroneously construed the Constitutional requirements for a sobriety checkpoint, the Court hereby REVERSES the Magistrate Judge's order of suppression and dismissal and REMANDS the case to the trial court for further proceedings consistent with this Order.

I. BACKGROUND

The issue presented in this appeal is whether a search at a sobriety checkpoint violates the Fourth Amendment to the United States Constitution if motorists are not given advance publicity of the checkpoint. The Court holds that it does not.

On June 20, 1992, between the hours of 10:30 p.m. and 1:00 a.m., federal police officers conducted a "systematic vehicle inspection" checkpoint outside the Imjin Road Gate to Fort Ord Army Reserve. The police directed every fifth vehicle into an established inspection site and allowed all other vehicles to pass without inspection and search. At approximately 11:52 a.m., the police counted Defendant's car as a fifth vehicle and directed Defendant to drive into a designated parking stall within the army reserve area. While conducting the inspection and search, the officers detected the smell of alcohol on Defendant's breath. Defendant was subsequently asked to perform a series of field sobriety tests, which he failed. The police also observed several containers of beer in the rear seat of Defendant's vehicle. Based on these circumstances, Defendant was charged with driving under the influence and driving with a blood alcohol content of over 0.08%. Defendant later submitted to a urine test, which indicated that Defendant had a blood alcohol content of 0.19%.

Defendant waived his right to trial before a U.S. District Court Judge and instead consented to be tried by a U.S. Magistrate Judge. Defendant subsequently filed a motion to suppress evidence and to dismiss the case. The motion essentially sought to suppress all evidence obtained as a result of the systematic vehicle inspection on the grounds that the search was unreasonable and conducted in violation of Defendant's constitutional rights.

On January 7, 1993, Magistrate Judge Garrett granted Defendant's motion finding that Defendant's stop was unconstitutional because advance publicity of the vehicle checkpoint was not a part of the guidelines followed. Since the evidence was suppressed and there was no further evidence (ie. of express or implied consent) to sustain the government's charges, the case was dismissed.

Plaintiff now appeals the Magistrate Judge's order. Plaintiff argues on appeal that: (1) Magistrate Judge Garrett erred by finding that systematic vehicle inspections require advance publicity in order to be constitutionally valid; (2) even if advanced publicity is required for civilian checkpoints, it is not required for inspections that take place on a military base because of the important federal government interests involved; and (3) even if the systematic vehicle inspection had not taken place, Defendant would still have been inspected upon entry to Fort Ord at the Imjin Gate.

II. DISCUSSION

A. Timeliness of Appeal

Defendant argues that Plaintiff failed to file a timely notice of appeal and that the appeal should therefore be dismissed. The Court disagrees.

An appeal from a Magistrate Judge's order must be taken within 10 days of the entry of the decision or order. Fed.R.Crim. Proc. 58(g)(2). Federal Rule of Criminal Procedure 45(a) provides in relevant part:¹

In computing any period of time the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday ... When a period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. As used in these rules, "legal holiday" includes ... Birthday of Martin Luther King, Jr....

Magistrate Judge Garrett's order was entered on Thursday, January 7, 1993. Therefore, for purposes of time computation, the time began to run on Friday, January 8, 1993. Plaintiff filed its notice of appeal on Tuesday, January 19, 1993. Excluding Saturdays, Sundays, and the legal holiday of Dr. Martin Luther King, Jr.'s birthday, Plaintiff's notice of appeal was filed on the 7th computable day after the time began to run. Accordingly, Plaintiff's appeal was timely filed and it will not be dismissed on this basis.

B. Advance Publicity

Undoubtedly, a seizure occurs within the meaning of the Fourth Amendment when a vehicle is stopped at a checkpoint. United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116 (1976); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990). The issue then only becomes whether the seizure is reasonable, since the Fourth Amendment only prohibits unreasonable seizures. See Sitz, 496 U.S. at 450, 110 S.Ct. at 2485.

In determining the reasonableness of a seizure that occurs at a systematic vehicle checkpoint, the court engages in a balancing test, weighing (1) the government's interest in the checkpoint program, (2) the extent to which the checkpoint advances this goal, and (3) the amount of intrusion upon the individual motorist. Sitz, 496 U.S. at 448-50, 455, 110 S.Ct. at 2484-85, 2487. A state's interest in preventing drunk driving has been considered a valid interest for purposes of this test. See id. at 451, 110 S.Ct. at 2485. Furthermore, checkpoints have been held to effectively advance this goal when properly administered. See id. at 453-55, 110 S.Ct. at 2486-88. With respect to this appeal, it is only the third factor that is in issue.²

A key factor in weighing the level of intrusion upon the individual motorist is the existence and nature of procedural guidelines set up to minimize the degree of such intrusion by curtailing the opportunity for the exercise of unfettered discretion on the part of the police officers conducting the program. At issue in this appeal is whether the guidelines set up for the Fort Ord vehicle checkpoint were sufficient even though they did not provide for advance publicity or otherwise warn motorists of the checkpoint.³ Relying primarily on Sitz, but also on People v. Banks, 11 Cal.App.4th 165, 13 Cal.Rptr.2d 920 (1992) and Ingersoll v. Palmer, 43 Cal.3d 1321, 241 Cal.Rptr. 42, 743 P.2d 1299 (1987), Magistrate Judge Garrett determined that advance publicity is required as a component of such guidelines in order to conduct a constitutionally valid checkpoint program. This Court disagrees.

While it is true that the guidelines in effect in the Sitz case provided for advance publicity, there is nothing in the holding or reasoning of the Supreme Court's opinion in that case that suggests that the vehicle checkpoint was only sustained on that basis. The Supreme Court's opinion in Sitz focused on the proper test to be applied in measuring the reasonableness of vehicle checkpoints, and then went on to evaluate the checkpoint program at issue in that case in light of this test. Although the Supreme Court discussed the intrusiveness issue in some detail (see Sitz, 496 U.S. at 451-53, 110 S.Ct. at 2485-87), it determined that, on balance, the objective intrusion on motorists stopped briefly at sobriety checkpoints is generally slight. With respect to the subjective intrusion on motorists, the Supreme Court acknowledged concern for the fear and surprise engendered in law abiding motorists by the nature of the stop, but went on to state that with permanent (ie. non-roving) vehicle checkpoints, the generation of fear and surprise is appreciably less. The Supreme Court concluded that because the checkpoint was selected pursuant to guidelines and the police officers stopped every approaching vehicle (ie. had no real discretion), the subjective intrusion upon motorists was not unreasonable.

Surely advance publicity could theoretically eliminate any possibility of fear and surprise on the part of motorists stopped at such checkpoints. However, presumably because the Court in Sitz previously determined that the generation of fear and surprise was minimal with respect to non-roving vehicle checkpoints, the Court did not state that advance publicity was an absolutely necessary precaution. The Court simply evaluated the guidelines as a whole and concluded that the checkpoint program was reasonable (ie. minimally intrusive).

In this case, there were guidelines in effect on the date of Defendant's stop. The guidelines did not leave room for the exercise of unfettered discretion on the part of the police officers because the site was predetermined, the officers were required to stop every fifth vehicle and to search every vehicle in the same manner. Furthermore, the Magistrate Judge found, and this Court agrees, that the five minute detention of the motorists ...