USA. v. Hawkins

• Decision Date: 16 February 2001
• Docket Number: DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,No. 00-10149,00-10149
• Citation: 249 F.3d 867
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. DAVID R. HAWKINS,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 867

249 F.3d 867 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. DAVID R. HAWKINS, DEFENDANT-APPELLANT.

No. 00-10149

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted February 16, 2001^*

Filed May 7, 2001

[Copyrighted Material Omitted] Daniel J. Broderick, Assistant Federal Defender, and Richard A. Cohen, Sacramento, California, for the defendant- appellant.

Kenneth J. Melikian, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California Milton L. Schwartz, District Judge, Presiding D.C. No. CR-99-00512 MLS

Before: Arthur L. Alarcon, Alex Kozinski, and Michael Daly Hawkins, Circuit Judges.

Alarcon, Circuit Judge

David R. Hawkins appeals from the district court's order affirming the magistrate judge's denial of his motion to suppress evidence obtained as the result of the warrantless stop of his truck as he was about to leave McClellan Air Force Base ("McClellan"). He contends that the McClellan military police officers who stopped his truck violated his Fourth Amendment rights because the Government failed to present any evidence of an individualized suspicion of wrongdoing or demonstrate that probable cause existed that he had committed a crime. We affirm because we conclude that the base commander's regulations requiring vehicles entering or leaving McClellan to stop for inspection are a reasonable intrusion upon an individual's right to privacy under the Fourth Amendment.

I.

Hawkins submitted his own declaration in support of his motion to suppress alleging that on May 16, 1999, as he was leaving McClellan between 11:30 p.m. and 12:00 a.m., he observed two officers and a police car on the side of the road by the guard booth at the Peacekeeper entry and exit gate to the base. One of the officers shined a light signaling Hawkins to pull his truck over to the side. After Hawkins stopped, an officer approached and asked him for his vehicle registration, proof of insurance, and driver's license. At the request of the officers, Hawkins performed a field sobriety test. The officers informed Hawkins that he would be detained for suspicion of driving under the influence of alcohol. He was then taken to a room where he was given a breath test, and an officer later gave him a violation notice for driving under the influence of alcohol.

Hawkins was charged in a two-count information with driving under the influence of alcohol and driving with a blood alcohol content of .08% or greater, misdemeanor violations of 18 U.S.C. §§ 13 and California Vehicle Code§§ 23152(a)-(b). He then filed a motion to suppress the following evidence obtained after the stop: (1) the fact that an officer smelled a strong odor of alcohol emanating from Hawkins; (2) the results of a field sobriety test; (3) statements made by Hawkins; and (4) the results of the breath test that showed that he had a blood alcohol content of .15%.

In opposition to Hawkins's motion to suppress, the Government submitted the declaration of Staff Sergeant Gregory Fowlkes, the noncommissioned officer in charge of reports and analysis for the Seventy-Seventh Security Forces Squadron at McClellan. In his declaration, Sgt. Fowlkes alleged that vehicles entering and leaving McClellan are detained by officers pursuant to regulations issued by the base commander for conducting Installation Entry Point Checks ("IEPC"stops). The purpose of IEPC stops is to ensure national security by restricting access to military installations, to deter theft of government property from the base, and to ensure safety on McClellan roadways, including preventing driving under the influence of alcohol. Military police officers conducting IEPC stops have caught individuals attempting to trespass on the base, driving under the influence, driving on suspended licenses, and attempting to steal government property.

Sgt. Fowlkes also alleged in his declaration that IEPC stops are cursory, conducted at the entry and exit gates of the base according to established military operating procedures. Signs posted at every entry gate to the base state: "It is unlawful to enter this area without permission of installation commander. . . . While on this installation, all personnel and the property under their control are subject to search." At the hearing on the motion to suppress, Sgt. Fowlkes testified that the procedures for conducting IEPC stops were set forth in McClellan Operating Instructions 31-16 and 31-17, both of which were in effect on the evening Hawkins was stopped.

In his motion to suppress, Hawkins argued that the arresting officers lacked probable cause to stop his automobile. In its opposition to the motion to suppress, the Government argued as follows:

The United States hereby opposes defendant's motion on the grounds that (1) Fourth Amendment jurisprudence does not require probable cause for every conceivable search or seizure, (2) the substantial government interest in protecting the security of military bases outweighs the nominal intrusion on the motorists who choose to enter such protected installations, and (3) although the defendant was seized for purposes of the Fourth Amendment, the seizure was not unreasonable and therefore not a violation of the defendant's Fourth Amendment rights.

After a hearing, the magistrate judge denied Hawkins's motion¹ concluding that "the police did not need probable cause to stop vehicles at a permanent military gate checkpoint." (emphasis added). After entering a conditional plea of guilty on November 9, 1999, Hawkins filed a timely notice of appeal from the order denying his motion to suppress to the United States District Court for the Eastern District of California.

On March 20, 2000, the district court affirmed the magistrate judge's decision holding that the seizure of Hawkins's truck was reasonable. Hawkins filed a timely notice of appeal on March 24, 2000. We have jurisdiction pursuant to 28 U.S.C. §§ 1291.

II.

Before this court, Hawkins contends that the Government failed to meet its burden of demonstrating that the stop, search, and seizure of his person and automobile were constitutional because it "failed to supply any facts, by way of affidavit, testimony or otherwise, relating to the circumstances surrounding such stop, search, and seizure." We review de novo the lawfulness of a search or seizure. United States v. Hudson, 100 F.3d 1409, 1414 (9th Cir. 1996).

In his motion to suppress evidence, Hawkins's sole constitutional challenge was to the alleged "unlawful stop of his vehicle conducted by an officer at McClellan Air Force Base on May 16, 1999." In support of this claim, he argued that "the government cannot establish probable cause to stop Mr. Hawkins' automobile." (emphasis added). He did not contend that the officers lacked reasonable suspicion to investigate whether Hawkins was under the influence of alcohol based on the condition of his breath, eyes, and speech. Nor did he assert that the officers lacked probable cause to arrest him based on his performance of the field sobriety test or the breath test for blood alcohol. Before this court, for the first time, Hawkins contests the actions of the Air Force police officers in requiring him to submit to these sobriety tests.

The failure to raise a particular ground in support of a motion to suppress constitutes a waiver of that challenge. United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987). The basis for the rule that issues not presented to the trial court generally cannot be raised for the first time on appeal is that "[i]t would be unfair to surprise litigants on appeal by final decision of an issue on which they had no opportunity to introduce evidence." United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983). We have recognized an exception to this rule where the issue not raised in the trial court does not affect or rely on the factual record developed by the parties. Id. Here, factual questions concerning the officers' observations and the sobriety test results"might bear decisively on the determination of the legal question whether the Fourth Amendment was violated." Id. Since the only issue raised by Hawkins before the magistrate judge concerned the legality of the stop of his truck, the Government was not required to present evidence to justify the investigation and arrest that followed. For these reasons, we decline to consider whether the officers violated the Fourth Amendment by requiring Hawkins to perform sobriety tests and limit our review to determining whether the stop of Hawkins's truck was a reasonable seizure under the Fourth Amendment.

III.

Where, as here, a defendant moves to suppress evidence of a warrantless stop of his or her vehicle, the record must demonstrate that the seizure was reasonable. A seizure conducted without a warrant is "per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well delineated exceptions." Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (internal quotation marks and citations omitted). The burden is on the Government to persuade the district court that a seizure comes "under one of a few specifically established exceptions to the warrant requirement." United States v. Huguez-Ibarra, 954 F.2d 546, 551 (9th Cir. 1992).

The Government conceded that the stop of Hawkins's truck was a seizure, and that the officers had neither probable cause to arrest Hawkins nor an individualized suspicion of wrong- doing that would justify a brief detention under Terry v. Ohio, 392 U.S. 1 (1968). To justify the warrantless stop of Hawkins's truck, the Government introduced evidence that the base commander had ordered that vehicles entering or leaving McClellan be stopped for inspection.

"The touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all stateinitiated searches...