United States v. Davis, Mark Stephen

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2001 Decided November 16, 2001

No. 00-3050

United States of America,

Appellee

v.

Mark Stephen Davis,

Appellant

Appeal from the United States District Court

for the District of Columbia

(99cr00204-01)

A.J. Kramer, Federal Public Defender, argued the cause

and filed the briefs for appellant. Gregory L. Poe, Assistant

Federal Public Defender, entered an appearance.

Catherine A. Szilagyi, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Wilma A.

Lewis, U.S. Attorney at the time the brief was filed, and John

R. Fisher, Elizabeth Trosman and Neil H. MacBride, Assis-

tant U.S. Attorneys. Mary-Patrice Brown, Assistant U.S.

Attorney, entered an appearance.

Before: Randolph, Rogers, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: The police stopped Mark Davis

at a roadblock in 1999, arrested him for traffic offenses,

searched him and his automobile, and recovered evidence of

his drug dealing, for which the grand jury indicted him.

After the district court denied Davis's motion to suppress, he

entered a conditional plea of guilty to possession with intent

to distribute crack cocaine. The issue in Davis's appeal is

whether the roadblock complied with the Supreme Court's

interpretation of the Fourth Amendment to the Constitution

in City of Indianapolis v. Edmond, 531 U.S. 32 (2000),

decided after Davis had noted his appeal, and with United

States v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989), on which

the district court relied in denying the motion to suppress.

The roadblock had been set up as part of the Metropolitan

Police Department's "Summer Mobile Force." The evidence

at the suppression hearing consisted of the testimony of one

government witness--a sergeant assigned to this task force--

and a sheaf of internal police documents, submitted by the

defense, describing the Summer Mobile Force. The circum-

stances of Davis's stop and arrest at the roadblock need not

be recited in detail. The events occurred early in the evening

in a southwest D.C. neighborhood. Safety flares lined the

street. Forty to fifty officers and seven to ten marked police

cars were at the scene. All vehicles approaching the road-

block were stopped. Davis pulled over as directed when he

drove up to the checkpoint. The officers determined that the

car Davis was driving had a forged inspection sticker and that

the temporary registration Davis produced had been altered.

After the police arrested him for these and other traffic

violations, they discovered crack cocaine on his person and

drug paraphernalia in his car.

The government and the defense agree that if the road-

block complied with the Fourth Amendment, the police acted

constitutionally in stopping Davis (a "seizure") and in arrest-

ing and searching him. The controversy centers on the

roadblock's "primary purpose," as the Supreme Court put it

in Edmond, 531 U.S. at 40-46, or its "principal purpose," as

we put it in McFayden, 865 F.2d at 1312.

The Supreme Court has derived a principle from the

Fourth Amendment: a search or seizure of a person must be

based on individualized suspicion of wrongdoing. E.g., Terry

v. Ohio, 392 U.S. 1 (1968); Delaware v. Prouse, 440 U.S. 648,

654-55 (1979); but see Brown v. Texas, 443 U.S. 47, 51 (1979).

As exceptions to this principle, the Court has upheld the

constitutionality of vehicle checkpoints near the border to

intercept illegal aliens (United States v. Martinez-Fuerte, 428

U.S. 543, 556 (1976)), and roadblocks aimed at apprehending

drunk drivers (Michigan Dep't of State Police v. Sitz, 496

U.S. 444, 450 (1990)). The Court has indicated that roadside

truck weigh-stations and roadblocks to check drivers' licenses

and vehicle registrations would also qualify as exceptions to

the general principle. Delaware v. Prouse, 440 U.S. at 663 &

n.26; Edmond, 531 U.S. at 39. Concerned that its exceptions

would swallow the principle of individualized suspicion, 531

U.S. at 46-47, the Court in Edmond laid down a line: "When

law enforcement authorities pursue primarily general crime

control purposes at checkpoints ... stops can only be justi-

fied by some quantum of individualized suspicion." Id. at 47.

Even if the police check licenses at the roadblock, their

stopping of vehicles would violate the Fourth Amendment

when the "primary purpose of the checkpoint program" is the

"discovery and interdiction of illegal narcotics." Id. at 46, 34.

To the statements from Edmond just quoted, the Court

added this qualifier in a footnote: "Because petitioners con-

cede that the primary purpose of the Indianapolis checkpoints

is narcotics detection, we need not decide whether the State

may establish a checkpoint program with the primary pur-

pose of checking licenses or driver sobriety and a secondary

purpose of interdicting narcotics." Id. at 47 n.2. The foot-

note seems divorced from the rest of the opinion. Through-

out the text the Court states again and again that when the

"primary purpose" of a roadblock is general crime control it is

unconstitutional. Id. at 38, 41, 42, 44, 46, 47, 48. This more

than suggests that if the "primary purpose" had been for a

purpose the Court had already endorsed--such as detecting

drunk drivers, or checking licenses--the roadblock would be

constitutional. The record in Edmond suggested that en-

forcement of the drug laws was not simply Indianapolis's

primary reason for establishing the checkpoint program, but

its only reason. A sign near each of the checkpoints an-

nounced: " 'NARCOTICS CHECKPOINT __ MILE

AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO

STOP.' " Id. at 35-36. If the city's only purpose was

narcotics enforcement, it is hard to explain why the Court

framed the inquiry in terms of its "primary" purpose, unless

the Court believed that it would be constitutional for a State

to "establish a checkpoint program with the primary purpose

of checking licenses or driver sobriety and a secondary pur-

pose of interdicting narcotics." Id. at 47 n.2.

In any event, the question left open by the Edmond

footnote has been answered by our decision in McFayden.

Police stopped the defendant in McFayden at a checkpoint

operated in the same manner as the one in this case. The

defendant, while retrieving his license or registration, took

actions that led the police to narcotics in his car. 865 F.2d at

1309. Although decided before Edmond, McFayden also

described the issue as whether "the principal purpose of the

roadblock was to regulate vehicular traffic by allowing police

to check drivers' licenses and vehicle registrations." Id. at

1312. The court answered yes and found the roadblock

constitutional on this ground, and because it satisfied several

other criteria, even though it "facilitated a narcotics enforce-

ment effort," id. at 1307. The checkpoint in McFayden was

part of "Operation Cleansweep," a program "designed to

attack the problem of drug dealing in D.C." Id. at 1308.

The police determined where to place roadblocks "on the

basis of community complaints about traffic and narcotics

problems"; citizens in the vicinity of the McFayden roadblock

complained about "speeding automobiles." Id. at 1308, 1312.

In general, "traffic congestion is one serious problem that

results from street drug sales in the District of Columbia."

Buyers stop illegally, double-park, make U-turns, speed and

disrupt the flow of traffic in the neighborhood. Id. at 1308,

1312. The roadblock in McFayden had a principal purpose of

controlling the traffic problems associated with drug dealing

and "[w]hatever advantage was gained in drug enforcement

was coincidental to the principal purpose of the traffic road-

blocks." Id. at 1313. While the McFayden court cautioned

(id. at 1312) that it might not sustain a roadblock if it were a

"subterfuge," "purportedly established to check licenses" but

"located and conducted in such a way as to indicate that its

principal purpose was the detection of crimes unrelated to

licensing," it rejected the proposition that a roadblock must

have as its sole purpose the checking of licenses and registra-

tions. See 4 Wayne R. LaFave, Search and Seizure s 10.8(a),

at 679-80 (3d ed. 1996), and the 2001 supplement thereto at

122-23.

Here the district court made several "essential findings" as

Rule 12(e), Fed. R. Crim. P., required. One of the court's

findings was: "The roadblock at issue was conducted in a

systematic and nondiscriminatory fashion, for the principal

purpose of vehicular regulation in conjunction with a police

program to increase police presence and to curb drug activi-

ty." Another was that "[t]here is no evidence of subterfuge

in this record." The court treated the purpose of the road-

block as a question of fact, as did the Supreme Court in

Edmond. 531 U.S. at 40-41. See also Ferguson v. City of

Charleston, 121 S. Ct. 1281, 1290-91 & n.20 (2001); Galberth

v. United States, 590 A.2d 990, 1000 n.12 (D.C. 1991). Factu-

al findings on suppression motions may be set aside only if

clearly erroneous, see, e.g., Ornelas v. United States, 517 U.S.

690, 699 (1996); United States v. Garrett, 959 F.2d 1005, 1007

(D.C. Cir. 1992); United States v. Magnum, 100 F.3d 164, 170

n.8 (D.C. Cir. 1996); United States v. Hill, 131 F.3d 1056,

1059 n.2 (D.C. Cir. 1997). As in civil cases, the clearly

erroneous standard applies to Rule 12(e) findings based not

only on testimony but also on documents. See Anderson v.

City of Bessemer City, 470 U.S. 564, 573-76 (1985); 9A

Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure s 2587 (2d ed. 1995).

The district court's findings rested, so far as we can tell, on

the testimony of the government's sole witness. This officer

said that before setting up the roadblock, the police received

information about "incidents" in the southwest neighborhood

where they arrested Davis. Community groups and church

"activists" complained about "speeding, children were unable

to play on the sidewalk, parents actually had their children

playing inside the yard because they were afraid a car might

go out of control or their kids might get hit or something."

After obtaining this information, and information about

"drugs, gun violence, robberies, [and] assaults," the officer

chose the neighborhood for a "safety compliance check." The

objective of "safety compliance checks" is not, the officer

testified, simply to stop speeding (as any roadblock doubtless

would), but also to detect "dead tags, dead inspection, no seat

belt, child restraint violations, various traffic violations we

would normally pull someone over in the car." The officer,

who was in charge of the roadblock, briefed the other officers

"on safety concerns." He gave no instructions "about looking

for narcotics or firearms," and he was not aware that any of

the officers at the scene were instructed about matters "unre-

lated to vehicle safety."

Regardless whether this evidence would have been suffi-

cient under McFayden--an exceedingly close question--it is

not sufficient under the Supreme Court's intervening decision

in Edmond. McFayden treated the overall program under

which the roadblock had been established as "immaterial."

865 F.2d at 1312. But Edmond held that "programmatic

purposes may be relevant to the validity of Fourth Amend-

ment intrusions undertaken pursuant to a general scheme

without individualized suspicion." 531 U.S. at 45-46. In

determining the principal purpose of the safety checkpoint in

this case, the district court made no findings about the

Summer Mobile Force. According to a police manual, the

Summer Mobile Force initiative had as its overall objective

"to restore the public's confidence in the Metropolitan Police

Department through the reduction and prevention of crime

and violence by utilizing short-term, pro-active, high visibility

enforcement techniques." Perhaps inspired by the experi-

ence of New York City, see George L. Kelling & Catherine

M. Coles, Fixing Broken Windows 108-56 (1996), the depart-

ment states that it "is committed to building safe, orderly,

and healthy neighborhoods throughout the District of Colum-

bia in partnership with our community." Among the tactical

approaches mentioned is a "highly trained and supervised

approach to proactive traffic enforcement," using among oth-

er things roadblocks, with the goal of reducing "the number

of traffic violations, accidents, and instances of aggressive

driving on our city streets. Remove the automobile as the

conveyance of choice by narcotics traffickers and individuals

secreting guns and stolen property in the District of Colum-

bia."

Since the district court, bound as it was by McFayden,

does not appear to have taken these "programmatic pur-

poses" into account, we must send the case back for further

proceedings in light of Edmond, 531 U.S. at 48, and the

Court's later opinion in Ferguson v. City of Charleston, 121 S.

Ct. at 1291, holding that all evidence must be considered. We

do not agree with defense counsel that after Edmond the

only thing the district court may consider on remand is the

general purposes of the overall program. The procedural

posture of Edmond--a suit for an injunction to prevent future

roadblocks for narcotics enforcement and a stipulated rec-

ord--led the Court to disregard the specific circumstances of

any one roadblock. Given the very broad objectives of the

Summer Mobile Force initiative, it would be impossible to

discern the purpose of a particular roadblock without deter-

mining the reasons behind it. The record needs clarification

in another respect. Although we know that citizens in the

neighborhood complained about speeding, it is not entirely

clear whether the only purpose of the police in establishing

the checkpoint was to deal with that problem. The objectives

of the citizens are not necessarily the objectives of the police.

It is also uncertain whether, as in McFayden, open air drug

dealing was causing the traffic problems in this neighborhood.

The government had the burden of proof, of course, see

United States v. Matlock, 415 U.S. 164, 177 n.14 (1974), but

the absence of such evidence may not be entirely its fault.

When the government tried to elicit information of this sort

on redirect, the defense objected. All that the government's

witness managed to get on the record was his opinion that

there is "[v]ery high traffic" in areas where there is drug

dealing, and his experience that people arrested for drug

offenses are more likely to have "unregistered automobiles,

altered tags, than a regular citizen." Missing is a link

between the sort of traffic problems mentioned in McFayden

and similar problems stemming from drug trafficking in the

neighborhood where the police located this checkpoint.

Several words of caution are in order. One must be careful

not to fall into the trap of thinking that any "but for" cause of

a roadblock represents its primary purpose within Edmond's

meaning. Whenever something is done for several reasons, it

might not have been done in the absence of any one of those

reasons. If there had not been drug dealing in the neighbor-

hood, the McFayden roadblock would not have been placed

there, yet its primary purpose dealt with vehicular safety.

The assumption underlying the search for the "primary pur-

pose" is that several purposes might have moved the police to

set up a particular roadblock. This is why finding the

primary or predominant purpose will often prove difficult, as

the Supreme Court acknowledged in Edmond. 531 U.S. at

46-47. It is also why findings of the district court, taking

into account all of the available evidence, are entitled to great

respect.

One further matter needs to be mentioned. McFayden

held that a checkpoint, in addition to having a legitimate

primary purpose, must also "promote the state interest in a

'sufficiently productive' fashion." 865 F.2d at 1311-12 (quot-

ing Delaware v. Prouse, 440 U.S. at 660). The defense

argues that the government failed to satisfy this element.

Although the evidence showed that the police issued citations

for 56 moving violations and 30 parking violations, and made

8 traffic arrests, "there was absolutely no evidence of how

many cars in total were stopped; thus there is no way of

knowing what percentage of the cars stopped were represent-

ed by the figures provided by the government." Brief for

Appellant at 24. Such statistical evidence is not, however,

essential. The effectiveness of the checkpoint in fulfilling its

primary purpose may be demonstrated in other ways. Mich-

igan Dep't of State Police v. Sitz, 496 U.S. at 454-55, a suit to

enjoin future sobriety checkpoints, found the State's program

sufficiently effective not only in light of checkpoint-specific

statistics, but also on the basis of expert testimony showing

the effectiveness of similar checkpoints in other States. And

in one of the consolidated criminal cases in Martinez-Fuerte

the Court refused to suppress the evidence and affirmed the

conviction despite the absence of any statistics revealing the

number of cars stopped at the border or the number of illegal

aliens arrested. 428 U.S. at 554, 567. "While it appears that

fewer illegal aliens are apprehended there" than at other

checkpoints, "it may be assumed that fewer pass by undetect-

ed, as every motorist is questioned." Id. at 554. To make

the legality of a seizure pursuant to a particular roadblock

wholly dependent on statistics gathered after the roadblock

ended would, in any event, run into the time-honored doctrine

that a search or seizure cannot be justified by its success,

Byars v. United States, 273 U.S. 28, 29 (1927)--or as it is

usually put, by what it turns up, e.g., United States v. Di Re,

332 U.S. 581, 595 (1948); Wong Sun v. United States, 371

U.S. 471, 484 (1963)--and would ignore that the deterrent

purpose of the exclusionary rule cannot be fulfilled unless the

police can determine ahead of time whether their operation of

a proposed checkpoint will be constitutional. In short, if the

district court concludes on remand that the primary purpose

of the checkpoint related to vehicular regulation, it may then

rely--as the Supreme Court did in Martinez-Fuerte--on non-

statistical evidence or other considerations in determining

whether the checkpoint furthered that purpose.

The case is remanded for further proceedings consistent

with this opinion.

So ordered.