holding unconstitutional, in a pre-Edmond case, a roadside checkpoint that “was not operated for the ostensible purpose of detecting intoxicated drivers, but as a pretext to stop drivers who had violated no traffic laws in order to question them in an attempt to gain reasonable suspicion to search their cars for narcotics”
How later courts described this case
- holding unconstitutional, in a pre-Edmond case, a roadside checkpoint that “was not operated for the ostensible purpose of detecting intoxicated drivers, but as a pretext to stop drivers who had violated no traffic laws in order to question them in an attempt to gain reasonable suspicion to search their cars for narcotics”
- holding that a DUI checkpoint, which is a permissible purpose for a checkpoint under Sitz, was unreasonable in how it was conducted and, therefore, unconstitutional
- holding that .29 percent level was insufficient under the Sitz effectiveness test
- ''[T]he Supreme Court emphasized ... in Whren _ [that] there is a significant difference between a pretextual stop based on probable cause that a traffic violation has occurred, and a stop that is not based on probable cause or even reasonable suspicion "
Written by the judges who cited it.
The opinion
KENNEDY, Circuit Judge,
dissenting.
Because I believe that'the District Court’s finding that the checkpoint was a mixed-motive checkpoint, established for the dual purpose of intercepting both drunk drivers and drug traffickers, is not clearly erroneous, and that such mixed-motive checkpoints are permissible, I agree with the Eleventh Circuit that
where the state has one lawful purpose sufficient to justify a roadblock, that the state also uses the roadblock to intercept illegal drugs does not render the roadblock unconstitutional. In other words, we adopt a totally objective rule: a state may conduct a mixed-motive roadblock as long as one purpose presented for the roadblock could validly justify the roadblock, even if no roadblock would have been put in place but for the state’s desire to hunt for unlawful drugs.
Merrett v. Moore, 58 F.3d 1547, 1550-51 (11th Cir.1995).
In its alternative holding in part III of its opinion, the court finds that the procedures used by Roane County, Tennessee were unreasonable under the balancing test estab *564 lished under Brown v. Texas, 443 U.S. 47 , 99 S.Ct. 2637 , 61 L.Ed.2d 357 (1979), even if mixed-motive checkpoints are permissible. While I can agree that the checkpoint here left something to be desired, I believe it met the essential requirements and would therefore affirm.
The majority does not dispute that the purpose of detection of intoxicated drivers satisfies the first factor, gravity of public concern. Yet, it finds the history of this checkpoint’s effectiveness significantly lower than that in Michigan Department of State Police v. Sitz, 496 U.S. 444 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990). The panel’s appraisal of its effectiveness is limited, however, to arrests for drunken driving. The District Court also took intp consideration arrests of. drivers having open containers of alcohol. If those are included, the percentage is higher than in Sitz .
The majority also finds the guidelines established by Roane County inadequate. It finds the checkpoints deficient because, while the plan requires approval of the elected Roane County Sheriff for a given checkpoint, the evidence indicates that the sheriff had invariably. approved the locations suggested by his deputy. The sheriff, nonetheless, controlled the decision. I know of no reason he could not rely on recommendations of subordinates. Nor do I believe that the absence of a breathalyzer at the checkpoint is critical. Persons who were believed to be intoxicated after field sobriety tests were taken to the sheriffs office for administration of a breathalyzer test. Furthermore, motorists were ordinarily stopped for less than thirty seconds. While defendants here were stopped for several minutes, this was because of Officer Brock’s suspicions. Officer Brock asked defendants, as he did with all out-of-state cars, “what brings you here?” When defendant Martin told Officer Brock it was to get gas and Brock saw that the car’s gas gauge registered full, Brock turned the inquiry over to Officer Worley, the more experienced officer. The District Court found that at this point there was a reasonable suspicion to justify further detention. That suspicion was based on a verifiable falsehood that defendant had exited the freeway to purchase gas when his gas tank was full. This was in addition to the nervousness of the occupants and the conduct of defendant in gripping the wheel and looking straight ahead rather than at the officer to whom he was responding. See United States v. Moore, 675 F.2d 802, 808 (6th Cir.1982). The drug dog, which was oh the D.A.R.E. wagon then, provided probable cause to search.
The majority finds fault with permitting Brock to question the driver because he did not have training in conducting a field sobriety test. However, field sobriety tests were given only if an officer had some indication that the driver had been drinking. Both officers relied on whether they could smell alcohol for this initial screening. The record indicates Brock was capable of performing that screening.
Lastly, the majority finds that the checkpoint was set up to create fear and surprise on law-abiding motorists in that the notice of checkpoint was on the interstate and they would not realize that they were approaching a checkpoint on this exit road until after they had exited. The District Court found that the cones, the police cars and the fact that all cars were required to stop at the stop sign in all events was sufficient notice that one was not singled out but that all motorists were going through a checkpoint. The majority states, “[tjhus, the procedure did not treat motorists on a non-random basis, but singled out motorists, who, for whatever reason, chose to take the Airport Road exit.” However, all persons who exited were stopped. While motorists might be surprised that the checkpoint was on the exit and not further along on the freeway, the District Court found, and I agree, that motorists would be sufficiently aware that this was the traffic checkpoint of which they had been notified. I do not believe the legality of the checkpoint depends on whether there are several cars stopped at any one time, as the majority implies. While the use of a ruse by warning of a checkpoint and then placing it on the exit may not seem fair, I do not believe the ruse is sufficient to invalidate this checkpoint.
*565 I find nothing sufficient to reject the balancing done by the District Court and would, therefore, affirm.