United States v. Donald E. Faulkner

REINHARDT, Circuit Judge,

concurring:

Although I agree with the majority’s ultimate conclusion that the stop at the information station was constitutional, I do so not because I believe that it was a reasonable seizure, 1 but because I believe it was not a seizure at all.

Chief Ranger Ruth stopped all cars entering Paradise Recreation Area to inform them of park regulations and to provide them with a litter bag. There was ample space on the road leading into the park for potential visitors to turn around, should they not wish to proceed to the information station. Although Ruth would occasionally ask visitors if they possessed alcohol, the majority acknowledges that an affirmative answer would not ordinarily be of any material consequence, as the possession of alcohol is not per se illegal. 2 At no point during their brief exchanges with Ruth would the freedom of potential visitors be terminated or restricted. See Brower v. County of Inyo, 489 U.S. 593, *475 597 , 109 S.Ct. 1378 , 103 L.Ed.2d 628 (1989) (holding that a Fourth Amendment seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied” (emphasis omitted)); Tennessee v. Garner, 471 U.S. 1, 7 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985) (holding that “[wjhenever an officer restrains the freedom of a person to walk away, he has seized that person”). To the contrary, any visitor headed towards or stopped at the information station would “remain[J free to disregard the [information being provided] and walk away.”

United States v. Arias-Villanueva, 998 F.2d 1491, 1501 (9th Cir.1993) (citing United States v. Mendenhall, 446 U.S. 544, 555 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980)).

Because Ruth was merely providing drivers with information before allowing them to enter the park, he had no interest in stopping them to investigate any criminal activity; nor would he respond in any manner to drivers who chose not to enter the park. Moreover, his conduct gave no reason for drivers to believe that something was expected of them, other than to obey the park rules if they decided to proceed with their visit. Compare Mendenhall, 446 U.S. at 554-55 , 100 S.Ct. 1870 (“Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.... In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” (citations omitted)). In short, Smokey the Bear is not a fear-inducing figure.

Although the Supreme Court has held repeatedly that checkpoint stops constitute “seizures” for purposes of the Fourth Amendment, see Illinois v. Lidster, 540 U.S. 419, 425-26 , 124 S.Ct. 885 , 157 L.Ed.2d 843 (2004); City of Indianapolis v. Edmond, 531 U.S. 32, 40 , 121 S.Ct. 447 , 148 L.Ed.2d 333 (2000); Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 556 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976), in those cases — all of which are cited in the majority opinion — the purpose of the stop was always to seek information about criminal activity. See Lidster, 540 U.S. at 421 , 124 S.Ct. 885 (upholding as constitutional a highway checkpoint at which police stopped motorists to seek information about a recent hit-and-run accident); Edmond, 531 U.S. at 34, 48 , 121 S.Ct. 447 (holding that stops pursuant to a highway checkpoint program, the primary purpose of which was to discover and interdict illegal narcotics, constituted unreasonable seizures); Sitz, 496 U.S. at 447 , 110 S.Ct. 2481 (upholding as constitutional highway sobriety checkpoints at which officers examined drivers for signs of intoxication); Martinez-Fuerte, 428 U.S. at 545 , 96 S.Ct. 3074 (upholding as constitutional a permanent border checkpoint of which the purpose was to check for transportation of illegal aliens). Thus, the stops were all law enforcement stops designed to further law enforcement purposes.

When officers are seeking information from drivers regarding criminal matters-— it is understandable that the persons stopped may not feel free to drive away and that such stops may therefore constitute “seizures.” See Mendenhall, 446 U.S. at 554 , 100 S.Ct. 1870 . In the instant case, however, Ranger Ruth was not seeking information. Instead, the purpose was the exact opposite — to provide helpful infor *476 mation about the park and its regulations to potential park visitors. Indeed, as the district court found, Ruth was not performing a law enforcement stop. Cf. United States v. Attson, 900 F.2d 1427, 1430-31 (9th Cir.1990) (holding that “governmental conduct that is not actuated by an investigative or administrative purpose[designed to elicit a benefit for the government] will not be considered a ‘search’ or ‘seizure’ for purposes of the Fourth Amendment” and noting that the Supreme Court has only rarely applied the Fourth Amendment to “noncriminal noninvestigatory governmental conduct” (emphasis omitted)).

The encounter experienced by drivers at the information station is voluntary, consensual and accepted as part of the ordinary process of entering Paradise Recreation Area. See Arias-Villanueva, 998 F.2d at 1501 (holding that a consensual encounter did not constitute a seizure); compare Lidster, 540 U.S. at 425-26 , 124 S.Ct. 885 (characterizing the checkpoint stop at issue as involuntary); Edmond, 531 U.S. at 40 , 121 S.Ct. 447 (same). Because the stops at the park entrance do not constrain the liberty of potential Paradise visitors in any way, and because their purpose is not to elicit information for the government in either its investigative or administrative capacities, I conclude that they do not constitute seizures for purposes of the Fourth Amendment. Accordingly, I would hold that the Fourth Amendment does not apply here and would affirm on that basis.

. Although I do not believe that the stop that the majority treats as a seizure constitutes a seizure as defined for purposes of the Fourth Amendment, I do believe that such a seizure occurred when Ruth directed Faulkner to pull over to the side of the road and to produce his driver's license after he observed an open container of beer in Faulkner’s vehicle. The seizure that occurred at that time was reasonable. Thus, I concur that the district court’s denial of the motion to suppress should be affirmed.

. If visitors did respond affirmatively regarding their possession of alcohol, Ruth “would permit them to leave the area or drop off the alcohol with him and retrieve it upon leaving.” Maj. Op. at 468-469. Although Ruth sometimes observed criminal activity — e.g., minors in possession of alcohol or possession of open containers of alcohol — the purpose of the information station was not to conduct law enforcement activities. Any such instances were merely incidental to the station’s primary purposes. The record reveals that Ruth issued citations for such conduct on "only one or two occasions.” Id.