Petition — Prichard v. United States
Supreme Court brief1981
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80-2090
Office-Supreme Court, U.S.
NO. FILED
JUN 10 9
in the ALEXANDER L.STEVAS, |
CLERIX
Supreme Court =
of the
United States
WILLIAM GLENN PRICHARD
and BRIAN DE PALMA,
Petitioners
vs.
UNITED STATES OF AMERICA,
Respondent
PETITION FOR WRIT OF CERTIORARI
MAX P. ENGEL, ESQ.
1461 N.W. 17 Avenue
Miami, Florida 33125
TEL: 305/325-1810
COME NOW the Petitioners, WILLIAM GLENN
PRICHARD and BRIAN DE PALMA, by and through
their undersigned attorney and pursuant to the Supreme
Court Rules petition this Honorable Court for issuance
of a Writ of Certiorari in this cause. In support thereof
Petitioners would show as follows:
1. The Petitioners seek review of United States
u Prichard and De Palma, _ F.2d _ (10th Cir. 1981), Case
No’s 79-2280, 2281, decided April 1, 1981, rehearing en
banc denied May 11, 1981.
2. Jurisdiction of this Honorable Court is invoked
pursuant to 28 U.S.C. §1254(1).
A. Petitioners were convicted of Possession
With Intent to Distribute Cocaine in violation
of 21 U.S.C. §841(97) and 18 U.S.C. §2 on
November 9, 1979. The judgment was affirmed
by the Court of Appeals for the Tenth Circuit
on April 1, 1981, rehearing en banc denied on
May 11, 1981.
3. The constitutional provision involved herein
is the Fourth Amendment to the United States
Constitution. (see appendix for text.)
4. The questions presented for review by this
Honorable Court are as follows:
WHETHER THE COURT OF APPEALS ERRED
IN FAILING TO REVERSE THE TRIAL COURT'S
DENIAL OF THE PETITIONER’S MOTION TO
SUPPRESS WHERE THE INITIAL STOP OF THE
PETITIONERS VEHICLE WAS A ROADBLOCK STOP
OF ADMITTEDLY LESS THAN ONE HUNDRED PER-
CENT GOVERNED ONLY BY THE UNFETTERED
DISCRETION OF THE OFFICERS IN THE FIELD
CONTRARY TO THIS COURTS HOLDING IN
DELAWARE V. PROUSE 440 U.S. 648 (1979) AND
WHERE THE SUBSEQUENT ALLEGED CONSENT
SEARCH OF THE PETITIONER'S VEHICLE WAS
MADE WITHOUT INFORMING PETITIONERS OF
THEIR MIRANDA RIGHTS OR OF THEIR RIGHT
TO REFUSE TO CONSENT TO THE SEARCH.
5. The Facts of the Case:
On July 29, 1979 Officer Christian of the New
Mexico State Police was asked by Officer Faison to
hold a roadblock with him. According to Officer Faison
the purpose of the roadblock was to enforce the laws of
the State of New Mexico particularly those relating to
drunk drivers and stolen vehicles, license and registration
enforcement were not paramount in the officers’ plans.
During the course of the roadblock semi-trucks
were not stopped and all traffic was allowed to proceed
unstopped when, in the officers sole discretion, it was
felt traffic was backing up. The officers received no
directions from superiors regarding which vehicles to
stop or when to lift the roadblock.
At about 2:00 P.M. the Petitioners’ Ford Bronco
arrived at the site of the roadblock located on an Interstate
Highway and it was stopped by Officers Faison and
Christian. The officers then had Petitioners park their
te
vehicle on the median while a computer check was
done as the officers were unsatisfied with the registration
and ownership information given them by Petitioners.
Officer Faison then asked for and was given
permission to look in the vehicle’s glove compartment,
after doing so he observed a California license plate
behind the passenger seat and he also noticed a strong
odor, like a room deodorant, in the vehicle. Officer
Faison then asked Prichard for the key to the vehicle’s
tailgate which Prichard said he disin't have. Officer
Faison then took the ignition key and tried to open the
tailgate but it Gault wet go in the lock and there
appeared to be a key broken off in the lock. Faison then
asked for permission to search the vehicle, in response
Prichard entered the vehicle and removed all of his
and DePalma’s belongings throwing them on the median,
he then told the officers they could go through the
personal belongings.
Although denied completely by Petitioners, Officer
Faison testified that Prichard said he could then search
the interior of the vehicle. Petitioners testified that
when he asked they refused permission but Faison
then yelled at Christian that he had been given permission
to search the vehicle in spite of Petitioners refusals.
Faison then entered the vehicle and observed a spilt
can of deodorant and a loose panel on the rear inside of
the vehicle with several screws laying on the floor of
the vehicle. Faison then reached down behind the loose
panel and felt plastic wrapped bricks. He then ordered
Christian to place the Petitioners under arrest. Returning
to the vehicle he removed a brick and opened the
package which later proved to be cocaine.
6. Argument:
It is Petitioners’ contention herein that the Court
of Appeals erred in refusing to reverse the trial court’s
failure to suppress the contraband found in the Petitioners’
vehicle.
The first error results from the Court of Appeals
faulty application of this Honorable Court’s holding in
Delaware v. Prouse 440 U.S. 648 (1979). The Court of
Appeals ruled that roadblocks of less than one hundred
per-cent are constitutionally permissable. It based its
holding on that portion of this Honorable Court’s decision
in Prouse which says;
“This holding does not preclude the States
from developing methods for spot checks that
involve less intrusion or that do not involve
the unconstrained exercise of discretion.
Questioning of all oncoming traffic at roadblock
stops is one possible alternative.” Prowse at
663
The Court of Appeals then engages in large scale
intellectual sleight of hand to transform the facts of
the case at bar to fit the exception set forth in the
hereinbefore quoted dicta from the Prouse opinion. A
stop totally without any articulable suspicion and at a
roadblock where it is freely admitted that much less
than one hundred per-cent of the vehicles are stopped
is suddenly brought under an exception specifically
labelled one hundred per-cent roadblocks and the
unfettered exercise of discretion by the officers in the
field is ignored.
The true holding in Prouse is clear.
„. . .except in those situations in which there
is at least articulate suspicion that a motorist
is unlicensed or that an automobile is not
registered or that either the vehicle or an
occupant is otherwise subject to seizure for
violation of law, stopping an automobile and
detaining the driver in order to check his driver's
license and the registration of the automobile
are unreasonable under the Fourth Amendment
. . we hold only that persons in automobiles
on public roadways may not for that reason
alone have their travel and privacy interfered
with at the unbridled discretion of police officers.”
Prouse at 1400.
Yet, that is exactly what the Court of Appeals has
sanctioned herein. The Petitioners were exercising their
right to travel on a public, Inter-State highway. They
were stopped by police officers who were operating
totally at their own discretion without any supervision
from higher authority. They were stopped not for purposes
of license and registration enforcement as permitted at
a one hundred per-cent roadblock under Prouse but by
officers seeking to enforce the general laws of New
Mexico, specifically auto theft and drunk driving statutes:
Then following this unlawful display of “force majeure”
the alleged consent of Petitioners to a search of their
vehicle is obtained without any intervening warning of
their Miranda rights or their right to refuse to consent
for such a search.
The key element in an analysis of this Court’s
decision in Prouse is clearly the unbridled exercise of
discretion as to who is stopped and who isn't, by officers
in the field. The Prouse decision clearly sets forth the
fact that it is just such discretion which is the evil
sought to be eradicated by the holding therein.
If allowed to stand the Court of Appeals’ decision
in the case sub judice is an explicit repeal of this
Honorable Courts holding in Prouse and will create a
grave dichotomy between the rest of the Circuits which
have followed the principles of one hundred per-cent
roadblocks and restrained police discretion and the
Tenth Circuit which now holds that no restraint of the
officers discretion in the field is necessary and that
significantly less than one hundred per-cent roadblocks
are permissible.
If this Court holds that the stop herein was
impermissible pursuant to Prouse, then the subsequent
alleged consent search cannot be upheld because the
Court must in such event indulge every reasonable
presumption against the validity of a consent search
after an illegal stop. United States v. Abbot 546 F.2d
883 (10th Cir. 1977). In fact, where, as here, no Miranda
warnings or notice of right to refuse consent were
given between the illegal stop and the subsequent alleged
consent search, no alleged consent search has ever
been upheld, there having been no attenuation of the
taint inflicted by the original illegal stop. Bretti u
Wainwright 439 F.2d 1042 (5th Cir., 1971), United States
v. Troutman 590 F.2d 604 (5th Cir. 1979).
CONCLUSION
Therefore Petitioners pray this Honorable Court
to take jurisdiction of this cause and to issue a Writ of
Certiorari to the Court of Appeals for the Tenth Circuit.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the
foregoing has been served upon Solicitor General,
Department of Justice, Washington, D.C. 20530 and
R.E. Thompson, United States Attorney, P.O. Box 607,
Albuquesque, New Mexico 87103 by mail this day
of See 1981.
MAX P. ENGEL
1461 N. W. 17 Avenue
Miami, Florida 33125
TEL: mp &
s / KV hac?
MAX P. ENGEL, ESQ.
Appendix
Dominick Angel BRETTI,
Petitioner-A ppellant,
.
Louie L. WAINWRIGHT, Director,
Division of Corrections, State of Florida
Respondent-Appellee.
No. 29811
Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.
Feb. 24, 1971.
Rehearing Denied May 4, 1971.
State defendant petitioned for writ of habeas corpus.
The United States District Court for the Southern
District of Florida, C. Clyde Atkins, J., entered a judgment
denying relief and the defendant appealed. The Court
of Appeals, Goldberg, Circuit Judge, held, inter alia,
that record in federal habeas corpus proceeding showing
that defendant was arrested and taken to his apartment
by police, who warned him that he need not consent to
any search, that anything found could be used against
him, and that he had a right to consult with an attorney,
established that the defendant voluntarily consented
to search of apartment by police who discovered therein
no fruits of robbery but did discover a driver’s license
which has been used to procure rented automobile
App. 1
used in robbery, as any consent was untainted by the
possible illegality of prior arrest.
Affirmed.
1. Appeal and Error —826
Merits of appeal from denial of state prisoner's
petition for federal writ of habeas corpus were such as
not to require oral argument and case was placed on
summary calendar and the clerk was directed to notify
the parties in writing. U.S.Ct. of App. 5th Cir. Rule 18,
28 U.S.C.A.
2. Habeas Corpus —85.5(2)
Record in federal habeas corpus proceeding showing
that defendant was arrested « A taken to his apartment
by police, who warned him that he need not consent to
any search, that anything found could be used against
him and that he had a right to consult with an attorney,
established that the defendant voluntarily consented
to search of apartment by police who discovered therein
no fruits of robbery but did discover a driver's license
which had been used to procure rented automobile
used in robbery, as any consent was untainted by the
possible illegality of prior arrest. 28 U.S.C.A. §2254.
3. Searches and Seizures —7(28)
Consent to search is not to be lightly inferred
where it is contended that consent is the product of an
illegal arrest.
App. 2
4. Searches and Seizures —7(27)
While police request for consent of defendant, who
had been arrested, to search of his apartment was
phrased in terms of a search for furs and jewels taken
from robbery, that request could not be reasonably
construed as disabling police from seizing driver's license
used to procure a rented automobile used in robbery,
since there was reason to believe that such seizure
would aid in defendant’s conviction for robbery as there
was a nexus between crime for which evidence was
sought and the driver’s license bearing the name of a
third person.
5. Searches and Seizures —3.3(4)
Police who were in defendant’s apartment, pursuant
to his consent, to search for furs and jewels taken in
robbery were entitled to seize a driver’s license in the
name of a third person which was in plain view.
6. Criminal Law —622(2)
No abuse of discretion was shown in denying
appealing defendant a severance from joint trial with
two other defendants from whom evidence was seized
which was introduced against all three defendants,
where appealing defendant was able to examine
codefendants with reference to their alleged consents
to searches at a hearing held on defendant’s motion to
suppress, despite fact that the codefendants chose not
to testify at trial proper.
App. 3
7. Criminal Law —736(1)
It is for the court and not the jury to decide whether
evidence has been illegally seized.
8. Criminal Law —394.5(3)
Appealing defendant involved in a joint trial with
two codefendants lacked standing to object to the
introduction of evidence seized as a result of the consent
of the other two codefendants to searches which were
not directed at the appealing defendant.
Dominick A. Bretti, pro se.
Earl Faircloth, Atty. Gen., Tallahassee, Fla., Arden
Siegendorf, Melvin B. Grossman, Asst. Attys. Gen.,
Miami, Fla., for respondent-appellee.
Before GEWIN, GOLDBERG, and DYER, Circuit
Judges.
GOLDBERG, Circuit Judge:
This appeal is taken from an order of the district
court denying the petition of a Florida state convict for
the writ of habeas corpus. Appellant, tried with two
co-defendants, was convicted by a jury of robbery and
was sentenced to fifteen years imprisonment. Conviction
was affirmed in Bretti v. State. Fla. App.1966, 192
So.2d 6, cert. denied, Fla. 1967, 201 So.2d 459, cert.
App. 4
denied, 1967, 390 U.S. 944, 88 S.Ct. 1023, 19 L.Ed.2d
1132.
In his habeas petition filed below appellant presented
the following allegations which he had argued on direct
appeal to the state court; that the trial court wrongfully
admitted evidence obtained by an illegal search and
seizure, and that the trial court erred in denying his
motion for severance. The district court denied relief
without holding an evidentiary hearing, finding that
the hearing held by the state trial court on appellant’s
motion to suppress was complete and fair, that the
state court’s findings were correct, and that the trial
judge did not abuse his discretion in denying a severance.
We affirm.
Appellant first argues that the state trial court
committed constitutional error by admitting into evidence
the fruits of an illegal search. In Miami Shores, Florida,
on February 9, 1965, at about 9:00 P.M., a Dr. Traub and
Mrs. Fritzel, his house guest, were robbed at gunpoint
of ‘‘\eir jewelry and furs. Police officers, who were en
route to the Traub residence in answer to a disturbance
call, noticed a Falcon automobile with two passengers
in the area. After ascertaining that a robbery had
taken place, a search for the Falcon automobile
commenced. The car was subsequently discovered to
be in the parking lot of the Apache Motel.
Later that same evening the police learned from
an informant that three men had been seen getting out
of a Cadillac automobile in the same parking lot and
leaving in a car resembling a Falcon. Sometime later,
according to the informant, the Falcon returned, and
App. 5
three men removed some bundles from its trunk and
placed them in the trunk of the Cadillac. The men then
departed from the lot in the Cadillac.
After checking the license number supplied by the
informant, the police ascertained that the Cadillac was
registered to Anthony Antone. Although they had neither
an arrest warrant nor a search warrant, the police
went to arrest Antone at his apartment at approximately
5:30 or 6:00 A.M., on the morning of February 10.
When no one responded to the officers’ knocks, they
opened Antone’s closed but unlocked door and entered
his apartment. A search revealed that no one was
inside. The police thereupon secreted themselves in
the apartment and remained therein until approximately
11:00 A.M., when Antone, Louis Ghelfi, and appellant
Bretti entered the premises. The three men were
immediately placed under arrest.
Following the arrests one of the police officers
took Ghelfi outside, and, according to that officer's
testimony, Ghelfi consented to a search of his car, also
a Cadillac automobile. Under the driver's seat the officer
discovered a brown paper bag containing jewelry. Officers
then escorted Ghelfi to his home where again they
testified that he consented to a search of the premises.
There the officers found two pistols.
Meanwhile Antone was taken to his car where,
the officers testified, he consented to a search. In the
trunk the police found a pillow case containing furs.
The automobile was again searched the next day without
a warrant or additional consent, and several guns were
discovered.
App. 6
Similarly, police officers Bishop and Ford, who
arrived at Antone’s apartment suhsequent to the arrests,
took appellant Bretti to his car. These officers testified
that appellant consented to a search of the car, but that
no evidence was discovered. The officers then took
appellant to his home. Once again they testified that
they sought appellant’s consent to search for furs and
jewels. According to their testimony, the officers warned
appellant that he had a right to counsel and anything
they discovered could be used against him. Appellant
allegedly responded that he had nothing to hide and
opened the apartment door with his own keys. While
the police found no furs or jewels, they did discover in
plain view on top of a small refrigerator a driver’s
license in the name of Joseph Annello. In response to
questions as to who owned the license, how it got
there, and why it was there, the appellant disclaimed
all knowledge of the license.
Upon investigation it was determined that the
license was used as identification to rent a Falcon
automobile, and the clerk at the rental agency identified
appellant as the man who rented the car on the afternoon
of February 9, 1965.
Appellant argues that the introduction of the driver's
license into evidence was error. He contends (1) that he
did not consent to a search of his apartment; (2) that if
he did consent, the consent was vitiated because it was
predicated upon an illegal arrest; and (3) that even if
the consent was not invalid, it did not extend to a
general exploratory search for articles other than furs
and jewels.
App. 7
[2] After a full and fair hearing on appellant's
motion to suppress, the state trial court found that
appellant freely and voluntarily consented to a search
of his apartment, and this ruling was affirmed on appeal.
We find the conclusions of the state courts fairly supported
by the record and hold that the district court below
was not clearly erroneous in adopting those
determinations as its own. 28 U.S.C.A. §2254; Townsend
v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770;
see Tyler v. Beto, 5 Cir. 1968, 391 F.2d 993; Landsdown
v. United States, 5 Cir. 1965, 348 F.2d 405.
[3] In reaching this conclusion we of course bear
in mind that “consent to a search is not lightly inferred,
but must be shown by clear and convincing
evidence * * * Any consent must be voluntary
and uncoerced, either physically or psychologically.”
Phelper v. Decker, 5 Cir. 1968, 401 F.2d 232, 236. We
should be at least as alert where it is contended that a
consent is the product of an illegal arrest. Cf. Wong
Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9
L.Ed.2d 441. Nevertheless, a waiver of constitutional
rights is possible following an illegal arrest. The
appropriate test was stated in Phelper:
“If it were determined that the consent given
by Appellant was secured through an
exploitation of the illegal arrest, then such
consent along with the photographs secured
in the search resulting from the consent would
undoubtedly be fruit-of-the-tree. But not every
piece of evidence uncovered after an illegal
arrest is automatically excluded. Rather, the
question to be asked each time is “[WJhether,
App. 8
granting establishment of the primary illegality,
the evidence to which instant objection is made
has been come at by exploitation of that illegality
or instead by means sufficiently distinguishable
to be purged of the primary taint.” Maguire,
Evidence of Guilt, 221 (1959). Wong Sun v.
United States, 371 U.S. at 488, 83 S.Ct. at 417,
9 L.Ed.2d at 455. ' 401 F.2d at 236-237
(footnotes omitted).
We need not here decide whether the arrest of
appellant was legal or not,“ for, even if illegal, we think
that the subsequent consent was untainted under the
reasoning of Phelper. First, there is no evidence that
appellant was subjected to any coercive tactics in order
to elicit his consent. The duress, if any, did not go
beyond that inherent in any arrest. Second, and perhaps
most important, there were significant “intervening
occurrences” between the alleged illegal arrest and
the acquisition of the evidence sought to be used. Phelper
v. Decker, supra, 401 F.2d at 237. Thus, the evidence
would support a conclusion that appellant was advised
that he need not consent, that anything found could be
used against him, and that he had a right to consult
with an attorney. While warnings prior to a consensual
search may not have the same indispensability as those
required prior to a confession, see Agius v. United
States, 5 Cir. 1969, 413 F.2d 915; Byrd v. Lane, 7 Cir.
1968, 398 F.2d 750; Gorman v. United States, 1 Cir.
1967, 380 F.2d 158; cf. Miranda v. Arizona, 1966, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, they do help
The question of the legality of appellant’s arrest under Florida
law is not free from doubt. See Benefield v. State, Fla.1964, 160
So.2d 706.
App. 9
ensure that the consent is free, voluntary, and untainted
by the arrest’s possible illegality. In the instant case
the presence of these warnings leads us to conclude
that any coercion flowing from the possible illegality of
appellant’s arrest was dissipated. We therefore hold
that the evidence supports the conclusion that appellant
voluntarily consented to the search of his apartment.
[4] Nor do we think that, as appellant contends,
the seizure of the driver’s license went beyond the
scope of that consent. While the request for appellant's
consent was phrased in terms of a search for furs and
jewels, that request cannot reasonably be construed as
disabling the police from seizing evidence which there
is reason to believe would aid in appellant’s conviction
for robbery. See Warden, Maryland Penitentiary v.
Hayden, 1967, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d
782. This was not a general exploratory search for
articles without relation to the crime for which appellant
was arrested. The unexplained presence in appellant’s
apartment of a driver’s license bearing Annello’s name
would reasonably arouse suspicion that it was utilized
in the robbery. Since there is a nexus between the
crime for which the evidence was sought and the driver's
license that was seized, we cannot hold that appellant’s
consent was abused.
[5] Moreover, the driver’s license was in “plain
view.” As we have frequently noted, “[ijt has long been
settled that objects falling in the plain view of an
officer who has a right to be in the position to have that
view are subject to seizure and may be introduced into
evidence. Evidence concerning ‘[t}hat which
is in plain view is not the product of a search’” Marshall
App. 10
v. United States, 5 Cir. 1970, 422 F.2d 185, 188; see
Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct.
992, 19 L.Ed.2d 1067; United States v. Lee, 4 Cir. 1962,
308 F.2d 715. The police officers here were on the
premises pursuant to appellant's consent, and the driver's
license, being in plain view, was subject to seizure. For
all these reasons we conclude that the state court did
not err in admitting the driver's license into evidence.
[6] Appellant next argues that he was denied a
fair trial because of the failure of the state trial court
to grant his motion for severance. Appellant contends
that he was prejudiced from the court’s failure to sever
because he was unable to examine his co-defendants
who chose not to testify at their joint trial. Evidence
seized from Antone and Ghelfi was introduced against
all three co-defendants.’ Thus, appellant claims, he should
have been afforded an opportunity to question both
co-defendants as to the validity of their consents to the
searches which led to the seizure of the incriminating
evidence.
We begin with the proposition that the denial of
severance in a joint trial of co-defendants “is a matter
within the sound discretion of the trial Judge, and his
decision will not be overturned unless there is an
affirmative showing of abuse of discretion.” Milam v.
United States, 5 Cir. 1963, 322 F.2d 104; accord, Blachly
v. United States, 5 Cir. 1967, 380 F.2d 665, 674-675;
Peterson v. United States, 5 Cir. 1965, 344 F.2d 419. No
showing has been made that this discretion has here
been abused.
*The evidence which was seized from Antone and Ghelfi and
introduced at the joint trial consisted of jewelry, furs, and guns.
App. 11
[7] The record reveals that in fact appellant was
able to examine his co-defendants with reference to
their alleged consents. The state trial court held a
hearing on appellant’s motion to suppress. At that
hearing all of the co-defendants testified, and appellant's
counsel, who also represented the two co-defendants,
questioned them fully as to their consent to the searches
and the validity thereof. Appellant argues, however,
that the jury was unable to hear this evidence. But this
contention ignores the well-established rule that it is
for the court, not the jury, to decide whether evidence
has been illegally obtained. Phelper v. Decker, supra,
401 F.2d at 235; Burris v. United States, 5 Cir. 1951, 192
F.2d 253; C. Wright, Federal Practice & Procedure
§675, at 124 (1969). Since all relevant testimony was
adduced at the hearing on the motion to suppress, we
agree with the district court’s conclusion below that it
is difficult “to see how, in fact, Petitioner was prejudiced.”
[8] Alternatively, even if appellant had not been
able to inquire into the validity of his co-defendants’
consents, he could not be heard to complain, for he
lacked standing to object to the introduction of the
evidence seized from Antone and Ghelfi. Alderman v.
United States, 1969, 394 U.S. 165, 89 S.Ct. 961, 22
L.Ed.2d 176; Jones v. United States, 1960, 362 U.S. 257,
80 S.Ct. 725, 4 L.Ed.2d 697; Sendejas v. United States,
9 Cir. 1970, 428 F.2d 1040, 1043-1044 (Tuttle, J.); Matthews
v. United States, 5 Cir. 1969, 407 F.2d 1371, 1383. Since
the searches in question were not directed at appellant
or his premises, only his co-defendants could contest
the validity of their consents. Since it would have been
impermissible in this case for appellant to have been
afforded the benefits of the exclusionary rule, he may
App. 12
not now complain of any inability to examine Antone
and Ghelfi with regard to their consents. We therefore
conclude that the state trial court did not err in denying
appellant’s motion for severance.
The district court’s denial of the petition for writ
of habeas corpus is affirmed.
UNITED STATES of America,
Plaintiff-Appellee,
.
James Charles ABBOTT,
Defendant-A ppellant.
No. 75-1821.
United States Court of Appeals,
Tenth Circuit.
Argued and Submitted Sept. 21, 1976.
Decided Jan. 6, 1977.
The United States District Court for the Eastern
District of Oklahoma, Joseph W. Morris, Chief Judge,
found defendant guilty of knowingly and unlawfully
App. 13
possessing a .30 caliber carbine not registered to him,
and he appealed. The Court of Appeals, Lewis, Chief
Judge, held that defendant’s wife was not shown to
have consented to the warrantless search by the police
of the trunk of her husband’s automobile, in which the
subject rifle was found, since she never expressly gave
her consent to anyone to search the trunk, since, by
initiating the act of searching the automobile, by
requesting that it be done to prove proper registration
so she could obtain possession of the automobile, and
by actively participating in the search herself, she did
not effectively consent to a search of the automobile
including its locked trunk in her absence but, at most,
implicitly consented to a search of the automobile in
her presence and with her assistance, and since police
officer’s testimony that “she thought possibly this box
containing several titles was in the trunk” and she
indicated she wanted to get into the trunk was not
clear and positive testimony of unequivocal and specific
consent.
Judgment reversed with directions to sustain motion
to suppress.
1. Searches and Seizures —7(28)
To establish justification for a warrantless search,
there must be clear and positive testimony that consent
was “unequivocal and specific’ and “freely and
intelligently” given; the Government must prove consent
was given without duress or coercion, express or implied;
and the courts will indulge every reasonable presumption
against the waiver of fundamental constitutional rights
App. 14
and there must be convincing evidence that such rights
were waived.
2. Searches and Seizures —7(27)
Defendant’s wife was not shown to have consented
to the warrantless search by the police of the trunk of
her husband's automobile, in which a rifle not registered
to him was found, since she never expressly gave her
consent to anyone to search the trunk, and since, by
initiating the act of searching the automobile, by
requesting that it be done to prove proper registration
so she could obtain possession of the automobile, and
by actively participating in the search herself, she did
not effectively consent to a search of the automobile
including its locked trunk in her absence but, at most,
implicitly consented to a search of the automobile in
her presence and with her assistance. 26 U.S.C.A.
(I.R.C.1954) §5861(d).
3. Searches and Seizures —7(27)
If an individual’s statements and actions are made
and taken in the shadow of authoritative control, that
is a factor to be considered when waiver of a fundamental
right is considered.
Daniel J. Sears, Denver, Colo., for defendant-
appellant.
Robert D. McDonald, Asst. U. S. Atty., Oklahoma
City, Okl. (Richard A. Pyle, U. S. Atty., Muskogee, Okl.,
with him on the brief), for plaintiff-appellee.
App. 15
Before LEWIS, Chief Judge, and BREITENSTEIN
and SETH, Circuit Judges.
LEWIS, Chief Judge.
Appellant, James Abbott, was tried and convicted
by a jury in the district court for the Eastern District
of Oklahoma for knowingly and unlawfully possessing
a .30 caliber carbine not registered to him in violation
of 26 U.S.C. §5861(d). Appellant was sentenced to three
years of imprisonment to be served concurrently with
state court sentences then being served. During the
trial appellant moved to suppress the carbine asserting
that it had been obtained through an illegal search and
seizure. The trial court denied the motion to suppress
premised on a finding that appellant’s wife had
authoritatively’ consented to the warrantless search of
the trunk of appellant’s automobile in which the carbine
was found.
Appellant was stopped on March 26, 1974, by Officer
Hardin of the Oklahoma Highway Patrol for a registration
check of the automobile he was driving. The serial
number and description on the registration produced
by appellant did not correspond with the automobile
he was driving. Hardin also discovered a .45 automatic
under the seat of the automobile and arrested appellant
for possession of the weapon and illegal registration of
the automobile. Appellant was placed in custody in the
county jail and his automobile was impounded in a
private wrecker service garage.
Since we determine that the government failed to establish a
consent search we need not discuss the appellate issue of Mrs.
Abbott's authority to consent.
App. 16
While appellant was in custody his wife appeared
at the impound garage attempting to obtain release of
the automobile. The title produced by Mrs. Abbott did
not correspond with the automobile’s identification
number. With the assistance of Officer Hardin, Mrs.
Abbott searched the passenger compartment for a small
box which she believed contained the title to the
automobile. When this search proved unsuccessful, Mrs.
Abbott suggested that the box containing the title
might possibly be in the trunk of the automobile. After
Mrs. Abbott and Officer Hardin were unable to gain
access to the trunk, Mrs. Abbott said she would go
home, try to find the trunk key, and then return.
While she was gone, a deputy sheriff obtained the
trunk key from the lining of appellant's coat pocket in
his jail cell and delivered the key to Hardin at the
impound garage. Although Mrs. Abbott had not returned
to the garage, Hardin opened the trunk and found the
small box containing several titles and a .30 caliber
carbine which was the subject of this prosecution.
The government makes no claim that the subject
warrantless search was justified by any exigency of
time or circumstance nor excused within the bounds of
Chambers u Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26
L.Ed.2d 419, or South Dakota v. Opperman, 428 U.S.
364, 96 S.Ct. 3092, 49 L.Ed.2d 1000. It relies entirely on
the testimony of Officer Hardin to support the claim
that Mrs. Abbott gave consent for the search. Hardin
testified as follows:
Q. What else did Mrs. Abbott do while you
were there, Mr. Hardin?
App. 17
A. She looked through the car trying to locate
a small black or brown cardboard box with
several titles in it. She said that another title
to this car may be in this box and it would
prove ownership and prove it was not stolen.
Q. Did you help her make that search of the
car?
A. Yes, sir.
Q. Did Mrs. Abbott indicate that the title
would be in the trunk?
A. She thought possibly this box containing
several titles was in the trunk.
Q. Did you make any effort to get in the
trunk yourself or indicate that she wanted to
get into the trunk?
A. Yes, sir.
Q. Did you try to get in the trunk?
A. She was asking me about the key, there
was only an ignition key in the car and she
indicated if she had the key we would look in
the trunk. We looked inside the car and under
the floor mat possibly for another key, opened
the glove box and thought there might be a
App. 18
trunk release in the glove box for that particular
car.
Q. Did she make any effort to obtain a key
for the trunk herself?
A. She said she was going home and try to
find the key and would be back.
Q. In the meantime did you obtain a key
from Mr. Abbott’s possessions at the jail?
A. Yes, sir.
Q. You opened the trunk with that key, is
that correct?
A. Yes, sir.
[1] In Villano u United States, 10 Cir., 310 F.2d
680, 684, this court set out the specifics necessary to
sustain the burden required of the government to establish
justification for a warrantless search. These rules may
be paraphrased in the following manner: (1) There must
be clear and positive testimony that consent was
“unequivocal and specific” and “freely and intelligently”
given; (2) the government must prove consent was
given without duress or coercion, express or implied;
and (3) the courts indulge every reasonable presumption
against the waiver of fundamental constitutional rights
and there must be convincing evidence that such rights
were waived.
[2] Applying these rules to the instant case the
government’s case must fail. The evidence does not
App. 19
indicate that Mrs. Abbott ever expressly gave her
consent to anyone to search the trunk. By initiating the
act of searching the automobile, by requesting that it
be done to prove proper registration so she could obtain
possession of the automobile, and by actively participating
in the search herself the government contends Mrs.
Abbott effectively consented to a search of the automobile
including its locked trunk. We disagree. At the most,
she implicitly consented to a search of the automobile
in her presence and with her assistance. Her implicit
consent to search the passenger compartment in her
presence with her assistance does not constitute
unequivocal and specific consent to search the locked
trunk in her absence. Officer Hardin’s testimony that
“[s]he thought possibly this box containing several titles
was in the trunk” and that she indicated she wanted to
get into the trunk is not clear and positive testimony of
an unequivocal and specific consent.
[3] Each of Mrs. Abbott’s statements and actions
was made and taken in the shadow of authoritative
control, a factor always to be considered when waiver
of a fundamental right is to be considered. Here her
husband was incarcerated, she had need for the
automobile, and she was surrounded by police officers.
Since the car was impounded it is unlikely she believed
she could search the car in privacy. Such an atmosphere
increases the burden of showing a free and uninhibited
waiver and consent.
The judgment of conviction is reversed with
directions to sustain the motion to suppress and for
such further proceedings as are consistent with the
decision of this court.
App. 20
U.S. SUPREME COURT REPORTS 59 L Ed 2d
[440 US 648]
STATE OF DELAWARE,
Petitioner,
v
WILLIAM J. PROUSE, III
440 US 648, 59 L Ed 2d 660, 99 S Ct 1391
[No. 77-1571]
Argued January 17, 1979. Decided March 27, 1979.
Decision: Police officer’s random stop of auto and
detention of driver for check of driver’s license and
vehicle’s registration, held violative of Fourth
Amendment as unreasonable seizure.
SUMMARY
A New Castle County, Delaware, police officer
stopped an automobile and seized marijuana in plain
view on the car floor after smelling marijuana smoke
SUBJECT OF ANNOTATION
Beginning on page 924, infra
What constitutes adequate and independent state
substantive ground precluding Supreme Court review
of state court decision on federal question
Briefs of Counsel, p 921, infra.
App. 21
as he walked toward the stopped vehicle. An occupant
of the vehicle who had been indicted for illegal possession
of a controlled substance moved to suppress, at his
state trial, the marijuana seized as a result of the stop.
At a hearing on the motion to suppress, the police
officer testified that prior to stopping the vehicle he
had observed neither traffic or equipment violations,
nor any suspicious activity, and that he had made the
stop only in order to check the driver’s license and the
registration of the vehicle. Finding the police officer's
stop and detention to have been violative of the Fourth
Amendment, the trial court granted the motion to
suppress. The Delaware Supreme Court affirmed, holding
that a random stop of a motorist in the absence of
specific articulable facts justifying the stop by indicating
a reasonable suspicion that a violation of law has occurred
was constitutionally impermissible and violative of the
Fourth and Fourteenth Amendments (382 A2d 1359).
On certiorari, the United States Supreme Court
affirmed. In an opinion by WHITE, J., joined by BURGER,
Ch. J.. and BRENNAN, STEWART, MARSHALL,
BLACKMUN, POWELL, and STEVENS, JJ., it was
held that, (1) as a preliminary matter, the court had
jurisdiction in the case at bar even though the Delaware
Supreme Court had held that the stop at issue not only
violated the Federal Constitution but also a provision
of the state constitution substantially similar to the
Fourth Amendment, since the Delaware Supreme Court
had not rested its decision independently on the state
constitution but had based its decision on the Fourth
and Fourteenth Amendments, having followed the
approach, consistent with previous opinions of the
Delaware Supreme Court, of interpreting the state
App. 22
constitutional provision in terms of the breadth and
scope of the Fourth and Fourteenth Amendments, and
(2) a policeman’s stopping an automobile and detaining
the driver in order to check the driver's license and the
registration of the automobile constitute an unreasonable
seizure under the Fourth and Fourteenth Amendments,
except in those situations in which there is at least an
articulable and reasonable suspicion that a motorist is
unlicensed, or that an automobile is not registered, or
that either the vehicle or an occupant is otherwise
subject to seizure for violation of law, such rule against
random stops and detentions, however, not precluding
a state from developing methods for spot checks that
involve less intrusion or that do not involve the
unconstrained exercise of discretion, such as, for example,
the questioning of all oncoming traffic at roadblock-
type stops.
BLACKMUN, J., joined by POWELL, J., concurred,
with the understanding that (1) the court’s allowing
spot checks that do not involve the unconstrained exercise
of discretion would include, in addition to a roadblock
stop for all traffic, other stops that were not purely
random and that equate with, but are less intrusive
than, a 100% roadblock stop, and (2) the court’s decision
was distinguishable, for purposes of constitutionality,
from individualized random examinations by game
wardens in the performance of their duties.
REHNQUIST, Jr., dissenting, expressed the view
that the state’s system of random spot checks of vehicles
was not violative of the Fourth Amendment, and that
there was no basis for distinguishing, for Fourth
Amendment purposes, between a roadblock stop of all
App. 23
cars and the random stop of a car in order to check the
driver’s license and the vehicle’s registration.
HEADNOTES
Classified to U.S. Supreme Court Digest,
Lawyers’ Edition
Search and Seizure §8 — random auto stop and detention
— license and registration check
la, 1b, le. A police officer's stopping an automobile
and detaining the driver in order to check the driver's
license and the registration of the automobile constitute
an unreasonable seizure under the Fourth and Fourteenth
Amendments, where the police officer has no articulable
and reasonable suspicion that a motorist is unlicensed
or that an automobile is not registered, or that either
the vehicle or an occupant is otherwise subject to seizure
for violation of law, there being no justification for
subjecting every occupant of every vehicle on the roads
to a seizure at the unbridled discretion of law-enforcement
officials on the basis of a state interest in promoting
roadway safety. (Rehnquist, J., dissented from this
holding.)
Appeal and Error §500 — Supreme Court jurisdiction
— review of state court decision — independent and
adequate state ground — police stop of vehicle
2. The United States Supreme Court has
jurisdiction to review, on certiorari, the decision of a
state’s highest court holding that a policeman’s random
stop of a vehicle violated Fourth and Fourteenth
App. 24
Amendments to the United States Constitution and a
provision of the state constitution substantially similar
to the Fourth Amendment, and the Supreme Court’s
TOTAL CLIENT-SERVICE
LIBRARY® REFERENCES
68 Am Jur 2d, Searches and Seizures §16
7 Federal Procedural Forms L Ed, Criminal
Procedure §§20:571 et seq.
8 Am Jur Pl & Pr Forms (Rev), Criminal Procedure
Forms 171 et seq.
5 Am Jur Trials 331, Excluding Illegally Obtained
Evidence
USCS, Constitution, 4th Amendment
US L Ed Digest, Search and Seizure §8
L Ed Index to Annos, Motor Vehicles and Carriers
ALR Quick Index, Automobiles and Highway
Traffic
Federal Quick Index, Automobiles and Highway
Traffic
ANNOTATION REFERENCES
What constitutes adequate and independent state
substantive ground precluding Supreme Court review of
state court decision on federal question. 59 L Ed 2d 924.
Supreme Court’s views as to the federal legal aspects of
the right of privacy. 43 L Ed 2d 871.
What indication that state court’s decision turned on
federal question will move the Supreme Court to re W it.
84 L Ed 925, 100 L Ed 1200.
Lawfulness of nonconsensual search and seizure without
warrant, prior to arrest. 89 ALR2d 715.
App. 25
jurisdiction is not barred on the ground of the state
court’s judgment having been based on an independent
and adequate state ground, where even if the state
constitution would have provided an adequate basis
for the judgment, the holding of the state’s highest
court depended upon its view of the reach of the Fourth
and Fourteenth Amendments, the state court having
followed the approach, consistent with its previous
decisions, that the state constitution would automatically
be interpreted at least as broadly as the Fourth
Amendment so that every police practice authoritatively
determined to be contrary to the Fourth and Fourteenth
Amendments would, without further analysis, be held
contrary to the state constitutional provision.
[See annotation p 924, infa /
Appeal and Error §487 — independent and adequate
state ground — Supreme Court jurisdiction
3. If the decision of a state’s highest court is
based solely on the United States Constitution, without
mention of state law, the United States Supreme Court
will have jurisdiction to review the decision on certiorari,
even though the state constitution might have provided
an independent and adequate state ground upon which
the state court could have based its decision.
Search and Seizure 82 — stopping automobile
4. A state police officer’s stopping an automobile
and detaining its occupants constitute a “seizure” within
the meaning of the Fourth and Fourteenth Amendments,
App. 26
even though the purpose of the stop is limited and the
resulting detention quite brief.
Search and Seizure 85 — Fourth Amendment —
reasonableness
5. Since the essential purpose of the proscriptions
in the Fourth Amendment is to impose a standard of
“reasonableness” upon the exercise of discretion by
government officials, including law-enforcement agents,
in order to safeguard the privacy and security of
individuals against arbitrary invasions, the permissibility
of a particular law-enforcement practice is judged by
balancing its intrusion on the individual’s Fourth
Amendment interests against its promotion of legitimate
governmental interests.
Search and Seizure §6 — Fourth Amendment — persons
protected — persons in autos
6. An individual operating or traveling in an
automobile does not lose all reasonable expectation of
privacy simply because the automobile and its use are
subject to government regulation, and just as people
are not shorn of all Fourth Amendment protection
when they step from their homes onto the public
sidewalks, nor are they shorn of those interests when
they step from the sidewalks into their automobiles.
Search and Seizure §8 — auto stops — registration and
license checks — roadblock-type stops
7. The rule that a police officer’s stopping an
automobile and detaining the driver in order to check
App. 27
his driver's license and the registration of the automobile
constitute an unreasonable seizure under the Fourth
Amendment when there is no articulable and reasonable
suspicion that a motorist is unlicensed or that an
automobile is not registered, or that either the vehicle
or an occupant is otherwise subject to seizure for violation
of law, does not preclude the state from developing
methods for spot checks that involve less intrusion or
that do not involve the unconstrained exercise of
discretion, the questioning of all oncoming traffic at
roadblock-type stops being one possible alternative.
Search and Seizure 88 — auto stops — license and
registration checks — weigh-stations and inspection
points for trucks
Za, 8b. The rule that a police officer's stopping
an automobile and detaining the driver in order to
check his driver's license and the registration of the
automobile constitute an unreasonable seizure under
the Fourth Amendment when there is no articulable
and reasonable suspicion that a motorist is unlicensed
or that an automobile is not registered, or that either
the vehicle or an occupant is otherwise subject to seizure
for violation of law, does not cast doubt on the
permissibility of roadside truck weigh-stations and
inspection points. at which some vehicles may be subject
to further detention for safety and regulatory inspection
than are others.
App. 28
SYLLABUS BY REPORTER OF DECISIONS
A patrolman in a police cruiser stopped an automobile
occupied by respondent and seized marihuana in plain
view on the car floor. Respondent was subsequently
indicted for illegal possession of a controlled substance.
At a hearing on respondent’s motion to suppress the
marihuana, the patrolman testified that prior to stopping
the vehicle he had observed neither traffic or equipment
violations nor any suspicious activity, and that he made
the stop only in order to check the driver's license and
the car’s registration. The patrolman was not acting
pursuant to any standards, guidelines, or procedures
pertaining to document spot checks, promulgated by
either his department or the State Attorney General.
The trial court granted the motion to suppress, finding
the stop and detention to have been wholly capricious
and therefore violative of the Fourth Amendment. The
Delaware Supreme Court affirmed. Held:
1. This Court has jurisdiction in this case even
though the Delaware Supreme Court held that the
stop at issue not only violated the Federal Constitution
but was also impermissible under the Delaware
Constitution. That court’s opinion shows that even if
the state Constitution would have provided an adequate
basis for the judgment below, the court did not intend
to rest its decision independently on the state Constitution,
its holding instead depending upon its view of the
reach of the Fourth and Fourteenth Amendments.
2. Except where there is at least articulable and
reasonable suspicion that a motorist is unlicensed or
that an automobile is not registered, or that either the
App. 29
vehicle or an occupant is otherwise subject to seizure
for violation of law, stopping an automobile and detaining
the driver in order to check his driver's license and the
registration of the automobile are unreasonable under
the Fourth Amendment.
(a) Stopping an automobile and detaining its
occupants constitute a “seizure” within the meaning of
the Fourth and Fourteenth Amendments, even though
the purpose of the stop is limited and the resulting
detention quite brief. The permissibility of a particular
law enforcement practice is judged by balancing its
intrusion on the individual’s Fourth Amendment interests
against its promotion of legitimate governmental interests.
(b) The State’s interest in discretionary spot checks
as a means of ensuring the safety of its roadways does
not outweigh the resulting intrusion on the privacy
and security of the persons detained. Given the physical
and psychological intrusion visited upon the occupants
of a vehicle by a random stop to check documents, cf.
United States v Brignoni-Ponce, 422 US 873, 45 L Ed
2d 607, 95 S Ct 2574, United States v Martinez-Fuerte,
428 US 543, 49 L Ed 2d 1116, 96 S Ct 3074, the marginal
contribution to roadway safety possibly resulting from
a system of spot checks cannot justify subjecting every
occupant of every vehicle on the roads to a seizure at
the unbridled discretion of law enforcement officials.
(c) An individual operating or traveling in an
automobile does not lose all reasonable expectation of
privacy simply because the automobile and its use are
subject to government regulation. People are not shorn
of all Forth Amendment protection when they step
App. 30
from their homes onto the public sidewalk; nor are
they shorn of those interests when they step from the
sidewalks into their automobiles.
(d) The holding in this case does not preclude
Delaware or other States from developing methods for
spot checks that involve less intrusion or that do not
involve the unconstrained exercise of discretion.
Questioning of all oncoming traffic at roadblock-type
stops is one possible alternative. 382 A 2d 1359, affirmed.
White, J., delivered the opinion of the Court, in
which Burger, C. J., and Brennan, Stewart, Marshall,
Blackmun, Powell, and Stevens, JJ., joined. Blackmun,
J., filed a concurring opinion, in which Powell, J., joined.
Rehnquist, J., filed a dissenting opinion.
APPEARANCES OF COUNSEL
Charles M. Oberly, III, argued the cause for
petitioner.
David M. Lukoff argued the case for respondent.
Briefs of Counsel, p 921, infra.
OPINION OF THE COURT
[440 US 650]
Mr. Justice White delivered the opinion of the
Court.
[la] The question is whether it is an unreasonable
seizure under the Fourth and Fourteenth Amendments
App. 31
to stop an automobile, being driven on a public highway,
for the purpose of checking the driving license of the
operator and the registration of the car, where there is
neither probable cause to believe nor reasonable suspicion
that the car is being driven contrary to the laws governing
the operation of motor vehicles or that either the car
or any of its occupants is subject to seizure or detention
in connection with the violation of any other applicable
law.
I
At 7:20 p.m. on November 30, 1976, a New Castle
County, Del., patrolman in a police cruiser stopped the
automobile occupied by respondent.’ The patrolman
smelled marihuana smoke as he was walking toward
the stopped vehicle, and he seized marihuana in plain
view on the car floor. Respondent was subsequently
indicted for illegal possession of a controlled substance.
At a hearing on respondent’s motion to suppress the
marihuana seized as a result of the stop, the patrolman
testified that prior to stopping the vehicle he had observed
neither traffic or equipment violations nor any suspicious
activity, and that he made the stop only in order to
check the driver's license and registration. The patrolman
was not acting pursuant to any standards, guidelines,
‘In its opinion, the Delaware Supreme Court referred to
respondent as the operator of the vehicle, see 382 A2d 1359, 1361
(1978). However, the arresting officer testified: I don't believe
[respondent] was the driver... . As I recall, he was in the back
seat ., App A12; and the trial court in its ruling on the motion
to suppress referred to respondent as one of the four “occupants”
of the vehicle, id., at A17. The vehicle was registered to respondent.
Id., at Al0.
App. 32
or procedures pertaining to document spot checks,
promulgated by either his department or the State
Attorney General. Characterizing the stop as “routine,”
the patrolman explained, “I saw the car [440 US 651] in
the area and wasn’t answering any complaints, so I
decided to pull them off.” App A9. The trial court
granted the motion to suppress, finding the stop and
detention to have been wholly capricious and therefore
violative of the Fourth Amendment.
The Delaware Supreme Court affirmed, noting first
that “[t]he issue of the legal validity of systematic,
roadblock-type stops of a number of vehicles for license
and vehicle registration check is not now before the
Court,” 382 A2d 1359, 1362 (1978) (emphasis in original).
The court held that “a random stop of a motorist in the
absence of specific articulable facts which justify the
stop by indicating a reasonable suspicion that a violation
of the law has occurred is constitutionally impermissible
and violative of the Fourth and Fourteenth Amendments
to the United States Constitution.” Id., at 1364. We
granted certiorari to resolve the conflict between this
decision, which is in accord with decisions in five other
jurisdictions,’ and the contrary determination in six
United States v Montgomery, 182 US App DC 426, 561 F2d
875 (1977); People v Ingle, 36 NY2d 413, 330 NE2d 39 (1975); State
v Ochoa, 23 Ariz App 510, 534 P2d 441 (1975), revd on other
grounds, 112 Ariz 582, 544 P2d 1097 (1976); Commonwealth v
Swanger, 453 Pa 107, 307 A2d 875 (1973); United States v Nicholas,
448 F2d 622 (CA8 1971). See also United States v Cupps, 503 F2d
277 (CA6 1974).
App. 33
jurisdictions® that the Fourth Amendment does not
prohibit the kind of automobile stop that occurred here.
439 US 816, 58 L Ed 2d 107, 99 S Ct 76 (1978).
II
[2] Because the Delaware Supreme Court held
that the stop at issue not only violated the Federal
Constitution but was [440 US 652] also impermissible
under Art I, §6, of the Delaware Constitution, it is urged
that the judgment below was based on an independent
and adequate state ground and that we therefore have
no jurisdiction in this case. Fox Film Corp. v Muller,
296 US 207, 210, 80 L Ed 158, 56 S Ct 183 (1935). At
least, it is suggested, the matter is sufficiently uncertain
that we should remand for clarification as to the ground
upon which the judgment rested. California v Krivda,
409 US 33, 35, 34 L Ed 2d 45, 93 S Ct 32 (1972). Based on
our reading of the opinion, however, we are satisfied
that even if the state Constitution would have provided
an adequate basis for the judgment, the Delaware
Supreme Court did not intend to rest its decision
independently on the state Constitution and that we
have jurisdiction of this case.
[3] As we understand the opinion below, Art I, §6,
of the Delaware Constitution will automatically be
State v Holmberg, 194 Neb 337, 231 NW2d 672 (1975); State v
Allen, 282 NC 503, 194 SE2d 9 (1973); Palmore v United States, 285
A2d 573 (DC App 1972), affd on jurisdictional grounds only, 411
US 389, 36 L Ed 2d 342, 93 S Ct 1670 (1973); Leonard v State, 496
SW2d 576 (Tex Crim App 1973); United States v Jenkins, 528 F2d
713 (CA10 1975); Myricks v United States, 370 F2d 901 (CA5), cert
dismissed, 386 US 1015, 18 L Ed 2d 474, 87 S Ct 1366 (1967).
App. 34
interpreted at least as broadly as the Fourth Amendment:
that is, every police practice authoritatively determined
to be contrary to the Fourth and Fourteenth Amendments
will, without further analysis, be held to be contrary to
Art I, §6. This approach, which is consistent with previous
opinions of the Delaware Supreme Court,’ was followed
in this case. The court analyzed [440 US 653] the various
decisions interpreting the Federal Constitution, concluded
that the Fourth Amendment foreclosed spot checks of
automobiles, and summarily held that the state
‘The court stated: “The Delaware Constitution Article I, §6 is
substantially similar to the Fourth Amendment and a violation of
the latter is necessarily a violation of the former.” 382 A2d, at
1362, citing State v. Moore, 55 Del 356, 187 A2d 807 (1963).
Moore was decided less than two years after Mapp v Ohio,
367 US 643, 6 L Ed 2d 1081, 81 S Ct 1684, 16 Ohio Ops 2d 384, 86
Ohio L Abs 513, 84 ALR2d 933 (1961), applied to the States the
limitations previously imposed only on the Federal Government.
In setting forth the approach reiterated in the opinion below,
Moore noted not only the common purposes and wording of the
Fourth Amendment and the state constitutional provision, but
also the overriding effect of the former. See 55 Del, at 362-363, 187
A2d, at 810-811.
We have found only one case decided after State v Moore,
supra, in which the court relied solely on state law in upholding
the validity of a search or seizure, and that case involved not only
Del Const Art I, §6, but also state statutory requirements for
issuance of a search warrant. Rossitto v State, 234, A2d 438 (1967).
Moreover, every case holding a search or seizure to be contrary to
the state constitutional provision relies on cases interpreting the
Fourth Amendment and simultaneously concludes that the search
or seizure is contrary to that provision. See, e.g., Young v State,
339 A2d 723 (1975); Freeman v State, 317 A2d 540 (1974); ef.
Bertomeu v State, 310 A2d 865 (1973).
App. 35
Constitution was therefore also infringed. This is one
of those cases where “at the very least, the [state]
court felt compelled by what it understood to be federal
constitutional considerations to construe . . its own
law in the manner it did.” Zacchini v Scripps-Howard
Broadcasting Co., 433 US 562, 568, 53 L Ed 2d 965, 97S
Ct 2849, 5 Ohio Ops 3d 215 (1977). Had state law not
been mentioned at all, there would be no question
about our jurisdiction, even though the state Constitution
might have provided an independent and adequate state
ground. Ibid. The same result should follow here where
the state constitutional holding depended upon the
state court’s view of the reach of the Fourth and
Fourteenth Amendments. If the state court
misapprehended federal law, “[i]t should be freed to
decide . . . these suits according to its own local law.”
Missouri ex rel. Southern R. Co. v Mayfield, 340 US 1,
5, 95 L Ed 3, 71 S Ct 1 (1950).
III
[4, 5] The Fourth and Fourteenth Amendments
are implicated in this case because stopping an automobile
and detaining its occupants constitute a “seizure” within
the meaning of those Amendments, even though the
purpose of the stop is limited and the resulting detention
quite brief. United States v Martinez-Fuerte, 428 US
543, 556-558, 49 L Ed 2d 1116, 96 8 Ct 3074 (1976);
United States v Brignoni-Ponce, 422 US 873, 878, 45 L
Ed 2d 607, 95 8 Ct 2574 (1975); ef. Terry v Ohio, 392 US
1. 16, 20 L Ed 2d 889, 88 8 Ct 1868, 44 Ohio Ops 2d 383
(1968). The essential purpose of the proseriptions in the
Fourth Amendment is to impose a standard [440 US
App. 36
654] of “reasonableness” upon the exercise of discretion
by government officials, including law enforcement agents,
in order “‘to safeguard the privacy and security of
individuals against arbitrary invasions. ...’” Marshall
v Barlow’s, Inc., 436 US 307, 312, 56 L Ed 2d 305, 98 8
Ct 1816 (1978), quoting Camara v Municipal Court, 387
US 523, 528, 18 L Ed 2d 930, 87 S Ct 1727 (1967).’ Thus,
the permissibility of a particular law enforcement practice
is judged by balancing its intrusion on the individual's
Fourth Amendment interests against its promotion of
legitimate governmental interests.’ Implemented in this
manner, the reasonableness standard usually requires,
at a minimum, that the facts upon which an intrusion is
based be capable of measurement against “an objective
See Marshall v Barlow's, Inc., 436 US 307, 315, 56 L Ed 2d
305, 98 S Ct 1816 (1978); United States v Brignoni-Ponce, 422 US
873, 878, 45 L Ed 2d 607, 95 S Ct 2574 (1975); Cady v Dombrowski,
413 US 433, 439, 37 L Ed 2d 706, 93 S Ct 2523 (1973); Terry v Ohio,
392 US 1, 20-21, 20 L Ed 2d 889, 88 S Ct 1868, 44 Ohio Ops 2d 383
(1968); Camara v Municipal Court, 387 US 523, 539, 18 L Ed 2d 930,
87 S Ct 1727 (1967).
"See also United States v Martinez-Fuerte, 428 US 543, 554,
49 L Ed 2d 1116, 96 S Ct 3074 (1976); United States v Ortiz, 422 US
891, 895, 45 L Ed 2d 623, 95 S Ct 2585 (1975); Almeida-Sanchez v
United States, 413 US 266, 270, 37 L Ed 2d 596, 93 S Ct 2535 (1973);
Beck v Ohio, 379 US 89, 97, 13 L Ed 2d 142, 85 S Ct 223, 3 Ohio
Mise 71, 31 Ohio Ops 2d 80 (1964); McDonald v United States, 335
US 451, 455-456, 93 L Ed 153, 69 8 Ct 191 (1948).
See, e.g., United States v Ramsey, 431 US 606, 616-619, 52 L
Ed 2d 617, 97 S Ct 1972 (1977); United States v Martinez-Fuerte,
supra, at 555, 49 L Ed 2d 1116, 96 S Ct 3074; cases cited in n 6,
supra.
App. 37
standard.“ whether this be probable cause” or a less
stringent test." In those situations in which the balance
of interests precludes insistence upon “some quantum
[440 US 6565] of individualized suspicion.”” other safeguards
are generally relied upon to assure that the individual's
reasonable expectation of privacy is not “subject to the
discretion of the official in the field.” Camara v Municipal
Court, 387 US, at 532, 18 L Ed 2d 930, 87 S Ct 1727. See
id., at 534-535, 18 L Ed 2d 930, 97 S Ct 1727; Marshall v
Barlow’s, Inc., supra, at 320-321, 56 L Ed 2d 305, 98 8
Terry v Ohio, supra, at 21, 20 L Ed 2d 889, 88 8 Ct 1868, 44
Ohio Ops 2d 383. See also Scott v United States, 436 US 128, 137,
56 L Ed 2d 168, 98 S Ct 1717 (1978); Beck v Ohio, supra, at 96-97, 13
L Ed 2d 142, 85 8 Ct 223, 3 Ohio Mise 71, 31 Ohio Ops 2d 80.
"See, e.g., United States v. Santana, 427 US 38, 49 L Ed 2d
300, 96 S Ct 2406 (1976); United States v Watson, 423 US 411, 46 L
Ed 2d 598, 96 S Ct 820 (1976); Ker v California, 374 US 23, 10 L Ed
2d 726, 83 8 Ct 1623, 24 Ohio Ops 2d 201 (1963) (warrantless
arrests requiring probable cause); United States v Ortiz, supra;
Warden v Hayden, 387 US 294, 18 L Ed 2d 782, 87 S Ct 1642 (1967);
Carroll v United States, 267 US 132, 69 L Ed 543, 45 S Ct 280, 39
ALR 790 (1925) (warrantless searches requiring probable cause).
See also Gerstein v Pugh, 420 US 103, 43 L Ed 2d 54, 95 S Ct 854
(1975).
"See Terry v Ohio, supra; United States v Brignoni-Ponce,
supra.
In addition, the Warrant Clause of the Fourth Amendment
generally requires that prior to a search a neutral and detached
magistrate ascertain that the requisite standard is met, see, e. g.,
Mincey v Arizona, 437 US 385, 57 L Ed 2d 290, 98 S Ct 2408 (1978).
"United States v Martinez Fuerte, supra, at 560, 49 L Ed 2d
1116, 96 S Ct 3074.
App. 38
Ct 1816; United States v United States District Court,
407 US 297, 322-328, 32 L Ed 2d 752, 92 8 Ct 2125 (1972)
(requiring warrants).
In this case, however, the State of Delaware urges
that patrol officers be subject to no constraints in
deciding which automobiles shall be stopped for a license
and registration check because the State's interest in
discretionary spot checks as a means of ensuring the
safety of its roadways outweighs the resulting intrusion
on the privacy and security of the persons detained.
IV
We have only recently considered the legality of
investigative stops of automobiles where the officers
making the stop have neither probable cause to believe
nor reasonable suspicion that either the automobile or
its occupants are subject to seizure under the applicable
criminal laws. In United States v Brignoni-Ponce, supra,
Border Patrol agents conducting roving patrols in areas
near the international border asserted statutory authority
to stop at random any vehicle in order to determine
whether it contained illegal aliens or was involved in
smuggling operations. The practice was held to violate
the Fourth Amendment, but the Court did not invalidate
all warrantless automobile stops upon less than probable
cause. Given “the importance of the governmental interest
at stake, the minimal intrusion of a brief stop, and the
absence of practical alternatives for policing the border,”
422 US, at 881, 45 L Ed 2d 607, 95 S Ct 2574, the Court
analogized the roving-patrol stop to the on-the-street
encounter addressed in Terry v Ohio, supra, and held:
App. 39
“Except at the border and its functional
equivalents, officers on roving patrol may stop
vehicles only if they are [440 US 656] aware of
specific articulable facts, together with rational
inferences from those facts, that reasonably
warrant suspicion that the vehicles contain
aliens who may be illegally in the country.”
422 US, at 884, 45 L Ed 2d 607, 95 S Ct 2574
(footnote omitted).
Because “the nature of illegal alien traffic and the
characteristics of smuggling operations tend to generate
articulable grounds for identifying violators,” id., at
883, 45 L Ed 2d 607, 95 S Ct 2574, “a requirement of
reasonable suspicion for stops allows the Government
adequate means of guarding the public interest and
also protects residents of the border areas from
indiscriminate official interference.” Ibid.
The constitutionality of stops by Border Patrol
agents was again before the Court in United States v
Martinez-Fuerte, supra, in which we addressed the
permissibility of checkpoint operations. This practice
involved slowing all oncoming traffic “to a virtual, if
not a complete, halt,” 428 US, at 546, 49 L Ed 2d 1116,
96 S Ct 3074, at a highway roadblock, and referring
vehicles chosen at the discretion of Border Patrol agents
to an area for secondary inspection. See id., at 546, 558,
49 L Ed 2d 1116, 96 S Ct 3074. Recognizing that the
governmental interest involved was the same as that
furthered by roving-patrol stops, the Court nonetheless
sustained the constitutionality of the Border Patrol's
checkpoint operations. The crucial distinction was the
App. 40
lesser intrusion upon the motorist’s Fourth Amendment
interests:
Thel objective intrusion —the stop itself, the
questioning, and the visual inspection—also
existed in roving-patrol stops. But we view
checkpoint stops in a different light because
the subjective intrusion—the generating of
concern or even fright on the part of lawful
travelers—is appreciably less in the case of a
checkpoint stop.” Id., at 558, 49 L Ed 2d 1116,
96 8 Ct 3074.
Although not dispositive,“ these decisions
undoubtedly provide [440 US 657] guidance in balancing
the public interest against the individual's Fourth
Amendment interests implicated by the practice of
spot checks such as occurred in this case. We cannot
agree that stopping or detaining a vehicle on an ordinary
city street is less intrusive than a roving-patrol stop on
a major highway and that it bears greater resemblance
to a permissible stop and secondary detention at a
checkpoint near the border. In this regard, we note
that Brignoni-Ponce was not limited to roving-patrol
stops on limited access roads, but applied to any roving-
patrol stop by Border Patrol agents on any type of
"In addressing the constitutionality of Border Patrol practices,
we reserved the question of the permissibility of state and local
officials stopping motorists for document questioning in a manner
similar to checkpoint detention, see 428 US, at 560 n 14, 49 L Ed
2d 1116, 96 S Ct 3074, or roving-patrol operations, see United
States v Brignoni-Ponce, 422 US, at 883 n 8, 45 L Ed 2d 607, 95S
Ct 2574.
App. 41
roadway on less than reasonable suspicion. See 422 US,
at 882-883, 45 L Ed 2d 607, 95 S Ct 2574; United States
v Ortiz, 422 US 891, 894, 45 L Ed 2d 623, 95 S Ct 2585
(1975). We cannot assume that the physical and
psychological intrusion visited upon the occupants of a
vehicle by a random stop to check documents is of any
less moment than that occasioned by a stop by border
agents on roving patrol. Both of these stops generally
entai! law enforcement officers signaling a moving
automobile to pull over to the side of the roadway, by
means of a possibly unsettling show of authority. Both
interfere with freedom of movement, are inconvenient,
and consume time. Both may create substantial anxiety.
For Fourth Amendment purposes, we also see insufficient
resemblance between sporadic and random stops of
individual vehicles making their way through city traffic
and those stops occasioned by roadblocks where all
vehicles are brought to a halt or to a near Halt, and all
are subjected to a show of the police power of the
community. “At traffic checkpoints the motorist can
see that other vehicles are being stopped, he can see
visible signs of the officers’ authority, and he is much
less likely to be frightened or annoyed by the intrusion.”
Id., at 894-895, 45 L Ed 2d 623, 95 S Ct 2585, quoted in
United States v Martinez-Fuerte, 428 US, at 558, 49 L
Ed 2d 1116, 96 S Ct 3074.
[440 US 658]
N
But the State of Delaware urges that even if
discretionary spot checks such as occurred in this case
intrude upon motorists as much as or more than do the
App. 42
roving patrols held impermissible in Brignoni-Ponce,
these stops are reasonable under the Fourth Amendment
because the State’s interest in the practice as a means
of promoting public safety upon its roads more than
outweighs the intrusion entailed. Although the record
discloses no statistics concerning the extent of the
problem of lack of highway safety, in Delaware or in
the Nation as a whole, we are aware of the danger to
life“ and property posed by vehicular traffic and of the
difficulties that even a cautious and an experienced
driver may encounter. We agree that the States have a
vital interest in ensuring that only those qualified to do
so are permitted to operate motor vehicles, that these
vehicles are fit for safe operation, and hence that licensing,
registration, and vehicle inspection requirements are
being observed. Automobile licenses are issued
periodically to evidence that the drivers holding them
are sufficiently familiar with the rules of the road and
are physically qualified to operate a motor vehicle.”
The registration requirement and, more pointedly, the
related annual inspection requirement in Delaware“
are designed to keep dangerous automobiles off the
road. Unquestionably, these provisions, properly
“In 1977, 47,671 persons died in motor vehicle accidents in
this country. U.S. Dept. of Transportation, Highway Safety A-9
(1977).
See, e.g., Del Code Ann, Tit 21, §§2701, 2707 (1974 and Supp
1977), §2713 (1974) (Department of Public Safety “shall examine the
applicant as to his physical and mental qualifications to operate a
motor vehicle in such manner as not to jeopardize the safety of
persons or property. . .”).
§2143(a) (1974).
App. 43
administered, are essential elements in a highway safety
program. Furthermore, we note that the State of Delaware
requires a minimum amount of insurance [440 US 659]
coverage as a condition to automobile registration,”
implementing its legitimate interest in seeing to it that
its citizens have protection when involved in a motor
vehicle accident.”
The question remains, however, whether in the
service of these important ends the discretionary spot
check is a sufficiently productive mechanism to justify
the intgysion upon Fourth Amendment interests which
such stops entail. On the record before us, that question
must be answered in the negative. Given the alternative
mechanisms available, both those in use and those that
might be adopted, we are unconvinced that the
incremental countribution to highway safety of the
random spot check justifies the practice under the
Fourth Amendment.
The foremost method of enforcing traffic and vehicle
safety regulations, it must be recalled, is acting upon
observed violations. Vehicle stops for traffic violations
occur countless times each day; and on these occasions,
§2118 (Supp 1977): State of Delaware, Department of Public
Safety, Division of Motor Vehicles, Driver’s Manual 60 (1976).
“It, has been urged that additional state interests are the
apprehension of stolen motor vehicles and of drivers under the
influence of alcohol or narcotics. The latter interest is subsumed
by the interest in roadway safety, as may be the former interest
to some extent. The remaining governmental interest in controlling
automobile thefts is not * from the general interest
in erime control.
App. 44
licenses and registration papers are subject to inspection
and drivers without them will be ascertained.
Furthermore, drivers without licenses are presumably
the less safe drivers whose propensities may well exhibit
themselves.” Absent some empirical data to the contrary,
it must be assumed that finding an unlicensed driver
among those who commit traffic violations is a much
more likely event than finding an unlicensed driver by
choosing randomly from the entire universe of drivers.
If this were not so, licensing of drivers would hardly be
an effective means of promoting roadway safety. It
seems common sense that the [440 US 660] percentage
of all drivers on the road who are driving without a
license is very small and that the number of licensed
drivers who will be stopped in order to find one unlicensed
operator will be large indeed. The contribution to highway
safety made by discretionary stops selected from among
drivers generally will therefore be marginal at best.
Furthermore, and again absent something more than
mere assertion to the contrary, we find it difficult to
believe that the unlicensed driver would not be deterred
by the possibility of being involved in a traffic violation
or having some other experience calling for proof of his
entitlement to drive but that he would be deterred by
the possibility that he would be one of those chosen for
a spot check. In terms of actually discovering unlicensed
drivers or deterring them from driving, the spot check
does not appear sufficiently productive to qualify as a
reasonable law enforcement practice under the Fourth
Amendment.
Cf. United States v Brignoni-Ponce, supra, at 883, 45 L Ed
2d 607, 95 S Ct 2574.
App. 45
Much the same can be said about the safety aspects
of automobiles as distinguished from drivers. Many
violations of minimum vehicle-safety requirements are
observable, and something can be done about them by
the observing officer, directly and immediately.
Furthermore, in Delaware, as elsewhere, vehicles must
carry and display current license plates,“ which
themselves evidence that the vehicle is properly
registered,” and, under Delaware law, to qualify for
annual registration a vehicle must pass the annual
safety inspection“ and be properly insured.” It does
not appear, therefore, that a stop of a Delaware-registered
vehicle is necessary in order to ascertain compliance
with the State’s registration requirements; and because
there is nothing to [440 US 661] show that a significant
percentage of automobiles from other States do not
also require license plates indicating current registration,
there is no basis for concluding that stopping even
out-of-state cars for document checks substantially
promotes the State’s interest.
[1b] The marginal contribution to roadway safety
possibly resulting from a system of spot checks cannot
justify subjecting every occupant of every vehicle on
"Cf. United States v Brignoni-Ponce, supra, at 883, 45 L Ed
2d 607, 95 S Ct 2574.
»Del Code Ann, Tit 21. §2126 (1974).
88212100), (d) (1974).
*See n 16, supra; 52109 (1974).
See n 17, supra; §2109 (1974).
1 App. 46
the roads to a seizure — limited in magnitude compared
to other intrusions but nonetheless constitutionally
cognizable — at the unbridled discretion of law enforcement
officials. To insist neither upon an appropriate factual
basis for suspicion directed at a particular automobile
nor upon some other substantial and objective standard
or rule to govern the exercise of discretion “would
invite intrusions upon constitutionally guaranteed rights
based on nothing more substantial than inarticulate
hunches ....” Terry v Ohio, 392 US, at 22, 20 L Ed 2d
889, 88 S Ct 1868, 44 Ohio Ops 2d 383. By hypothesis,
stopping apparently safe drivers is necessary only because
the danger presented by some drivers is not observable
at the time of the stop. When there is not probable
cause to believe that a driver is violating any one of the
multitude of applicable traffic and equipment regulations“
—or other articulable basis amounting to reasonable
suspicion that the driver is unlicensed or his vehicle
unregistered—we cannot conceive of any legitimate
basis upon which a patrolman could decide that stopping
a particular driver for a spot check would be more
productive than stopping any other driver. This kind of
standardless and unconstrained discretion is the evil
the Court has discerned when in previous cases it has
insisted that the discretion of the official in the field be
circumscribed, at least to some extent. Almeida-Sanchez
v United States, 413 US 266, 270, 37 L Ed 2d 596, 93S
Ct 2535 (1973); Camara v Municipal Court, 387 US, at
532-533, 18 L Ed 2d 930, 87 S Ct 1727.
[440 US 662]
See, e. g., §§4101-4199B (1974 and Supp 1977).
App. 47
VI
The “grave danger” of abuse of discretion, United
States v Martinez-Fuerte, 428 US, at 559, 49 L Ed 2d
1116, 96 S Ct 3074, does not disappear simply because
the automobile is subject to state regulation resulting
in numerous instances of police-citizen contact. Cady v
Dombrowski, 413 US 433, 441, 37 L Ed 2d 706, 93 S Ct
2523 (1973). Only last Term we pointed out that “if the
government intrudes . . . the privacy interest suffers
whether the government’s motivation is to investigate
violations of criminal laws or breaches of other statutory
or regulatory standards.” Marshall v Barlow’s, Inc.,
436 US, at 312-313, 56 L Ed 2d 305, 98 S Ct 1816. There
are certain “relatively unique circumstances,” id., at
313, 56 L Ed 2d 305, 98 S Ct 1816, in which consent to
regulatory restrictions is presumptively concurrent with
participation in the regulated enterprise. See United
States v Biswell, 406 US 311, 32 L Ed 2d 87, 92 S Ct
1593 (1972) (federal regulation of firearms); Colonnade
Catering Corp. v United States, 397 US 72, 25 L Ed 2d
60, 90 S Ct 774 (1970) (federal regulation of liquor).
Otherwise, regulatory inspections unaccompanied by
any quantum of individualized, articulable suspicion
must be undertaken pursuant to previously specified
“neutral criteria.” Marshall v Barlow's, Inc., supra, at
323, 56 L Ed 2d 305, 98 S Ct 1816.
6 An individual operating or traveling in an automobile
does not lose all reasonable expectation of privacy
simply because the automobile and its use are subject
App. 48
to government regulation.” Automobile travel is a basic,
pervasive, and often necessary mode of transportation
to and from one’s home, workplace, and leisure activities.
Many people spend more hours each day traveling in
cars than walking on the streets. Undoubtedly, many
find a greater sense of security and privacy in traveling
in an automobile than they do in exposing themselves
by pedestrian or other modes of travel. Were the [440
US 663] individual subject to unfettered governmental
intrusion every time he entered an automobile, the
security guaranteed by the Fourth Amendment would
be seriously circumscribed. As Terry v Ohio, supra,
recognized, people are not shorn of all Fourth Amendment
protection when they step from their homes onto the
public sidewalks. Nor are they shorn of those interests
when they step from the sidewalks into their automobiles.
See Adams v Williams, 407 US 143, 146, 32 L Ed 2d 612,
92 S Ct 1921 (1972).
Vil
lle, 7, 8a] Accordingly, we hold that except in
those situations in which there is at least articulable
and reasonable suspicion that a motorist is unlicensed
or that an automobile is not registered, or that either
the vehicle or an occupant is otherwise subject to seizure
*Cf. Marshall v Barlow's, Inc. 436 US 307, 56 L Ed 2d 305, 98
S Ct 1816 (1978) (warrant required for federal inspection under
interstate commerce power of health and safety of workplace);
See v Seattle, 387 US 541, 18 L Ed 2d 943, 87 S Ct 1737 (1967)
(warrant required for inspection of warehouse for municipal fire
code violations); Camara v Municipal Court, 387 US 523, 18 L Ed
2d 930, 87 S Ct 1727 (1967) (warrant required for inspection of
residence for municipal fire code violations).
App. 49
for violation of law, stopping an automobile and detaining
the driver in order to check his driver's license and the
registration of the automobile are unreasonable under
the Fourth Amendment. This holding does not preclude
the State of Delaware or other States from developing
methods for spot checks that involve less intrusion or
that do not involve the unconstrained exercise of
discretion.” Questioning of all oncoming traffic at
roadblock-type stops is one possible alternative. We
hold only that persons in automobiles on public roadways
may not for that reason alone have their travel and
privacy interfered with at the unbridled discretion of
police officers. The judgment below is affirmed.
So ordered.
SEPARATE OPINIONS
Mr. Justice Blackmun, with whom Mr. Justice Powell
joins, concurring.
The Court, ante, at this page, 59 L Ed 2d, at 673,
carefully protects from the reach of its decision other
less intrusive spot checks “that do not involve [440 US
664] the unconstrained exercise of discretion.” The
roadblock stop for all traffic is given as an example. I
necessarily assume that the Court’s reservation also
includes other not purely random stops (such as every
10th car to pass a given point) that equate with, but are
**8b] Nor does our holding today cast doubt on the
permissibility of roadside truck weigh-stations and inspection
checkpoints, at which some vehicles may be subject to further
detention for safety and regulatory inspection than are others.
App. 50
less intrusive than, a 100% roadblock stop. And I would
not regard the present case as a precedent that throws
any constitutional shadow upon the necessarily somewhat
individualized and perhaps largely random examinations
by game wardens in the performance of their duties. In
a situation of that type, it seems to me, the Court’s
balancing process, and the value factors under
consideration, would be quite different.
With this understanding, I join the Court's opinion
and its judgment.
Mr. Justice Rehnquist, dissenting.
The Court holds, in successive sentences, that absent
an articulable, reasonable suspicion of unlawful conduct,
a motorist may not be subjected to a random license
check, but that the States are free to develop “methods
for spot checks that.. do not involve the unconstrained
exercise of discretion,” such as qluestioning. .. all
oncoming traffic at roadblock-type stops... Ante, at
663, 59 L Ed 2d, at 673-674. Because motorists, apparently
like sheep, are much less likely to be “frightened” or
“annoyed” when stopped en masse, a highway patrolman
needs neither probable cause nor articulable suspicion
to stop all motorists on a particular thoroughfare, but
he cannot without articulable suspicion stop less than
all motorists. The Court thus elevates the adage “misery
loves company” to a novel role in Fourth Amendment
jurisprudence. The rule becomes “curiouser and curiouser”
as one attempts to follow the Court’s explanation for it.
As the Court correctly points out, people are not
shorn of their Fourth Amendment protection when
App. 51
they step from their homes onto the public sidewalks
or from the sidwalks into [440 US 665] their automobiles.
But a random license check on a motorist operating a
vehicle on highways owned and maintained by the
State is quite different from a random stop designed to
uncover violations of laws that have nothing to do with
motor vehicles.* No one questions that the State may
require the licensing of those who drive on its highways
and the registration of vehicles which are driven on
those highways. If it may insist on these requirements,
it obviously may take steps necessary to enforce
compliance. The reasonableness of the enforcement
measure chosen by the State is tested by weighing its
intrusion on the motorists’ Fourth Amendment interests
against its promotion of the State’s legitimate interests.
E. g., United States v Brignoni-Ponce, 422 US 873, 878,
45 L Ed 2d 607, 95 S Ct 2574 (1975).
*Indeed, this distinction was expressly recognized in United
States v Brignoni-Ponce, 422 US 873, 883 n 8, 45 L Ed 2d 607, 95 8
Ct 2574 (1975):
“Our decision in this case takes into account the special
function of the Border Patrol, the importance of the governmental
interests in policing the border area, the character of roving-
patrol stops, and the availability of alternatives to random stops
unsupported by reasonable suspicion. Border Patrol agents have
no part in enforcing laws that regulate highway use, and their
activities have nothing to do with an inquiry whether motorists
and their vehicles are entitled, by virtue of compliance with laws
governing highway usage, to be upon the public highways. Our
decision thus does not imply that state and local enforcement
agencies are without power to conduct such limited stops as are
necessary to enforce laws regarding drivers’ licenses, vehicle
registration, truck weights, and similar matters.”
App. 52
In executing this balancing process, the Court
concludes that given the alternative mechanisms available,
discretionary spot checks are not a “sufficiently productive
mechanism” to safeguard the State’s admittedly “vital
interest in ensuring that only those qualified to do so
are permitted to operate motor vehicles, that these
vehicles are fit for safe operation, and hence that licensing,
registration, and vehicle inspection requirements are
being observed.” Ante, at 659, 658, 59 L Ed 2d, at 671,
670. Foremost among the alternative methods of enforcing
traffic and vehicle [440 US 666] safety regulations,
according to the Court, is acting upon observed violations,
for “drivers without licenses are presumably the less
safe drivers whose propensities may well exhibit
themselves.” Ante, at 659, 59 L Ed 2d, at 671. Noting
that “finding an unlicensed driver among those who
commit traffic violations is a much more likely event
than finding an unlicensed driver by choosing randomly
from the entire universe of drivers,” ibid., the Court
concludes that the contribution to highway safety made
by random stops would be marginal at best. The State’s
primary interest, however, is in traffic safety, not in
apprehending unlicensed motorists for the sake of
apprehending unlicensed motorists. The whole point of
enforcing motor vehicle safety regulations is to remove
from the road the unlicensed driver before he
demonstrates why he is unlicensed. The Court would
apparently prefer that the State check licenses and
vehicle registrations as the wreckage is being towed
away.
Nor is the Court impressed with the deterrence
rationale, finding it inconceivable that an unlicensed
driver who is not deterred by the prospect of being
App. 53
involved in a traffic violation or other incident requiring
him to produce a license would be deterred by the
possibility of being subjected to a spot check. The
Court arrives at its conclusion without the benefit of a
shred of empirical data in this record suggesting that a
system of random spot checks would fail to deter violators.
In the absence of such evidence, the State’s determination
that random stops would serve a deterrence function
should stand.
On the other side of the balance, the Court advances
only the most diaphanous of citizen interests. Indeed,
the Court does not say that these interests can never
be infringed by the State, just that the State must
infringe them en masse rather than citizen by citizen.
To comply with the Fourth Amendment, the State
need only subject all citizens to the same “anxiety” and
“inconvenien{ce]” to which it now subjects only a few.
[440 US 667]
For constitutional purposes, the action of an
individual law enforcement officer is the action of the
State itself, e. g., Ex parte Virginia, 100 US 339, 346-347,
25 L Ed 676 (1880), and state acts are accompanied by a
presumption of validity until shown otherwise. See,
e. g., McDonald v Board of Election, 394 US 802, 22 L
Ed 2d 739, 89 S Ct 1404 (1969). Although a system of
discretionary stops could conceivably be abused, the
record before us contains no showing that such abuse
is probable or even likely. Nor is there evidence in the
record that a system of random license checks would
fail adequately to further the State's interest in deterring
and apprehending violators. Nevertheless, the Court
App. 54
concludes ſoln the record before us” that the random
spot check is not “a sufficiently productive mechanism
to justify the intrusion upon Fourth Amendment interests
which such stops entail.” Ante, at 659, 59 L Ed 2d, at
671. I think that the Court’s approach reverses the
presumption of constitutionality accorded acts of the
States. The burden is not upon the State to demonstrate
that its procedures are consistent with the Fourth
Amendment, but upon respondent to demonstrate that
they are not. “On this record” respondent has failed to
make such a demonstration.
Neither the Court’s opinion, nor the opinion of the
Supreme Court of Delaware, suggests that the random
stop made in this case was carried out in a manner
inconsistent with the Equal Protection Clause of the
Fourteenth Amendment. Absent an equal protection
violation, the fact that random stops may entail “a
possibly unsettling show of authority,” ante, at 657, 59
L Ed 2d, at 670, and “may create substantial anxiety,”
ibid., seems an insufficient basis to distinguish for Fourth
Amendment purposes between a roadblock stopping
all cars and the random stop at issue here. Accordingly, I
would reverse the judgment of the Supreme Court of
Delaware.
EDITOR’S NOTE
An annotation on “What constitutes adequate and
independent state substantive ground precluding Supreme
Court review of state court decision on federal question,”
appears p 924, infra.
App. 55
UNITED STATES of America,
Plaintiff-Appellee,
u
Nathaniel TROUTMAN,
Defendant · A ppellant,
No. 78-5597
Summary Calendar.“
United States Court of Appeals,
Fifth Cireuit.
Feb. 28, 1979
Defendant was convicted before the United States
District Court for the Northern District of Georgia,
Richard C. Freeman, J., of possession of heroin with
intent to distribute, and he appealed. The Court of
Appeals held that although initial stop of defendant
may have been illegal, record supported finding that
his consent to search of his luggage and person was
freely and voluntarily given, in that he had been twice
advised of his rights, including right to refuse consent,
and that the search was not the product of coercive
conduct.
Affirmed.
1. Criminal Law —1144.13(3), 1158(1)
Credibility judgments are made by the district
court; on appeal, the Court of Appeals must view the
*Rule 18, 5 Cir.; see Isbell Enterprises, Inc. u Citizens Casualty
Co. of New York et al, 5 Cir., 1970, 431 F.2d 409, Part I.
App. 56
evidence in the light most favorable to the Government
and must accept the lower court’s findings if supported
by substantial evidence.
2. Criminal Law —736(1)
Question of voluntariness of consent to a search is
a question of fact to be determined from the totality of
the circumstances.
3. Criminal Law —1158(2)
Trial court’s holding as to voluntariness of consent
to search will not be overturned on appeal unless clearly
erroneous.
4. Searches and Seizures —7(28)
Although initial stop of defendant may have been
illegal, record supported finding that defendant’s
subsequent consent to search of his luggage and person
was freely and voluntarily given, in that he had been
twice advised of his rights, including right to refuse
consent, and that he was not coerced into consenting.
Richard R. Kirby, Decatur, Ga., for defendant-
appellant.
William L. Harper, U.S. Atty., Robert A. Boas,
Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for
the Northern District of Georgia.
*
App. 57
Before AINSWORTH, GODBOLD and VANCE,
Circuit Judges.
PER CURIAM:
Defendant Nathaniel Troutman was convicted in
the United States District Court for the Northern District
of Georgia for possession with intent to distribute ninety-
two grams of heroin hydrochloride in violation of 21
U.S.C. §841(aX1). He appeals to this court complaining of
the legality of the search during which the heroin was
discovered.
The record shows that on February 23, 1978, Paul
J. Markonni, a Special Agent for the Drug Enforcement
Administration, and two other officers were on duty at
the Atlanta airport. At about 3:30 p.m. on that date the
three officers were observing the arrival of a non-stop
flight from Los Angeles, California. The ¢d#/endant
deplaned from that flight. Various characteristics of
the defendant made the officers suspicious of him. They
accosted Troutman at a taxi stand outside the terminal
and asked for his identification. The court below found
that there was insufficient cause to justify a stop and
ruled that the stop was illegal. The government does
not now challenge that ruling. We accept as correct the
conclusion that Troutman was illegally stopped.
After he identified himself, Troutman was asked
by Agent Markonni if he would object to a search of his
person and tote bag. From this point the evidence is in
sharp conflict. According to Agent Markonni's testimony
Troutman said that he did not mind and started to open
the bag out on the sidewalk. Markonni suggested that
App. 58
they step inside the terminal where they might have
more privacy. Troutman stopped opening his bag and
started walking back toward the terminal. They walked
into the office of the Atlanta Police Bureau inside the
terminal. Markonni again advised him that he was a
narcotic agent, asked Troutman’s permission to check
both his person and his bags for narcotics, and pulled
out a card from which he read Troutman his right to
allow or refuse to allow a search. Troutman acknowledged
that he understood his rights. Markonni said that
Troutman then asked how long it would take for him to
get a search warrant. Markonni replied that it would
probably take a couple or three hours but that “I don’t
even know whether the judge would give me one,” at
which time Troutman said, “All right, go ahead and
look.” Because Markonni considered this an ambiguous
answer he again stated, “All right, I have your permission
to look in your bag and also to search you?” Troutman
said, “Yes.”
No contraband was discovered inside the tote bag.
When he conducted a pat down search of Troutman he
discovered something concealed in the area of his crotch.
He asked Troutman to drop his trousers and found
ninety-two grams of 6.5% heroin.
Troutman contends that he never gave any consent
to the search, that it was conducted without his
permission, that he instructed the officers to get a
search warrant but that they went ahead and searched
him without his permission and without a warrant.
[1] Credibility judgments, of course, are made by
the district court. On appeal we must we must view the
App. 59
evidence in the light most favorable to the government,
and must accept the lower court's findings if they are
supported by substantial evidence. Glasser v. United
States, 315 U.S. 60, 62 8. Ct. 457, 86 L.Ed. 680 (1942).
Substantial evidence clearly supported the district
court’s findings that Markonni's version was correct.
The precise question which is presented to this court,
therefore, is whether a search conducted with consent,
as testified to by Agent Markonni, removed the taint
of the initial stop of Troutman that was clearly illegal.
Bretti u Wainwright, 439 F.2d 1042 (5th Cir.), cert.
denied, 404 U.S. 943, 92 S.Ct. 293, 30 L.Ed.2d 257 (1971)
presented a fact situation that was quite similar to that
now before the court. Bretti was arrested after which
his home was searched. Bretti contended that his arrest
was illegal and that any consent to search that he
might have given was vitiated because it was predicated
upon an illegal arrest. This court concluded that even if
the arrest was illegal the subsequent consent was
untainted under the reasoning of Phelper u Decker,
401 F.2d 232 (5th Cir. 1968). The evidence supported
the conclusion that Bretti was warned of his rights
prior to his giving consent. Speaking through Judge
Goldberg this court held,
[Such warnings] help ensure that the consent
is free, voluntary, and untainted by the arrest's
possible illegality. In the instant case the
presence of these warnings leads us to conclude
that any coercion flowing from the possible
illegality of appellant's arrest was dissipated.
We therefore hold that the evidence supports
App. 60
the conclusion that appellant voluntarily
consented to the search of his apartment.
The rule was extended in United States v. Fike,
449 F.2d 191 (5th Cir. 1971) to a situation where there
were two searches, the first of which was assumed by
the court to have been illegal. Evidence discovered
during the second search however, was held to be
admissible because,
Te voluntary consent of the defendant to
the second search, found by the district court
and affirmed by this Court, was an independent
act sufficient to break the causal connection
between the alleged primary illegality and the
evidence found as a result of the second search
and admitted at trial.
Id. at 193.
The importance of the warning to defendant of his
rights in addition to the absence of coercive factors
was underscored in United States u Ballard, 573 F.2d
913 (5th Cir. 1978). That case involved a search following
an illegal stop. The trial court had held that the stop
was legal and that consent to the search was voluntary.
In reversing this court said,
When trying to establish that there was a
voluntary consent after an illegal stop, the
government has a much heavier burden to
carry than when the consent is given after a
permissible stop.
App. 61
Id. at 916. The government was unable to point to a
sufficient intervening occurrence such as advising the
defendant of his right to refuse to permit a search.
Under those facts this court concluded that defendant's
consent was not voluntarily given and could not operate
to remove the effects of the illegal stop.
[2-4] In Schneckloth u Bustamonte, 412 U.S. 218,
93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) the Supreme Court
recognized that voluntariness does not turn on the
presence or absence of a single controlling criterion. It
is, rather, a question of fact to be determined from the
totality of the circumstances. We do not overturn a
trial court’s holding on this question unless it is clearly
erroneous. United States u Durham, 587 F.2d 799 (5th
Cir. 1979). The record before us clearly supports the
finding that Troutman's consent was freely and voluntarily
given, that he had been twice advised of his rights,
including the right to refuse consent, and that the
search was not the product of coercive conduct. Under
the rule of Bretti u Wainwright, supra, the search was
legal and Troutman's conviction must be affirmed.
AFFIRMED.
MAY TERM — May 11, 1981
Before Honorable Oliver Seth, Honorable William J.
Holloway, Jr., Honorable Robert H. McWilliams, Honorable
James E. Barrett, Honorable William E. Doyle, Honorable
Monroe G. McKay, Honorable James K. Logan and
Honorable Stephanie K. Seymour, Circuit Judges.
App. 62
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
vs.
WILLIAM GLENN PRICHARD and
BRIAN DE PALMA,
Defendants-A ppellants.
Nos. 79-2280
and
79-2281
This matter comes on for consideration of appellants’
petition for rehearing and suggestion for rehearing in
banc in the captioned cause.
Upon consideration whereof, the petition for
rehearing is denied by the panel to whom the case was
argued and submitted.
The petition for rehearing having been denied by
the panel to whom the case was argued and submitted,
and no member of the panel nor judge in regular active
service on the Court having requested that the Court
be polled on rehearing in banc, Rule 35, Federal Rules
of Appellate Procedure, the suggestion for rehearing
in banc is denied.
HOWARD K. PHILLIPS,
Clerk
Robert L. Hoecker
Chief Deputy Clerk
App. 63
SEARCHES AND SEIZURES
Amend. 4
AMENDMENT III—SOLDIERS DENIED QUARTER
IN HOMES
No Soldier shall, in time of peace be quartered in
any house, without the consent of the Owner, nor in
time of war, but in a manner to be prescribed by law.
Historical Note
Proposal and Ratification. The first ten amendments to the
Constitution were proposed to the Legislatures of the several
States by the First Congress on September 25, 1789, and were
ratified on December 15, 1791. For the States which ratified these
amendments, and the dates of ratification, see notes preceding
Amendment I.
Notes of Decisions
1. Nature of right
This amendment’s prohibition against unconsented peacetime
quartering of soldiers protects one aspect of privacy from
governmental intrusion. Katz v. U. S., Cal. 1967, 88 S.Ct. 507, 389
USS. 347, 19 L. Ed.2d 576.
The Housing and Rent Act of 1947, 50 U.S.C.A.App., former
§1881 et seq., did not violate this amendment, on ground that it was
an incubator and hatchery of swarms of bureaucrats to be quartered
as storm troopers on the people. U.S. v. Valenzuela, D.C.Cal.1951,
95 F.Supp. 363.
The right to smoke marijuana is not fundamental to the
American scheme of justice necessary to an Anglo-American regime
of ordered liberty and is not within “zone of privacy” formed by
App. 64
penumbras of this amendment, and Amends, 1, 5 and 9. Com. v.
Leis, 1969, 243 N.E.2d 898, 355 Mass. 189.
AMENDMENT IV—SEARCHES AND SEIZURES
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.
Historical Note
Proposal and Ratification. The first ten amendments to the
Constitution were proposed to the Legislatures of the several
States by the First Congress on September 25, 1789, and were
ratified on December 15, 1791. For the States which ratified these
amendments and the dates of ratification, see notes preceding
Amendment I.
Notes of Decisions
I. GENERALLY 1-60
II. PERSONS PROTECTED 61-100
III. PREMISES AND OBJECTS PROTECTED—
GENERALLY 101-160
IV. —PAPERS AND EFFECTS 161-200
V. SEARCH WARRANT 201-280
VI. PROBABLE CAUSE FOR ISSUANCE OF SEARCH
WARRANT 281-390
VII. ARREST 391-470
App. 65
United States Court of Appeals
Nur the Centh Circuit
SLIP OPINION
App. 66
[FILED APR 01 1981]
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Nos. 79-2280 and 79-2281
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
U.
WILLIAM GLENN PRICHARD
and BRIAN DE PALMA,
Defendants-A ppellants.
Appeal from the United States
District Court for the District of New Mexico
(D.C. No. CR 79-135)
R. E. Thompson, United States Attorney (Don J. Svet,
Assistant U.S. Attorney, with him on the brief),
Albuquerque, New Mexico, for Plaintiff-Appellee.
Robert C. Hill (Max P. Engel with him on the brief), of
Engel, Aronson, Fried & Cohn, Miami, Florida, for
Defendants-Appellants.
Before McWILLIAMS, BARRETT, and SEYMOUR,
Circuit Judges.
McWILLIAMS, Circuit Judge.
App. 67
The central issue in this appeal is whether the
search of a Ford Bronco, which resulted in the seizure
of 86 pounds of cocaine having an estimated street
value of $20,000,000, was lawful.
William Glen Prichard and Brian David De Palma
were charged by indictment with possession with an
intent to distribute a quantity of cocaine in violation of
21 U.S.C. §841(a\1) and 18 U.S.C. §2. Prior to trial, the
defendants filed a motion to suppress wherein they
sought to suppress, among other things, the use at
trial of all physical evidence, including contraband,
seized by New Mexico state police in a search of the
Ford Bronco. After a five-day evidentiary hearing, the
trial court denied the motion to suppress. A jury convicted
both defendants and each appeals.
As indicated, the hearing on the motion to suppress
was an extended one. The transcript of that hearing
discloses that on July 29, 1979, at about noon, two New
Mexico state police officers established a roadblock on
Interstate Highway 40 approximately eight miles east
of Moriarty, New Mexico. The stated purpose of the
roadblock was to conduct a routine driver's license and
car registration check. The officers candidly conceded,
however, that if they observed indicia of other crimes
during their check of drivers’ licenses and vehicle
registrations, they intended to enforce the law. The
roadblock was conducted with the knowledge and
permission of the officers’ supervisor. The officers testified
that it was their intent to stop all westbound vehicles,
except for semi-trucks, which had already been stopped
at a port of entry. When the cars began to “pile up,”
however, the officers would wave all of the stopped
App. 68
cars through in order to prevent the situation from
becoming unduly hazardous. One officer estimated that
they would allow no more than ten cars to back up
beforé they waved all of the stopped cars on through.
After they cleared the area, the officers would begin to
stop cars again.
It was in this setting that at about two o'clock on
the afternoon of July 29, 1979, Officer Jeff Faison, one
of the New Mexico state police officers, stopped a 1979
Ford Bronco. Prichard was driving the Bronco and De
Palma was the only passenger. On request, Prichard
produced a valid California driver’s license and a
temporary registration of the vehicle in California in
the name of R. English.” Prichard told Officer Faison
that he had borrowed the car to go to a wedding in
Memphis, Tennessee. Faison then attempted to make a
NCIC computer check in order to determine whether
the vehicle had been stolen, but the computer was out
of order. Faison asked for the phone number and address
of the registered owner, R. English, but neither Prichard
nor De Palma gave him any information. Faison then
requested, and received, permission to look in the glove
compartment of the Bronco for identification. Inside
the glove compartment, Faison found a Florida temporary
transportation permit, an insurance card, and a warranty
plan all made out to a Jack Taylor of Lake Worth,
Florida, and a Florida Highway Patrol Inspection form
made out to Friendly Ford. Faison also noticed a California
license plate lying behind the passenger seat and detected
a pungent odor emanating from the rear of the vehicle.
Faison asked Prichard what the smell was, and, according
to Faison, Prichard “flinched.”
App. 69
Faison then directed the two to stand away from
the vehicle, and he called for assistance from his fellow
officer. According to the officers, they asked for, and
received, consent to search the vehicle. Faison then
got into the vehicle and climbed over the seat into the
back of the Bronco. There he found a can of rose-scented
odorant which had tipped over and formed a puddle.
He also noticed several screws laying on the floor
carpet and a loose side panel. Faison removed the loose
panel and located ten bricks of what he initially believed
to be marijuana. A field test, however, revealed that
the substance was cocaine. A subsequent search of the
Bronco, after it had been towed to a garage, disclosed
nine additional bricks of cocaine. In searching the vehicle
at the garage, Faison also discovered: (1) a roll of masking
tape in an ice chest in the rear of the Bronco, the torn
end of which matched the masking tape wrapping on
one package of cocaine; (2) a baggie of cocaine, under
the carpet of the Bronco on the front passenger side,
which matched the cocaine in the nineteen bricks; and
(3) a strainer screen, in the console between the seats,
which is used to “fluff” cocaine in preparation for use.
It is defense counsel's position that the motion to
suppress the use at trial of the physical evidence taken
from the car, including the nineteen bricks of cocaine,
should have been granted on any one of several grounds.
In this regard, the defendants’ primary argument is
that the roadblock stop of the Bronco violated their
Fourth Amendment rights and that the subsequent
search of the vehicle was tainted by the illegal stop.
The first issue, then, is whether the initial stop of the
Bronco was lawful.
App. 70
Counsel for the defendants relies heavily on Delaware
v. Prouse, 440 U.S. 648 (1979), in support of the argument
that the roadblock stop of the Bronco was unconstitutional.
In our view, Prouse does not support the defendants’
position. Indeed, Prouse supports the conclusion that
the roadblock stop of the Bronco was lawful.
It is true that in Prouse the Supreme Court held
that absent at least an articulable and reasonable suspicion
that a motorist is unlicensed or that an automobile is
not properly registered, or that either the vehicle or
an occupant is otherwise subject to seizure for violation
of law, stopping an automobile and detaining the driver
in order to check his driver's license and the registration
of the automobile are unreasonable under the Fourth
Amendment. 440 U.S. at 663. The court, however, also
expressed the following caveat to the general rule
above set forth:
This holding does not preclude the State of
Delaware or other States from developing
methods for spot checks that involve less
intrusion or that do not involve the unconstrained
exercise of discretion. Questioning of all
oncoming traffic at roadblock-type stops is one
possible alternative. We hold only that persons
in automobiles on public roadways may not
for that reason alone have their travel and
privacy interfered with at the unbridled
discretion of police officers. Jd. (emphasis added).
(footnote omitted).
In our view, the roadblock stop of the Ford Bronco
does not run afoul of the rule of Prouse. While this may
App. 71
not have been a “100% roadblock” of the type referred
to in Prouse, it is nonetheless a long way from the
selective, single car stop denounced in Prouse. In the
instant case, the New Mexico state police were attempting
to stop all westbound traffic on an interstate highway,
insofar as was humanly possible. The decision not to
stop trucks was reasonable under the circumstances,
because, presumably, they had all been stopped at a
port of entry. The purpose of the roadblock, de., to
check drivers’ licenses and car registrations, was a
legitimate one. If, in the process of so doing, the officers
saw evidence of other crimes, they had the right to
take reasonable investigative steps and were not required
to close their eyes. See United States v. Merryman, 630
F.2d 780, 782-85 (10th Cir. 1980). Furthermore, allowing
all the stopped cars through when traffic became
congested was also reasonable and, in our view, non-
violative of the rule of Prouse. In sum, the roadblock
stop of the Ford Bronco was, under the described
circumstances, constitutional.
In light of our determination that the initial stop
of the Bronco was valid, we find the fruit of the poisonous
tree doctrine inapplicable. We must, therefore, determine
the propriety of the search of the Bronco independent
of the initial stop and momentary detention for the
purpose of checking the driver's license and registration
papers. In this connection, the trial court found, after
an extensive evidentiary hearing, that the defendants
had voluntarily given the state police their consent to
search the vehicle. Not surprisingly, the evidence on
the issue of consent was in conflict, but the trial court
chose to believe the officers’ version of events. To
determine and assess the credibility of witnesses is a
App. 72
prerogative of a trial judge, and not a reviewing court,
which never heard nor saw the witnesses. United States
v. Petersen, 611 F.2d 1313, 1317 (10th Cir. 1979), cert.
denied, 447 U.S. 905 (1980); United States v. Gibbons,
607 F.2d 1320, 1329 (10th Cir. 1979).
The facts of the instant case bearing on the consent
issue have close resemblance to the facts of United
States v. Mendenhall, 446 U.S. 544 (1980). There the
Supreme Court declared that whether a particular consent
was voluntary, or not, is to be determined by the totality
of all the circumstances. As in Mendenhall, the evidence
here is plainly adequate to support the trial court’s
finding that the defendants voluntarily consented to
the search.
At the hearing on the motion to suppress, the
Government admitted that the search of the Bronco
was without the benefit of a search warrant, but insisted
that the defendants first prove standing. In an effort to
establish standing, the defendants took the witness
stand; and in response to certain questions, the defendants
attempted to plead the Fifth Amendment. The trial
court instructed the defendants to answer the questions
or be faced with contempt proceedings. The claim is
now made that such violated their Fifth Amendment
right against self-incrimination. We fail to see how any
possible error in this regard was prejudicial. The
statements made by the defendants at the hearing on
the motion to suppress were not used against them at
trial. Nor did any of their answers serve as a lead for
developing other evidence. Counsel asserts that
statements of the defendants made at the hearing on
the motion to suppress and heard by the judge may
App. 73
have influenced his judgment in denying defendants’
motion for acquittal under Fed. R. Crim. P. 29. Such an
assertion is irrelevant. On appeal, the reviewing court
makes its own independent judgment as to the sufficiency
of the evidence, based on the record as made in the
trial court. Counsel also suggests that the trial court
may have imposed a heavier sentence than he otherwise
would have because of what he learned at the hearing
on the motion to suppress. There is nothing in the
record, however, to support such a suggestion. If counsel
is of the view that the sentences imposed were too
harsh, he may, after our mandate has issued, file with
the trial court a motion to reduce sentence under Fed.
R. Crim. P. 35.
As alluded to above, the trial court denied the
defendants’ motion for judgment of acquittal and, on
appeal, counsel argues that the evidence is legally
insufficient to support the jury's verdicts. We view the
evidence differently. The defendants were the sole
occupants of a vehicle that was being driven cross-
country. In the console between the front seats was a
strainer screen used to “fluff” cocaine. Under the carpet
on the passenger’s side where De Palma was seated
was a baggie of cocaine which matched the nineteen
bricks of cocaine hidden in the rear of the vehicle.
Additionally, the torn end of a roil of masking tape
located in an ice chest in the rear of the Bronco matched
the masking tape wrapping on one of the packages of
cocaine. The totality of the evidence certainly permits
the jury to infer that the defendants knowingly possessed
cocaine, and the great quantity of cocaine found in the
Bronco permitted the additional inference that the
defendants intended to sell and distribute this drug.
App. 74
See United States v. v. Stricklin, 534 F.2d 1386, 1390
(10th Cir.), cert. denied, 429 U.S. 831 (1976).
The defendants also complain that the instruction
on aiding and abetting was confusing and, in effect,
directed the jury to convict Prichard as a principal. We
have examined the instructions, and believe them to be
adequate. The jury was of course instructed that they
could not convict either defendant unless their individual
guilt was established beyond a reasonable doubt.
Finally, counsel asserts that certain error occurred
during the trial that denied the defendants a fair and
impartial trial. Specifically, it is claimed that the prosecutor
made an improper closing argument in pointing out to
the jury that defense counsel had failed to establish
that which in his opening statement he said he would
prove. Such comment, under the circumstances, was
not comment on the defendants’ failure to testify. When
defense counsel, by way of opening statement, advises
a jury of what his evidence will be, he invites comment
by the prosecutor in closing argument that defense
counsel failed to prove that which he said he would.
United States v. Broadhead, 413 F.2d 1351 (7th Cir.
1969), cert. denied, 396 U.S. 1017 (1970). See also United
States v. Merryman, 630 F.2d 780, 788. Other alleged
instances of trial irregularities have been examined
and none is of any moment.
Judgments affirmed.
App. 75
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