Opinion
Case No. 03-M-7017-01-JPO
April 9, 2004
MEMORANDUM AND ORDER
I. Introduction
This criminal case comes before the court on defendant Shawn L. Mohrmann's motion to suppress evidence (doc. 6). The government has filed a response opposing the motion (doc. 9), and defendant has filed a reply (doc. 10). After reviewing the arguments raised in the parties' papers, during an evidentiary hearing on February 11, 2004, the court asked the parties to brief the legal significance of the government's consistency or lack thereof in performing searches of non-military vehicles at the United States Army installation at Fort Leavenworth, Kansas. The parties filed those briefs (docs. 11 12), and the court received additional evidence during a hearing on March 10, 2004. Defendant then filed a supplement to his motion (doc. 16), to which the government responded (doc. 17). Having carefully reviewed all of the evidence and arguments presented, the court is now prepared to rule.
II. Facts
On May 16, 2003, late in the afternoon, defendant attempted to drive his pickup truck onto the military installation at Fort Leavenworth through the Hancock Gate security checkpoint (the back entrance to the base). Defendant is a civilian, and his truck did not have a United States Department of the Army decal displayed on the wind shield. Therefore, per the established policies and procedures which will be explained in more detail below, the Department of the Army civilian police officer who was attending the gate directed defendant and his passenger to exit the vehicle so that it could be searched. Defendant was not asked whether he would consent to the search.The Hancock Gate apparently is not visible until the road that leads to the gate, inside the military installation, is entered. Moreover, the gate is not visible until beyond the point at which defendant could have turned around legally to avoid entry onto the base without first going through the checkpoint.
The government initially argued that a sign was visible once inside the Hancock entrance that notified drivers that their vehicles were subject to search. However, because of renovations that since have occurred on the base, the government candidly acknowledged that it could not prove that any such gate signs existed on the dates in question in this case.
During the search on May 16, 2003, the police officer opened a closed compartment which served as the armrest between the two front bucket seats of defendant's pickup truck. Inside that glove box, the police officer discovered a green leafy substance. It is undisputed that the police officer had to open and search the glove box in order to discover anything within the compartment. Upon further search of the truck, the police officer discovered two "roach clips" in the front console ashtray, among tobacco and ashes. When questioned, defendant told the police officer that he was unaware that the substance was in his vehicle.
Ten days later, on May 26, 2003, at about 9:30 in the morning, driving the same pickup truck as before, defendant again attempted to enter Fort Leavenworth, this time through the Grant Gate security checkpoint (the main entrance to the base). This checkpoint was manned by federalized soldiers from the Kansas National Guard. Again, defendant was directed to exit his vehicle so that a soldier could search the vehicle. One of the soldiers discovered seeds and green bits of what were believed to be cannabis in the front console glove box on the passenger side of defendant's truck. Again, the soldier had to open the glove box to discover the substance. The same kind of substance was later discovered on the floorboard of the vehicle. A soldier also searched through defendant's backpack, which had been left inside the vehicle.
On August 13, 2003, defendant was charged in an information filed by the government's attorney with two counts of unlawful possession of a controlled substance (see doc. 1).
Since the terrorist attacks on the morning of on September 11, 2001, Fort Leavenworth has been a "restricted" access military installation. While many civilians work on or visit the base, nobody — military or civilian — may simply drive on or through the base without first going through a checkpoint.
It is undisputed that, effective at least as of March 21, 2003, and throughout the month of May 2003 (and still today), a regulation has been in place at Fort Leavenworth, providing:
Upon request, an operator of a motor vehicle must provide proof of: valid vehicle registration and license for that vehicle, current insurance for that vehicle, and a valid driver's license. All vehicles entering or exiting Fort Leavenworth are subject to inspection. Appropriate military authority will determine the time, method, and scope of inspections in accordance with applicable law. This regulation does not, in any way, limit the authority or ability of appropriate military authorities to conduct searches and seizures in accordance with applicable law.
See Def. Ex. 1 (CAC FT LVN Reg. 210-10(3)(a)).
The regulation further provides that any part of the vehicle may be searched, including the interior of the vehicle, any locked compartments or packages, the engine compartment, the trunk, and the undercarriage. The Fort Leavenworth regulation specifically states that the inspection process is directed toward protecting "national security by deterring acts of domestic and foreign terrorism," maintaining "readiness and effectiveness," deterring "the entrance of persons carrying explosives," protecting "persons and U.S. Government property," and ensuring the "safety of the soldiers, civilian employees, retirees, and family members on the installation."
CAC FT LVN Reg. 210-10(3)(b).
CAC FT LVN Reg. 210-10(3)(c).
In addition to the above-described regulation, it is uncontroverted that a specific order had been issued by the Commander of Fort Leavenworth, which order was in effect throughout May 2003, that all areas of vehicles not bearing a military decal were to be searched. According to the government, this order served to remove any discretion on the part of the gate officers as to whether defendant's car (or any other car without the appropriate decal) would be searched before admission to the base.
At least for purposes of the instant motion, all of the facts recited above are uncontroverted. There is very strong disagreement between the parties, however, about whether the above-described regulation and order actually were applied universally (or even on a nominally consistent basis) to non-military automobiles. Testimony from the military personnel who are responsible for conducting the searches indicated that each and every non-military vehicle is searched before entering the installation. Counsel for defendant argued, without actually testifying, that this was inaccurate, and indicated that her car seldom if ever had been searched in the several years she has been defending misdemeanor criminal cases at Fort Leavenworth, before September 11, 2001, or afterward.
At the end of the evidentiary hearing on February 11, 2004, the court ordered the government to give defendant access to representative portions of the logs for the gates for May 16, 2003 and May 26, 2003, i.e., since literally thousands of vehicles are processed through the two gates every day, the government was ordered to produce only the sheets among the logs on which defendant's name appeared for the two dates in question. Before the evidentiary hearing was resumed on March 10, 2004, both parties had the opportunity to contact the many persons who entered the two gates in close proximity to defendant, to help determine whether the above-described regulation and order at least had been consistently applied on the two specific dates in question.
The government presented three witnesses during the evidentiary hearing on March 10, 2004. All three testified that their passenger compartments and other storage areas were searched each time that they entered the installation on the two days in question. In fact, one of the witnesses testified that he enters the base approximately once per day, and that since September 11, 2001, the guards searched his vehicle every day that he entered the installation. Notably, during this hearing, defendant presented no contrary witnesses on the issue of enforcement of the above-described regulation and order on the two specific dates at issue.
However, defendant presented evidence about the nature and extent of enforcement of the regulation and order several months after the May 2003 time period actually involved in this case. Defense counsel had her private investigator visit the two gates in question nine times during February and March of 2004, on six different dates, in three different vehicles, sometimes alone and sometimes not. On every occasion the investigator was required to stop his vehicle at the gate. On only two of those nine occasions, however, did the personnel staffing the gate search the interior of his vehicle. The procedure as applied to the investigator was very inconsistent in terms of what forms of identification and documentation that he was required to show the gate officer. On most of the above-described occasions, the private investigator personally observed other vehicles receiving similar treatment to the treatment he received. The government's witnesses had no explanation for the fact that Fort Leavenworth's command-level regulation and order, which were in identical form in May 2003 and February — March 2004, evidently were not enforced consistently in the latter time period.
III. Analysis and Discussion
With regard to the appropriate legal analysis, it must be kept in mind that neither the above-described regulation nor the Commander's order at Fort Leavenworth purport to confer any authority for the search of a person, as opposed to his vehicle. And there is no evidence in the record that defendant was subjected to a search of his person, at least not until after drugs were found in his pickup truck.
Defendant states: "Certainly, the military has authority to search cars coming onto the base and to exclude anyone from the base or seize any discovered contraband. That is not the question here. The issue is whether the searches can then be used in a criminal prosecution." Were this defendant's only argument, the court's analysis would end here. This argument — that a search validly implemented for one law enforcement purpose, and which yields evidence relating to a separate crime, cannot be used for an alternative law enforcement purpose — is unpersuasive. It is unpersuasive because of the basic rationale that supports the exclusionary rule, which is the deterrence of illegal police conduct. Stated differently, a search that was admittedly reasonable could not logically yield any "fruit of the poisonous tree," and thus would not require suppression of evidence.
Def. Mot. (doc. 6) at 1.
See United States v. Hill, 60 F.3d 672, 677 (10th Cir. 1995).
However, defendant further questions "whether the increased security measures at Fort Leavenworth conform to Fourth Amendment requirements and justify" what defendant labels a "random, discretionary and intrusive search." This truly is the question before the court. The court must determine whether the above-described regulation and order comply with Fourth Amendment requirements and, if they do, whether the officers conducting the searches complied with those requirements.
Def. Mot. (doc. 6) at 1.
This case involves warrantless searches and seizures. A seizure conducted without a warrant is "per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions." However, "[t]he touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." In determining whether a search and seizure is reasonable, the Supreme Court has held:
Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (internal quotation marks and citations omitted).
Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citations omitted).
The reasonableness of seizures that are less intrusive than a traditional arrest depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.
Brown v. Texas, 443 U.S. 47, 50-51 (1979) (citations omitted).
The court will examine each of these issues separately, to determine whether the instant searches were reasonable.
A. Public Interest
Defendant candidly acknowledges that there is an overwhelming public interest in securing military installations and protecting civilians, military personnel, and government property at Fort Leavenworth. Moreover, the federal courts repeatedly have recognized the authority of military commanders to control access to their installations. "It is well settled that a Post Commander can, under the authority conferred on him by statutes and regulations, in his discretion, exclude private persons and property therefrom, or admit them under such restrictions as he may prescribe in the interest of good order and military discipline." The judicial branch generally defers to decisions of the executive branch that relate to national security.
Cafeteria Restaurant Workers Union, Loca 1473, AFL-CIO v. McElroy, 367 U.S. 886, 893 (1961) (internal quotation marks and citations omitted).
See Dep't of the Navy v. Egan, 484 U.S. 518, 530 (1988) (stating that "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.").
In this case, the government states that the new inspection regulation, order, and protocols were implemented after the terrorist attacks of September 11, 2001, in an effort to protect the military installation at Fort Leavenworth. The court, not surprisingly, concludes that this is a valid public interest and, therefore, moves to the next step of the analysis.
B. Degree to Which Public Interest is Advanced
This step in the analysis concerns the degree to which the stated public interest is served by the checkpoint. As earlier indicated, this step, combined with the next, requires the court to determine whether the public interest is served by the search and seizure, and whether any such service to the public interest is outweighed by the checkpoint's interference with individual liberty.
The checkpoints at Fort Leavenworth obviously serve the public's interest in securing that installation. As earlier indicated, the express language of the regulation governing the checkpoints is directed at providing for national security, rather than general crime prevention.
Compare Indianapolis v. Edmond, 531 U.S. 32 (2000) (holding that a checkpoint set up for general crime control purposes violated the Fourth Amendment unless it was justified by special circumstances). See also United States v. Green, 293 F.3d 855, 859 (5th Cir. 2002) (discussing unique justification for checkpoints when protecting a military installation).
In United States v. Dillon, another judge of this court upheld the random stop of a vehicle at an inspection point at an entrance to the United States Army base at Fort Riley, Kansas. The court held that the fact that "[t]his checkpoint was not only a sobriety checkpoint, but a vehicle inspection, looking for contraband, weapons, and wrongfully appropriated military equipment" demonstrated that these intrusions were "necessary for the safety and welfare of [the base commander's] installation." The checkpoints in the instant case are valid for essentially the same reasons. At these checkpoints, the policy contemplates that officers are specifically looking for explosives and other types of weapons that might be used in terrorism activities on the base. The court concludes that these checkpoints, and the standard procedures governing them, serve the intended public purpose.
983 F. Supp. 1037, 1038-40 (D. Kan. 1997).
Id. at 1040.
C. Severity of Interference With Individual Liberty
The Fourth Amendment next requires that the court balance the objective and subjective intrusion on the individual against the public interest and the extent to which the checkpoint program advances that interest. "The degree of objective intrusion is `measured by the duration of the seizure and the intensity of the investigation.'" In this case, the evidence shows that each stop and search took an average of approximately two minutes. Defendant, of course, ultimately was detained for quite a bit longer on both May 16 and 26, 2003, but only because the gate officers found illegal drugs when they searched his pickup truck.
United States v. Green, 293 F.3d at 860.
Id. (quoting Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990)).
Objectively, these intrusions were more significant than a sobriety checkpoint or an information-seeking checkpoint such as those examined in earlier cases. However, the public interest involved here — that of preventing terrorist attacks and securing a restricted military installation — is a graver concern than preventing drunk driving on the base or finding information regarding previous crimes. The court does not wish to minimize these legitimate public concerns. But, in light of the terrorist attacks of September 11 and the Oklahoma City bombing, and especially the use of vehicles as weapons in those attacks, the interest in protecting a military installation justifies intrusive searches into all non-military vehicles.
When evaluating the subjective intrusion, the court looks to the "potential for generating fear and surprise." As to the fear element, "uniformed military police on the grounds of a military installation that has been clearly identified to drivers should not be frightening to `law-abiding motorists.'" Further, the evidence presented indicates that, at least on the two specific dates in question, this policy was uniformly applied to all non-military vehicles. Based on the state of the entire record in this case, the court respectfully declines to draw the factual inference that defendant argues, to wit, that the inconsistent application of the policy in February and March of 2004, at least in dealing with an investigator from the Federal Public Defender's office, proves inconsistent application of the policy to all civilian personnel on May 16 and 26, 2003. The absence of any direct evidence of inconsistency in application of the policy on the two specific dates in question, the court finds, effectively rebuts the notion that defendant was "singled out or treated arbitrarily or that the officers were operating with unfettered discretion as to which cars to stop."
Michigan Dep't of State Police v. Sitz, 496 U.S. at 452.
United States v. Green, 293 F.3d at 860 (quoting Michigan Dep't of State Police v. Sitz, 496 U.S. at 452).
Id.
As to the element of surprise, defendant of course does not maintain that he was ignorant of the fact that he was seeking admission to a restricted military installation. Although defendant argues that he was unaware of the search policy until he was past the point of turning back from the Hancock Gate on May 16, 2003, there is no evidence that anything prevented defendant from refusing to have his vehicle searched when he reached that gate, or when he drove up to the Grant Gate ten days later. Moreover, this court has held that "advance notice is not required for a valid checkpoint. . . . While advance publicity may be one effective measure to protect the rights of the individual, it is not an absolute requirement when . . . the guidelines provide sufficient safeguards for constitutional purposes."
Surely, any argument by defendant that there was no notice at the Grant Gate on May 26, 2003, where he was stopped the second time, would not pass muster. As defendant had been subjected to a 100% search of his vehicle at the Hancock Gate on May 16, 2003, he was then on actual notice of the base's policy, or at the very least on constructive notice.
United States v. Dillon, 983 F. Supp. at 1039.
Some courts have applied the legal analysis used in airport screening cases to military checkpoints. The court agrees that this analysis is instructive. Although it is important that visitors to military bases understand that they are subject to search upon entry, it does not follow from this that the military officers must personally advise a visitor that he may withdraw from entering the base rather than submit to a search.
See, e.g., United States v. Jenkins, 986 F.2d 76 (4th Cir. 1993).
See State v. White, 549 P.2d 600, 606 (Ariz.Ct.App. 1976) (applying this logic to airport security case).
"An individual has a choice of either seeking admission to a [restricted] base or not. Once the decision is made by an individual to enter onto the [restricted] base, then it may be assumed that permission to conduct a search without probable cause is granted by that individual." In any event, the evidence in the record of this case suggests that, if defendant had refused the search, he would have been directed off of the base, and his vehicle would not have been searched.
United States v. Ellis, 15 F. Supp.2d 1025, 1029 (D. Colo. 1998) (citing United States v. Jenkins, 986 F.2d at 79). See also United States v. Vaughan, 475 F.2d 1262, 1263 (10th Cir. 1973) (per curiam) ("The Government's position is that a person within the restricted area of a military reservation is subject to having his person and his vehicle searched in the interest of military security. Further it asserts that submitting to search could be validly imposed as a condition to gaining access to a military reservation. Both of these positions are correct.")
Further, the court adopts the reasoning of United States v. Jenkins, in which the Fourth Circuit Court of Appeals stated that:
986 F.2d 76. Jenkins involved Andrews Air Force Base, which is a "closed" base, in the sense that civilian access, though not totally prohibited, is very severely restricted, due in no small measure to the fact that the base is used by the President and the Vice President. As earlier indicated, Fort Leavenworth is a "restricted" base, meaning that civilian access is fairly prevalent but still not unfettered.
[T]he validity of [the defendant's] search [did not] turn on whether he gave his express consent to search as a condition of entering the base. Consent is implied by the totality of all the circumstances. The barbed-wire fence, the security guards at the gate, the sign warning of the possibility of search, and a civilian's common-sense awareness of the nature of a military base-all these circumstances combine to puncture any reasonable expectations of privacy for a civilian who enters a closed military base.
Id. at 79 (internal quotation marks and citation omitted). As earlier indicated, however, in the instant case, unlike the situation Jenkins, the government could not prove what signs, if any, were posted and visible to defendant.
Although Fort Leavenworth is not completely closed to the public, it is uncontroverted that, since September 11, 2001, access has been restricted, thereby rendering it much closer to a closed installation than an open one. The court, therefore, concludes as a matter of law under these facts that defendant had very little expectation of privacy upon entering Fort Leavenworth on May 16 and 26, 2003.
Finally, it should be noted that the Supreme Court's recent ruling in United States v. Flores-Montano supports the conclusion that the searches in the case at bar were not unreasonably invasive. In Flores-Montano, the Supreme Court held that it was reasonable for a border patrol agent to perform a suspicionless disassembly of the defendant's fuel tank while searching the automobile for drugs and other contraband, stating that
___ U.S. ___, 2004 WL 609791 (Mar. 30, 2004) (slip opinion).
the reasons that might support a suspicion requirement in the case of highly intrusive searches of persons simply do not carry over to vehicles. Complex balancing tests to determine what is a "routine" vehicle search, as opposed to a more "intrusive" search of a person, have no place in border searches of vehicles.
The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.
Id. at * 1 (citing U.S. v. Ramsey, 431 U.S. 606, 616 (1977)).
The Supreme Court held that dignity and privacy interests that would apply to searches of an individual did not carry over to border searches of vehicles.
Id.
In the case at bar, the court concludes that the government's right to protect Fort Leavenworth from terrorist activity is part and parcel of its right to protect its territorial integrity. As the Supreme Court held in Flores-Montano, "[i]t is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity." Therefore, to the extent that a balancing test is necessary in this case, the court concludes that the government's interest would outweigh even a much more intrusive search than those at issue.
Id. at * 2.
D. Additional Arguments Made by Defendant
1. Officer Discretion in Conduct of Search
Defendant contends that Brown v. Texas requires not only that the gate officers at Fort Leavenworth may have zero discretion in determining which cars to stop, but likewise requires that they may have zero discretion in determining the nature and extent of conducting searches. Defendant argues that the regulation and order at issue in this case violate the Fourth Amendment because they allow officers discretion in determining which areas of the vehicle will be searched. The court respectfully disagrees.
Based on the evidence in the record, during May 2003, all cars that did not bear a military decal were stopped upon entering Fort Leavenworth. The only facts in dispute are whether since March 2003 each vehicle stopped also was inspected, and whether each such inspection included a 100% search of the subject vehicle. The bottom line is this: at the very least, all of the evidence supports the conclusion that each non-military vehicle at least is subject to a 100% search after being stopped.
The testimony presented by the military personnel who conducted the searches or supervised the gate personnel indicated that, in fact, officers have no discretion in determining which vehicles are subject to a full search. Any instance in which a gate police officer or guard failed to completely search a non-military vehicle resulted not from that person's exercise of discretion, but rather from disobeying direct orders. The court flatly rejects the hypothesis that such disobedience of a direct order opens the government's two searches of defendant's vehicle to successful constitutional challenge.
Regardless, the court concludes that Brown v. Texas does not require that each search be identical, nor does it take away any discretion a trained officer might use to determine the appropriate scope of a search. Brown v. Texas simply provides that "an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." As stated above, the court concludes that a civilian (and, especially, his vehicle) has very little reasonable expectation of privacy when entering a restricted military installation. The court thus finds that defendant's argument is overly broad. Under Brown v. Texas, a reasonable military police officer may determine the scope of a search conducted pursuant to the base's guidelines without violating the Fourth Amendment, so long as the criteria dictating which vehicles are stopped is applied consistently.
Id. at 51.
2. Intrusive Search of Closed Glove Compartment
The court also notes that defendant specifically challenges the searches of the closed glove box compartments in his truck. As stated above, the court believes that the gravity of the public interest involved here justifies — and even necessitates — a thorough search of all non-military vehicles. However, even were the court to conclude that the initial searches of the glove boxes were too intrusive under the general operating procedures, or that they resulted from an improper exercise of the officers' discretion, the contents of the glove boxes still would be admissible at trial under the set of facts presented in this case.
In both instances, drug residue or paraphernalia was discovered in an area which the court would have concluded to be in plain view, as a cursory inspection of the interior of the car would certainly have been permissible. In the first instance on May 16, 2003, roach clips were found in the ashtray. In the second instance on May 26, 2003, drug residue was found on the floorboard. In both cases, this evidence of drug activity would have been sufficient to provide probable cause for a more thorough search of the vehicle, i.e., the closed glove boxes. That is, probable cause to search exists when a "prudent person [would] believe there is a fair probability that contraband or evidence of a crime will be found in a particular place." Pursuant to the automobile and plain view exceptions to the warrant requirement, the officers had the right to conduct a further search for evidence of a crime. Further, the officers had the right to seize that evidence without a warrant when they saw incriminating evidence and had probable cause to believe that there was other contraband or incriminating evidence in defendant's backpack or glove compartments.
U.S. v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001).
U.S. v. Sparks, 291 F.3d 683, 690-91 (10th Cir. 2002).
The observation of the roach clips in the ashtray and the drug residue on the floorboard was evidence to warrant the belief by an objectively reasonable person that a drug offense had been or was being committed and that evidence of a drug crime would be found in the backpack and the glove boxes. Therefore, even were the court to determine that the intrusive level of these two searches was not justified by the above-described regulation and order, the court still would conclude that the officers exercised appropriate judgment in searching the interior compartments of the vehicle, and would allow the admission of the evidence in question.
See United States v. Rios, No. 02-40155-01, 2003 WL 22000567, *4 (D. Kan. May 9, 2003) (citing Hollyfield v. United States, 407 F.2d 1326 (9th Cir. 1969)).
IV. Order
In consideration of the foregoing, IT IS HEREBY ORDERED:
1. Defendant's motion to suppress evidence (doc. 6) is denied.
2. The clerk shall serve copies of this order on all counsel of record.