Opinion
No. ED79237
FILED: August 21, 2001
APPEAL FROM THE CIRCUIT COURT OF LINCOLN COUNTY, HONORABLE DAN DILDINE.
G. John Richards, Lincoln Co. Prosecuting Attorney, 460 Main St., Troy, MO 63379 for Appellant.
Charlie James, 251 E. Pearce Blvd., Wentzville, MO 63385 for Respondent.
Todd Mack, ("defendant"), was charged with three counts of possession of a controlled substance in violation of Section 195.202, RSMo 1994. Defendant filed a motion to suppress the evidence arguing the search and seizure that led to his arrest was unconstitutional. The trial court granted defendant's motion to suppress. The State of Missouri filed this interlocutory appeal of the trial court's order granting defendant's motion to suppress, pursuant to Section 547.200. We transfer to the Supreme Court.
All further statutory references are to RSMo 1994 unless otherwise noted.
On June 24, 1999 the City of Troy Police Department set up a drug checkpoint on northbound Highway 61 at the Old Cap Au Gris exit. This exit was selected because it did not provide gas or food services to motorists, and the only reason a motorist would take the Old Cap Au Gris exit would be go to Troy Buchanan High School, Sacred Heart Catholic Church, or a residential area. There were no activities on the selected night at the high school or the church. The police set up signs on the highway approximately a quarter mile from the Old Cap Au Gris exit that stated "DRUG ENFORCEMENT CHECKPOINT ONE MILE AHEAD" and "POLICE DRUG DOGS WORKING". The police intended for drivers to think that the drug checkpoint was really located at the Highway 47 exit, one exit further than the Old Cap Au Gris exit.
The police followed a written plan of action entitled "Troy Police Department Drug Enforcement Checkpoint." The plan called for a uniformed officer to approach every vehicle that took the Old Cap Au Gris exit and stop the car at the top of the exit ramp at the stop sign. The officer was to check the driver for a valid driver's license and registration, and inform all occupants of stopped vehicles the reason for the stop was a drug enforcement checkpoint. Further, the officer was to ask the occupants of all stopped vehicles why they exited at this location and to look for signs of suspected drug trafficking. The officer had discretion to interview the drivers and passengers separately if the officer thought it was necessary. The officer was to ask for permission to search the vehicle if the officer believed reasonable suspicion existed that drugs were present in the vehicle. If permission to search was granted, the officer was to fill out a permission to search form, then search the vehicle. If permission was not granted, drug dogs were to be used to sniff the outside of the vehicle. If the officer did not detect circumstances that reflected reasonable suspicion of drug possession or other criminal activity, the vehicle was released from the checkpoint. Another uniformed officer maintained a log that contained the state and license number of every vehicle and driver stopped at the checkpoint.
Defendant took the Old Cap Au Gris exit at approximately 11:00 p.m. on June 24, 1999, and was stopped at the drug checkpoint by the Troy Police Department. Defendant told the police he took the exit to get to a bar in Troy. Defendant had a passenger in his car, Edward Aschoff, who had an outstanding warrant for failure to appear on a traffic matter. The police arrested Mr. Aschoff because of his outstanding warrant, and asked defendant for permission to search his vehicle. The police asked for consent to search defendant's vehicle because his eyes were bloodshot and glassy and it appeared that he had been drinking alcohol. Defendant eventually consented to the search, and the police found various drugs and drug paraphernalia in defendant's vehicle. Defendant was charged with possession of methamphetamine, cocaine, and methylphenidate.
The trial court first heard defendant's motion to suppress the evidence on June 23, 2000. That motion was denied. Following the denial of the motion, the United States Supreme Court decided Indianapolis v. Edmond, 531 U.S. 32 (2000). Appellant then filed a motion for reconsideration of the motion to suppress on February 23, 2001. This time the trial court granted defendant's motion. The state appeals from this decision.
On motions to suppress, the state bears the burden of showing that the motion should be denied by a preponderance of the evidence. State v. Davis, 980 S.W.2d 92, 94 (Mo.App.E.D. 1998). "We view the facts in the light most favorable to the trial court's ruling, disregarding contrary evidence and inferences, to determine if they are supported by substantial evidence." Id. We affirm the trial court's ruling on a motion to suppress, unless it is clearly erroneous. Id.
The State argues the Supreme Court of Missouri approved the type of drug checkpoint employed by the City of Troy Police Department in State v. Damask, 936 S.W.2d 565 (Mo.banc 1996). Defendant argues the United States Supreme Court prohibited this type of drug checkpoint in City of Indianapolis v. Edmond.
In 1996, the Missouri Supreme Court held that drug enforcement traffic checkpoints operated in Franklin and Texas Counties were constitutional.Damask, 936 S.W.2d at 575. In Damask, the Franklin County Sheriff's Department set up a drug enforcement traffic checkpoint for eastbound traffic on I-44 at exit 242 where Highway AH crosses I-44 by an overpass on November 22, 1994. Id. at 568. The sheriff's department placed two signs on I-44 about one quarter mile from exit 242 that read "DRUG ENFORCEMENT CHECKPOINT 1 MILE AHEAD." Id. The exit offers no gas, food or lodging services for travelers. Id. A uniformed police officer approached the vehicles that took exit 242 and informed the motorists they were stopped at a drug enforcement checkpoint. Id. The officer checked the motorist's driver's license and registration, and asked the motorist why he or she exited there. Damask, 936 S.W.2d at 568. If the officer did not detect reasonable suspicion of drug trafficking from the motorist's response, the officer allowed the motorist to proceed. Id. If the officer did detect reasonable suspicion of drug trafficking, the officer asked for permission to search the vehicle. Id. Drug-sniffing dogs were used to check the outside of vehicles if a motorist refused to consent to a search. Id.
Richard Damask took exit 242 around 4:20 a.m. on November 22, 1994.Id. Damask produced a valid Nevada driver's license, but appeared very nervous and stated he took the exit to turn around to go back to the last exit to get something to eat. Damask, 936 S.W.2d at 568. When Damask refused the officer's request to search his vehicle, a drug-sniffing dog was used to check the outside of his vehicle. Id. The dog alerted to his trunk, where the police found marijuana. Id. Damask was charged with a felony count of possession of marijuana with the intent to distribute, deliver or sell. Id. The trial court granted his motion to suppress the evidence as the result of an illegal search and seizure, and the Court of Appeals, Eastern District affirmed, holding that the checkpoint violated the Fourth Amendment. Id. at 568-69. The Missouri Supreme Court reversed, holding the drug checkpoint was constitutional. Damask, 936 S.W.2d at 567.
In Edmond, the City of Indianapolis operated vehicle checkpoints in an effort to interdict unlawful drugs. Edmond, 531 U.S. at 34. The police stopped a predetermined number of vehicles at each checkpoint. Id. at 35. An officer approached each stopped vehicle, advised the driver that he or she was stopped at a drug checkpoint, and asked the driver to produce a license and registration. Id. The officer was to look for signs of impairment and conduct an open-view examination from outside the vehicle. Id. A narcotics-detection dog also walked around the outside of each stopped vehicle. Id. The police set up signs that stated "NARCOTICS CHECKPOINT MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP." Edmond, 531 U.S. at 35-36.
James Edmond and Joell Palmer were each stopped at one of the narcotic checkpoints in September 1998. Id. at 36. Edmond and Palmer then filed a class-action lawsuit seeking declaratory and injunctive relief on behalf of themselves and all motorists who had been stopped or were subject to being stopped in the future at the drug checkpoints, claiming the roadblocks violated the Fourth Amendment of the United States Constitution. Id.
The United States Supreme Court held that the Indianapolis checkpoint program violated the Fourth Amendment because the primary purpose of the program was to interdict narcotics, a purpose "ultimately indistinguishable from the general interest in crime control." Id. at 48. The Court noted that its roadblock cases had recognized a limited exception to the rule that a seizure must be accompanied by some measure of individualized suspicion. The Edmond majority noted that the roadblocks the Court had previously approved were designed to further a compelling purpose such as promoting highway safety by targeting drunk drivers ( see Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990)), or policing the border to intercept illegal aliens ( see United States v. Martinez-Fuerte, 428 U.S. 543 (1976)). Id. at 37. However, the Court declined "to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes." Edmond, 531 U.S. at 44.
The checkpoint at issue here is factually similar to the checkpoint the Missouri Supreme Court found constitutional in Damask. We are bound by the Missouri Constitution to follow the last controlling decision of the Supreme Court of Missouri. Mo. Const. Art. V, Sec. 2 (1945); Godfrey v. Union Elec. Co., 874 S.W.2d 504, 505 (Mo.App.E.D. 1994). Therefore, following Damask, we would reverse the trial court's order granting defendant's motion to suppress. However, following Indianapolis v. Edmond, checkpoints with the primary purpose of interdicting illegal narcotics are unconstitutional. Because of the general interest and importance of this issue and for the purpose of reexamination of existing law, we transfer to the Missouri Supreme Court pursuant to Rule 83.02 to consider the recent United States Supreme Court case Indianapolis v. Edmond, concerning drug checkpoints.
I concur in Judge Gaertner's opinion and support reexamination of State v. Damask by the Missouri Supreme Court because the United States Supreme Court's decision in City of Indianapolis v. Edmond rejects, at least in part, the reasons given by the Missouri Supreme Court in its opinion. I write separately to point out that there are fundamental differences in the checkpoints at issue in the two cases which in my view justify upholding the seizure in this case.
In Edmond, the police set up a drug checkpoint on a regular thoroughfare and stopped a predetermined number of vehicles. Edmond, 531 U.S. at 35. Once that group of vehicles was stopped for processing, traffic was allowed to proceed without interruption until all of the stopped cars had been processed or diverted for further investigating.Id. The location of the checkpoint was determined based on crime statistics and traffic flow considerations. Id. In other words, whether a particular driver was stopped and questioned was a random event having nothing to do with any suspicious conduct on the part of the driver.
In the instant case, as in State v. Damask, police set up the roadblock in an isolated and sparsely populated area offering no services to motorists traveling on the main highway. They set up signs leading drivers on the main highway to believe they would encounter a drug checkpoint if they did not exit the highway at the next ramp. Given police precautions to ensure there would be few drivers with legitimate reasons for exiting the highway at that point, all drivers exiting on that ramp were stopped and questioned. The stop was not a random event. Rather, it was predicated on the driver's own suspicious conduct of exiting the highway in an apparent attempt to avoid being questioned about illegal drugs.
Edmond holds that police may not conduct random searches without a particularized suspicion of misconduct solely for the purpose of indicting illegal drugs, which the Court characterized as "ordinary criminal wrongdoing." Id. At 40-42. In this case, as in Damask, drivers were stopped on the basis of a particularized suspicion of wrongdoing. The reasonableness of that suspicion is established by the extensive precautions taken by police to eliminate legitimate reasons for taking the exit, thus justifying the assumption that those taking the exit were doing so to avoid being questioned about illegal drugs. This is not prohibited by either the holding or reasoning of Edmond.