Opinion
No. 4:00 CR 208 JCH DDN
September 15, 2000
Richard Zipser, Attorney for Defendant.
Kenneth R. Tihen, Asst. U.S. Atty., OFFICE OF U.S. ATTORNEY, Attorney for U.S.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This action is before the court upon the pretrial motions of the parties which were referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b). An evidentiary hearing was held on July 12, 2000. After the hearing, a transcript was prepared and the parties filed memoranda.
Defendant Yousif has moved to suppress physical evidence and statements (Doc. No. 18). From the evidence adduced at the hearing the undersigned makes the following findings of fact and conclusions of law:
FACTS
1. On April 13, 2000, the Missouri State Highway Patrol set up a criminal interdiction checkpoint at the intersection of Interstate Highway 44 (I-44) and Sugar Tree Road in Phelps County. The checkpoint was located at the end of the exit ramp from the east-bound lanes of I-44. The ramp extends uphill to Sugar Tree Road which overpasses I-44. See Gov. Exh. 1.
2. The checkpoint was set up on I-44, because this interstate highway is known by law enforcement authorities to be heavily used for trafficking illicit drugs. The immediate area around the Sugar Tree Road intersection with I-44 has no commercial business and little local motor vehicle traffic. West of the Sugar Tree Road exit are signs that indicate a rest area with facilities east of the Sugar Tree Road exit; still further east is a town with a convenience store, a service station, and a restaurant. The law enforcement belief was that motorists would expect the checkpoint to be located directly on I-44 and would attempt to avoid criminal detection at the checkpoint by turning off I-44 at the Sugar Tree Road exit. The actual checkpoint location, at the top of the Sugar Tree Road exit ramp, cannot be seen by motorists until they have turned off the highway onto the exit ramp. On April 13, 2000, this checkpoint was operated by the Missouri Highway Patrol with the assistance of Don Blankenship, the Sheriff of Phelps County, who helped man the operation.
Approximately two miles from the intersection in one direction is a campground by a river and approximately the same distance in the other direction is a motel which is in disrepair.
3. For calendar year 1997 the Phelps County Sheriff's Department prepared a "Combined Highway Interdiction Program Statistical Summary, " Government Exhibit 3. This summary documents compiled information about 54 of the days, selected at random, on which the Phelps County Sheriff's Department conducted checkpoints at the Sugar Tree Road intersection with I-44. On those randomly selected 54 days, in the operation of the checkpoints, the officers checked 2,537 motor vehicles. of this number, 1,755 were driven by persons engaged in local motor vehicle traffic. From the 1,755 local traffic vehicles, 45 persons were detained and 4 were issued summonses for law violations. of the 644 non-local traffic vehicles checked, 501 arrests (78% of non-local traffic) were made for violations of the law. of these 501 arrests, 106 (16%) were involved in non-drug law violations and 395 (61%) were involved in drug law violations, including 339 misdemeanors and 56 felonies. From the 2,537 vehicles checked, 42 "loads" of controlled substances were seized. of these 42 loads, marijuana totaled 6,442 pounds (street sale valued at $20,614,400); cocaine 618 pounds (street sale valued at $40,170,000); methamphetamine a "few" pounds; and heroin "user amounts only." See Gov. Exh. 3.
A "load" was defined as an amount intended not for the personal use of the person in possession, but was intended for distribution to others.
4. The standard operating procedures for the checkpoint operated at the I-44/Sugar Tree Road intersection on April 13, 2000, were described in Missouri Highway Patrol Memorandum No. 16-00, Government Exhibit 2, issued April 4, 2000. The memorandum required, among other things, the following:
a. The checkpoint was to be operated between noon and midnight on April 13, 2000. Eight Missouri Highway Patrol officers were detailed to participate in the checkpoint with an unstated number of officers and canine units assigned by the Phelps County Sheriff's Office.
b. The checkpoint was to be operated with prescribed signage. Two signs stating "DRUG ENFORCEMENT CHECKPOINT 1/4 MILE AHEAD" were to be placed on both shoulders of the eastbound lanes of I-44 approximately one-quarter mile west of the Sugar Tree Road exit. A second set of signs stating "DRUG DOG IN USE AHEAD" was to be placed on both shoulders of I-44 approximately 100 yards west of the exit ramp.
c. The actual checkpoint was to be located at the top of the exit ramp at the Sugar Tree Road overpass. The memorandum required that at least two fully marked Missouri Highway Patrol cars were to be located at the checkpoint to prevent motorists from becoming alarmed by the operation of the checkpoint.
d.
Every vehicle that exits eastbound Interstate 44 will be stopped at the checkpoint location. In the event that the volume of stopped traffic creates a safety hazard, the [Officer in Charge] will direct that ALL vehicles be allowed to proceed without being stopped until the potential hazard is eliminated.See Gov. Exh. 3 at 2.
e. At least one uniformed officer was to approach each exiting vehicle.
f. Each driver is to be informed about the reason for the checkpoint and to be asked to produce his or her driver's license, registration, and proof of insurance if required by the state of registration. Each driver was also to be asked whether he or she observed the checkpoint signs and why they exited there. Based on the answers given to these questions and the observations of the officers, if the officers observed facts "consistent with evasive and deceitful behavior related to criminal activity," the officers may ask other questions. If the officer
establishes reason to believe the vehicle contains drugs or other contraband, the driver will be asked for consent to search the vehicle. If the driver refuses consent and reasonable suspicion that the vehicle contains drugs or contraband exists,
the occupants will be asked to step out of the vehicle, the ignition will be turned off, and a police canine unit will walk around the vehicle to determine the presence of contraband inside the vehicle. If the dog does not alert and there are no other circumstances sufficient to hold the occupants, they and the vehicle will be free to leave. If the dog alerts, further investigative and law enforcement steps may be taken. See Gov. Exh. 2.
5. The license plate number of each vehicle stopped, regardless of whether the occupants are charged or are released without prosecution, is recorded by the officers. If a vehicle and its occupants are allowed to leave, nothing else about the vehicle and its occupants, besides the license plate number, is recorded. If a motorist stopped the vehicle at the state stop sign at the top of the exit ramp, but then proceeded through the checkpoint area without responding to the officer's direction to stop, the officers would pursue the vehicle and require it to stop.
6. On April 13, 2000, officers of the Missouri Highway Patrol and the Phelps County Sheriff's Department followed Highway Patrol Memorandum No. 16-00 in setting up a checkpoint at the top of the exit ramp off the eastbound lanes of I-44 at the Sugar Tree Road intersection. Where the exit ramp meets Sugar Tree Road is a small concrete median on which is permanently fixed a regular state hexagonal stop sign. Next to the permanent stop sign the officers set up a temporary, folding sign which indicates that the motorist has reached the checkpoint. The officers also parked two fully marked highway patrol cars in full view of motorists who drove up to the stop sign.
7. Shortly before 3:00 p.m. on April 13, 2000, defendant Salwan Yousif drove his Ford Explorer vehicle from I-44 onto the Sugar Tree Road exit ramp toward the checkpoint. As the Ford drove up the ramp, it slowed to almost a complete stop approximately half-way to the checkpoint. Patrolman Richard Lisenbe saw that the Ford had slowed almost to a stop, which was unusual for exiting vehicles. He waved his arm directing it to proceed up the ramp to the checkpoint. The driver, defendant Yousif, did so. Patrolman Lisenbe saw that the vehicle had Oklahoma license plates. He, Patrolman Dubois and Sheriff Blankenship walked up to the Explorer. Lisenbe and Dubois walked to the open driver's window; Blankenship went to the passenger's side. Lisenbe immediately smelled a very strong, almost overwhelming, berry-like aroma. The patrolman then asked defendant for his driver's license, registration, and insurance document. Defendant said the vehicle was rented and handed Lisenbe his Arizona driver's license and the Hertz Auto Rental contract for the vehicle. As he did so, defendant was seen to be very nervous. He was trembling, his hands were shaking, and he nearly dropped his license. Patrolman Lisenbe believed the strong berry-type aroma was unusual for a rental vehicle.
8. Next, Lisenbe asked defendant where he was headed. Defendant said he was going to Illinois. Also present in the vehicle was defendant's wife who said they had turned off the highway to let their dog relieve itself. Next, Lisenbe asked defendant whether there was anything illegal, like weapons, narcotics or stolen property, in the vehicle. Defendant responded that there was none.
9. At that point, Patrolman Lisenbe asked defendant for his consent to search the vehicle for such illegal items. Defendant, who was still sitting in the drivers s seat, told the patrolman to go ahead. Defendant's wife then asked whether they could search on he highway without a search warrant. Lisenbe responded to her, in her husband's presence, that the police could search if they gave their consent or if the police had probable cause. She replied, "That's OK, I was just asking." No threats or promises were made to get defendant or his wife to consent to the search. They did not object to the search.
10. Next, Patrolman Lisenbe walked to the rear of the vehicle, opened its rear compartment door and observed six very large, black suitcases stacked almost to the height of the headrests of the seat in front. The suitcases were covered with a blanket and pillows. The patrolman opened each of the suitcases and saw in them bundles of green plant material which he believed from his experience and training was marijuana.
11. Patrolman Lisenbe next placed defendant Yousif and his wife under arrest for drug trafficking and orally advised them of their constitutional rights to remain silent and to counsel by reading these Miranda rights to them from a card. He then asked them whether they understood the rights and they said they understood them.
12. Next, the patrolman told them that there were two narcotics investigators at the checkpoint and that, if the defendant and his wife were willing to talk with the investigators, they could do so and help in an investigation of the marijuana. Defendant Yousif said he wished to talk with the investigators.
13. Next, patrolman Lisenbe motioned to Det. Wayne Coltrane, a member of the South-Central Drug Task Force, and to Missouri State Highway Patrol Officer Carrie Roddy. Det. Coltrane and Officer Roddy were stationed at the checkpoint area to interview suspected drug traffickers. Both were dressed in plain clothes and walked over to where Patrolman Lisenbe and defendant Yousif were standing. In defendant's presence, Lisenbe told Coltrane that marijuana was found in defendant's vehicle, that defendant was willing to speak with the officers, and that defendant had been read the Miranda warnings. Defendant said nothing when he heard Lisenbe tell Coltrane this. Lisenbe also showed Det. Coltrane the discovered marijuana.
14. Next, Det. Coltrane walked defendant Yousif to the nearby law enforcement motor home vehicle where he and Patrolman Roddy were stationed. At the motor home Det. Coltrane questioned defendant. In response to the questions, without any promises, without any force or coercion, without indicating he did not wish to give any statement and without indicating that he wished the services of an attorney, defendant Yousif made oral statements about the marijuana and his role in its trafficking.
15. During the interview, because of the large amount of marijuana that needed to be secured, Patrolman Lisenbe suggested that the rest of the interviews be conducted at the Highway Patrol Troop I Headquarters in Rolla, Missouri. Thereafter, Patrolman Lisenbe transported defendant Yousif to the headquarters offices. Another officer transported defendant's wife there and a third officer drove the Yousif's vehicle there.
16. At the Troop I Headquarters, the investigators continued the interviews of defendant and his wife. Patrolman Lisenbe conducted an inventory search of their vehicle. Defendant Yousif was very cooperative with the officers throughout the interviews.
17. During the interviews, Det. Coltrane interviewed Mrs. Yousif in another room and Patrolman Roddy came into the room to interview defendant. Roddy asked defendant a question and defendant replied, "Do you think I should talk to an attorney first?" Roddy responded, "That is your right. Feel free to contact an attorney. But if you want to contact an attorney this interview will be over. That was told to you when you were read your rights." Defendant said to her that he had not been read his rights. Roddy told him that he had been read his rights by Patrolman Lisenbe at the checkpoint. Defendant maintained he had not been read his rights. At that time, Officer Roddy asked another patrolman in the room to go to Officer Lisenbe to confirm he had given the defendant the Miranda warnings. The officer returned and said that Lisenbe had confirmed that he had read defendant his Miranda rights.
18. Nevertheless, to refresh his memory, Officer Roddy read the Miranda warnings to defendant. At the end of the rights, she asked defendant whether he understood his rights and defendant indicated he understood them. Defendant Yousif then said he wanted to continue with the interview. In response to her further questions, he gave oral statements about the marijuana trafficking. During the interview, defendant Yousif asked Officer Roddy what kind of a deal he could get. She telephoned the prosecutor who told her he would not then state what he could offer defendant; rather, he would assess the information provided by defendant before he offered consideration for the cooperation. Officer Roddy relayed this information to defendant.
19. When Det. Coltrane returned to defendant's interview room, Patrolman Roddy told him that defendant had claimed he had not been given his Miranda warnings and that she then did so. Thereafter, Det. Coltrane continued with his interview of defendant. At one point, defendant Yousif asked Det. Coltrane whether a deal could be made in exchange for defendant identifying the people he was dealing with in Michigan. Det. Coltrane responded that he could not promise anything, that such would be up to the prosecutor, and that any help he could give the police would only help him. Defendant replied by saying, "If you can't tell me what kind of deal, I'll not help." At that time Det. Coltrane terminated the interview. Thereafter, defendant Yousif was not questioned.
DISCUSSION
Defendant argues that all physical evidence from his vehicle and all of his statements should be suppressed, and that the criminal interdiction checkpoint operation violated the Fourth Amendment. Several courts have considered the Fourth Amendment issues involving criminal interdiction checkpoints. However, neither the Supreme Court nor the Eighth Circuit have considered this issue. Some courts, utilizing various theories, have found that drug interdiction checkpoints violate the Fourth Amendment. See Edmond v. Goldsmith, 183 F.3d 659 (7th Cir. 1999), cert granted, 120 S.Ct. 1156 (2000);United States v. Morales-Zamora, 974 F.2d 149 (10th Cir. 1992);United States v. Huguenin, 154 F.3d 547 (6th Cir. 1998)
However, other courts, including this court and the Missouri Supreme Court, have found that criminal interdiction checkpoints do not violate the Fourth Amendment. See United States v. Robinson, No. 4:00 CR 129 DJS (TCM), Memorandum, filed April 12, 2000; State v. Damask, 936 S.W.2d 565 (Mo. 1996) (en banc); Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995) , cert. denied, 519 U.S. 812 (1996) All of the cases are very fact-specific and there has been no uniform consensus on the appropriate test. The Supreme Court of the United States granted certiorari to consider this issue but has not yet heard the case. See City of Indianapolis v. Edmond, 120 5. Ct. 1156 (2000). Therefore, this court must decide the issue without the guidance of the Supreme Court or the Eighth Circuit.
The balancing test which the courts considering this issue have used most frequently is "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).
The undersigned will first briefly mention the cases that have found the checkpoints unconstitutional. The Tenth Circuit considered a case in which a roadblock had been set up ostensibly to check driver's licenses. Morales-Zamora, 974 F.2d at 149. The court ultimately found that the reason given by the government for the roadblock, to check driver's licenses, was pretextual, the government's true intent was to search for drugs, and that the defendant's Fourth Amendment rights were violated. Id. at 152-53.
In Huguenin, the Sixth Circuit, using the Brown test, concluded that "the checkpoint at issue in the present case did not effectively serve a government purpose which outweighed its intrusiveness, and therefore was unreasonable under the Fourth Amendment." Huguenin, 154 F.3d at 563. The court also commented that "[t]here were no guidelines on how to operate the ruse, what questions were to be asked, or how to use the drug dog present, which was left completely to Officer Worley's discretion." Id. at 556.
The Seventh Circuit reached the same result but with a different analysis in Edmond, 183 F.3d at 659. The court first acknowledged that stopping a car at a roadblock is a seizure within the Fourth Amendment. Id. at 661 (citing Whren v. United States, 517 U.S. 806, 809-10 (1996)). However, the court did not assess the checkpoint under the reasonableness test and held the checkpoint unconstitutional because the search "related to general criminal law enforcement, rather than to primarily civil regulatory programs for the protection of health, safety, and the integrity of our borders."Id. at 662 (citation omitted).
On the other hand, other courts have found such checkpoints to be a valid exercise of state police power. In Merrett v. Moore, 58 F.3d at 1547, Florida authorities set up roadblocks on Florida highways. In assessing the validity of these roadblocks, the court adopted an objective rule, concluding that "where the state has one lawful purpose sufficient to justify a roadblock, that the state also uses the roadblock to intercept illegal drugs does not render the roadblock unconstitutional." Id. at 1550-51.
The Missouri Supreme Court considered this question in a case in which two checkpoints very similar to the instant one were at issue. The court held that "[b]ecause the checkpoints were operated in a nondiscriminatory fashion as to the initial stops and because the checkpoints effectively advance an important state interest with minimal intrusion to motorists, we find such checkpoints constitutional." Damask, 936 S.W.2d at 567. The court applied theBrown test and concluded that the state had a serious interest in preventing drug trafficking, the checkpoints at issue effectively promoted the state's purpose because they were both in a remote location with no services, so that it was unlikely travelers would exit at that point unless they were local residents or trying to avoid the checkpoint, and that the level of intrusion imposed upon individual motorists was small. Id. at 571-75.
This court has also recently considered this issue involving a checkpoint in Franklin County, which is substantially similar to the checkpoint in the instant case. Judge Mummert, in a Memorandum adopted by Judge Stohr, focused on the question of "whether the seizure resulting from the road block stop is reasonable under the Fourth Amendment." Robinson, at 14. Judge Mummert cited Damask and concluded that the checkpoint did not violate the Fourth Amendment.
In the case at bar, the undersigned will apply the Brown test. Regarding the public concern of the checkpoints, as this court has emphasized, "[t]he magnitude of the drug trafficking problem has been repeatedly recognized by the Supreme Court." Id. at 16 (citingChandler v. Miller, 117 S.Ct. 1295, 1305-06 (1997); United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 668 (1989)).
Regarding whether the seizure advances the public interest, the undersigned has found that 61% of the non-local vehicles checked resulted in arrests for drug law violations. See Finding No. 3. Therefore, the checkpoint has a high rate of success in addressing the drug trafficking problem. Furthermore, the checkpoint was in a remote location with no services, so that it was more likely that non-local vehicles exiting at that point would be trying to avoid the checkpoint. See Damask, 936 S.W.2d at 573.
Regarding the severity of the interference with individuals stopped at the checkpoint, the undersigned has found that two fully marked Missouri Highway Patrol cars were located at the checkpoint to prevent motorists from becoming alarmed. See Finding No. 4(c) Each driver was informed of the reason for the checkpoint and was to produce a license, registration and proof of insurance and were asked whether he or she saw the checkpoint signs and why he or she exited there. See Finding No. 4(f). The officer permitted the vehicle to leave if he or she observed no suspicious behavior. Id. If the officer observed suspicious behavior, he or she might ask other questions and request consent to search the vehicle. Id. If consent was refused, the occupant would be asked to step out so that a police canine unit could walk around the vehicle. Id. If the dog did not alert, the individual was free to go. Id. An individual who exhibited no suspicious behavior could be expected to be stopped no more than a few minutes. The undersigned concludes that interference with individual liberty was minimal.
Based on the factors of the Brown test, the undersigned concludes that the checkpoint did not violate the Fourth Amendment. Thus, the undersigned opts to follow the line of reasoning previously followed by this court, the Missouri Supreme Court and the Eleventh Circuit, rather than the reasoning of the Tenth, Sixth and Seventh Circuits. Additionally, this case is distinguishable from Huguenin in that the field officers in that case did not have specific guidelines for the operation of the checkpoint. See Huguenin, 154 F.3d at 556. Here, the officers were given detailed instructions on how to operate to the checkpoint and had little discretion. This alleviates a concern which the Supreme Court expressed when formulating the Brown test.See Brown, 443 U.S. at 51 ("A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.").
Moreover, the undersigned has explicitly found that defendant consented to the search of his vehicle and that no threats or promises were made to obtain his consent. See Finding No. 9. Therefore, even if the highway checkpoint was not a valid stop, the evidence seized from the vehicle still should not be suppressed. The Eighth Circuit considered a case in which an individual vehicle was stopped by police, who then gained voluntary consent to search the vehicle. See United States v. Kreisel, 210 F.3d 868 (8th Cir.),petition for cert. filed, August 22, 2000. The Eighth Circuit questioned the validity of the initial stop, but still held as follows:
We nevertheless believe that the search was good because [defendant's] consent provided a basis for it that was independent of whether the officers' stop of the truck comported with the fourth amendment. Even if a consent to search is the result, in a "but for" sense, of a fourth amendment violation, we will uphold a subsequent search if the consent was sufficiently an act of free will to purge the original taint.Id. at 869. Thus, the undersigned concludes that the physical evidence seized from defendant Yousif's vehicle should not be suppressed.
It is the prosecutor's burden to prove that a consent to search was freely given. United States v. White, 81 F.3d 775, 780 (8th Cir.) (citing United States v. Miller, 20 F.3d 926, 930 (8th Cir.), cert. denied, 513 U.S. 886 (1994)), cert. denied, 519 U.S. 1011 (1996). Whether consent was given depends upon the totality of the circumstances. United States v. Heath, 58 F.3d 1271, 1276 (8th Cir.),cert. denied, 516 U.S. 892 (1995). Consent is voluntary if it is the product of an "essentially free and unconstrained choice by its maker." Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The undersigned, after considering the totality of the circumstances, concludes that defendant Yousif freely gave his consent to search the vehicle. After Patrolman Lisenbe asked defendant if he could search the vehicle, defendant Yousif said "go ahead." See Finding No. 9. The undersigned notes that defendant's wife, after inquiring whether the police could search the car on the highway, stated that she was "just asking."
Defendant Yousif's statements should not be suppressed. All of defendant's oral statements took place at the law enforcement motor home vehicle at the checkpoint and later, at the Highway Patrol Troop I Headquarters in Rolla, Missouri, after he was arrested.
The admissibility of post-arrest statements of a defendant which resulted from police interrogation depends upon whether the defendant had been advised of his rights, as prescribed by Miranda v. Arizona, 384 U.S. 436 (1966); whether the defendant knowingly and voluntarily waived the Miranda rights, North Carolina v. Butler, 441 U.S. 369, 373, 375-76 (1979); and whether the statements were voluntary.
A confession is involuntary if it was "extracted by threats, violence, or direct or indirect promises, such that a person's will is overborne and his or her capacity for self-determination critically impaired."United States v. Jordan, 150 F.3d 895, 898 (8th Cir. 1998) (quotingUnited States v. Gipp, 147 F.3d 680, 683 (8th Cir. 1998)), cert. denied, 526 U.S. 1010 (1999). Voluntariness is indicated by the officer giving the Miranda warnings, United States v. Mendoza, 85 F.3d 1347, 1350 (8th Cir. 1996), and by the absence of threats or promises, Loveloy v. United States, 92 F.3d 628, 633 (8th Cir. 1996).
In the case at bar, during his interview at the Highway Patrol Troop I Headquarters in Rolla, Missouri, defendant incorrectly told Patrolman Roddy, who was interviewing him, that he had not been read his Miranda rights. See Finding No. 17. Patrolman Roddy verified with Officer Lisenbe that he had read defendant Yousif his rights, but still, to refresh defendant's memory, she read him his rights again.See Finding No. 17-18.
The undersigned credits Patrolman Lisenbe's testimony that he read defendant Yousif his rights when was initially arrested at the checkpoint. This finding is bolstered by the facts that Patrolman Lisebe called Det. Coltrane over, and, in defendant Yousif's presence, Lisenbe told Coltrane that marijuana was found in defendant's vehicle, defendant was willing to speak with the officers, and that defendant had been read his Miranda warnings. See Finding No. 13. Defendant said nothing when he heard Lisenbe tell Coltrane this. Id.
The undersigned concludes that the subsequent statements were all voluntary; none were coerced.
For these reasons,
IT IS HEREBY RECOMMENDED that the motion of defendant to suppress evidence and statements (Doc. No. 18) be denied.
The parties are advised that they have ten (10) days to file written objections to this Report and Recommendation. The failure to file objections may result in a waiver of the right to appeal issues of fact.