Opinion
No. 4:00 CR 208 JCH DDN
December 12, 2000
Kenneth R. Tihen, Asst. U.S. Atty., OFFICE OF U.S. ATTORNEY, St. Louis, Mo., for plaintiff.
Richard Zipser, Berkley, Mi., for defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This action is before the court upon the motion (Doc. No. 38) of defendant Salwan Yousif for reconsideration of his motion to suppress evidence. On September 15, 2000, the undersigned recommended that the motion be denied. On October 18, 2000, the district judge overruled defendant's objections to the recommendation, adopted the findings of fact and conclusions of law made by the undersigned, and denied the motion. Now, the motion for reconsideration has been referred to the undersigned under 28 U.S.C. § 636 (b). The undersigned has considered the memoranda of the parties on the current motion; no further hearing has been held.
In his motion for reconsideration, defendant Yousif argues that the denial of his motion to suppress evidence is inconsistent with the ruling of the Supreme Court of the United States in City of Indianapolis v. Edmond, 2000 WL 1740936 (November 28, 2000), handed down after the denial of defendant's motion to suppress. Generally stated, in Edmond the Supreme Court ruled that suspicionless seizures at highway checkpoints whose primary purpose is the discovery and interdiction of illegal narcotics violate the Fourth Amendment to the Constitution.
For the convenience of the parties and the district judge, the undersigned will restate herein without change the findings of fact which the district judge has previously adopted:
"FACTS
"1. On April 13, 2000, the Missouri State Highway Patrol set up a criminal interdiction checkpoint at the intersection of Interstate Highway 44 (1-44) and Sugar Tree Road in Phelps County. The checkpoint was located at the end of the exit ramp from the east-bound lanes of 1-44. The ramp extends uphill to Sugar Tree Road which overpasses 1-44.See Gov. Exh. 1.
"2. The checkpoint was set up on 1-44, 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 1-44 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 1-44 and would attempt to avoid criminal detection at the checkpoint by turning off 1-44 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 1-44. 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 1-44 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 1-44 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 1-44 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 1-44 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 driver'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."
See Report and Recommendation, Doc. No. 31, filed September 15, 2000, at 1-8.
DISCUSSION
Defendant argues that the facts and applicable law of his case are "in accord with the decision of the United States Supreme Court" in Edmond.See Defendant's Memorandum of Law, filed December 4, 2000, at 2. As set forth above, in Edmond the Supreme Court ruled that suspicionless seizures at highway checkpoints whose primary purpose is the discovery and interdiction of illegal narcotics violate the Fourth Amendment. 2000 WL 1740936 at **2, 9-10.
In reaching its conclusion in Edmond, the Supreme Court recounted its constitutional approval for brief, suspicionless seizures for special purposes that include drug testing of student athletes; drug testing of Customs Service employees under certain conditions; drug and alcohol tests for railroad employees under certain circumstances; administrative searches of highly regulated businesses; administrative searches of fire damaged premises to determine the cause of the fires; administrative searches to determine compliance with housing codes; Border Patrol stops for illegal aliens; sobriety checkpoints to remove drunk drivers; checkpoints to verify drivers' licenses and vehicle registrations; and appropriately limited checkpoints to thwart imminent terrorist attack or to catch a dangerous criminal. Id. at **3-5, 8.
Clearly, the stop of a motor vehicle at a checkpoint is a seizure.Id. at *6. The Court, however, held that Suspicionless seizures at checkpoints set up to detect evidence of ordinary criminal wrongdoing violate the Fourth Amendment. Id. Regardless of the prevalence of illicit drug criminal activity in the United States, the Court concluded that drug checkpoints remain enterprises for investigating general criminal activity. Id. at *9 Under such circumstances, a seizure under the Fourth Amendment "can only be justified by some quantum of individualized suspicion." Id.
The undersigned has carefully reviewed the Supreme Court's opinion inEdmond and has identified eight factual similarities and four factual differences that are relevant to an understanding of whether the ruling of Edmond is applicable to defendant's motion to suppress.
Similarities.
1. The primary purpose of the checkpoints set up in Edmond and in defendant Yousif's case were the same: to interdict unlawful drugs.
2. The police exercised no discretion in determining what vehicles are to be stopped; the quantity of vehicles to be stopped is predetermined by the checkpoint guidelines. In Edmond the police stopped all vehicles within a predetermined number at the checkpoint; when the determined number of vehicles has been stopped, all other vehicles are allowed to pass by the checkpoint without stopping until the stopped vehicles are all processed. Then the next group of vehicles are stopped. In defendant Yousif's case, the officers stopped all vehicles that exited the Sugar Tree Road exit from Interstate 44, unless the number of vehicles stopped created a safety hazard in which case all further vehicles are allowed to pass the checkpoint without being stopped, until the hazard has been eliminated.
3. The officers in both Edmond and in the instant case operated the respective checkpoints under written directives and guidelines.
4. The drivers of the stopped vehicles in both cases were advised of the operation of the checkpoints by sign and orally. In defendant Yousif's case, the existence of the checkpoint was announced by signage on 1-44 and at the top of the Sugar Tree Road exit ramp by signage and orally by the officers.
5. In both cases, the drivers of the stopped vehicles were to be asked for their drivers licenses and vehicle registration.
6. In both cases, after the vehicles are stopped and the officers approached, the officers were to conduct an "open-view" examination of the vehicle, its occupants, and its interior from the outside. In defendant Yousif's case, the officers were to look in similar fashion for facts that were consistent with deceitful behavior and to consider whether observed facts indicated criminal activity.
7. In both defendant Yousif's case and in Edmond, the police could search the vehicle, by consent or if the officer has the requisite amount of particularized suspicion.
8. In both cases, the checkpoints were well described by signs regarding the existence of the checkpoint, the purpose being to interdict illicit narcotics, and the involvement of a police dog. In Edmond the signs announced, "Be Prepared to Stop." In defendant Yousif's case, a traffic "Stop" sign was located at the checkpoint.Differences.
1. In defendant Yousif's case, after the vehicles were stopped at the checkpoint, the officer initially asked each driver whether he saw the checkpoint signage on 1-44 and why he had taken the exit. The checkpoints in Edmond were operated in a way that made such an inquiry irrelevant.
2. In Edmond the officers were directed to look for signs the driver was impaired. In defendant Yousif's case such was not part of the checkpoint guidelines.
3. In defendant Yousif's case, if the driver refuses to consent to a search of the vehicle by the officer and if reasonable grounds exist to believe that the vehicle is involved in illicit drug activity, the engine is turned off, the occupants are directed to stand outside the vehicle, and a narcotics trained police dog is walked around the vehicle. In Edmond, a narcotics trained police dog was to be walked around every vehicle.
4. In defendant Yousif's case, the combination of the 1-44 signage and the lack of any apparent reason for a motorist to exit 1-44 at the Sugar Tree Road exit other than to avoid the announced drug checkpoint established a reasonable suspicion that every vehicle that came to the checkpoint was involved in illicit drug activity. Edmond did not indicate that the mere locations of the checkpoints were prescribed to establish a reasonable suspicion of drug law violation.
The undersigned concludes that the discovery and seizure of the marijuana from defendant Yousif's vehicle did not violate the Fourth Amendment, because the officers' stopping him at the Sugar Tree Road checkpoint was justified by his suspicious exiting 1-44 at that location and by the manner in which he hesitated when driving up the exit ramp. The placement-of the drug checkpoint signs on the highway, his driving a vehicle with out-of-state license plates, and the lack of a reasonable, lawful purpose for defendant to exit the highway at that location created a reasonable suspicion that defendant was attempting to evade the announced police drug checkpoint. This reasonable, articulable suspicion justified a brief stop of defendant and his vehicle at the checkpoint for further investigation under Terry v. Ohio, 392 U.S. 1 (1968). See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673 (2000).
In Wardlow, Wardlow had been standing next to a building in an area known for heavy drug activity. When he saw the police officers, who were patrolling the area, look at him, he took off and ran. He was caught and frisked and a firearm and ammunition were found on his person. In upholding the challenge to Wardlow's detention under the Fourth Amendment, the Supreme Court held that Wardlow's flight, in the circumstances of that case, attained "at least a minimal level of objective justification for" stopping him. 120 S.Ct. at 676. Wardlow's mere presence in the area was a constitutionally insufficient basis for stopping him. Id. So, too, defendant Yousif's mere presence on 1-44 was a constitutionally insufficient basis for stopping him.
However, Wardlow's flight from an area of high drug activity upon seeing the police look at him justified the further police investigation. Id. So, too, defendant Yousif's turning off Interstate 44, onto the Sugar Tree Road exit, after seeing the drug checkpoint signs, reasonably indicated to the officers that he was attempting to evade the police drug checkpoint investigation, just as Wardlow had attempted to evade the police. This suspicion that defendant was evading the police was bolstered by the officer's observation that, as he drove up the Sugar Tree Road exit ramp, in a vehicle with out-of-state license plates, defendant slowed his vehicle almost to a stop half-way up the ramp. The officer then had to wave his arm and direct Yousif to continue driving up the ramp to the checkpoint before he did so. Commonsense indicates that defendant possibly was evading police detection of his illicit drug activity. Id.
In sum, the difference between Edmond and the case at bar is that the checkpoint stop of defendant Yousif was justified by a constitutionally sufficient "quantum of individualized suspicion" that was not present inEdmond. For these reasons, the officers were constitutionally justified in stopping defendant Yousif at the checkpoint for further investigation. Terry v. Ohio, 392 U.S. at 21-22; cf., Reid v. Georgia, 448 U.S. 438, 441 (1980).
Moreover, as set forth in the original Report and Recommendation, the undersigned found that defendant voluntarily consented to the search of his vehicle. See Report and Recommendation, Doc. No. 31, filed September 15, 2000, at 13-14. Therefore, even if the Sugar Tree Road exit checkpoint was not a valid stop under the Fourth Amendment, the evidence seized from defendant's vehicle still should not be suppressed. In United States v. Kreisel, 210 F.3d 868 (8th Cir.), cert. denied, 121 5. CT. 273 (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.
It is the government's burden to prove that a consent to search was voluntary. United States v. White, 81 F.3d 775, 780 (8th Cir.), cert. denied, 519 U.S. 1011 (1996). 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, 225 (1973). The undersigned, after considering the totality of the circumstances, concludes that defendant Yousif freely gave his consent to search the vehicle.
For these reasons,
IT IS HEREBY RECOMMENDED that the motion (Doc. No. 38) of defendant Salwan Yousif for reconsideration of his motion to suppress evidence 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.