United States v. Judith Ann Huguenin (97-5152) and William A. Martin (97-5160)

consistent proceedings for further

opinion. and REMANDED.

VACATED America, STATES of

UNITED

Plaintiff-Appellee, (97-5152) Ann HUGUENIN

Judith (97-5160), A. Martin

William

Defendants-Appellants.

Nos. 97-5160. Appeals,

United States Court

Sixth Circuit.

Argued April 1998. Aug.

Decided

Rehearing Oct. Denied

549 Cоunty, briefed), in Roane exit off Interstate 40 Aubry (argued As- Road Mary M. (cid:127) Tennessee, Knoxville, Attorney, Tennessee. sistant U.S. Plaintiff-Appellee. 4:30 March 1996 at On briefed), (argued Rit- Davies Wade V. p.m.,, Huguenin Mr. Martin Ms. Dillard, Tennessee, chie, Knoxville, Fels & Mr. traveling eastbound on Interstate Defendant-Appellant Huguenin. for Huguenin was driving, and Ms. Martin In Roane passenger’s front seat. Ritchie, (argued), Fels & Wade Davies V. Tennessee, large, they passed two County, Dillard, Knoxville, Tennessee, E. Ralph Har- signs with words “DRUG-DUI square (briefed), Har- Ralph well Offices E. Law of CHECK POINT ENFORCEMENT % well, Knoxville, Tennessee, for Defendant- on each side MILE AHEAD.” One sign Appellant Martin. an exit road. Mr. Martin turned onto of the yards Airport Road 150-200 ramp for about KENNEDY, CONTIE, and Before: signs. after When quarter or a mile MOORE, Judges. Circuit Road, of the at the end driver exits immediately as ramp is not visible long exit J., CONTIE, opinion delivered the of left. ramp curves and bears to the When MOORE, J., court, joined. in which ramp, there drove exit Mr. Martin KENNEDY, 563-565), (pp. delivered a J. orange the side of the four cones oh were separate dissenting opinion. the exit. near the turn the end of road approxi- on each side-the first two Two were OPINION intersec- mately three to four feet from the CONTIE, Judge. Circuit tion, approximately fifteen to the next two twenty from the The feet first. Hugue- Defendants-appellants A. Judith sign. stop of the at a was at the end exit appeal nin A. Martin the denial and William joint suppress motion to evidence their Worley Dennis of the Roane Coun- ah after a search and seizure at obtained ty, had es- Department Tennessee Sheriffs checkpoint. Following their con- automobile stop a “ruse” to tablished this as guilty pleas possession ditional highway motorists who chose exit off the marijuana, intent to distribute defendants viewing signs warning upcom- of an after constitutionality police challenged the high- ing checkpoint on the DUI/narcotics exiting procedures used to motorists on way. signs posted the two warning highway upon off Tennessee EN- 1-40 read “DRUG-DUI eastbound approaching motorists nareotics/DUI MILE CHECK POINT FORCEMENT £ checkpoint. Because we conclude that AHEAD,” checkpoint in officers had no the. procedures law offi- used enforcement Instead, place highway. on the Officer Wor- unconstitutional, cers we REVERSE were ley up the at the end of the sup- the defendants’ motion to denial of Airport Road exit is the first ramp,-,which press.1 posted exit available to after the motorists used, signs! frequently but is not because no

I. are offered at services that exit. Motorists 19, 1996, not see the Hu- could officers at the roadblock Judith On March defendants ramp the end until came around guenin Martin each indict- and William yards possessing intent 50 to 100 ed on count of with the one curve— marijuana uphill ramp. into the exit After a motorist to distribute violation 841(a)(1) exit, 841(b)(1)(B). gets §§ The off at the place U.S.C. there is no turn charges illegal from defendants’ detention around to avoid the stemmed as drug/DUI checkpoint ramp to back down exit in Tennessee. appeals Martin also the district need not reach this Defendant issue as we reverse his con- calculating, sentencing pur- court’s method viction. seized, weight marijuana poses, the but we inwas Each officer Highway Patrolman.3 by the been authorized checkpoint had five the men were and armed. With uniform Department, which County Sheriffs Roane car, a marked sheriffs a marked vehicles: in December 1994 policy

had established car, law en- unmarked Highway Patrol two setting procedures for proper regarding the cars, trailer. and a D.A.R.E. forcement narcotics/sobriety check- running a up and policy was goal of the The ostensible point. Airport Road exited at defendants When high- from our impaired drivers “to remove normally posted to sign April regard to with due safely possible ways as motorists about inform officer(s).” public and the safety ramp. Offi- checkpoint was absent from checkpoint was used at the Brock, officer a volunteer reserve cer Joe approach the motorist at the an officer training detecting intoxi- specific with no were asked. It sign. questions No set He approached their vehicle. cated wheth- of the officer to the discretion was left for that there was no set indicated reasons for motorist his not to ask the er or cars, just happened to be stopping and he Depending on the Airport Road. exiting at up. left drove It was there when defendants question the mo- would response, the officer on how up to Brock’s discretion proceed. or allow the vehicle further torist that when the vehi- He decided motorists. tags, plate revealed out-of-state cle’s license operating officer it took an average, On his or her reason ask the motorist he would to fifteen approximately ten the. vehi- using the exit. Because defendants’ for whether driver seconds to determine Wyoming tags, Brock informed displayed cle op- inwas While the intoxicated. they had defendants that been King, eration, drug dog, was al- county’s checkpoint and County drug/DUI Roane was, however, never a ways present. There driver, Martin, why he asked defendant checkpoint. breathalyzer at the Airport Road. exited at operator had asked for main checkpoint’s provided. breathalyzer, none had been they replied Martin were When Mr. subject checkpoint were Objects at the seized Brock looked gasoline, Officer search through money for- raised full to forfeiture. that it indicated a gas gauge and saw fund, county’s drug anything feiture went into Brock did not notice tank. Officer enforcement,” and which “funds narcotics Mr. Martin had been indicated that program. into the D.A.R.E.2 if drinking did not ask him he had been and alcohol on his drinking. He detected no Worley this “ruse” six- had utilized Officer noticed no other indicators breath and prior exit ty-five at the times spoken After Brock had intoxication. Officer May day, the roadblock 1996. On that approximately for one to two to defendants p.m. At 4:30 p.m. to 5:15 operated from 1:30 car, minutes, Worley approached the Officer pres- were officers p.m., five law enforcement away. and Officer Brock backed Worley, Re- Deputy Dennis ent: Sheriffs Brock, Halcolmb, Worley defendants addressed Officer Steve serve Officers Joe through He also told Halcolmb, the driver’s window. and an unidentified and Jason qualifying deputies for firearms acronym Drug duties included licenses, Abuse Resis- is an for D.A.R.E. Education, program through teaching offered an educational school children tance through County, In Roane enforcing regarding local schools. program, laws D.A.R.E. and program is funded Sheriff's the D.A.R.E. He had been trained in DUI detection narcotics. taught by Department's Drug Officer Fund and Worley. jailer who had for Officer Brock was a worked Worley to establish years. where county 3. Officer had decided He was for two it, supervis- officer, had erected the ing Although patrol who volunteered also reserve and its location it. each opera- county roads and assist in the set Sheriff or the approved either the had to be checkpoints. been trained He had never tion of Worley's sugges- Deputy, Officer none of Chief Hal- detection. Officers Steve Jason in DUI refused. Officer had ever been tions ideas merely were reserve officers who were colmb department Worley the sheriff's had worked for observing March onlookers on years, and he approximately three and a half learning operation. from its department's Officer. His Narcotics adopted Report court and Rec- Roane district had entered the Coun- them and denied Department’s drug/DUI check- ommendation October ty Sheriffs suppress. looking for the motion to point, that the officers wеre influ- driving individuals who under the were Huguenin Ms. and Mr. Martin then en- illegal drugs. transporting ence or Officer pleas guilty on Novem- tered conditional Worley ear had also noticed that defendants’ 19, 1996, right appeal reserving their ber Mr. Wyoming tags. testified that Martin He constitutionality gripped steering and did not look wheel addition, right Martin Mr. reserved the He during at him at all the conversation. appeal district court’s calculation him, Huguenin testified that Ms. looked at marijuana sentencing pur- amount shaking He but was and nervous. asked poses. he help Mr. Martin needed because whether 24, 1997, January the district court On ramp had exited at a where no services Huguenin years, to two six sentenced Ms. him located. When Mr. Martin informed imprisonment years super- months four tank, fill his pulled gas that he off to Officer January 27, On the court vised release. Worley lying, Mr. accused him of and Martin years imprison- Mr. Martin to five sentenced Worley respond. then asked did not years supervised and four release. ment Ms. van, to search which was consent timely Huguenin Mr. filed and Martin notices denied. 24, January January appeal of on and 23 Believing enough suspi- he had reasonable respectively. search, to cion conduct canine Officer Wor- van, ley brought drug dog the to the where it n. the back of the van. Officеr alerted to Wor- challenge Defendants the constitu indication, ley informed defendants of the tionality of on the roadblock used van, to going told them he was search the 14,1996, the arguing March that search and step and them out. this asked to Around that the seizure occurred violated Fourth and time, Huguenin spontaneously informed Ms. Fourteenth Amendments. The district Worley bag Officer that she had a small of determination that no unconstitution court’s marijuana pocket in a inside van. coat the al violation of occurred is conclusion law he Mr. Martin stated that seen the novo; however, de we re review dog dog brought was and indicate. The back findings only the lower factual view court’s again van. indicated at the back of the Offi- Duncan, clear error. States v. for Worley got keys opened cer the the back (6th Cir.1990), denied, 647, F.2d 650 cert. 918 van, dog the door of the alerted to 933, 2055, 114 500 111 S.Ct. L.Ed.2d 461 U.S. Worley floor. blanket on the (1991). pounds the van and found 265.7 searched marijuana bags the hidden in several under made Court has it immediately blanket. He arrested defen- persons any purpose clear that for dants. by “checkpoints” government motorist public highways in- have Huguenin Martin and officials been seized

Defendants Michigan purposes. Fourth Amendment possession count of with intent dicted on one Sitz, 444, marijuana ‍‌​​​​​‌‌​​‌‌​​‌‌​‌​​​​​‌‌​​‌‌​‌​​​‌​​‌‌‌‌​‌​​​‌​‍Dept. 21 Police v. 496 U.S. to violation of State distribute 2481, 841(a)(1) 841(b)(1)(B). 450, (1990); §§ 110 110 L.Ed.2d 412 On S.Ct. U.S.C. Martinez-Fuerte, 1996, 26, joint v. 428 April they filed a motion to United States U.S. 556, 3074, 543, challenged validity 49 suppress. They 96 S.Ct. L.Ed.2d 1116 (1976). In checkpoint, arguing it unconstitu- order seizure to that requirements of satisfy the constitutional tionality tainted the detention search Amendment, magistrate A Fourth must reasonable subsequently that occurred. v. under circumstances. Whren United judge Report filed a Recommendation States, 806, 809, 1769, 517 116 joint suppress on June U.S. S.Ct. 135 denying the motion (1996). particular 89 evidentiary hearing to L.Ed.2d Whether a After an 1996. is deter- checkpoint, the seizure reasonable is purpose determine the of the 552 balancing driving, drunken by primarily test established lished eradicate

mined Texas, argue v. whereas defendants roadblock’s Brown Sitz, (1979). U.S. primary purpose detect narcotics. weighs “gravity The test evidentiary 110 S.Ct. hearing After an to address this seizure, by served public concerns issue, the district court found substantial evi- seizure degree to which the advances supported pri- dence conclusion interest, severity of and the the inter mary purpose of the detect roadblock liberty.” v. ference with individual Brown However, the court found narcotics. because Texas, In secondary purpose of the roadblock considering severity of the intrusion on purpose drunken to detect liberty, the court must consider individual previously sanctioned intrusion seizure— both Sitz, legitimacy court held intensity and the the duration the roadblock could be sustained. inspection visual questioning brief court relied on the United district might subjective its in attend it —and Appeals potential States Court for the Eleventh generating fear and trusion —its Moore, surprise law-abiding motorists. Circuit’s decision Merrett — (11th denied, explained Cir.1995), 2481. As U.S. F.3d 1547 cert. Texas, -, the Court Brown v. L.Ed.2d weighing these three factors to “assure (1996), concluding that a “mixed-motive” expectation of that an individual’s reasonable pretextual roadblock is constitutional if arbitrary privacy subject invasions state has one lawful sufficient to solely at the discretion of officers unfettered roadblock, justify but also uses road in the field.” 443 U.S. S.Ct. 2637. Merrett, intercept illegal drugs. block Department the Florida of Law Enforcement analysis, Applying balancing the Su- (“FDLE”), illegal drugs, in an effort to locate constitutionality has preme upheld Court proposed establishing highway government checkpoints up of to detect drivers, Sitz, 444, stop subject all and vehicles to 496 U.S. 110 cars nar drunken at 2481, immigrants, sniffing dogs. and cotic FDLE illegal Martinez- Because the had Fuerte, roadblocks, long authority up 428 U.S. at as to set it asked (“FHP”) stoр than an involve no more “initial Highway patrol as Florida es preliminary question- ... and the associated checkpoints. tablish driver’s license Id. at by checkpoint ing and observation officers.” According plan 1549. to the between the Sitz, 450-51, 110 S.Ct. In 496 U.S. FHP, FDLE and FHP officers would concluding checkpoint stops do not these stop vehicles at the cheek for though violate the Fourth Amendment even defects, safety obvious and review driver’s probable do or a the officers not have cause registrations. While each licenses vehi seizure, for the warrant stopped, dog cle was handlers would escort a has focused the lack of discretion afforded dog K-9 narcotics detection to the vehicle officers, pro- the individual the standardized dog presence where the would sniff for the of employed, cedures and the minimal intrusion dog presence narcotics. If a to the alerted of 453-54, imposed Id. at on motorists. 110 narcotics, dog a second checked outside S.Ct. 2481. alerted, dog of the ear. If the second driver was asked to to a search consent

A. refused, vehicle, if consent was driver was detained until officers obtained a problem A arises case two-day opera During search warrant. Id. a regard to the factоr of the first Brown v. sites, involving tion four different vehi gravity Texas test — the concern passed through checkpoints. cles Of served parties the seizure — because the government stopped, only purpose contest the vehicles that were one the possession was intended to further. arrest was made for of narcot The United it States contends was estab- ics. Id. Fuerte, 96 S.Ct. Merrett, who were group motorists

In a checkpoints to temporary fixed ensure brought roadblocks suit stopped at laws, as involved, compliance traffic-related such alleging that with against the officials license, registration, vehicle driver’s their Fourth and violated driving laws. drunk rights. Id. 1549- Fourteenth Amendment 2481; McFayden, States v. appeal the district plaintiffs’ In the from (D.C.Cir.1989). Merrett 865 F.2d their constitutional court’s dismissal case, however, present claims, and the Circuit first addressed the Eleventh un a roadblock established because the issue whether plaintiffs’ argument ensuring compliance pretext for the der operation was conducted roadblock laws, actually detection, designed traffic-related constituted purpose narcotics drugs, intercept illegal unreasonable and pretextual seizure. The an unconstitutional As the following passage therefore unconstitutional. dissent disagreed and in the court Rehearing Petition for En the denial of the explained why: pointed Banc Merrett out: (but sole) purpose of That the chief intercept in this case roadblocks seventy years ago, the During prohibition the state drugs undisputed. That “[i]t Court observed would roadblocks authority to conduct if prohi be intolerable unreasonable registra- license and vehicle every check drivers’ stop agent bition were authorized liq that, undisputed. conclude tion is also finding automobile on chance States, has one lawful where the state Carroll v. United uor....” roadblock, justify 132, 153-54, sufficient to L.Ed. intercept added)- (1925) the roadblock to state uses (emphasis [Per the roadblock illegal drugs does render every mitting enforcement officers words, unconstitutional. other roadblock on the mere vehicle at a based may adopt totally rule: a state one possibility that or more vehicles long as a mixed-motive roadblock conduct through illegal contain passing will presented for the roadblock as one completely drugs of crime un —evidence roadblock, even if validly justify the could safety similarly in highway related to —is place put in no roadblock would have been tolerable and unreasonable. hunt for unlaw- but for the state’s desire to Cir.1996). (11th 77 F.3d When drugs. ful pretext, is set reason- roadblock Id. at 1550-51.4 can be de- of the roadblock seizure ableness balancing test of Brown under the in Merrett termined the Eleventh Circuit to giving consideration v. Texas without law- held mixed-motive primary purpose inter- underlying one the roadblock’s long least of the ful as as at —the drugs. illegal 77 F.3d 1305-06. legiti- ception how matter minor —is purposes —no Merrett, ignored court example, in mate, only appeals that has For it is court of so, agree purpose actual and effectiveness with its reason- and we do done narcotics, detecting regard Heretofore, have allowed roadblock ing. federal courts regard that in osten- but found instead to the Fourth Amend- very exceptions few licenses, check there sible driver’s requirement that law enforcement offi- ment percent rate license suspi- was a 4.6 citation possess at least articulable cers must namely, F.3d at 1549. How- registration defects. 58 stopping a vehicle: cion before ever, crossings regard to the effectiveness checkpoints near border fixed arrest for narcotics immigration, purpose, actual one illegal Martinez- preclude registration rate for license and citation holding a "mixed-motive” rоadblock 4.6% defects, 4. After constitutional, slight experienced only concluded that court and motorists can balancing in Merrett satisfied the delays. the roadblocks analysis court noted at 1551-52. The Id. because, exception of one mo- with longer drug dog no than took use of longer delayed significantly than who torist simple complete license time needed necessary could turn around and and told he registration Id. check. at 1549. roadblock, yielded avoid the roadblocks 1,330 ex- stopped, a the Fourth Amendment. The court out of vehicles was made by Merrett court. ignored plained fact seem to follow that had “[i]t would Brown], v. [in the roadblock Texas Moreover, although Supreme Court designed licenses to check for driver’s directly pre- the issue of has not considered registration, pretext to look been but checkpoints used for narcotics detec textual ‘plain more tion, view’ evidence of serious type in dicta that this has indicated crimes, the seizure of the would [evidence] unreasonable.5 Texas roadblock would be Brown, the Fourth v. 460 U.S. have constituted a violation under (1983), the Court reviewed a court con- Amendment.” Id. at 152. The suppressed evi decision in which court primary cluded that the reason for the roаd- ground at a roadblock on the dence seized stop block of Zamora’s car was not to check change position his that the officer had to license, ascertain, her driver’s but to with evidence, allegedly render order see canine, ever-present sniffing the aid of an ing inapplicable. plain-view doctrine Id. possessed drugs. court whether she 1535. The found Court stated, pretextu- “it follows that the apply, empha plainview doctrine did al and all that taint- occurred thereafter was sizing suggestion that that there was “no McFayden, ed.” Id. at 153. See also whereby pretext roadblock was a evidence of (holding “principal purpose F.2d might [a] narcotics violation be uncovered [legitimate]”, noting the roadblock was ‘plain in the course of a check for view’ possibility that if a erected for roadblock driver’s licenses.” Id. at 103 S.Ct. 1535. purportedly legitimate reasons were used for Opperman, In South Dakota v. purposes, unlawful this could lead to “a sub- (1976), 49 L.Ed.2d terfuge might infringe- in an [that] result upheld inventory an search be Court ”). rights_ ment on Fourth Amendment suggestion whatever that cause “there is courts, because, agree with these pretext ... this standard was a view, pretextual our pitfalls roadblock has concealing investigatory police motive.” perilously permitting that come un- close to “repeatedly has thus government privacy fettered intrusion on the emphasized importance keeping crimi interests of all motorists. As the investigatory coloring nal motives from ad Court has observed: ministrative searches.” United States $124,570 Currency, 873 F.2d basic, pervasive, Automobile travel is a (9th Cir.1989). necessary transportation often mode of home, workplace, and from one’s and lei- appeals agreed No has other court of Many people spend sure activities. more analysis upheld instead has Merrett day traveling hours each in cars than walk- challenged constitutionality of a check- ing Undoubtedly, many on the streets. point only primary if its is lawful. greater security find a priva- sense of considering nearly When a roadblock identi- cy Merrett, traveling in an automobile than cal to the ones Court of exposing by pedestrian do in Appeals themselves for the Tenth Circuit Morales-Zamora, States v. 974 F.2d 149 other modes of travel. the Were individu- (10th Cir.1992), subject governmental found the roadblock violated al to unfettered in- pre- regarding pretext enforcing 5. There is a related line of cases him over under the that stops, occurring textual at Any traffic not check minor traffic rule. contraband discоvered See, Whren, 810, points. e.g. 116 during that traffic will be deemed to have 1769; Ferguson, United States v. 8 F.3d lawfully. been found 385, (6th Cir.1993) (en banc), denied, 391 cert. cases, however, holdings The of these are not 513 U.S. (1994). 130 L.Ed.2d directly applicable They apply here. in cases cases, police may Under these a officer singled where an officer has car out one from the vehicle, lawfully stop regardless underly a of his road, many may that be on the the motive, ‍‌​​​​​‌‌​​‌‌​​‌‌​‌​​​​​‌‌​​‌‌​‌​​​‌​​‌‌‌‌​‌​​​‌​‍and officer is ing long probable as as he has cause to stopping every by, Thus, motorist who drives which believe that a traffic violation occurred. a Furthermore, officer, police is what occurs at a suspects who that a motorist is transporting drugs, pull may the officer is authorized to over follow the motorist until those he may pull breaks minor traffic rule and drivers who are in violation law. traffic “Drug-DUI” checkpoint; the warn an automo- every time he entered trusión county’s bile, security checkpoints supervised by are the guaranteed Officer; seriously cir- be D.A.R.E. vehicle Fourth Amendment would Narcotics present cumscribed. each of the Narcotics Officer are at checkpoints; any proceeds from result- Prouse, 662-63, Delaware v. county’s (1979). ing are returned to the forfeitures We be 59 L.Ed.2d 660 5.Ct. drug setting up expense fund. danger pretextual inherent lieve entirely is police operating checkpoints funded potential giving is the roadblocks road, activity. stop every drug from interdiction Further- authority to car on the more, passengers operating under the driver and the officers its legitimate purpose, guise properly prepared participate traffic-related enough Only and then claim reasonable one officer—the Nar- DUI detection. example, expression through, the driver’s formally cotics ever been Officer—had answers, thorough to conduct more The officer who trained DUI detection. search of the individuals and vehicles never re- approached first defendants had po drugs limitations on insufficient Although a training. ceived DUI detection the Fourth lice discretion.6 We believe drug during every operation dog present requires police deception Amendment breathalyzer has checkpoint, ever carefully must subterfuge scrutinized present. Although County been Roane checkpoints, check regard pretextual as “Policy Setting Up and Procedure for Sobri- exception points an to the Fourth constitute specifically éty memorandum Check Point” requirement for a warrant and Amendment’s requires that a Breath Alcohol Test be ad- Martinez-Fuerte, probable cause. See drivers, suspected intoxicated ministered For this rea U.S. 96 S.Ct. 3074. impossible give this test because of it is ease, son, we must believe training. In equipment the lack of Airport purpose of the determine the actual asking questions rather than checkpoint, we find it does not Road because intoxication, the relevant officers asked necessarily simply muster pass constitutional why they had defendants left the Interstate alleged purposes its was to because one of exit, query particular intrusive drivers, previ detect intoxicated sobriety. unrelated to ously approved always Finally, is almost Sitz, 496 S.Ct. 2481. U.S. during .daylight Although operated hours. B. Worley department Officer claimed likely intoxicated no more to encounter determining primary purpose twilight, sense indi- drivers after common Road we find that people evenings. cates more drink it was narcotics. detect Moreover, indicates that real record Worley County and the Roane Sheriffs De Worley set were DUI primary purpose partment claim During year night. before defendants’ in challenged checkpoint was to detect arrests, operat- speak actions louder toxicated their days signs highway ed on different than their words. gers. Suppose example, there is a tacit understand- States v. 6. For dissent Cir.1993) (Ko (9th that, Soyland, zinski, discretionary ing making highly 3 F.3d — dismissed, J., dissenting), test, cert. pull about whom to over and decision -, (1994), hy anyone in the officers consider whether .CHP pothesized follows: profile, car a DEA whether the car is fits Suppose Highway the Patrol dealers, California drug variety popular with and a plan to the DEA hatch a use ["CHP”]and drug dealing. point to While factors that other against drunk-driving checkpoints in the war sobriety might exactly stops look like these drugs: agree up officers to set the check- CHP approved the to use in effort them those freeway points believes entrances the DEA purposes would for unrelated law enforcement couriers, by drug frequented and the DEA are gives fatally Court’s ratio- undermine the drug profiles CHP courier the officers that case. nale-in passen- them to scan drivers trains 2,342 than stopped. harassing stops cars were sive or of individuals only roving-patrol in the case of There were seven arrests DUI to there was purported goal detecting the intox- stops. further During period, icated drivers. the same however, drug- 128 arrests were made for Thus, Martinez-Fuerte, in the reasons, For these we con- related offenses. subjective intrusion to a motorist’s operated clude that the was not right Fourth from Amendment to be free detecting for the ostensible intoxi- unreasonable searches and seizures was pretext cated but as a drivers case, contrast, slight. mo- in

who had violated no traffic laws order to exiting Airport torists off the Road exit are attempt gain them in an reason- by they surprise; stopped taken are “else- able them cars for search narcot- where,” designated not at the location for the ics. checkpoint; checkpoint operations involve discretionary activity depending enforcement

C. stops on which officer the vehicle and on whether a motorist has in-state or out-of- We do not believe that under the plate tags; state license the location of the Texas, balancing test established Brown v. field, by is chosen an officer gravity public drug concern about checkpoint operates trap as a and bears trafficking outweighs severity in arbitrarily oppressively on those who liberty terference with individual for the fol exit; take the Road and there is factor, lowing Considering reasons.7 harassing questioning, room for abusive and Court Martinez-Fuerte left to the discretion of the individu- why following passage explained the check al officer in the field. points unduly at issue were not intrusive: First, potential legit problems interference evaluating One of the with using up pretext imate traffic is minimal. Motorists that is set as a is that highways by surprise guidelines these are not taken operation ostensible for its do know, may knowledge operation. or obtain not reflect its actual For exam- of, checkpoints ple, location of and will memorandum Second, setting up sobriety not be elsewhere. check checkpoints provided that point operations appear checkpoints both to and actu up would be set ally discretionary high involve less enforcement direction of level administrative officials. activity. Instead, regularized manner were set at the operat Worley, which established are discretion of an officer in the evidence, reassuring ed is procedures specified visible to law- field. The if motorists, test, abiding stops duly sobriety the driver failed a field pub authorized and believed to serve the officer must offer the driver a breath/alcohol lic interest. The location of a fixed check test. The evidence established that field, point County Department is not chosen officers Roane Sheriffs owned However, responsible making оfficials an Intoximeter 3000. in direct overall county’s policy, Worley decisions as to the most effective contravention to the breathalyzer allocation of any limited enforcement re never had a machine may sources. offi checkpoints. assume that such the 65 There unlikely guidelines cials will be to locate a operate on how to ruse, arbitrarily asked, oppressively questions where it bears or what were to be drug dog present, motorists as a class. And since field how to use which was may stop only passing Worley’s officers completely those cars left to Officer discretion. proscription there is less room for abu- “The essential offenses, degree government 7. We are not able to assess "the to which related did not intro- interest,” the seizure advances any Brown duce evidence that of these arrests re- Texas, be- sulted in convictions. although drug- cause 128 arrests were made for

557 occurred, stop a a has a traffic violation impose to stan- Amendment is the Fourth or on cause even probable not that is based upon the exercise of ‘reasonableness’ dard in The Court Whren suspicion. officials, reasonable including by government discretion n constitutionally may a be that motorist held tо agents, in order ‘safe- law enforcement cause that the motor upon-probable stopped security of individuals guard privacy ” regardless of the a traffic law ist has violated arbitrary v. Delaware against invasions.’ stop the motorist subjective intent to officer’s 653-54, Prouse, 1391 trafficking. The drug Su upon Inc., 436 U.S. (quoting Marshall v. Barlow’s “[s]ubjective inten preme found that Court 312, 1816, 307, 98 S.Ct. ordinary, probable-cause in play role no tions (1978)). against the line arbi- We believe 813, analysis.” at Id. Fourth Amendment pres: has trary been crossed invasions added). (emphasis The Su 116 S.Ct. that when case. The evidence indicates ent however, the preme emphasized, dis Court pretextual, a is holding its in Whren and tinction between operation guidelines for its ostensible involving police intrusion without the cases followed, too not truthful and are not justifi probable that the traditional cause is left large degree a discretion is (cid:127) a Court its for seizure. The cation indicated in operation officer the field on pretext analysis apply would not such subterfuge. “ eases, ‘quantum of individu which lack disagree with the district court’s con- suspicion’ necessary to ensure that alized opinion our in United States v. clusion that police sufficiently is discretion contained.” 385, Ferguson, F.3d at indicates that a Prouse, (quoting Id. at 116 S.Ct. stop pretextual at a mixed-motive 1391). 654-55, at 99 S.Ct. The 440 U.S. no if there is traffic is constitutional even Whren, thus, in made Supreme Court clear Ferguson, In violation. officer (the subjective stop pretext motive for that in the defendant was a the vehicle which vehicle) probable ping a is irrelevant when observing car a passenger after lacked exists, regard in to seizures made cause suspected plate. The that license officer also cause, probable or even reasonable without drug trafficking. in the vehicle involved justification pretext. there is suspicion, addressing defendants’ Id. at 386-87. reasons, in For these we believe argument stop pretextual, we pretextu- the ramifications of a long probable the officer has held “so as a threat to the purpose poses al definite a traffic violation has cause believe that cases, not found in such Fourth Amendment stop occurring, resulting occurred or was Ferguson, probable there is (emphasis at 391 add- is unlawful.” Id. a traffic viola- stop cause vehicle ed). Ferguson adopted “fo- test every single person a is checkpoint, At tion. particular on ... whether offi- cus[es] [the] just persons who have stopped, not those probable cause to believe that cer fact Thus, driver, a violated traffic law. who occurred, regardless of a traffic offense had law, no traffic whom an officer violated has merely whether this basis pretextual away stop for a could stop.” Id. one basis for Whren, from the U.S. court in the We believe district subjected pretex- may to a concluding that because case erred merely choosing travel the tual upheld pretextual stop Ferguson court has been erected. road which probable for a traffic presence cause problem with mixed-motive allow, violation, find a this court would therefore law enforcement officers spite roadblock constitutional pretextual opportunity pretext use probable probable a traffic absence of cause that without and search for contraband cause, consis- violation had occurred. As conduct Court recently upon. v. See Texas v. emphasized tently Whren Unit- has frowned Brown, 1535; States, 103 S.Ct. ed 517 U.S. Opperman, significant difference between South Dakota there probable stop based on cause pretextual however,

Also, agree proceed, with the district the officers be we do defendants distinguish attempt to this case from gan asking plans, court’s their them abоut destina Mesa, holding our States v. 62 F.3d tion, ramp. purpose taking for the exit (6th Cir.1995), in which this court stated recognized Once the officers that defendants nervousness of the driver was not that mere intoxicated, questions were not none of these provide “in and of itself’ sufficient to reason checkpoint’s purported legit would serve the suspicion able for a search. Id. at 162. The purpose. questions imate served present court indicated that the case district long enough detain defendants for the offi distinguishable from Mesa because there develop cers to reasons to conduct a more was a verifiable falsehood when defendants thorough question search their intrusive Huguenin Martin and lied about their reason ing. county truly If the established the exiting Airport get gas for Road to detecting for the intox gauge gas their was full. The district court drivers, icated defendants should have been see, however, failed to there was no ap released as soon as the first officer to justifiable reason relation intoxication proach they them was satisfied were not questioning for their rea defendants about intoxicated after fifteen to taking Airport sons Road exit.8 seconds; twenty defendants should not have reasons, disagree For these with thе questioned by been two different officers for although primary pur- district court that using several minutes about their reasons for pose Airport of the Road was to exit, totally unrelated to intoxi narcotics, detect the search and seizure could York, City cation. Maxwell v. New upheld because one of the road- (2nd Cir.1996) objec (finding F.3d block was to detect drunken since a slight tive intrusion when detention was brief DUI had been sustained in Sitz. questions solely were “aimed at ascer to follow the We decline Eleventh Circuit’s taining” information related to the check approach in Merrett which law en- allows — denied, point’s legitimate purpose), cert. forcement to conduct a mixed-motive road- -, U.S. 118 S.Ct. 139 L.Ed.2d 21 long purpose presented block as as one (1997). validly justify can roadblock its use and requirements meet the v. Tex- Brown conclude, To we do not believe the need to as test.9 drug trafficking outweighs curtail the intru- liberty sion on individual that occurred. We Moreover, case, present in the even if that, find without a traffic violation or rea- planned operation suspicion drug trafficking, sonable it was a general, pretextual, operation was not its violation of the Fourth Amendment for the during pre the detention of defendants was police selectively detain motorists with approached textual. The officers that defen tags Airport out-of-state who took the Road drinking dants’ van did not them ask about plans exit to them about their engage travel or otherwise defendants activities they order to assess whether driving to determine if were en- under the Instead, gaged drug trafficking. influence. Officer Brock noted al Rather than es- immediately tablishing most a neutral applicable defendants did not ‍‌​​​​​‌‌​​‌‌​​‌‌​‌​​​​​‌‌​​‌‌​‌​​​‌​​‌‌‌‌​‌​​​‌​‍motorists, appeal’ to be intoxicated. Rather than let all up trap the officers set aimed case, Since Court’s decision in United the officers did. have Ortiz, States v. proper procedure screening motorists for in- (1975), it has been clear that the Thus, toxication. there is insufficient evidence exception limited requirement to the individualized Road could even be justifies temporary seizures of justified legitimate as a DUI More- properly operating checkpoints motorists does over, Merrett, the motorists were detained no motorists, not serve also to allow searches of longer required than the time to conduct a driv- persons, or effects. contrast, registration er's license and check. defendants were Moreover, distinguishable this case is from questioned plans about their trаvel for several proce- Merrett. Whereas in Merrett there were minutes, which had no relation to intoxication. (the checking registration dures for for license roadblock), alleged legitimate purpose exit, 2481. In cern. who took the at motorists checkpoint’s to gave reviewing them effectiveness they believed then the trap a harassing ques- the interest right ask intrusive and the to determine whether furthered, plans. We believe eradicating driving about travel is tions drunken the “kind of stan- 2,342 invokes pretextual seizure approximately vehicles find that [that] discretion and unconstrained dardless were made stopped, seven arrests that were has discerned is the evil the Court when DUI, yielding .29% level of effective a previous it has insisted discre- cases percentage significantly This is lower ness. field be circum- tion of the official the at approved in Sitz.11 Id. than the 1.6% of scribed, extent.” Delaware least some at to 455, 110. 2481. S.Ct. Prouse, 1391. 99 S.Ct. U.S. severity regard In to the third factor —the Road find that the We Fourth Amendment of the intrusion on pretext pri- a with the established as that in the rights should be noted Sitz illegal drugs intercepting of mary purpose —it importance the emphasized Court purpose of detect- not for the ostensible having guidelines proper to effectuate of Although pre- ing drivers.10 the intoxicated detecting deterring intoxicat purpose of trafficking important is drug vention of police undue discretion. interest, ed drivers without it government we do not believe 450-53, Sitz, In 2481. pretext S.Ct. type when there warrants this of violation, cause, Michigan Department of probable no the director of no traffic Sobriety Checkpoint suspicion appointed to otherwise a not even reasonable State Police vehicle, severity in- comprised Advisory because of members Committee forces, liberty great. force, is too police terference with individual Police local of the State University of prosecutors, and the state III. Transportation Research Institute. Michigan guidelines which This created alternative, if committee In we find that even procedures governing the site selec primary purpose forth the checkpoint had as its drivers, tion, publicity sobriety pro operations, of intoxicated the detection under the bal 2481. Ac checkpoints. was unreasonable Id. at 110 S.Ct. cedure used guidelines, ap in Brown v. Texas. ancing cording test established to all -vehicles stated, to a previously As determine whether stopped, would proaching the be reasonable, roadway checkpoint is. the re briefly questioned and the drivers would 1) viewing weigh three factors: court must to the drivers in order determine whether importance government interest If the driver displayed signs of intoxication. 2) involved; the effectiveness of check intoxication, display indicators did not meeting government’s goal; point driver, through pass permitted 3) severity of the intrusion on individ immediately. stops lasted The . rights. soon, ual’s Fourth Amendment ended as seconds and 50-51, 99 2637. no that the driver had as officers determined signs intoxication. Id. at Sitz, alleged purpose As established . Supreme Court 2481 noted checkpoint, the detection Xhe objective on innocent driv clearly intrusion inflicted satisfies the of intoxicated than that which public con- ers more invasive gravity of the first factor —the lower than the .5% in agree in Morales- 11. It Martinez- with the Tenth Circuit However, questionable a it is whether Fuerte. checkpoints: regard Zamora that helpful comparison can be made to Martinez- police pretextual stop use occurs when the [A] illegal on the “ratio of is based Fuerte. .5% legal stop .'. justification to a .'in order make (considering detected vehicles aliens vehicle,, person or interro- his search illegal aliens were on occasion two or more him, gate vehicle).” and more serious for an unrelated single U.S. at found 455, not have reason- crime for which do 2481. The Court also referred stop. necessary support percentage, able which was the calculation .12 illegal vehicles aliens found in 974 F.2d at 152. number through passing Id. already upheld regard in Martinez-Fuerte. Id. case. established intrusion, initial de- defendants’ tention lasted for at least several minutes. in Sitz also found that not, objectively, long peri- that is subjective slight, ap- intrusion was because time, great longer od of it is a deal than the every proaching motorists could see that ve- initial detentions of less than half of a minute being stopped there hicle was were vi- upheld Sitz or Martinez-Fuerte. authority. signs sible of the officers’ Id. at Furthermore, testified, Worley 453, 2481. The Court 110 S.Ct. clarified usually takes 10 to 15 seconds “at the poten- courts are to consider the while oper- most” to determine whether a driver is generating tial have in “fear ating a vehicle under influence alcohol. surprise,” surprise’ and “the ‘fear and to be Instead, defendants were considered are not the natural fear of one questioned by twice two different officers drinking prospect who has been over the inquiries designed to determine but, being stopped sobriety checkpoint at а intoxicated, whether the driver was but to rather, surprise engendered the fear and discover where defendants had been and law-abiding by motorists the nature of the headed, they implying suspi- where were 452, stop.” Id. at 110 S.Ct. cion that the car contained contraband. reviewing degree intrusion Thus, subjected question- defendants were checkpoints, Supreme Martinez-Fuerte ing involving queries more than a few brief emphasized Court the lack of discretion allo necessary alleged purpose to effectuate the officers, operating cated to brief du scope ques- of the and the stop just ques ration of the in which a few tioning solely was not “aimed at ascertain- perhaps tions were asked and a document ing” whether Mr. Martin was intoxicated. reviewed, physical and numerous and Maxwell, previ- 102 F.3d at 667. As stated apparent approaching visual indicators ously, justification questions there is no 558-59, 96 motorists. 428 U.S. at S.Ct. 3074. plans about travel in order to determine challenged checkpoints permanent Brouhard, sobriety. one’s 125 F.3d at 660 flashing lights signs say structures with and (no enjoyed evidence officers undue discre- ing OFFICERS,” “STOP HERE —U.S. by asking questions tion unrelated to deter- lanes, funneling appropriate cones cars into intoxicated). mining whether drivers were patrol directing uniformed border officers reasons, For these we find the in- traffic, parked patrol marked border privacy trusion into defendants’ was not lim- 546, lights. cars with activated Id. at 96 by appropriate ited operating procedures, emphasized S.Ct. 3074. The unnecessarily high but was to the due lack of approach that these indicators would inform limitations on the officers’ discretion. theAs ing stop motorists was authorized Martinez-Fuerte, Court stated in non-random, thereby lessening po principal protection “The of Fourth Amend- 559, surprise. tential for fear and Id. at 96 rights appropriate ment lies S.Ct. 3074. See United States v. Trevi scope stop.” limitations on the no, (7th Cir.1995) (check 333, 60 F.3d 566-67, atU.S. S.Ct. point up in was “set a manner which informs incoming motorists that this is an official We also find that the Road manner, ... regular ap .'.. conducted in a subjectively more intrusive plicable motorists”), denied, to all cert. previously upheld. than others In consider 133 L.Ed.2d 689 ing surprise engendered the “fear and in law- (1996); Lee, v. Brouhard 125 F.3d 660 abiding stop, motorists” the nature of the (8th Cir.1997) (when approaching motorists atU.S. this fear can being see that all stopped, traffic is surprise heightened per is if motorists public is likely frightened “much less to be or they being singled are ceive out intrusion”). annoyed by the random, roving-patrol stops, frequent safeguards ly

We do not believe the place indicated take on seldom-traveled roads. Id. 452-53, in Sitz sufficiently and Martinez-Fuerte are 110 S.Ct. 2481. The fear and was in a secluded area stops operat- if are Road is surprise decreased manner, “ap- long periods if of time regularized where it common ed in hour) (more discretion- actually pass involve less pear to and than half an without Martinez-Fuerte, activity.” Moreover, ary enforcement single getting car off the exit.12 3074. When the U.S. at way recognize was no for ‍‌​​​​​‌‌​​‌‌​​‌‌​‌​​​​​‌‌​​‌‌​‌​​​‌​​‌‌‌‌​‌​​​‌​‍motorist to there vehicles can “see that other motorist approaching checkpoint un- when he was signs of being stopped can see visible [and] minute, nothing to indicate til the last authority, ... he much less the officer’s to all There applicable that it was drivers.13 frightened annoyed by the likely to be signs of the officers’ authori- were no visible (quoting intrusion.” Id. 96 S.Ct. 3074 exit, ty, angle slope due to the Ortiz, United States yards Signifi- the exit. until 50 to 100 into 2585). day stopped, cantly, on the defendants were informing sign posted at the exit indicates that A review of these standards upcoming checkpoint. akin motorists of the was more sobriety stop roving patrol to a than to plac- of When asked whether the trap, checkpoint up it was set as a because ing Chеckpoint “Drug-DUI the Enforcement likely surprise fear which most created and sign freeway on was to mile ahead” the 1/2 Only law-abiding people motorists. those exit, getting off the people fool into at safely legally who and exited the Interstate conceded, be, Thus, Worley yes.” “[i]t could checkpoint were before the announced stop must on a checkpoints while motorists ramp in a area stopped. The exit secluded basis, present non-random and neutral in the exit, no people where few and there is notice intentionally up checkpoint ease the was taking place to the motorist about what trap, targeting motorists who left the Furthermore, proce- the no exit. there is they thought Interstate and who would avoid approached. dure for how the is to be vehicle highway checkpoint the for whatever rea- case, “just hap- In Officer Brock defendants’ By using hiding such a the son.14 ruse and they pened up” there came when County did checkpoint, the Roane officers Thus, the stepped in front of their car. attempt minimize the fear and sur- not treat motorists on a non- did motorists, potentially experienced by prise who, basis, motorists, singled random but out specifically attempted to the increasе reason, the Air- for whatever chose take citizen, ordinary surprise. law-abiding An port Although Road the at the exit. officers simply perhaps who took the exit to avoid the checkpoint and near were uniform marked being process stopped of on an In- unusual cones, are concerned with the cars we highway, could fear that he would be terstate approached lack of indicators as motorists greater subject to more under most the check- While questions thorough and a search of intrusive approved by had a points other courts series simply his because he had chosen to take car lights signs, checkpoint or sets of and/or therefore, We, from the find that exit. only signs highway. one set of motorist, law-abiding However, point of of a main view checkpoint was not on the were, stop surprise engendered by highway signs but was at fear and where the ramp, discretionary exit hidden the end substantial. was possible Rather than until the last moment. left high Addressing discretion

setting up checkpoint in a traffic field, Court, in very public, officers area visible fact, checkpoint applicable example, Air- was not when defendants took the 12.For exit, port only entering car there. Road their was one all drivers. Cars the Interstatе from imply legality do not mean to stopped. were checkpoint depends on cars the number of However, time. at the same 2,342 passed through the 14. Since vehicles consciously checkpoint chosen because it is made, only 135 arrests primary pur- area. If the roadblock's secluded abiding legit- motorists were law and had a most pose really its to detect intoxicated using the imate reason for exit. location made sense. Sitz, upholding empha- ing displayed the' vehicle or in-state out-of-state kept tags.17 case, discretion was to a sized that individual license In the the offi oper- minimum because cers intimated to defendants that guidelines setting legitimate forth using ated under written reason for the exit was to govern opera- procedures help. ques that would obtain services or to find selection, standardized, tion of the site tions were not and it was left publicity. S.Ct. 2481. to the discretion of the officer to decide how intimidating Finally, the Roane he wished to be. Department County enjoyed had established Sheriffs officers excessive discretion decid Maxwell, procedures governing ing away. establishment who to turn See guidelines Thus, sobriety checkpoints, the do not contrary F.3d check to the regarding points approved by сontain standards the location or the times will be con- Martinez-Fuerte Air the hidden McFayden, port ducted. See 865 F.2d at 1313 Road roadblock involved a tremendous (list possible roadblocks determined discretionary enforcement.activity amount of likely engender advance the District Commander on surprise .fear and in law- community complaints Trevino, the basis abiding and road- motorists. 60 F.3d at 337 (critical officers); supervised by blocks were non-field determining subjective factors in in Ortiz, (location trusiveness are whether is set by high-level is determined Border incoming Patrol in manner that informs motorists officials, including using degree criteria is official and whether potential inconvenience to the for conducting stop given officers unbridled operation). safe randomly The discretion left to the discretion target individual mo torists). by in officers the field is evident Worley’s that, testimony ap- while he seeks upheld Court has proval County from the Roane for a Sheriff suspicionless the use of roadblocks to con- given checkpoint, designates he the time and sobriety duct immigration checkpoints, checkpoint, requests location of the and his always Court has required that such check- previously have never been denied.15 As points according be established to neutral discussed, guidelines there were no for the standards, articulable which do not exist in operation checkpoint, actual and the present case. 496 U.S. guidelines checkpoint for a DUI were not 2481; Martinez-Fuerte, followed.16 566-67, 96 S.Ct. 3074. In contrast to the left in Martinez-Fuerte, excessive discretion the hands in Sitz of by the officers is further present evidenced in officers case had no official type questions asking guidelines asked. Instead on operate how to the ruse. The questions sufficient number of for checkpoint standard according was not administered period long enough sobriety, to determine policies procedures by established Officer Brock testified that he varied Department, his by Police but in officers questioning field, approach-. based on whether the who were free to decide which motor- 15.Although the dissent finds there example, guidelines is no reason 16. For do not authorize (cid:127) type rely the sheriff should not on of roadblock the recommenda- utilized at Road for approaching instruct that "[i]f an tions of his driver subordinates for the location of manner, turns off or makes a U-turn in a safe no checkpoints, Whorley we note that Officer of- against action will be "trap" taken him." The fered no rationale for the location of chеck- up way on Road was set such point which would further the ostensible motorists could not avoid an encounter. Moreover, detecting intoxicated drivers. Martinez-Fuerte, Court stressed that 17. training, Brock not lacked DUI but also locations were not chosen absolutely inquiry regarding made intoxi- field, responsible officer in tire officers for attempt cation and made no to smell the defen- decision-making, overall who could determine ques- dants' breath. The lack of standardized appropriate the most locations. 428 U.S. at regarding tions intoxication further evidence 96 S.Ct. 3074. legitimate was not set as a DUI reasons, impor- find that the For these for more extensive ists be detained would detecting government interest not. It was left tance questioning and which would slight effectiveness type of intoxicated drivers to decide what discretion their meeting purported must be with no limit interest questions would be asked degree intrusion Although weighed against privacy ‍‌​​​​​‌‌​​‌‌​​‌‌​‌​​​​​‌‌​​‌‌​‌​​​‌​​‌‌‌‌​‌​​​‌​‍interests. a severe invasion rights. only questioned per on the motorist’s Fourth Amendment that he Brock testified extensively, degree of tags more find that because the We sons with out-of-state substantial, subjective randomly targeting individu intrusion was potential primary purpose were checkpoint, As even if its great. was the court al motorists (10th Walker, unrea- function as a 941 F.2d 1086 DUI States denied, balancing Cir.1991), test set forth U.S. sonable under the cert. indicated, (1992), Brown v. Texas. L.Ed.2d on an officer’s constraint lack to let to detain individuals and decision some IV. “ripe go is situation others at issue We conclude that the Id. at The court in Walker abuse.” effectively serve case did apparently found that when an officer outweighed its government purpose which choose which individuals would free to intrusiveness, therefore was unreason- detained, closely more resembled seizure under the Fourth Amendment. We able by the type “roving patrol” denounced hereby the district court’s denial REVERSE Brigno States v. Supreme Court in United joint suppress motion to evi- of defendants’ ni-Ponce, proceedings consis- dence and REMAND (1975) systematic than the opinion. tent with Walker, approved F.2d at KENNEDY, Judge, dissenting. Circuit agree. the check- I that'the Court’s Because believe District few point was not a brief limited to a finding a mixed- sobriety, left to questions relevant to but one dual checkpoint, established for the motive be of the individual officer to discretion purpose intercepting both drunk drivers intimidating as as and intrusive he wanted. erroneous, traffickers, drug clearly is type interrogation it is We believe this are checkpoints and that such mixed-motive that intimidation permissible, I with the Cir- agree Eleventh about it stressed the dan- concerned when cuit that gers discretion and the need of unfettered one where the state has lawful prior holdings. orderly procedures in its roadblock, that the justify sufficient Burger As Chief wrote former Justice intercept the roadblock to state uses Texas: Brown v. drugs not render the roadblock illegal does end, re- Fourth Amendment To this words, In other unconstitutional. must on quires that seizure be based may totally objective adopt a rule: state indicating that soci- specific, facts long conduct a mixed-motive roadblock require ety’s legitimate the sei- interests purpose presented for the roadblock as one individual, particular or that zure of the roadblock, if validly justify even could pursuant carried out the seizure must be put place roadblock have been no would explicit, plan embodying neutral for unlaw- for the state’s desire hunt but the conduct on of individual limitations drugs. ful officers. Moore, 1547, F.3d 1550-51 v. Merrett (emphasis add- 443 U.S. (11th Cir.1995). ed). ease are concerned holding in of its part III orderly procedures to limit In its alternative the lack of with procedures finds that the opinion, the court “unfettered discretion of officers un- by County, were “arbitrary Roane Tennessee invasion” used field” and balancing estab- test privacy Id. reasonable under motorists’ interests. Texas, gas v. his full. lished Brown when tank was This was in under (1979), even if occupants addition the nervousness of the permissible. are mixed-motive in gripping and the conduct of defendant agree I here While can looking straight ahead rather wheel than desired, I it something left believe met responding. at the officer to whom he was requirements the essential and would there Moore, See United States 675 F.2d fore affirm. (6th Cir.1982). drug dog, The which was then, wagon provided proba oh D.A.R.E. majority dispute does not that The cause to search. ble of intoxicated drivers of detection factor, gravity of satisfies the first majority permitting The finds fault with Yet, history concern. finds the Brock to the driver because he did significantly checkpoint’s lower effectiveness training conducting not have a field sobri- Michigan Department than State that However, ety sobriety test. field tests were Police v. given only if an officer had some indication (1990). apprais- panel’s 110 L.Ed.2d 412 The drinking. driver that had been Both limited, however, al of its effectiveness they officers relied on whether could smell driving. arrests for drunken The District screening. alcohol this initial The record intp Court also took arrests consideration of. capablе performing indicates Brock was open having drivers containers of alcohol. If screening. that included, higher those percentage than in Sitz. Lastly, majority finds the check- majority guidelines The also finds the es- point surprise to create fear and inadequate. County tablished Roane It law-abiding on motorists in the notice of because, finds the deficient while they was on the interstate and plan requires approval of the elected they would not realize approaching County given checkpoint, Roane for a Sheriff on this exit road until after indicates that the sheriff evidence had exited. The District Court found that invariably. suggested approved the locations cones, police cars and the fact that all sheriff, nonetheless, deputy. his con- required stop sign cars were at the trolled I know of reason he the decision. all events was sufficient notice that one was rely could not of subor- recommendations singled out but all motorists were I dinates. Nor do believe that the absence of going through majority a breathalyzer is critical. states, “[tjhus, did not treat Persons who were believed to be intoxicated basis, on a singled motorists non-random sobriety after field tests were taken to the motorists, who, reason, out for whatever sheriffs office administration a breath- chose to take the Road exit.” How- alyzer Furthermore, test. motorists were ever, persons all stopped. who exited were ordinarily thirty stopped for less than sec- might surprised While motorists onds. While defendants here were checkpoint was on the exit and not further minutes, for several this was of Offi- because along freeway, on the the District Court suspicions. cer Brock’s Officer Brock asked found, agree, and I that motorists would be defendants, he did with all out-of-state sufficiently aware that this was the traffic cars, brings you “what here?” When defen- checkpoint of had been notified. dant Martin get told Officer Brock it was to I believe legality do not gas gauge gas Brock saw the car’s depends on whether there several cars registered full, inquiry Brock turned the over time, stopped at any majority one as the Worley, experienced the more offi- implies. While the use of a ruse warning cer. The District Court that at this found placing of a and then point it on the suspicion there was reasonable fair, justify may exit not seem I do not further believe detention. That based on a sufficient to verifiable falsehood that defen- ruse is invalidate this check- dant freeway purchase gas point. exited reject the bal- nothing sufficient to

I find would,

ancing the District Court done

therefore, affirm. INTERNATIONAL

In re: CLIPPER

CORPORATION, Debtor. BOROCK, Trustee,

Paul

Plaintiff-Appellee, Mathis, MATHIS, Jr.; Paul

Paul

P.C., Defendants-Appellants.

No. 96-2514. Appeals, States Court of

Sixth Circuit.

Argued June Aug.

Decided

Case Details

Case Name: United States v. Judith Ann Huguenin (97-5152) and William A. Martin (97-5160)

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 19, 1998

Citation: 154 F.3d 547

Docket Number: 97-5152, 97-5160

Court Abbreviation: 6th Cir.