Lead Opinion
CONTIE, J., dеlivered the opinion of the court, in which MOORE, J., joined. KENNEDY, J. (pp. 563-565), delivered a separate dissenting opinion.
OPINION
Defendants-appellants Judith A. Hugue-nin and William A. Martin appeal the denial of their joint motion to suppress evidence obtained after a search and seizure at ah automobile checkpoint. Following their conditional pleas of guilty for possession with intent to distribute marijuana, defendants challenged the constitutionality of police procedures used to stop motorists exiting off a Tennessee highway upon warning that motorists are approaching a nareotics/DUI checkpoint. Because we conclude that the procedures used by law enforcement officers were unconstitutional, we REVERSE the denial of the defendants’ motion to suppress.
I.
On March 19, 1996, defendants Judith Hu-guenin and William Martin were each indicted on one count of possessing with the intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The charges stemmed from defendants’ detention at a drug/DUI checkpoint at the Airport Road exit off Interstate 40 in Roane County, Tennessee. •
On March 14, 1996 at approximately 4:30 p.m.,, Ms. Huguenin and Mr. Martin were traveling eastbound on Interstate 40. Mr. Martin was driving, and Ms. Huguenin was in the front passenger’s seat. In Roane County, Tennessee, they passed two large, square signs with the words “DRUG-DUI ENFORCEMENT CHECK POINT % MILE AHEAD.” One sign was on each side of the road. Mr. Martin turned onto an exit ramp for Airport Road about 150-200 yards or a quarter mile after the signs. When a driver exits at Airport Road, the end of the long exit ramp is not immediately visible as the ramp curves and bears to the left. When Mr. Martin drove up the exit ramp, there were four orange cones oh the side of the road near the turn at the end of the exit. Two were on each side-the first two approximately three to four feet from the intersection, the next two approximately fifteen to twenty feet from the first. The checkpoint was at the end of the exit at a stop sign.
Officer Dennis Worley of the Roane County, Tennessee Sheriffs Department had established this checkpoint as a “ruse” to stop motorists who chose to exit off the highway after viewing the signs warning of an upcoming DUI/narcotics checkpoint on the highway. Although the two signs posted on eastbound 1-40 read “DRUG-DUI ENFORCEMENT CHECK POINT £ MILE AHEAD,” the. officers had no checkpoint in place on the highway. Instead, Officer Wor-ley set up the checkpoint at the end of the Airport Road exit ramp,-, which is the first exit available to motorists after the posted signs! but is not frequently used, because no services are offered at that exit. Motorists could not see the officers at the roadblock at the end of the ramp until they came around the curve — approximately 50 to 100 yards into the uphill exit ramp. After a motorist gets off at the exit, there is no place to turn around to avoid the checkpoint as it is illegal to back down an exit ramp in Tennessee.
On average, it took an officer operating . the checkpoint approximately ten to fifteen seconds to determine whether a driver was intoxicated. While the checkpoint was in operation, the county’s drug dog, King, was always present. There was, however, never a breathalyzer at the checkpoint. Although the checkpoint’s main operator had asked for a breathalyzer, none had been provided. Objects seized at the checkpoint were subject to forfeiture. The money raised through forfeiture went into the county’s drug fund, which “funds narcotics enforcement,” and into the D.A.R.E.
Officer Worley had utilized this “ruse” sixty-five times at the Airport Road exit prior to May 14, 1996. On that day, the roadblock operated from 1:30 p.m. to 5:15 p.m. At 4:30 p.m., five law enforcement officers were present: Sheriffs Deputy Dennis Worley, Reserve Officers Joe Brock, Steve Halcolmb, and Jason Halcolmb, and an unidentified Highway Patrolman.
When defendants exited at Airport Road on April 14, 1996, a sign normally posted to inform motorists about the purpose of the checkpoint was absent from the ramp. Officer Joe Brock, a volunteer reserve officer with no specific training in detecting intoxicated drivers, approached their vehicle. He indicated that there was no set procedure for stopping cars, and he just happened to be there when defendants drove up. It was left up to Brock’s discretion on how to question motorists. He decided that when the vehicle’s license plate revealed out-of-state tags, he would ask the motorist his or her reason for using the exit. Because defendants’ vehicle displayed Wyoming tags, Brock informed defendants that they had been stopped at a Roane County drug/DUI checkpoint and asked defendant Martin, the driver, why he had exited at Airport Road.
When Mr. Martin replied that they were in search of gasoline, Officer Brock looked at the gas gauge and saw that it indicated a full tank. Officer Brock did not notice anything that indicated that Mr. Martin had been drinking and did not ask him if he had been drinking. He detected no alcohol on his breath and noticed no other indicators of intoxication. After Officer Brock had spoken to defendants for approximately one to two minutes, Officer Worley approached the car, and Officer Brock backed away.
Officer Worley addressed defendants through the driver’s window. He also told
Believing he had enough reasonable suspicion to conduct a canine search, Officer Wor-ley brought the drug dog to the van, where it alerted to the back of the van. Officer Wor-ley informed defendants of the indication, told them he was going to search the van, and asked them to step out. Around this time, Ms. Huguenin spontaneously informed Officer Worley that she had a small bag of marijuana in a coat pocket inside the van. Mr. Martin stated that he had not seen the dog indicate. The dog was brought back and again indicated at the back of the van. Officer Worley got the keys and opened the back door of the van, and the dog alerted to a blanket on the floor. Officer Worley searched the van and found 265.7 pounds of marijuana hidden in several bags under the blanket. He immediately arrested defendants.
Defendants Martin and Huguenin were indicted on one count of possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). On April 26, 1996, they filed a joint motion to suppress. They challenged the validity of the checkpoint, arguing that it unconstitutionality tainted the detention and search that subsequently occurred. A mаgistrate judge filed a Report and Recommendation denying the joint motion to suppress on June 4, 1996. After an evidentiary hearing to determine the purpose of the checkpoint, the district court adopted the Report and Recommendation on October 7, 1996, and denied the motion to suppress.
Ms. Huguenin and Mr. Martin then entered conditional pleas of guilty on November 19, 1996, reserving their right to appeal the constitutionality of the checkpoint. In addition, Mr. Martin reserved the right to appeal the district court’s calculation of the amount of marijuana for sentencing purposes.
On January 24, 1997, the district court sentenced Ms. Huguenin to two years, six months imprisonment and four years supervised release. On January 27, the court sentenced Mr. Martin to five years imprisonment and four years supervised release. Ms. Huguenin and Mr. Martin filed timely notices of appeal on January 23 and January 24, respectively.
n.
Defendants challenge the constitutionality of the roadblock procedure used on March 14,1996, arguing that the search and seizure that occurred violated the Fourth and Fourteenth Amendments. The district court’s determination that no unconstitutional violation occurred is a conclusion of law which we review de novo; however, we review the lower court’s factual findings only for clear error. United States v. Duncan,
The Supreme Court has made it clear thаt persons stopped for any purpose at motorist “checkpoints” set up by government officials on public highways have been seized for Fourth Amendment purposes. Michigan Dept. of State Police v. Sitz,
Applying this balancing analysis, the Supreme Court has upheld the constitutionality of government checkpoints set up to detect drunken drivers, Sitz,
A.
A problem arises in the present case in regard to the first factor of the Brown v. Texas test—the gravity of the public concern served by the seizure—because the parties contest the government purpose the Airport Road checkpoint was intended to further. The United States contends it was established primarily to eradicate drunken driving, whereas defendants argue the roadblock’s primary purpose was to detect narcotics. After an evidentiary hearing to address this issue, the district court found substantial evidence supported the conclusion that the primary purpose of the roadblock was to detect narcotics. However, because the court found that a secondary purpose of the roadblock was to detect drunken drivers, a purpose previously sanctioned by the Supreme Court in Sitz, the court held that the legitimacy of the roadblock could be sustained.
The district court relied on the United States Court of Appeals for the Eleventh Circuit’s decision in Merrett v. Moore,
That the chief (but not sole) purpose of the roadblocks in this case was to intercept drugs is undisputed. That the state had the authority to conduct roadblocks to check drivers’ license and vehicle registration is also undisputed. We conclude 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. In other words, we adopt a totally objective rule: a state may conduct a mixed-motive roadblock as long as one purpose presented for thе roadblock could validly justify the roadblock, even if no roadblock would have been put in place but for the state’s desire to hunt for unlawful drugs.
Id. at 1550-51.
Although the Eleventh Circuit in Merrett held that mixed-motive checkpoints are lawful as long as at least one of the underlying purposes — no matter how minor — is legitimate, it is the only court of appeals that has done so, and we do not agree with its reasoning. Heretofore, federal courts have allowed very few exceptions to the Fourth Amendment requirement that law enforcement officers must possess at least articulable suspicion before stopping a vehicle: namely, at fixed checkpoints near border crossings to preclude illegal immigration, Martinez-Fuerte,
During prohibition seventy years ago, the Supreme Court observed that “[i]t would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor....” Carroll v. United States,267 U.S. 132 , 153-54,45 S.Ct. 280 ,69 L.Ed. 543 (1925) (emphasis added)- [Permitting enforcement officers to stop every vehicle at a roadblock based on the mere possibility that one or more of the vehicles passing through will contain illegal drugs — evidence of a crime completely unrelated to highway safety — is similarly intolerable and unreasonable.
Moreover, although the Supreme Court has not directly considered the issue of pre-textual checkpoints used for narcotics detection, it has indicated in dicta that this type of roadblock would be unreasonable.
No other court of appeals has agreed with the Merrett analysis and instead has upheld the constitutionality of a challenged checkpoint only if its primary purpose is lawful. When considering a roadblock nearly identical to the ones in Merrett, the Court of Appeals for the Tenth Circuit in United States v. Morales-Zamora,
We agree with these courts, because, in our view, a pretextual roadblock has pitfalls that come perilously close to permitting unfettered government intrusion on the privacy interests of all motorists. As the Supreme Court has observed:
Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pеdestrian or other modes of travel. Were the individual subject to unfettered governmental in-trusión every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed.
Delaware v. Prouse,
B.
In determining the primary purpose of the Airport Road checkpoint, we find that it was to detect narcotics. Although Officer Worley and the Roane County Sheriffs Department claim that the primary purpose of the challenged checkpoint was to detect intoxicated drivers, their actions speak louder than their words. The signs on the highway warn of a “Drug-DUI” checkpoint; the checkpoints are supervised by the county’s Narcotics Officer; a D.A.R.E. vehicle and Narcotics Officer are present at each of the checkpoints; and any proceeds from resulting forfeitures are returned to the county’s drug fund. The expense of setting up and operating the checkpoints is funded entirely from drug interdiction activity. Furthermore, the officers operating the checkpoints are not properly prepared to participate in DUI detection. Only one officer — the Narcotics Officer — had ever been formally trained in DUI detection. The officer who first approached defendants had never received DUI detection training. Although a drug dog is present during every operation of the checkpoint, no breathalyzer has ever been present. Although the Roane County “Policy and Procedure for Setting Up Sobri-éty Check Point” memorandum specifically requires that a Breath Alсohol Test be administered to suspected intoxicated drivers, it is impossible to give this test because of the lack of equipment and training. In the present case, rather than asking questions relevant to intoxication, the officers asked defendants why they had left the Interstate at this particular exit, an intrusive query unrelated to sobriety.
Finally, the checkpoint is almost always operated during .daylight hours. Although Officer Worley claimed that the department is no more likely to encounter intoxicated drivers after twilight, common sense indicates more people drink in the evenings. Moreover, the record indicates that the real DUI checkpoints that Worley set up were at night. During the year before defendants’ arrests, the Airport Road checkpoint operated on approximately 64 different days and
C.
We do not believe that under the balancing test established in Brown v. Texas, the gravity of the public concern about drug trafficking outweighs the severity of the interference with individual liberty for the following reasons.
First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops.
Thus, in Martinez-Fuerte, the objective and subjective intrusion to a motorist’s Fourth Amendment right to be free from unreasonable searches and seizures was slight. In contrast, in the present case, motorists exiting off the Airport Road exit are taken by surprise; they are stopped “elsewhere,” not at the designated location for the checkpoint; checkpoint operations involve discretionary enforcement activity depending on which officer stops the vehicle and on whether a motorist has in-state or out-of-state license plate tags; the location of the checkpoint is chosen by an officer in the field, the checkpoint operates as a trap and bears arbitrarily and oppressively on those who take the Airport Road exit; and there is room for abusive and harassing questioning, which is left to the discretion of the individual officer in the field.
One of the problems with evaluating a checkpoint that is set up as a pretext is that the ostensible guidelines for its operation do not reflect its actual operation. For example, in the present case, the memorandum for setting up sobriety checkpoints provided that checkpoints would be set up only at the direction of high level administrative officials. Instead, the checkpoints were set up at the discretion of Officer Worley, an officer in the field. The procedures also specified that if the driver failed a field sobriety test, an officer must offer the driver a breath/alcohol test. The evidence established that the Roane County Sheriffs Department owned an Intoximeter 3000. However, in direct contravention to the county’s policy, Worley never had a breathalyzer machine at any of the 65 Airport Road checkpoints. There 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. “The essential purpose of the proscription in
We disagree with the district court’s conclusion that our opinion in United States v. Ferguson, 8 F.3d at 385, indicates that a mixed-motive pretextual stop at a checkpoint is constitutional even if there is no traffic violation. In Ferguson, an officer stopped the vehicle in which the defendant was a passenger after observing the car lacked a license plate. The officer also suspected that the vehicle was involved in drug trafficking. Id. at 386-87. In addressing the defendants’ argument that the stop was pretextual, we held that “so long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful.” Id. at 391 (emphasis added). The test we adopted in Ferguson “focus[es] on ... whether [the] particular officer in fact had probable cause to believe that a traffic offense had occurred, regardless of whether this was the only basis or merely one basis for the stop.” Id.
We believe the district court in the present case erred in concluding that because this court upheld in Ferguson a pretextual stop in the presence of probable cause for a traffic violation, this court would therefore find a pretextual roadblock constitutional in spite of the absence of probable cause that a traffic violation had occurred. As the Supreme Court emphasized recently in Whren v. United States,
For these reasons, we believe that in the present case, the ramifications of a pretextual purpоse poses a definite threat to the Fourth Amendment not found in cases, such as Ferguson, in which there is probable cause to stop the vehicle for a traffic violation. At a checkpoint, every single person is stopped, not just those persons who have violated a traffic law. Thus, a driver, who has violated no traffic law, whom an officer could not stop for a pretextual purpose away from the checkpoint, Whren,
For these reasons, we disagree with the district court that although the primary purpose of the Airport Road checkpoint was to detect narcotics, the search and seizure could be upheld because one purpose of the roadblock was to detect drunken drivers, since a DUI checkpoint had been sustained in Sitz. We decline to follow the Eleventh Circuit’s approach in Merrett which allows law enforcement to conduct a mixed-motive roadblock as long as one purpose presented for the roadblock can validly justify its use and meet the requirements of the Brown v. Texas test.
Moreover, in the present case, even if the planned operation of the checkpoint, in general, was not pretextual, its operation during the detention of defendants was pretextual. The officers that approached defendants’ van did not ask them about drinking or otherwise engage defendants in activities to determine if they were driving under the influence. Instead, Officer Brock noted almost immediately that defendants did not appeal’ to be intoxicated. Rather than let defendants proceed, however, the officers began asking them about their plans, destination, and purpose for taking the exit ramp. Once the officers recognized that defendants were not intoxicated, none of these questions would serve the checkpoint’s purported legitimate purpose. The questions served only to detain defendants long enough for the officers to develop reasons to conduct a more thorough search by their intrusive questioning. If the county had truly established the checkpoint for the purpose of detecting intoxicated drivers, defendants should have been released as soon as the first officer to approach them was satisfied that they were not intoxicated after approximately fifteen to twenty seconds; defendants should not have been questioned by two different officers for several minutes about their reasons for using the exit, which is totally unrelated to intoxication. Maxwell v. City of New York,
To conclude, we do not believe the need to curtail drug trafficking outweighs the intrusion on individual liberty that occurred. We find that, without a traffic violation or reasonable suspicion of drug trafficking, it was a violation of the Fourth Amendment for the police to selectively detain motorists with out-of-state tags who took the Airport Road exit to question them about their travel plans in order to assess whether they were engaged in drug trafficking. Rather than establishing a neutral procedure applicable to all motorists, the officers set up a trap aimed
III.
In the alternative, we find that even if the checkpoint had as its primary purpose the detection of intoxicated drivers, the procedure used was unreasonable under the balancing test еstablished in Brown v. Texas. As previously stated, to determine whether a roadway checkpoint is. reasonable, the reviewing court must weigh three factors: 1) the importance of the government interest involved; 2) the effectiveness of the checkpoint in meeting the government’s goal; and 3) the severity of the intrusion on the individual’s Fourth Amendment rights.
As established by Sitz, the alleged purpose of the Airport Road checkpoint, the detection of intoxicated drivers, clearly satisfies the first factor — the gravity of the public concern.
In regard to the third factor — the severity of the intrusion on Fourth Amendment rights — it should be noted that in Sitz the Supreme Court emphasized the importance of having proper guidelines to effectuate that purpose of detecting and deterring intoxicated drivers without undue police discretion.
The Court in Sitz also found that the subjective intrusion was slight, because approaching motorists could see that every vehicle was being stopped and there were visible signs of the officers’ authority. Id. at 453,
In reviewing the degree of intrusion at the Martinez-Fuerte checkpoints, the Supreme Court emphasized the lack of discretion allocated to the operating officers, the brief duration of the stop in which just a few questions were asked and perhaps a document reviewed, and the numerous physical and visual indicators apparent to approaching motorists.
We do not believe the safeguards indicated in Sitz and Martinez-Fuerte are sufficiently established in the present case. In regard to the objective intrusion, defendants’ initial detention lasted for at least several minutes. Although that is not, objeсtively, a long period of time, it is a great deal longer than the initial detentions of less than half of a minute that were upheld in Sitz or Martinez-Fuerte. Furthermore, as Officer Worley testified, it usually takes only 10 to 15 seconds “at the most” to determine whether a driver is operating a vehicle under the influence of alcohol. Instead, in the present case, defendants were questioned twice by two different officers with inquiries designed not to determine whether the driver was intoxicated, but to discover where defendants had been and where they were headed, implying a suspicion that the car contained contraband. Thus, defendants were subjected to questioning involving more than a few brief queries necessary to effectuate the alleged purpose of the checkpoint, and the scope of the questioning was not “aimed solely at ascertaining” whether Mr. Martin was intoxicated. Maxwell,
We also find that the Airport Road checkpoint was more subjectively intrusive than others previously upheld. In considering the “fear and surprise engendered in law-abiding motorists” by the nature of the stop, Sitz,
A review of these standards indicates that the Airport Road checkpoint was more akin to a roving patrol stop than to a sobriety checkpoint because it was set up as a trap, which most likely created fear and surprise in law-abiding motorists. Only those people who safely and legally exited the Interstate before the announced checkpoint were stopped. The exit ramp is in a secluded area where few people exit, and there is no notice to the motorist about what is taking place at the exit. Furthermore, there is no procedure for how the vehicle is to be approached. In defendants’ case, Officer Brock “just happened to be there when they came up” and stepped in front of their car. Thus, the procedure did not treat motorists on a nonrandom basis, but singled out motorists, who, for whatever reason, chose to take the Airport Road exit. Although the officers at the checkpoint were in uniform and near marked cars and cones, we are concerned with the lack of indicators as motorists approached the checkpoint. While most of the checkpoints approved by other courts had a series or sets of lights and/or signs, this checkpoint had only one set of signs on the highway. However, the checkpoint was not on the main highway where the signs were, but was at the end of a discretionary exit ramp, hidden until the last possible moment. Rather than setting up the checkpoint in a high traffic area very visible to the public, the Airport Road checkpoint was in a secluded area where it is common for long periods of time (more than half an hour) to pass without a single car getting off the exit.
When asked whether the purpose of placing the “Drug-DUI Enforcement Checkpoint 1/2 mile ahead” sign on the freeway was to fool people into getting off at the exit, Officer Worley conceded, “[i]t could be, yes.” Thus, while checkpoints must stop motorists on a non-random and neutral basis, in the present ease the checkpoint was intentionally set up as a trap, targeting motorists who left the Interstate and who thought they would avoid the highway checkpoint for whatever reason.
Addressing the discretion left to the officers in the field, the Supreme Court, in
The excessive discretion left in the hands of the officers is further evidenced by the type of questions asked. Instead of asking a sufficient number of standard questions for a period long enough to determine sobriety, Officer Brock testified that he varied his questioning based on whether the approach-. ing vehicle displayed out-of-state or in-state license tags.
Although the Supreme Court has upheld the use of suspicionless roadblocks to conduct sobriety or immigration checkpoints, the Court has always required that such checkpoints be established according to neutral articulable standards, which do not exist in the present case. Sitz,
We agree. In the present case, the checkpoint was not a brief stop limited to a few questions relevant to sobriety, but one left to the discretion of the individual officer to be as intimidating and intrusive as he wanted. We believe it is this type of interrogation and intimidation that the Supreme Court was concerned about when it stressed the dangers of unfettered discretion and the need for orderly procedures in its prior holdings. As former Chief Justice Burger wrote in Brown v. Texas:
To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.
For these reasons, we find that the importance of the government interest in detecting intoxicated drivers and slight effectiveness in meeting that purported interest must be weighed against a severe degree of intrusion on the motorist’s Fourth Amendment rights. We find that because the degree of objective and subjective intrusion was substantial, the сheckpoint, even if its primary purpose were to function as a DUI checkpoint, was unreasonable under the balancing test set forth in Brown v. Texas.
IV.
We conclude 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. We hereby REVERSE the district court’s denial of defendants’ joint motion to suppress evidence and REMAND for proceedings consistent with this opinion.
Notes
. Defendant Martin also appeals the district court’s method of calculating, for sentencing purposes, the weight of marijuana seized, but we need not reach this issue as we reverse his conviction.
. D.A.R.E. is an acronym for Drug Abuse Resistance Education, an educational program offered through local public schools. In Roane County, the D.A.R.E. program is funded by the Sheriff's Department's Drug Fund and is taught by Officer Worley.
. Officer Worley had decided where to establish the checkpoint, had erected it, and was supervising it. Although each checkpoint and its location had to be approved by either the Sheriff or the Chief Deputy, none of Officer Worley's suggestions or ideas had ever been refused. Officer Worley had worked for the sheriff's department for approximately three and a half years, and he was the department's Narcоtics Officer. His duties included qualifying deputies for firearms licenses, teaching school children through the D.A.R.E. program, and enforcing laws regarding narcotics. He had been trained in DUI detection in 1990.
Officer Brock was a jailer who had worked for the county for approximately two years. He was also a reserve officer, who volunteered to patrol county roads and assist in the set up and operation of checkpoints. He had never been trained in DUI detection. Officers Steve and Jason Hal-colmb were reserve officers who were merely onlookers on March 14, observing the checkpoint and learning from its operation.
. After holding that a "mixed-motive” roadblock can be constitutional, the court concluded that the roadblocks in Merrett satisfied the balancing analysis because, with the exception of one motorist who was delayed significantly longer than necessary and told he could not turn around and avoid the roadblock, the roadblocks yielded a 4.6% citation rate for license and registration defects, and motorists experienced only slight delays. Id. at 1551-52. The court also noted that use of the drug dog took no longer than the time needed to complete a simple license and registration check. Id. at 1549.
. There is a related line of cases regarding pre-textual traffic stoрs, not occurring at checkpoints. See, e.g. Whren,
The holdings of these cases, however, are not directly applicable here. They apply in cases where an officer has singled out one car from the many that may be on the road, and the officer is not stopping every motorist who drives by, which is what occurs at a checkpoint. Furthermore, the officer is authorized to pull over only those drivers who are in violation of a traffic law.
. For example, the dissent in United States v. Soyland,
Suppose the California Highway Patrol ["CHP”]and the DEA hatch a plan to use drunk-driving checkpoints in the war against drugs: CHP officers agree to set up the checkpoints at freeway entrances the DEA believes are frequented by drug couriers, and the DEA gives the CHP officers drug courier profiles and trains them to scan drivers and passengers. Suppose there is also a tacit understanding that, in making the highly discretionary decision about whom to pull over and test, .CHP officers consider whether anyone in the car fits a DEA profile, whether the car is popular with drug dealers, and a variety of other factors that point to drug dealing. While these sobriety stops might look exactly like those approved in Sitz, the effort to use them for unrelated law enforcement purposes would fatally undermine the Supreme Court’s rationale-in that case.
. We are not able to assess "the degree to which the seizure advances the public interest,” Brown v. Texas,
. Since the Supreme Court’s decision in United States v. Ortiz,
. Moreover, this case is distinguishable from Merrett. Whereas in Merrett there were procedures for checking for license registration (the alleged legitimate purpose of the roadblock), in the present case, the officers did. not have a proper procedure for screening motorists for intoxication. Thus, there is insufficient evidence that the Airport Road checkpoint could even be justified as a legitimate DUI checkрoint. Moreover, in Merrett, the motorists were detained no longer than the time required to conduct a driver's license and registration check. In contrast, in the present case, defendants were stopped and questioned about their travel plans for several minutes, which had no relation to intoxication.
. We agree with the Tenth Circuit in Morales-Zamora that in regard to checkpoints:
[A] pretextual stop occurs when the police use a legal justification to make a stop .'. .'in order to search a person or his vehicle,, or interrogate him, for an unrelated and more serious crime for which they do not have the reasonable suspicion necessary to support a stop.
. It is also lower than the .5% in Martinez-Fuerte. However, it is questionable whether a helpful comparison can be made to Martinez-Fuerte. The .5% is based on the “ratio of illegal aliens detected to vehicles stopped (considering that on occasion two or more illegal aliens were found in a single vehicle).” Sitz,
.For example, when defendants took the Airport Road exit, their car was the only one there. We do not mean to imply that the legality of the checkpoint depends on the number of cars stopped at the same time. However, we question a checkpoint consciously chosen because it is in a secluded area. If the roadblock's primary purpose was really to detect intoxicated drivers, its location made no sense.
. In fact, the checkpoint was not applicable to all drivers. Cars entering the Interstate from Airport Road were not stopped.
. Since 2,342 vehicles passed through the checkpoint and only 135 arrests were made, most motorists were law abiding and had a legitimate reason for using the exit.
.Although the dissent finds there is no reason the sheriff should not rely on the recommendations of his subordinates for the location of checkpoints, we note that Officer Whorley offered no rationale for the location of the checkpoint which would further the ostensible purpose of detecting intoxicated drivers. Moreover, in Martinez-Fuerte, the Supreme Court stressed that the checkpoint locations were not chosen by an officer in tire field, but by officers responsible for overall decision-making, who could determine the most appropriate locations.
. For example, the guidelines do not authorize • the type of roadblock utilized at Airport Road for they instruct that "[i]f an approaching driver turns off or makes a U-turn in a safe manner, no action will be taken against him." The "trap" on Airport Road was set up in such a way that motorists could not avoid an encounter.
. Brock not only lacked DUI training, but also made absolutely no inquiry regarding intoxication and made no attempt to smell the defendants' breath. The lack of standardized questions regarding intoxication is further evidence that the checkpoint was not set up as a legitimate DUI checkpoint.
Dissenting Opinion
dissenting.
Because I believe that'the District Court’s finding that the checkpoint was a mixed-motive checkpoint, established for the dual purpose of intercepting both drunk drivers and drug traffickers, is not clearly erroneous, and that such mixed-motive checkpoints are permissible, I agree with the Eleventh Circuit 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. In other words, we adopt a totally objective rule: a state may conduct a mixed-motive roadblock as long as one purpose presented for the roadblock could validly justify the roadblock, even if no roadblock would have been put in place but for the state’s desire to hunt for unlawful drugs.
Merrett v. Moore,
In its alternative holding in part III of its opinion, the court finds that the procedures used by Roane County, Tennessee were unreasonable under the balancing test estab
The majority does not dispute that the purpose of detection of intoxicated drivers satisfies the first factor, gravity of public concern. Yet, it finds the history of this checkpoint’s effectiveness significantly lower than that in Michigan Department of State Police v. Sitz,
The majority also finds the guidelines established by Roane County inadequate. It finds the checkpoints deficient because, while the plan requires approval of the elected Roane County Sheriff for a given checkpoint, the evidence indicates that the sheriff had invariably. approved the locations suggested by his deputy. The sheriff, nonetheless, controlled the decision. I know of no reason he could not rely on recommendations of subordinates. Nor do I believe that the absence of a breathalyzer at the checkpoint is critical. Persons who were believed to be intoxicated after field sobriety tests were taken to the sheriffs office for administrаtion of a breathalyzer test. Furthermore, motorists were ordinarily stopped for less than thirty seconds. While defendants here were stopped for several minutes, this was because of Officer Brock’s suspicions. Officer Brock asked defendants, as he did with all out-of-state cars, “what brings you here?” When defendant Martin told Officer Brock it was to get gas and Brock saw that the car’s gas gauge registered full, Brock turned the inquiry over to Officer Worley, the more experienced officer. The District Court found that at this point there was a reasonable suspicion to justify further detention. That suspicion was based on a verifiable falsehood that defendant had exited the freeway to purchase gas when his gas tank was full. This was in addition to the nervousness of the occupants and the conduct of defendant in gripping the wheel and looking straight ahead rather than at the officer to whom he was responding. See United States v. Moore,
The majority finds fault with permitting Brock to question the driver because he did not have training in conducting a field sobriety test. However, field sobriety tests were given only if an officer had some indication that the driver had been drinking. Both officers relied on whether they could smell alcohol for this initial screening. The record indicates Brock was capable of performing that screening.
Lastly, the majority finds that the checkpoint was set up to create fear and surprise on law-abiding motorists in that the notice of checkpoint was on the interstate and they would not realize that they were approaching a checkpoint on this exit road until after they had exited. The District Court found that the cones, the police cars and the fact that all cars were required to stop at the stop sign in all events was sufficient notice that one was not singled out but that all motorists were going through a checkpoint. The majority states, “[tjhus, the procedure did not treat motorists on a non-random basis, but singled out motorists, who, for whatever reason, chose to take the Airport Road exit.” However, all persons who exited were stopped. While motorists might be surprised that the checkpoint was on the exit and not further along on the freeway, the District Court found, and I agree, that motorists would be sufficiently aware that this was the traffic checkpoint of which they had been notified. I do not believe the legality of the checkpoint depends on whether there are several cars stopped at any one time, as the majority implies. While the use of a ruse by warning of a checkpoint and then placing it on the exit may not seem fair, I do not believe the ruse is sufficient to invalidate this checkpoint.