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[FEDERAL CASE SUMMARY
PAGE]
Federal Court Cases
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 89-382 & 89-1008
RUSSELL GALBERTH and JAY TAYLOR, APPELLANTS,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the
District of Columbia
(Hon. Nan R. Huhn, Trial Judge)
(Hon. Herbert B. Dixon, Trial Judge)
(Argued September 11, 1990
Decided April 30, 1991)
John M. Copacino, with whom V. C. Lindsay, appointed
by this court, was on the brief, for appellant Russell Galberth.
David A. Reiser, Public Defender Service, with whom James
Klein, Public Defender Service, was on the brief, for appellant
Jay Taylor.
Kathleen A. Felton, Assistant United States Attorney, with
whom Jay B. Stephens, United States Attorney, and John R.
Fisher, Helen M. Bollwerk, Robert M. Kruger and William M. Blier,
Assistant United States Attorneys, were on the brief, for appellee.
Arthur B. Spitzer and Elizabeth Symonds were on the
brief for amicus curiae, American Civil Liberties Union of the
National Capital Area.
Before ROGERS, Chief Judge, and FERREN and TERRY, Associate
Judges.
ROGERS, Chief Judge: In these consolidated
appeals appellants Russell Galberth and Jay Taylor appeal their convictions
on the ground that the trial court erred in denying their motions to
suppress evidence that was discovered after they were stopped at police
traffic roadblocks. 1 Guided
by Supreme Court precedent, we balance the government interest served
by the roadblocks against the liberty interest of the individuals seized.
We therefore conclude that appellant Galberth's conviction must be reversed,
given Judge Dixon's finding that the roadblock at which Galberth was
stopped was designed to combat violence and illegal drug activity. We
further conclude that Judge Huhn's finding do not clearly indicate the
principal purpose of the road block at which appellant Taylor was stopped.
We therefore remand for further findings in appellant Taylor's case.
I.
The two roadblocks at issue were established in connection with Operation
Clean Sweep, a police department program instituted in August 1986 to
address illegal drug trafficking, particularly sales in open air markets,
and accompanying violence in the District of Columbia. The program was
governed by the Field Operations Bureau which developed a manual for
each police district containing guidelines for the various law enforcement
techniques employed by Operation Clean Sweep. The facts of the two roadblocks
differ:
Galberth
roadblock.
Appellant Galberth was stopped at the roadblock at Montello Avenue
and Queen Street, N.E., on December 5, 1989. Officer Cephas,
a field officer assigned to the road block, testified that he received
orders that all cars were to be stopped from 9:30 a.m. until 11:30 a.m.
and the drivers asked for their licenses and registrations. Eight to
ten officers were present, in uniform, and some were wearing visibility
jackets; 5 to 6 marked police cars were also on the scene. Officer Cephas's
instructions were that if any questions arose, then he was to run a
Washington Area Law Enforcement Service (WALES) computer check to see
if the driver had a valid license. No barriers, signs, or traffic cones
were used to mark the roadblock, but Officer Cephas estimated that the
police officers could be seen from about midway up the block. Officer
Cephas testified that persons were stopped for approximately 2 to 3
minutes if there was no problem with their license.
The roadblock at Montello and Queen was part of a special operation
in the Trinidad area of the city announced by the Mayor to "cut
down on the violence and homicides and narcotics trafficking in the
Trinidad area, [byl attacking it from three different angles,"—roadblocks,
undercover operations, and high visibility "saturation" patrols.
Captain O'Donnell, the coordinator for Operation Clean Sweep for the
Fifth District, testified that the roadblock program was designed to
deal with "traffic problems such as speeding automobiles, vehicles
frequenting the area committing traffic violations to purchase narcotics,
stolen automobile traffic in the neighborhood, and things of that nature."
As he explained, a high volume of narcotics trafficking brings with
it a similarly heavy amount of automobile traffic, since many people
come to the open air drug markets by car. Captain O'Donnell's commanding
officer delegated to him the responsibility to select a site for the
roadblocks, to notify his commanding officer of his selection, to assign
a supervisor on the scene, and to periodically inspect the roadblock
while it was in operation.
O'Donnell selected the Montello Avenue site because he
knew from personal observation as well as citizen complaints that
the area was plagued by heavy traffic created when individuals
looking to buy drugs parked illegally for a brief period, and then sped
away after making their purchase. The evidence he offered (in addition
to his own observations) relating to traffic congestion, however, was
that in the past three years there had been over 100 citizen complaints
about drugs, traffic, abandoned cars, and trash in the area of Montello
and Queen.
O'Donnell instructed Sergeant Bullock to operate the roadblock from
9:30 a.m. to 11:30 a.m., and then to conduct a high visibility saturation
patrol in the Trinidad area. Captain O'Donnell inspected the roadblock
while it was in operation, and explained that although the roadblock
guide lines suggest using flares, flashing warning lights, or flash
lights to increase the roadblock's visibility, 2
he saw no need for them in this case because it was daytime and the
police could be seen 100 yards before a car entered the intersection.
In addition, an escape route was available, allowing cars to turn down
Holbrook Terrace and avoid passing through the roadblock.
Sergeant Bullock's report indicated that 226 cars, coming from three
directions, were stopped, four arrests were made (three for no permit
and one for operating after suspension), and seventeen traffic violation
citations were issued.
Appellant Galberth was stopped at the roadblock and asked by Officer
Cephas for his driver's license and registration. Galberth told the
officer that he did not have his driver's license and that he must have
forgotten to bring it. Cephas asked for Galberth's social security number,
and the resulting computer check indicated that Galberth's license had
expired in 1983. Cephas ordered Galberth out of the van and placed him
under arrest for not having a valid operating permit. As Officer Cephas
was patting Galberth down, he felt an object in Galberth's front coat
that he thought might be a gun. Reaching into the pocket, Cephas found
a .38 caliber revolver.
Galberth testified that he did not see the police until he reached
the stop sign at the intersection, and that there was no way that he
could avoid being pulled over by the police. Mr. Lucas, a passenger
in the van that Galberth was driving, testified that he too first noticed
the police as the van approached the intersection about 50-75 feet before
they came upon the police at the intersection. Lucas saw no visibility
jackets, cones or flares, although he did see police officers talking
to people in other cars in the area.
Judge Dixon denied the motion to suppress the gun. The judge found
that there was a substantial police presence and that the officers were
wearing visibility jackets. He further found that an organized and defined
procedure had been used in setting up the roadblock and that no discretion
had been left in the hands of individual police officers in the field.
In addition, Judge Dixon found that the intrusion on each motorist's
liberty was minimal. He also found, however, that the primary purpose
of the roadblock was to deter drug traffic and violence in connection
with Operation Clean Sweep, and that while relieving the traffic problems
at Montello and Queen may have been one factor that went into the determination
about where to locate the roadblock, traffic alone would not have caused
the police to set up a roadblock. He nevertheless ruled that the roadblock
sufficiently advanced the government's interest.
Taylor
roadblock.
Lieutenant Denesio testified that he selected sites at 14th and Quincy
Streets, N.W. and 14th and Allison Streets, N.W., for roadblocks on
the evening of February 16, 1988, because of high drug activity in the
neighborhood that involved heavy vehicular traffic along the public
streets. Since being assigned to the Fourth District in September 1987,
he had received numerous complaints and eyewitness reports that resulted
in identification of 40 large volume street drug sale locations within
the Fourth District. He explained that site selection had two purposes:
traffic enforcement and disruption of narcotics trafficking. Traffic
enforcement was important in his view because "a lot of people
from the suburbs . . . come into the city to purchase their drugs."
Drug arrests were not the goal of the roadblocks; rather, their primary
purpose was to disrupt drug traffic.
Lieutenant Denesio testified that usually within a week or two before
the roadblock was to be set up, he filed an enforcement activity report
with Captain Stewart informing him of the planned roadblock locations
and procedures. His instructions for the on-site supervisor left the
supervisor no discretion about the location of the roadblock. Although
Denesio conceded that no advance publicity warned the public that an
Operation Clean Sweep roadblock was going to be operating in the "general
neighborhood at around that particular time," Assistant Chief Fulwood
testified that the police department had given the public ample. notice
of the roadblocks through "almost weekly" news conferences and
community meetings attended by the mayor, the police chief and Assistant
Chief Fulwood, as well as information disseminated through district
commanders and the Fourth District Advisory Council, and "untold
numbers of public announcements about 'Operation Clean Sweep' and its
impact...."
Captain Stewart was the Clean Sweep Coordinator for the Fourth District,
and thereby responsible for carrying out the roadblock in accordance
with the terms set by the Field Operations Bureau of the Police Department.
On February 16, 1988, there were 8 to 10 uniformed officers in visibility
vests, with two support vehicles and a trans port vehicle, who were
stopping southbound vehicles on 14th Street at Quincy. Because the field
officers had previously conducted Operation Clean Sweep roadblocks,
Stewart saw no need to give additional instructions that night; however,
he typically instructed the supervising sergeant that the license tag
of every car stopped was to be run through the WALES computer. 3
in general, the supervising sergeant had discretion to determine the
pattern by which cars would be stopped. In this instance, Stewart thought,
the supervising sergeant had decided that every second car should be
stopped.
Sergeant Canty, who supervised the roadblock at 14th and Quincy Streets,
N.W., on February 16, 1988, testified that he received instructions
from Captain Stewart to run the roadblock from 9:00 p.m. until 10:30
p.m., and to stop every third car going in both directions on 14th Street
at Quincy. Canty testified that all officers were in uniform,
used flashlights, wore bright orange visibility jackets, and that the
two police ears on 14th Street were marked. The officers stood in the
middle of the two-way street and waved cars over to the curb. The officers
were instructed to identify themselves, inform those stopped that a
roadblock was being conducted, and ask the driver for his or her license
and vehicle registration.
Forty-two cars were stopped between 9:15 p.m. and 10:10 p.m., and
two arrests were made (appellant Taylor and his passenger) for unauthorized
use of a vehicle. 4
Canty testified from personal observation that the
area was a high drug area, and that individuals frequently double parked
their cars while conducting drug transactions. While the roadblock was
in operation, however, Canty testified that he saw no drug activity.
Appellant Taylor attempted to turn his car around as he approached
the intersection, according to Officer Gray, but was directed to stop
since his was the third car to approach the intersection, in response
to the officer's request for his driver's license and car registration,
Taylor handed the officer the high school identification card of his
passenger, Timothy Minor. A computer check revealed that no license
existed for Minor. Taylor then told the officer his name, and while
waiting for a second computer check, this one on the license plate of
the car Taylor was driving, he told the officer that the car belonged
to his sister. Taylor and Minor were arrested after the computer check
on the car license plate indicated that the car had been reported stolen.
The arrests occurred between five to ten minutes aftcr the car was stopped.
According to Officer Gray, the computer check alone took approximately
five minutes.
Judge Huhn credited the testimony of Assistant Chief Fulwood that
the primary purpose of the roadblock was to control traffic congestion
associated with open air drug markets. The Assistant Chief had testified
that he had decided that traffic roadblocks should be part of Operation
Clean Sweep because large open air drug markets and traffic problems
go hand in hand: "what I mean ... is cars double, tripled park[ed],
large numbers of pedestrians moving through the neighborhood, to the
point that it disrupts the lives of people who ordinarily live there
who are not involved in any kind of criminal activity of any kind."
Judge Huhn also credited the Chief's testimony that in most of the open
air drug market operations there were motorists driving without a driver's
permit or after revocation of a permit, and motorists whose ability
to drive was impaired.
Judge Huhn found that the public danger created to pedestrians and
other motorists in the area was a sufficient law enforcement purpose
to justify the roadblock procedure, that the area was characterized
by the traffic problems that Operation Clean Sweep roadblocks were designed
to ad dress, and that the roadblock "would disrupt drug trafficking
in the area because potential drug purchasers would avoid the area after
observing the presence of the police." The judge also found that the
police expected to find motorists operating without permits, operating
after revocation and operating with impaired ability to drive. Judge
Huhn found that "[i]n fact, there was a reduction in the apparent
street level drug sales during the night of the . . .
roadblock as evidenced by a reduction in the observation
of double parked cars and persons walking over to doubled [sic] parked
cars." The judge was satisfied that there had been sufficient notice
to the public as a result of weekly news conferences and various community
meetings. In rejecting the argument that the roadblock was unconstitutional
be cause the officers had unfettered discretion, because the publicity
and advance warning were insufficient, because lighting at the scene
was inadequate, or because the time of the detention was too long, the
judge relied on Little v. State, 300 Md. 485, 479 A.2d 903 (1984),
and United States v. McFayden, 275 U.S.
App. D.C. 207, 865 F.2d 1306 (1989), adopting the analysis in the latter
opinion.
II.
Appellants contend that the trial judges erred in denying their motions
to suppress evidence under the Fourth Amendment.5
The government concedes, as it must, that appellants were seized within
the meaning of the Fourth Amendment when they were stopped at the roadblocks.
See Michigan Dep't of State Police
v. Sitz, ____ U.S. _____, 110 S. Ct. 2481, 2485 (1990) ("a
Fourth Amendment 'seizure' occurs when a vehicle is stopped at a checkpoint");
United States v. Martinez-Fuerte,
428 U.S. 543, 556 (1976) ("check point stops are 'seizures'
within the meaning of the Fourth Amendment");
United States v. Montgomery, 182 U.S. App. D.C. 426, 561 F.2d
875, 878 (1977) ("The stop of a moving vehicle—even if the
period of detention is brief —involves a 'seizure' within the meaning
of the fourth amendment"). Because the Fourth Amendment proscribes only
those seizures that are unreasonable, however, United States v. Sharpe,
470 U.S. 675, 682 (1985), these appeals turn on whether the stops
of appellants in connection with Operation Clean Sweep were reasonable.
Generally, a seizure is reasonable only if the police have particularized
suspicion that the seized individual is involved in criminal activity.
Terry v. Ohio, 392 U.S.
I, 21 & n.18 (1968). This general rule is applicable to spot checks
of vehicles stopped by the police, as the Supreme Court held in Delaware
v. Prouse, 440 U.S. 647 (1979). In Prouse the Court held
unconstitutional the random stop of an auto mobile and the detention
of its driver, even for the brief time necessary to check his driver's
license and car registration, as unreasonable under the Fourth Amendment
in the absence of articulable suspicion that the occupant was subject
to seizure for a violation of law. Id. at 663 . The Court contrasted
the roving random patrols that looked for illegal aliens and smuggling
activity in United States v.
Brignoni Ponce, 422 U.S. 873 (1975), 6
with the permanent checkpoint stops in United
States v. Martinez-Fuerte, 428 U.S. 543 (1976), in which the
Border Patrol slowed or stopped each vehicle, and at the discretion
of the agents referred only certain vehicles to an area for "secondary
inspection. "The Court noted that it had upheld the constitutionality
of the latter type of search because "the subjective intrusion
—the generating of concern or even fright on the part of lawful
travelers — is appreciably less in the case of a checkpoint stop.
Delaware v. Prouse, supra,
440 U.S. at 656 (quoting Martinez-Fuerte,
supra, 428 U.S. at 558). In particular, the Court explained that
"[a]t traffic checkpoints the motorist can see that other vehicles
are being stopped, he can see visible signs of the officers' authority,
and he is much less likely to be frightened or annoyed by the intrusion."
Id. at 657 (quoting Martinez-Fuerte,
supra, 428 U.S. at 558). In contrast, although the Court agreed
that states have "a vital interest in ensuring that only those
qualified to do so are permitted to operate motor vehicles, that these
vehicles are fit for safe operation, and hence, that licensing, registration,
and vehicle inspection requirements are being observed," id. at
658, the Court found no "empirical data" which demonstrated that,
given the existence of alternative methods, the discretionary spot check
"is a sufficiently productive mechanism to justify the intrusion
upon Fourth Amendment interests which such stops entail." Id. at
659. Subjecting every occupant of a motor vehicle to a seizure at the
"unbridled discretion of law enforcement officials" involved the
"kind of standardless and unconstrained discretion [which] is the
evil the Court has discerned when in previous cases it has insisted
that the discretion of the official in the field be circumscribed, at
least to some extent." Id. at 661 . The Court nevertheless left
open the possibility that methods could be developed to conduct spot
checks that "involve less intrusion or that do not involve the
unrestrained exercise of discretion," suggesting questioning all oncoming
traffic at "roadblock-type stops" as one possibility. Id. at
663.
A decade later, Michigan Dep't
of State Police v. Sitz, 110 S. Ct. 2481 (1990), held that "stops
of motorists on public highways," Sitz, supra, 110 S. Ct. at
2485, which are "carried out pursuant to a plan embodying explicit,
neutral limitations on the conduct of individual officers," Brown
v. Texas, 443 U.S. 47, 51(1979), may be reasonable in certain
circumstances, even in the absence of particularized suspicion of crime.
Sitz upheld the constitutionality of the initial stop of a motorist
passing through a highway sobriety checkpoint. 110 S. Ct. at 2488. The
checkpoint was established in accordance with guidelines developed by
an advisory committee on site selection, checkpoint operations, and
publicity. Id. at 2484. These guidelines left virtually no discretion
to the officers stopping motorists.7
Id. at 2484. The Court noted that sobriety checkpoints,
unlike the random stop in Prouse,
do not pose the risk of unconstrained discretion by the field officer,
and are sufficiently effective in achieving the states' legitimate interest
in preventing accidents caused by drunk driving. Id. at 2487-88.
To determine the reasonableness of roadblock seizures, Sitz
reaffirmed the test applied in Delaware
v. Prouse, supra, requiring courts to strike a "balance
between the public interest and the individual's right to personal security
free from arbitrary interference by law officers."8
Brown v.
Texas, supra, 443 U.S. at 50 (quoting Pennsylvania
v. Mimms, 434 U.S. 106, 109 (1977)), cited in Sitz, supra, 110
S. Ct. at 2484-85. This balance focuses on three factors: "[1]
the gravity of the public concerns served by the seizure, [2] the degree
to which the seizure advances the public interest, and [3] the severity
of the interference with individual liberty." Brown v. Texas, supra,
443 U.S. at 50-51; see also Sitz, supra, 110 S. Ct. at 2485
(applying the Brown v. Texas
balancing test to sobriety checkpoints).
Applying the Brown v. Texas
balance to the instant cases, we first consider the 'public concerns
served by" the road blocks. We agree with the government that there
clearly were several purposes served by the roadblocks, and that the
police may constitutionally benefit from the "spin-off" effect
of an otherwise constitutional law enforcement program. See United
States v. Villmonte-Marquez, 462 U.S.579, 584 n.3 (1983)
(upholding the constitutionality of a routine ship inspection, despite
the fact that the officers were following an informant's tip); McFayden,
supra, 275 U.S. App. D.C. at 213, 865 F.2d at 1312. We must nonetheless
consider the principal purpose underlying each of the roadblocks
to determine their constitutionality. See McFayden, supra, 275
U.S. App. D.C. at 213, 865 F.2d at 1312 (principal purpose "to
regulate vehicular traffic by allowing police to check drivers' licenses
and vehicular registration," and not a subterfuge for detecting crimes
unrelated to licensing, which might infringe upon Fourth Amendment rights).
Because the trial judges' findings differed as to the principal purposes
of the two roadblocks, we strike a different balance in each of the
respective cases.
A . The
Galberth roadblock
The trial judge in appellant Galberth's case made the following finding
about the government's purpose in establishing the roadblock:
Based on the evidence that the Court has received the Court is not
really overwhelmed with the idea of traffic problems at Montello and
Queen. That may have fit into the equation which caused the decision
to set up the roadblock at that location, but the primary purpose,
because the Court does not want to taint the evidence which was really
perceived, the primary purpose had to do with Operation Clean Sweep,
violence, drugs and guns.
(emphasis added). We must accept this finding of fact, which, as the
government concedes, is supported by the record and not clearly erroneous.
Appellant Galberth urges us to read the trial judge's statement as a
finding that the police stopped his car in order to detect crimes related
to violence, drugs and guns." Under another plausible reading, the finding
could mean that the police established the roadblock in order to disrupt
the open air drug market . We conclude that under either reading of
Judge Dixon's finding, the roadblock cannot survive the Brown
v. Texas balance, and therefore reverse appellant Galberth's
conviction . 9
First, it is clear that the police may not use a roadblock in order
to seek evidence of drug-related crimes. The Supreme Court has allowed
suspicionless roadblock stops in two contexts, both of which involved
government interests distinct from general law enforcement. In United
States v. Martinez-Fuerte,
supra, the Court upheld the constitutionality of permanent immigration
checkpoints located near the nation's borders. the Court noted the "formidable"
problem posed by "the flow of illegal [immigrants] from Mexico,"
id., 428 U.S. at 552, and upheld the use of checkpoint stops
only after concluding "that maintenance of a traffic-checking program
. . . is necessary because the flow of illegal aliens cannot be controlled
effectively at the border" using any other mechanism. Id. at
556. Most recently, in Sitz,
supra, the Supreme Court upheld the constitutionality of sobriety
checkpoints, noting the importance of the government's unique interest
in combating drunk driving. Sitz, supra, 110 S. Ct. at 2486 ("[n]o
one can seriously dispute the magnitude of the drunken driving problem").
The Supreme Court has never upheld, by contrast, a police roadblock
designed to promote general law enforcement purposes. Indeed, the Court
has indicated that the police must have individual suspicion before
they can seize someone for general law enforcement purposes.
See Delaware v.
Prouse, supra, 440 U.S. at 659 n.18 (the govern
mental interest in controlling automobile thefts "is not distinguishable
from the general interest in crime control" and is therefore insufficient
to justify suspicionless stops).
In Carroll v. United States, 267 U.S. 132, 153-54
(1925), the Court stated that "[i]t would be intolerable and
unreasonable if a prohibition officer were authorized to stop every
automobile on the chance of finding liquor, and thus subject all persons
lawfully using the highways to the inconvenience and indignity of such
a search."10 Thus,
if Judge Dixon meant that the police established the Galberth roadblock
in order to detect evidence of drugs or other crimes, the roadblock
would be unconstitutional. See 3 W. LAFAVE,
SEARCH AND SEIZURE:
A TREATISE ON THE FOURTH
AMENDMENT § 9.5 (b), at 551 (2d ed.
1987) ("a general roadblock . . . established on the chance of
finding someone who has committed a serious crime" would "quite
clearly" be un constitutional) (citation omitted); see also Ingersoll
v. Palmer, 43 Cal. 3d 1321, 1327-28, 743 P.2d 1299, 1303
(1987) ("if the primary purpose of the [roadblock] were to detect
crime or gather evidence of crime, we would agree with the contention
that an individualized suspicion of wrongdoing is required"); Meeks
v. State, 692 S.W.2d 504, 508 (Tex. Crim. App. 1985) ("The
mere asking for a driver's license will not validate the stopping of
an automobile if it is clear that the driver's license check was not
the reason for detention").
Furthermore, if we were to read Judge Dixon's finding more broadly,
as indicating that the police established the roadblock in order to
disrupt the open air drug market, we would still conclude that the roadblock
was unconstitutional. Under such a justification, the government purportedly
hoped that by setting up a roadblock near a high-crime area, people
would be discouraged from driving into the area to buy drugs. Thus,
the roadblock supposedly would deter drug crimes. We conclude, however,
that the government's general deterrence interest is not substantial
enough to outweigh the seized individuals' liberty interests.
When the Supreme Court has upheld suspicionless roadblock seizures,
the government's purpose in establishing the roadblock had some logical
connection to the individuals likely to he in the vehicles that were
stopped. Thus, the police set up permanent checkpoints because the flow
of illegal aliens could not otherwise he effectively controlled and
the checkpoints could reasonably be expected no lead no the arrest of
"smugglers and illegal aliens who succumb no the lure of such highways."
Martinez-Fuerte, supra,
428 US. an 554. Similarly, the governnnent addressed the immense
drunk driving problem by establishing sobriety checkpoints designed
no prevent and apprehend impaired drivers. See Sitz,
supra, 110 S. Ct. an 2487, 2488. The purported deterrence rationale
for the Galberth roadblock, by contrast, was addressed to problems
of general law enforcement , namely deterring drug traffic and violence
and preventing "violence, drugs and guns" not to problems predictably
associated with persons who are stopped an the roadblock. Such a justification
is antithetical to the Fourth Amendment. See Delaware
v. Prouse, supra, 440 U.S. an 659 n.18 ("the general interest
in crime control" is insufficient to justify suspicionless stops).
Moreover, there is no empirical evidence than the roadblock
technique itself effectively promoted the government's interest in deterring
drug crimes. Indeed, common sense (see Sitz,
supra, 110 S. Ct an 2487), as well as the police use of "saturation"
patrols, suggests that any disruption resulted from the highly visible
police presence during the roadblock, and that any law enforcement technique
involving a substantial police presence would have had a similar effect.
The government offered no evidence to negate this common sense notion
11
See Sitz, supra, 1 10 S
Ct. at 2487 (describing Delaware
v. Prouse, supra, as a case in which "no empirical
evidence indicated that such stops would be an effective means of promoting"
the government's purposes, and noting that "common sense" indicated
to the contrary) (emphasis in original).
Accordingly, in view of the insubstantiality of the government's deterrence
interest and the lack of any record evidence indicating that the Galberth
roadblock furthered the government interest, the Brown
v. Texas test weighs in favor of the individual's liberty interest.
We therefore hold that the Galberth roadblock violated the Fourth Amendment
and that his convictions must be reversed.
B . The Taylor
roadblock
The trial judge in appellant Taylor's case found:
The primary purpose of the roadblock was to control traffic congestion
associated with open air drug markets such as cars double and triple
parked and a large number of pedestrians moving through the neighborhood.
This activity disrupts the lives of the people who are residents of
he neighborhood and creates a safety hazard to them.
The police expect to find motorists operating without permits, operating
after revocation and operating with impaired ability to drive. Chief
Fulwood stated, and the Court credits his testimony on the purposes
of the roadblocks, that it is primarily a traffic enforcement program
with certain other benefits clearly being derived from it.
As in appellant Galberth's case, we must accept this finding of the
government purpose for the roadblock, which is supported by the record
and has not been shown to be clearly erroneous. 12
The trial judge's finding refers, however, to two
different government interests. The trial judge first mentions as the
"primary purpose" the concern with neighborhood traffic congestion
associated with open air drug markets. In the second paragraph, however,
the judge describes the problems of those who drive without a permit,
after revocation, or with impaired capacity. The judge finally states
that the roadblock was "primarily a traffic enforcement program."
We conclude that this finding leaves unclear whether the primary purpose
of the Taylor road block was (1) to address neighborhood problems of
traffic congestion associated with open air drug markets, or (2) to
check driver's licenses and automobile registrations. Because the latter
purpose would support the constitutionality of the roadblock, while
the former would not, we remand to the trial judge for a more specific
finding.
The trial judge relied heavily on the decision in McFayden, supra,
275 U.S. App. D.C. 207, 865 F.2d 1306, in which the United Slates
Court of Appeals for the District of Columbia Circuit upheld a roadblock
that was part of Operation Clean Sweep. In concluding that the roadblock
had been conducted in a systematic and nondiscriminatory fashion, the
court discussed both of the government interests found by Judge
Huhn here. The McFayden court upheld the constitutionality of
a roadblock, however, by relying on a finding that "the principal
purpose of the roadblock was to regulate vehicular traffic by allowing
police to check drivers' licenses and vehicle registrations." 275 U.S.
App. D.C. at 213-14, 865 F.2d at 1312-13. The court noted the importance
of this finding in assessing the legality of a police traffic roadblock,
observing that "[i]t is possible that a roadblock purportedly established
to check licenses could be located and conducted in such a way as to
indicate that its principal purpose was the detection of crimes
unrelated to licensing." Id., 865 F.2d at 1312 (emphasis in original)
(citing 4 LAFAVE, supra,
§ 10.8 (a) at 63-64). "Such a subterfuge might result
in an infringement of Fourth Amendment rights, and some courts have
so held." Id., 865 F.2d at 1312; see also Webb v. State, 739
S.w.2d 802 (Tex. Crim. App. 1987) (holding unconstitutional a roadblock
purportedly established to check for licenses and registrations which
was in fact established for general law enforcement purposes).
The first interest described by Judge Huhn is "to control traffic
congestion associated with open-air drug markets such as cars double
and triple parked and a large number of pedestrians moving through the
neighborhood." While the government may well have a substantial interest
in reducing traffic congestion which
involves more than general law enforcement, we are unable to conclude
that the Taylor roadblock advanced this interest. Although police officers
testified that the traffic congestion was alleviated during the roadblock's
operation, this effect seems most plausibly accounted for by the highly
visible police presence during the roadblock.13
Indeed, to the extent the roadblock itself had an effect separate from
the police presence, it could only have increased the traffic
congestion. See Commonwealth v. McGeoghegan, _____ Mass.
____, ____, 449 N.E.2d 349, 353 (1983) (commenting that vehicles
were backed up two-thirds of a mile at a sobriety checkpoint). Finally,
the arrest records from the roadblock do not indicate any arrests
or tickets for offenses that relate to traffic congestion. Thus, there
is "no empirical evidenee [which] indicate[s] that [the
Taylor roadblock] would be an effective means" of alleviating traffic
congestion. Sitz, supra, 110
S. Ct. at 2487 (referring to Delaware v. Prouse, emphasis in
original). If the principal interest behind the Taylor roadblock was
to solve problems of traffic congestion, we would therefore conclude
that the roadblock violated the Fourth Amendment . 14
The other government purpose to which the trial judge referred, however,
is to check for expected problems of "motorists operating without
permits, operating after revocation and operating with impaired ability
to drive." This purpose, as the Supreme Court has made clear, is substantial
and legitimate. See Delaware
v. Prouse, supra, 440 U.S. at
658 ("the States have a vital interest in ensuring that only those
qualified to do so are permitted to operate motor vehicles [and] that
these vehicles are fit for safe operation"). Although the Supreme Court
has not yet upheld the consuitutionality of roadblock stops for the
purpose of checking licenses and registrations, dictum in Delaware
v. Prouse suggests that such roadblocks would be constitutional.
See id. at 663 ("Questioning of all on-coming traffic at
roadblock-type stops is one possible alternative" not precluded by the
opinion). The lower federal and state courts have generally upheld such
roadblocks. See, e.g., United Slates v. Corral, 823 F.2d 1389,
1392 (10th Cir. 1987), cerl. denied, 108 S. Ct. 2820 (1988);
United States v. Miller, 608 F.2d 1089, 1093 (5th Cir. 1979),
cert. denied, 447 U.S. 926 (1980); Smith v. State, 515
So. 2d 149, 152 (Ala. Crim. App. 1987); People v. Meitz, 95
Ill. App. 3d 1033, ____,420N.E.2d 1119,1123(1981); State v. Cloukey,
486 A.2d 143, 146-47 (Me. 1985); Miller v. State, 373 So.2d
1004, 1005 (Miss. 1979); State v. Shankle, 58 Or. App. 134, ____,
647 P.2d 959, 961-62 (1982).15
Furthermore, the arrest rates for the Taylor roadblock indicate that
it was sufficiently productive of the licensing and registration interest.
Sergeant Canty testified that forty-two cars were stopped at the Taylor
roadblock over the ninety minute period, and two arrests were made for
un authorized use of an automobile (namely, appellant Taylor and his
passenger), meaning that arrests occurred involving approximately 2.4
percent of the stopped vehicles. This would appear to satisfy the requirement
that there be something more than "a complete absence of data"
indicating effectiveness. Sitz, supra, 110 S. Ct. at 2487 (holding
that sobriety checkpoints at which "approximately 1.5 percent of
the drivers passing through the checkpoint were arrested" were sufficiently
productive); Delaware v. Prouse,
supra, 440 U.S. at 659 (requiring "some" empirical evidence);
McFayden, supra, 275 U.S. App. D.C. at 214. 865 F.2d at 1313.
Finally, the evidence supports the trial judge's findings that the
roadblock was established in accordance with supervisory guidelines
that removed discretion from the field officer and that the roadblock
was readily visible. While prominent signposts appear more in line with
what was contemplated by the police department guidelines, Operation
Clean Sweep Manual, Pt. 1 (B)(3), in view of the evidence before Judge
Huhn about the publicity in the Fourth District regarding roadblocks
and the judge's finding regarding the roadblock's visibility, we are
satisfied that the minimum notice requirement was met. Nor was Taylor
detained at the roadblock for an impermissibly long period of time.16
Thus, under Brown v. Texas,
the roadblock may not have been impermissibly intrusive of individual
liberty. If the principal purpose of the roadblock were to check drivers'
licenses and vehicle registration, we would conclude that the roadblock
was constitutional. Accordingly, we remand the record in appellant Taylor's
case for further findings as to whether the principal purpose of the
roadblock was to check driver's licenses and automobile registration
or to alleviate neighborhood traffic congestion.
The judgments of conviction of appellant Galberth are reversed. The
record in appellant Taylor's case is remanded for further findings.
So ordered.
Footnotes:
1 Appellant
Galberth pleaded guilty to carrying a pistol without a license, D.C.
Code § 22-3204 (1989), possession of an unregistered firearm,
id. 6-2311, and unlawful possession of ammunition, id. §
6-2361. Appellant Taylor was found guilty, following a stipulated
trial, of first-degree theft, id. §§ 22-3811, 3812
(a), and unauthorized use of a vehicle, id. § 22-3815.
We agree with appellant Taylor that his convictions
for unauthor ized use of a vehicle and first-degree theft merge. Contrary
to the government's contention, we are bound by a long line of cases
begin ning with Arnold v. United States, 467 A.2d 136 (D.C.
1983), which hold that a conviction for unauthorized use of a motor
vehicle merges with a conviction for theft of the same car. See
Kirk v. United States, 510 A.2d 499 (D.C. 1986); Garris v.
United States, 491 A.2d 511 (D.C.1985); Arnold, supra. The
government argues that the analysis of several United States Supreme
Court cases, Garrett v. United States, 471 U.S. 773, 778-79
(1985), Albernaz v. United States, 450 U.S. 333, 344 (1981),
and Whalen v. United States, 445 U.S. 684, 688-89(1980), requires
us to reject Arnold. None of these decisions is controlling,
however. "[T]he question of what punishments are constitutionally
per missible is not different from the question of what punishments
the Legislative Branch intended to impose." Albernaz, supra, 450
U.S. at 344. Arnold effectively held that the legislature did
not intend to punish someone for unauthorized use and theft of the
same car. See Arnold, supra, 467 A.2d at 139. Even if, as the
government contends, Arnold relied on a mistaken analysis,
we are bound by the prior decision in the absence of a change in governing
law. MAP. v. Ryan, 285 A.2d 310 (D.C. 1971). See Byrd v.
United States, No. 89-804 (D.C. Jun. 28, 1990) (petition for rehearing
en banc granted) (whether Arnold and its progeny are inconsistent
with Supreme Court decisions).
2
The guidelines also advise police officers to hand out cards to
stopped motorists, explaining the procedures involved in the roadblock.
O'Donnell had ordered these cards, but they were out of stock and
could not be obtained in time for the roadblock.
3 A special
system was set up in the Fourth District station whereby one person
performed the WALES checks on a dedicated channel, thereby reducing
the time required to make the check.
4 Canty
testified that no arrests were made at 14th and Allison during the
roadblock that had concluded at 9:00 p.m., just before the second
roadblock at 14th and Quincy was set up.
5 The Fourth
Amendment provides:
The right of the people to be secure in their persons, houses, papers
and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and persons or things to be seized.
U.S. CONST. amend. IV.
6 In Brignoni-Ponce,
involving traffic stops to inquire about resident status, the
Court held that some showing of a reasonable suspicion that a vehicle
contained illegal aliens was required before a stop would be permissible,
notwithstanding the modest nature of the intrusion. 422 U.S. at 881.
7 Under
the guidelines all vehicles were stopped their drivers briefly examined
for signs of intoxication, and where he officer detected such signs,
the motorist would be directed to a location out of the flow of traffic
where the officer would check the driver's license and registration,
and if warranted conduct further sobriety checks. Sitz,
supra, at 2484.
8 This
balancing test originated in Camara
v. Municipal Court, 387 U.S. 523 (1967).
9 We cannot
agree with the government's contention that Judge Dixon found that
the "violence, drugs and guns" purpose was intertwined" with
the traffic justification" for the roadblock. the judge was "not
overwhelmed with the idea of traffic problems"" near the roadblock.
and in no way indicated that such problems were a purpose for the
roadblock: quite the contrary, as he found that traffic alone would
not have caused the police to set up the roadblock.
10 Although
the Supreme Court has subsequently modified its state ment in Carroll
that vehicles on public highways have "a right to free passage
without interruption" that cannot be violated absent probable cause,
267 U.S. at 154, the passage quoted in the text retains vitality.
See United States v. Ramsey, 431 U.S. 606, 618 (1977) (quoting
Carroll, supra).
11
Indeed Assistant Chief Fulwood testified in the Taylor
case that although the roadblocks were primarily part of a traffic
enforcement program, there were certain other benefits including the
disruption of the open air drug markets as a result of the presence
of "10 to 12 police officers in uniform with marked cars and
flashlights and visibility jackets
12 Appellant
Taylor mistakenly contends that the purpose of the roadblock should
be treated as a question of law, reviewable de novo. The trial judge
observed several witnesses who testified about the "who, what,
where, when and how details of the" government's purpose, which characterize
questions of fact. Davis v. United States, 564 A.2d 31, 35
(D.C. 1989) ten bane). Of course, he question whether the government's
purpose satisfies the Brown
v. Texas test is reviewable de novo. See Sitz,
supra, 110 S. Ct. at 2485-86.
13 See
note 11, supra.
14
We need not decide whether a police roadblock which was shown
to alleviate traffic congestion could be constitutional.
15 Roadblocks
have been found unconstitutional under state constitutions, however
See, e.g., State v. Koppel, t27 N.H. 286, 499 A.2d 977
(1985); State v. Parms, 523 so. 2d 1293 (La. 1988); Commonwealth
v. Tarberi, 248 Pa. Super. 306, 502 A.2d 221 (1985); see
also Webb v. State, supra, 739 SW.2d 802 (relying on both
the Texas and federal constitutions ) .
16 The
instructions to the field officers who conducted the Taytor roadblock
catted for computer checks to be run on all of the vehicles that were
stopped. This may have been an impermissibly intrusive gcnerat practice.
See Sitz, supra, 110
S. Ct. at 2485 ("Detention of particular motorists for more extensivc
testing may require satisfaction of an individualized suspicion standard").
As the instructions for computer checks were applied to appellant
Taylor, however, who at the time he was stopped did not have a driver's
license, detention for the additional flve minutes required for the
expedited computer run was reasonable. Taylor's appeal therefore does
not raise the question whether the police may constitutionally runs
a computer check on a motorist who provides a valid license and registration
See Burrows v. Jackson, 346 U.S. 249. 255 (1953) (Ordinarily,
onc may not claim standing . . . to vindicate the constitutional rights
of some third party").
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