United States v. Bowman

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2006 Decided August 7, 2007

No. 05-3093

UNITED STATES OF AMERICA,
APPELLEE

v.

RANDOLPH BOWMAN,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 04cr00060-01)

Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Neil H. Jaffee, Assistant Federal
Public Defender, entered an appearance.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese, III, Lisa H. Schertler, and T. Anthony Quinn,
Assistant U.S. Attorneys.

Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Police officers arrested Randolph
Bowman at a license-and-registration roadblock after
discovering a loaded gun and twenty bags of crack cocaine on
his person. The government subsequently filed a criminal
complaint charging Bowman with violations of the firearms and
narcotics laws, but failed to indict him within thirty days as
required by the Speedy Trial Act. A magistrate judge dismissed
the complaint with prejudice, and thereafter a grand jury issued
an indictment charging Bowman with gun and drug crimes.

After the case was assigned to a federal district judge,
Bowman moved to dismiss the indictment on the ground that the
magistrate had previously dismissed the complaint with
prejudice. He also moved to suppress the gun and drugs on
Fourth Amendment grounds. The district court denied both
motions; Bowman then entered a conditional plea of guilty, and
he now appeals. We affirm the district court’s determination
that the magistrate improperly dismissed the complaint with
prejudice, and therefore also affirm the court’s denial of
Bowman’s motion to dismiss the indictment. But because there
are neither findings nor evidence sufficient to assess the
constitutionality of the roadblock, we remand the case to the
district court for an evidentiary hearing in accordance with our
decision in United States v. Davis, 270 F.3d 977 (D.C. Cir.
2001).

I

On January 3, 2004, Officer John Bevilacqua of the
Metropolitan Police Department (MPD) stopped Bowman’s red
Chevrolet Nova at a police roadblock at the intersection of
Stanton Road and Bruce Place in southeast Washington, D.C.
According to Bevilacqua’s later testimony, police set up the
 3

roadblock to check driver’s licenses and vehicle registrations.
The roadblock was marked by uniformed officers waving
flashlights and police cars with flashing overhead lights. It was
manned by approximately sixteen officers, stopped fifty to sixty
cars that night, and had been in operation for more than an hour
when officers stopped Bowman’s Nova.

As Bevilacqua approached the car, he noticed a 12-ounce
cup of “foamy,” “amber” liquid in Bowman’s lap. When the
officer asked Bowman for his license and registration, Bowman
attempted to conceal the cup and intentionally spilled out some
of the liquid. Believing that the cup contained beer, Bevilacqua
asked Bowman to get out of the car and to put his hands on the
roof.

To ensure that Bowman did not have a weapon, Bevilacqua
attempted to pat down Bowman’s midsection. As Bevilacqua
began the pat-down, Bowman brought his elbows down and
moved his hands in toward the center of his body. Bevilacqua
grabbed Bowman by the wrists, placed his hands back on top of
the car, and told him to leave them there. The officer again
attempted to pat down Bowman’s midsection, and Bowman
again brought his hands down, moving them toward his waist.
A struggle ensued, and both men ended up on the ground. As
they struggled, Bowman’s sweater came up in the front,
revealing a handgun in his waistband. Bowman was eventually
restrained and searched. In addition to the gun, the police found
a clear ziplock bag containing twenty smaller bags of crack
cocaine.

On January 5, 2004, two days after the arrest, the
government filed a criminal complaint, charging Bowman with
possession with intent to distribute cocaine base and possession
of a firearm and ammunition by a convicted felon. On February
6, Bowman’s appointed counsel filed a motion to dismiss the
 4

complaint with prejudice, on the ground that the government had
failed to file an indictment within thirty days of the arrest, as
required by the Speedy Trial Act, 18 U.S.C. §§ 3161(b),
3162(a)(1). A magistrate judge signed the order that day.

On February 10, unaware that the magistrate had dismissed
the complaint with prejudice, the government obtained an
indictment from the grand jury. The indictment charged
Bowman with possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1);
possession with intent to distribute cocaine base, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C); and using, carrying, and
possessing a firearm during a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1). At a status conference held
by a district court judge on February 27, Bowman’s newly
retained trial counsel, likewise unaware of the dismissal with
prejudice, orally moved to dismiss the indictment on the ground
that Bowman had not been indicted within thirty days of his
arrest. On March 16, the government informed the district court
that the magistrate had dismissed the complaint with prejudice,
and the court directed the parties to brief the effect of the
dismissal.

At a motions hearing on March 19, Bowman argued that the
dismissal of the original complaint with prejudice barred further
prosecution, and that, as a result, the court should dismiss the
indictment. On March 31, the district court denied the motion
on two grounds, holding that: (1) under the relevant provision of
the Federal Magistrate’s Act, 28 U.S.C. § 636(b)(1)(A), the
magistrate judge did not have authority to dismiss the complaint
with prejudice; and (2) even if the magistrate did have that
authority, the dismissal order was erroneous as a matter of law
because it should have been made without prejudice. See United
States v. Bowman, No. 04-060, Mem. Op. at 4-10 (D.D.C. Mar.
31, 2004).
 5

Bowman subsequently moved to suppress the gun and
narcotics, arguing that they were obtained in violation of the
Fourth Amendment. The district court denied this motion as
well, finding that the roadblock was conducted for a legitimate
purpose and that Bevilacqua had a reasonable basis for detaining
Bowman and conducting a limited pat-down.

On January 31, 2005, after losing his motion to suppress,
Bowman entered a conditional plea of guilty to one count of
possession of a firearm by a convicted felon. Bowman’s plea
reserved the right to appeal the denial of his motions to dismiss
the indictment and to suppress evidence.

II

We begin with Bowman’s challenge to the district court’s
denial of his motion to dismiss the indictment.

The Speedy Trial Act provides that an indictment must be
filed “within thirty days from the date on which [an] individual
was arrested.” 18 U.S.C. § 3161(b). If no indictment is filed
within that time limit, the charges contained in the complaint
“shall be dismissed.” Id. § 3162(a)(1). The court may dismiss
the complaint with or without prejudice. See id. Although the
Act “clearly allows reprosecution after dismissal without
prejudice for violations of the Act,” prosecution on the same
charge is barred after dismissal with prejudice. United States v.
Bittle, 699 F.2d 1201, 1206 (D.C. Cir. 1983); see White v.
United States, 377 F.2d 948, 949 (D.C. Cir. 1967). In this case,
the magistrate dismissed the complaint with prejudice.

As noted above, the district court denied Bowman’s motion
to dismiss the indictment for two reasons. First, citing a
provision of the Federal Magistrate’s Act concerning the powers
of magistrate judges, the court held that the magistrate lacked
 6

authority to dismiss a felony complaint with prejudice. See
Mem. Op. at 4-6; see also 28 U.S.C. § 636(b)(1)(A)
(“Notwithstanding any provision of law to the contrary[,] . . . a
judge may designate a magistrate judge to hear and determine
any pretrial matter pending before the court, except a motion .
. . to dismiss or quash an indictment or information made by the
defendant, . . . and [a motion] to involuntarily dismiss an
action.”). “Because the [magistrate’s] order purported to
dismiss the criminal complaint against the defendant with
prejudice,” the court held, “it was outside the authority of the
magistrate judge and was legally invalid.” Mem. Op. at 7.

Bowman vigorously disputes the district court’s holding
that magistrate judges lack the power to dismiss felony
complaints with prejudice. In support, he cites the Speedy Trial
Act, which permits a “court” to dismiss a complaint with or
without prejudice. 18 U.S.C. § 3162(a)(1). The Act does not
define the term “court,” although it does define “judge” as “any
United States magistrate [or] Federal district judge.” Id. §
3172(1). Bowman also cites Federal Rule of Criminal
Procedure 48(b), which permits a “court” to dismiss a complaint
if “unnecessary delay occurs in . . . presenting a charge to a
grand jury.” FED. R. CRIM. P. 48(b). The Federal Rules define
“court” as “a federal judge performing functions authorized by
law,” and define “federal judge” to include a magistrate judge.
FED. R. CRIM. P. 1(b)(2), (3).

We need not resolve the underlying authority of the
magistrate judge in order to decide this case, because we agree
with the district court’s second reason for denying the motion to
dismiss the indictment. “Even had the magistrate judge the legal
authority to dismiss the complaint with prejudice, the dismissal
order here cannot be sustained.” Mem. Op. at 7.
 7

The Speedy Trial Act instructs as follows: “In determining
whether to dismiss the case with or without prejudice, the court
shall consider, among others, each of the following factors: the
seriousness of the offense; the facts and circumstances of the
case which led to the dismissal; and the impact of a
reprosecution on the administration of [the Act] and on the
administration of justice.” 18 U.S.C. § 3162(a)(1); see id. §
3162(a)(2). In United States v. Taylor, the Supreme Court held
that it “is plain from this language [that district] courts are not
free simply to exercise their equitable powers in fashioning an
appropriate remedy, but, in order to proceed under the Act, must
consider at least the three specified factors.” 487 U.S. 326, 333
(1988). Moreover, “the administration of the Speedy Trial Act
and the necessity for thorough appellate review require that a
district court carefully express its decision whether or not to bar
reprosecution in terms of the guidelines specified by Congress.”
Id. at 343 (emphasis added). A court’s failure to “explain” how
it applied those factors constitutes an abuse of discretion. Id.

There is no real dispute that the magistrate failed to comply
with Taylor’s requirement that he “carefully express” and
“explain” his decision in terms of the congressionally mandated
factors. The magistrate signed the appellant’s proposed order to
dismiss with prejudice on the day it was filed, without informing
the prosecutor, holding a hearing, or explaining his reasoning.
The district court was clearly correct in concluding that,
“[u]nder United States v. Taylor, such a bare dismissal was an
abuse of discretion and must be reversed.” Mem. Op. at 8.

Having reversed the magistrate’s order, the district court
proceeded as if there had been no prior determination as to
whether the dismissal was with or without prejudice. In United
States v. Bittle, we held that, “[w]hen a complaint is dismissed
after the thirty-day period for indictment [under the Speedy Trial
Act] has elapsed, and there is no determination whether the
 8

dismissal is with or without prejudice, a subsequently filed
indictment should be dismissed only if the complaint should
have been dismissed with prejudice.” 699 F.2d at 1207. For the
following reasons, the court concluded that the complaint should
have been dismissed without prejudice:

The offenses charged are quite serious and suggest that
the defendant may have a significant role in the plague
of guns and drugs that daily injures the people of
Washington, D.C. The circumstances that led to the
dismissal do not indicate any bad faith or lack of
attention by the United States; an indictment was
promptly obtained four days later. It also appears
probable that the magistrate judge inadvertently
dismissed the complaint with prejudice, believing that
the [prosecutor] concurred with the proposed order.
Reprosecution would not offend the Speedy Trial Act
because the time delay was minimal and no prejudice
to the defendant has occurred. On the other hand, the
administration of justice would be negatively impacted
were reprosecution prohibited. The community is
entitled to a resolution of the charges against the
defendant and, if the charges are proved to a jury’s
satisfaction beyond a reasonable doubt, to protection
from him.

Mem. Op. at 9 (footnote omitted). In light of these
considerations, we have no doubt that “the district court properly
exercised its discretion in determining that the complaint should
have been dismissed without prejudice.” Bittle, 699 F.2d at
1202.

Bowman next contends that, regardless of whether the
magistrate judge erred in dismissing the complaint with
prejudice, the district judge was without authority to reverse that
 9

order. Bowman argues, first, that only the chief judge of the
district court had the power to overturn the magistrate judge’s
decision to dismiss the complaint. In support, he turns to Local
Rule 57.14(7), which states that the chief judge “shall . . . hear
and determine requests for review of rulings by magistrate
judges in criminal cases not already assigned to a judge of the
Court,” D.D.C. CRIM. R. 57.14(7), and to Local Rule
57.10(a)(2), which states that a criminal case is not assigned to
a district court judge until an indictment or information is filed,
see id. at 57.10(a)(2). We have never held that a violation of
this kind of local court rule can invalidate an indictment. Cf.
United States v. Osum, 943 F.2d 1394, 1401 n.3 (5th Cir. 1991)
(“It is generally stated that local rules governing the assignment
of cases are intended to promote efficient operation of the
district courts and do not normally give defendants vested rights
to any particular procedure.”); United States v. Berberian, 851
F.2d 236, 240 (9th Cir. 1988) (same); Sinito v. United States,
750 F.2d 512, 515-16 (6th Cir. 1984) (same). And in any event,
by its own terms, Local Rule 57.14(7) does not apply once a
defendant has been indicted and the case assigned to a district
judge, as was true here. At the time the district judge reviewed
the magistrate judge’s order, the case had been “assigned to”
that district judge. D.D.C. CRIM. R. 57.14(7).

Relatedly, Bowman argues that the government sought
district court relief too late -- that it should have appealed within
ten days of the magistrate’s order, at which time (pre-
indictment) an appeal could only have gone to the chief judge.
In support of this argument, Bowman points to Federal Rule of
Criminal Procedure 58(g)(2)(A), which states that “[e]ither party
may appeal an order of a magistrate judge to a district judge
within 10 days of its entry if a district judge’s order could
similarly be appealed.” FED. R. CRIM. P. 58(g)(2)(A). The
problem with this argument is that Rule 58, which is entitled
“Petty Offenses and Other Misdemeanors,” applies only “in
 10

petty offense and other misdemeanor cases and on appeal to a
district judge in a case tried by a magistrate judge.” FED. R.
CRIM. P. 58(a). The magistrate’s dismissal of a felony
complaint does not fit within any of these categories. See 3B
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 913 (3d ed. 2007). And the defendant cites no
other rule or statute limiting the time period for seeking review
of a magistrate’s dismissal of a criminal complaint.1

In sum, even if the magistrate judge had authority to dismiss
the criminal complaint with prejudice, nothing barred the district
court from reviewing that dismissal. Concluding that the district
court properly determined that the complaint should have been
dismissed without prejudice, we affirm its denial of Bowman’s
motion to dismiss the subsequent indictment. See Bittle, 699
F.2d at 1202.

III

We next consider Bowman’s challenge to the district
court’s denial of his motion to suppress evidence. In denying
that motion, the court made two determinations. First, the court
held that the stop of Bowman at the roadblock was

1
Federal Rule of Criminal Procedure 59(b) provides that,
“[w]ithin 10 days after being served with a copy of [a magistrate’s]
recommended disposition, or at some other time the court sets, a party
may serve and file specific written objections to the proposed findings
and recommendations.” FED. R. CRIM. P. 59(b)(2). The Rule applies
to a magistrate’s “recommendation” regarding certain kinds of
dispositive matters “refer[red] to” the magistrate by a district judge.
FED. R. CRIM. P. 59(b)(1). Although the parties debate whether the
rule would apply to a case like this, they agree that it does not apply
to this case because it did not go into effect until December 1, 2005 --
well after the magistrate dismissed the complaint against Bowman.
See FED. R. CRIM. P. 59.
 11

constitutional, finding that “there’s no evidence to counter the
government’s evidence that the primary purpose of this
particular checkpoint was to check for licenses and registration,”
Hr’g Tr. 47 (May 20, 2004), and that “the way the checkpoint
was conducted resulted in minimal intrusion for citizens,” id. at
46. Second, the court held that, following the roadblock stop,
Bevilacqua had a reasonable basis under Terry v. Ohio, 392 U.S.
1 (1968), to detain Bowman and to conduct a limited pat-down
of his torso. Hr’g Tr. 49-50. Bowman challenges both
determinations. Because we conclude that a remand is required
to assess the constitutionality of the stop at the roadblock, we do
not reach Bowman’s second challenge.

A

“A search or seizure is ordinarily unreasonable in the
absence of individualized suspicion of wrongdoing.” City of
Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). As noted in
Edmond, however, the Supreme Court has recognized “limited
circumstances in which the usual rule does not apply.” Id. With
respect to roadblocks, the Court has “upheld brief, suspicionless
seizures of motorists at a fixed Border Patrol checkpoint
designed to intercept illegal aliens, and at a sobriety checkpoint
aimed at removing drunk drivers from the road.” Id. (citations
omitted); see Michigan Dep’t. of State Police v. Sitz, 496 U.S.
444, 455 (1990); United States v. Martinez-Fuerte, 428 U.S.
543, 566-67 (1976). “In addition,” the Court has “suggested that
a similar type of roadblock with the purpose of verifying
drivers’ licenses and vehicle registrations would be
permissible.” Edmond, 531 U.S. at 37-38 (citing Delaware v.
Prouse, 440 U.S. 648, 663 (1979)); see also Texas v. Brown, 460
U.S. 730, 739 (1983). Taking the Court’s suggestion, this
circuit has twice held that a roadblock is constitutionally
permissible where its principal purpose is “‘to regulate vehicular
traffic by allowing police to check driver’[s] licenses and
 12

vehicle registrations.’” Davis, 270 F.3d at 980 (quoting United
States v. McFayden, 865 F.2d 1306, 1312 (D.C. Cir. 1989)).
Where, however, “the ‘primary purpose’ of a roadblock is
general crime control” or the “‘interdiction of illegal narcotics’”
-- as in Edmond -- “it is unconstitutional.” Id. at 979 (quoting
Edmond, 531 U.S. at 38, 41, 42, 44, 46, 47, 48).

In United States v. McFayden, we held that three factors
must be present for license-and-registration checkpoints to pass
constitutional scrutiny. First, the principal purpose of such
checkpoints must be vehicular regulation. See 865 F.2d at 1311-
12. Second, “the checkpoints must serve to promote that
purpose in a ‘sufficiently productive’ fashion.” Id. (quoting
Prouse, 440 U.S. at 659). Third, “the checkpoints must be
minimally intrusive: (1) they must be clearly visible; (2) they
must be part of some systematic procedure that strictly limits the
discretionary authority of police officers; and (3) they must
detain drivers no longer than is reasonably necessary to
accomplish the purpose of checking a license and registration,
unless other facts come to light creating a reasonable suspicion
of criminal activity.” Id. at 1312 (citing Prouse, 440 U.S. at
662; Martinez-Fuerte, 428 U.S. at 558-59; Brown v. Texas, 443
U.S. 47, 51 (1979)).

We found all three factors satisfied by the roadblock at
issue in McFayden. In that case, officers discovered narcotics
in a car that they stopped at a checkpoint established as part of
the MPD’s “Operation Cleansweep.” First, although Operation
Cleansweep attacked the problem of drug dealing in the District,
the testimony of the Deputy and Assistant Chiefs of Police and
of the Operation’s supervisors persuaded the court that the
roadblocks themselves were set up to control traffic congestion.
“The evidence in this case amply demonstrates,” we said, “that
the principal purpose of the roadblock was to regulate vehicular
traffic. . . . The fact that there may have been a ‘halo’ or ‘spin-
 13

off’ effect of deterring drug sellers and buyers . . . did not make
an otherwise legitimate checkpoint unlawful.” Id. Second,
citing data reflecting the number of traffic arrests at the
checkpoints, we concluded that the evidence established “the
effectiveness of the roadblocks for the stated purpose.” Id. at
1313. Finally, we found “that the operation of the roadblock
observed the Fourth Amendment standard of minimal
interference with individual liberty.” Id. The roadblocks were
clearly marked by flares and uniformed police officers, see id.;
“field officers were specifically instructed to check licenses and
registrations of all the cars” and hence did not have
“‘standardless and unconstrained discretion,’” id. (quoting
Prouse, 440 U.S. at 661); and the drivers were not detained once
they produced valid documents, unless other facts created
reasonable suspicion of criminal activity, see id.

Like McFayden, United States v. Davis involved the
discovery of narcotics during a stop at a traffic roadblock.
Unlike McFayden, however, in Davis we concluded that the
findings and evidence in support of the roadblock’s
constitutionality were insufficient in two respects.

First, the district court’s finding that the roadblock was
conducted for the principal purpose of vehicular traffic
regulation rested “on the testimony of the government’s sole
witness,” a police sergeant who was in charge of the specific
roadblock at issue. Davis, 270 F.3d at 981. The officer had
testified that he “chose the neighborhood for a ‘safety
compliance check,’” that he “briefed the other officers ‘on safety
concerns,’” that he “gave no instructions ‘about looking for
narcotics or firearms,’ and [that] he was not aware that any of
the officers at the scene were instructed about matters ‘unrelated
to vehicle safety.’” Id. But the specific roadblock that stopped
defendant Davis had been set up as part of the MPD’s “Summer
Mobile Force,” and “[a]ccording to a police manual, the
 14

Summer Mobile Force initiative had as its overall objective ‘to
restore the public’s confidence in the [MPD] through the
reduction and prevention of crime and violence by utilizing
short-term, pro-active, high visibility enforcement techniques.’”
Id. Yet, in “determining the principal purpose of the safety
checkpoint . . . , the district court made no findings about the
Summer Mobile Force.” Id. This was an important defect, we
said, because “Edmond held that ‘programmatic purposes may
be relevant to the validity of Fourth Amendment intrusions
undertaken pursuant to a general scheme without individualized
suspicion.’” Id. (quoting Edmond, 531 U.S. at 45-46). “Since
the district court . . . [did] not appear to have taken these
‘programmatic purposes’ into account,” we concluded that “we
must send the case back for further proceedings.” Id. at 981.

Second, we found the district court’s determination
deficient with respect to McFayden’s requirement that a
checkpoint “‘promote the state interest in a “sufficiently
productive” fashion.’” Id. at 982 (quoting McFayden, 865 F.2d
at 1311-12 (quoting Prouse, 440 U.S. at 660)). Although we
noted that “[t]he effectiveness” or expected effectiveness “of the
checkpoint in fulfilling its primary purpose may be
demonstrated” in a variety of ways (including but not limited to
statistical evidence), the Davis record contained no evidence
regarding efficacy at all. Id. Accordingly, we directed that, “if
the district court concludes on remand that the primary purpose
of the checkpoint related to vehicular regulation,” then it should
go on to determine “whether the checkpoint furthered that
purpose.” Id. at 983.

B

This case is governed by our disposition in Davis. First, as
in Davis, the sole evidence to support the district court’s finding
that the principal purpose of the roadblock was to check for
 15

licenses and registrations was testimony to that effect by a single
field officer, Officer Bevilacqua. Also as in Davis, the
testimony established that this particular roadblock was part of
a larger program. Bevilacqua testified that he was a member of
a task force, the “Seventh District High Impact Tactical Team.”
The Team conducted between forty and fifty roadblocks that
year, including the one that stopped Bowman. See Hr’g Tr. 11.
And while Bevilacqua testified that the instant roadblock was
conducted for license-and-registration compliance, he
acknowledged that the Team’s “general[]” responsibilities were
“combatting crime in the Seventh District[,] . . . [p]rimarily the
retrieval of narcotic[s] and guns from the streets. Id. at 10. Yet,
as in Davis, the district court does not appear to have taken these
responsibilities into account in concluding that there was “no
evidence to counter the government’s” description of the
roadblock’s primary purpose. Id. at 47 (emphasis added).
Moreover, again as in Davis, there was no evidence, and the
court made no findings, about the programmatic purpose behind
the series of roadblocks of which this one was only a part. See
Hr’g Tr. at 47 (finding the principal purpose “of this particular
checkpoint”); cf. McFayden, 865 F.2d at 1312-13 (upholding a
roadblock where the Deputy and Assistant Chiefs of Police, and
the supervisors of the overall operation, testified that the purpose
of the roadblock program was traffic control).

Indeed, if anything, the evidence of purpose here was
weaker than that found insufficient in Davis. In Davis, the
testifying officer was the sergeant in charge of the roadblock
that stopped the defendant. He testified about his reasons for
selecting the site, including traffic complaints from community
members and incidents of criminal activity, and also testified as
to the instructions he issued to the officers conducting the
roadblock. See 270 F.3d at 981. In this case, by contrast, the
testifying officer was merely one member of a team of
approximately sixteen officers who conducted the roadblock.
 16

As the district court noted, Bevilacqua’s testimony was simply
“that the officers were directed that the purpose of the
checkpoint was to check for licenses.” Hr’g Tr. 45. When
asked whether checking driver’s licenses was the only purpose,
he could only say that “[t]hat’s what I was directed by my
official.” And regarding the programmatic purpose of the forty
to fifty roadblocks that his team had conducted over the course
of the year, all he could say was: “Upon occasion we were
directed, and I don’t know how high, I can only tell you what
my officials tell me, that we are to be looking for driver’s
license[s] in a traffic safety checkpoint.” Id. at 24.

Second, as in Davis, the district court made no finding that
either the roadblock, or the program as a whole, was an effective
means of furthering the purpose of vehicular regulation. Nor
was there any evidence that would have permitted the court to
make such a finding. Cf. Sitz, 496 U.S. at 454-55 (upholding a
sobriety checkpoint where the record demonstrated the
effectiveness of the checkpoint in yielding drunk-driving
arrests).

Third, there remains the question of whether the checkpoint
was “minimally intrusive.” McFayden, 865 F.2d at 1312. We
did not expressly address this factor in Davis, although we did
note that the checkpoint there was lined by safety flares and
marked police cars, and that all vehicles approaching the
roadblock were stopped. See 270 F.3d at 978-79. Based on
Bevilacqua’s testimony, the district court found similar facts to
be true here as well: the roadblock was clearly visible, “every
car was stopped[,] . . . [a]nd . . . there was no discretion among
the officers as to whether to stop the cars.” Hr’g Tr. 45. The
court also found that drivers who had licenses and registrations
were immediately released from the checkpoint. See id.
 17

Bowman does not dispute these findings, but notes that the
court made no findings as to “whether [the officers] had
discretion in the choice of location and time” for the roadblock,
Appellant’s Br. 22, and whether they conducted the roadblock
pursuant to a “set of guidelines” or “standards,” id. at 21.
Although these considerations are relevant to ensuring against
the kind of random, roving stops disapproved in Delaware v.
Prouse, 440 U.S. at 656-58, they are of less relevance with
respect to a roadblock that lasted more than an hour, that
stopped fifty to sixty cars, and at which the officers were
instructed “that every car was to be stopped,” Hr’g Tr. 16
(emphasis added). These circumstances may themselves
constitute a “systematic procedure that strictly limits the
discretionary authority of police officers.” McFayden, 865 F.2d
at 1312; cf. Prouse, 440 U.S. at 659, 663 (holding that a
standardless, “discretionary spot check” to examine a license
and registration was unconstitutional, but noting that this
holding would not preclude the “[q]uestioning of all oncoming
traffic at roadblock-type stops”). Nonetheless, because
McFayden did consider evidence regarding both the siting of a
roadblock and the plan pursuant to which it was conducted
(without indicating the relative importance of that evidence as
compared to the fact that all passing cars were stopped), see 865
F.2d at 1313, and because we are directing a remand on the
roadblock issue in any event, it would be beneficial for the
district court to make findings on this question as well.

C

For the foregoing reasons, we conclude that a remand is
required for further evidentiary proceedings and factual findings
pursuant to United States v. Davis. Indeed, that conclusion is so
manifest that, although the defendant and the government would
each prefer an outright victory, the briefs of both proposed such
a remand as an alternative disposition. See Appellant’s Br. 26;
 18

Appellee’s Br. 45. At oral argument, both repeated the view that
a remand would be appropriate. See Oral Arg. Recording at
8:41, 31:38. Finally, having concluded that we must remand on
the question of the lawfulness of the roadblock stop, we need not
and do not reach Bowman’s second argument, that the stop and
frisk that followed the roadblock were unlawful under Terry v.
Ohio.2

2
The government contends that, even if the roadblock and/or the
stop and frisk were unlawful, the denial of Bowman’s motion to
suppress should be upheld on the alternative ground that his physical
resistance to the pat-down “purged the taint of any prior illegality.”
Appellee’s Br. 37. The government also contends that the stop and
frisk could be upheld on the ground that it was actually a search
incident to arrest for a violation of the District’s “open container” law.
See id. at 46 n.31 (citing D.C. Code § 25-1001). The government’s
first contention was not raised below, and its second was not relied
upon by the district court. Although it is within our authority to
“affirm on grounds other than those presented and relied upon below,”
United States v. Lawson, 410 F.3d 735, 740 n.4 (2005), to do so in this
case and at this stage would unfairly deprive petitioner of an adequate
opportunity to respond. If the government chooses to pursue these
contentions on remand, Bowman will have an opportunity to cross-
examine witnesses and present evidence in opposition, and the district
court will have an opportunity to decide the issues in the first instance.
 19

IV

We affirm the district court’s judgment that the magistrate
judge improperly dismissed the complaint with prejudice, and
therefore affirm the court’s denial of Bowman’s motion to
dismiss the indictment. Because there are insufficient findings
and evidence from which to assess the constitutionality of the
roadblock, we remand the case to the district court for further
proceedings consistent with this opinion.

So ordered.