United States v. Davis, Mark Stephen

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2001 Decided November 16, 2001

No. 00-3050

United States of America,
Appellee

v.

Mark Stephen Davis,
Appellant

Appeal from the United States District Court
for the District of Columbia
(99cr00204-01)

A.J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant. Gregory L. Poe, Assistant
Federal Public Defender, entered an appearance.

Catherine A. Szilagyi, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.

Lewis, U.S. Attorney at the time the brief was filed, and John
R. Fisher, Elizabeth Trosman and Neil H. MacBride, Assis-
tant U.S. Attorneys. Mary-Patrice Brown, Assistant U.S.
Attorney, entered an appearance.

Before: Randolph, Rogers, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: The police stopped Mark Davis
at a roadblock in 1999, arrested him for traffic offenses,
searched him and his automobile, and recovered evidence of
his drug dealing, for which the grand jury indicted him.
After the district court denied Davis's motion to suppress, he
entered a conditional plea of guilty to possession with intent
to distribute crack cocaine. The issue in Davis's appeal is
whether the roadblock complied with the Supreme Court's
interpretation of the Fourth Amendment to the Constitution
in City of Indianapolis v. Edmond, 531 U.S. 32 (2000),
decided after Davis had noted his appeal, and with United
States v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989), on which
the district court relied in denying the motion to suppress.

The roadblock had been set up as part of the Metropolitan
Police Department's "Summer Mobile Force." The evidence
at the suppression hearing consisted of the testimony of one
government witness--a sergeant assigned to this task force--
and a sheaf of internal police documents, submitted by the
defense, describing the Summer Mobile Force. The circum-
stances of Davis's stop and arrest at the roadblock need not
be recited in detail. The events occurred early in the evening
in a southwest D.C. neighborhood. Safety flares lined the
street. Forty to fifty officers and seven to ten marked police
cars were at the scene. All vehicles approaching the road-
block were stopped. Davis pulled over as directed when he
drove up to the checkpoint. The officers determined that the
car Davis was driving had a forged inspection sticker and that
the temporary registration Davis produced had been altered.
After the police arrested him for these and other traffic
violations, they discovered crack cocaine on his person and
drug paraphernalia in his car.

 The government and the defense agree that if the road-
block complied with the Fourth Amendment, the police acted
constitutionally in stopping Davis (a "seizure") and in arrest-
ing and searching him. The controversy centers on the
roadblock's "primary purpose," as the Supreme Court put it
in Edmond, 531 U.S. at 40-46, or its "principal purpose," as
we put it in McFayden, 865 F.2d at 1312.

The Supreme Court has derived a principle from the
Fourth Amendment: a search or seizure of a person must be
based on individualized suspicion of wrongdoing. E.g., Terry
v. Ohio, 392 U.S. 1 (1968); Delaware v. Prouse, 440 U.S. 648,
654-55 (1979); but see Brown v. Texas, 443 U.S. 47, 51 (1979).
As exceptions to this principle, the Court has upheld the
constitutionality of vehicle checkpoints near the border to
intercept illegal aliens (United States v. Martinez-Fuerte, 428
U.S. 543, 556 (1976)), and roadblocks aimed at apprehending
drunk drivers (Michigan Dep't of State Police v. Sitz, 496
U.S. 444, 450 (1990)). The Court has indicated that roadside
truck weigh-stations and roadblocks to check drivers' licenses
and vehicle registrations would also qualify as exceptions to
the general principle. Delaware v. Prouse, 440 U.S. at 663 &
n.26; Edmond, 531 U.S. at 39. Concerned that its exceptions
would swallow the principle of individualized suspicion, 531
U.S. at 46-47, the Court in Edmond laid down a line: "When
law enforcement authorities pursue primarily general crime
control purposes at checkpoints ... stops can only be justi-
fied by some quantum of individualized suspicion." Id. at 47.
Even if the police check licenses at the roadblock, their
stopping of vehicles would violate the Fourth Amendment
when the "primary purpose of the checkpoint program" is the
"discovery and interdiction of illegal narcotics." Id. at 46, 34.

To the statements from Edmond just quoted, the Court
added this qualifier in a footnote: "Because petitioners con-
cede that the primary purpose of the Indianapolis checkpoints
is narcotics detection, we need not decide whether the State
may establish a checkpoint program with the primary pur-
pose of checking licenses or driver sobriety and a secondary
purpose of interdicting narcotics." Id. at 47 n.2. The foot-
note seems divorced from the rest of the opinion. Through-

out the text the Court states again and again that when the
"primary purpose" of a roadblock is general crime control it is
unconstitutional. Id. at 38, 41, 42, 44, 46, 47, 48. This more
than suggests that if the "primary purpose" had been for a
purpose the Court had already endorsed--such as detecting
drunk drivers, or checking licenses--the roadblock would be
constitutional. The record in Edmond suggested that en-
forcement of the drug laws was not simply Indianapolis's
primary reason for establishing the checkpoint program, but
its only reason. A sign near each of the checkpoints an-
nounced: " 'NARCOTICS CHECKPOINT __ MILE
AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO
STOP.' " Id. at 35-36. If the city's only purpose was
narcotics enforcement, it is hard to explain why the Court
framed the inquiry in terms of its "primary" purpose, unless
the Court believed that it would be constitutional for a State
to "establish a checkpoint program with the primary purpose
of checking licenses or driver sobriety and a secondary pur-
pose of interdicting narcotics." Id. at 47 n.2.

In any event, the question left open by the Edmond
footnote has been answered by our decision in McFayden.
Police stopped the defendant in McFayden at a checkpoint
operated in the same manner as the one in this case. The
defendant, while retrieving his license or registration, took
actions that led the police to narcotics in his car. 865 F.2d at
1309. Although decided before Edmond, McFayden also
described the issue as whether "the principal purpose of the
roadblock was to regulate vehicular traffic by allowing police
to check drivers' licenses and vehicle registrations." Id. at
1312. The court answered yes and found the roadblock
constitutional on this ground, and because it satisfied several
other criteria, even though it "facilitated a narcotics enforce-
ment effort," id. at 1307. The checkpoint in McFayden was
part of "Operation Cleansweep," a program "designed to
attack the problem of drug dealing in D.C." Id. at 1308.
The police determined where to place roadblocks "on the
basis of community complaints about traffic and narcotics
problems"; citizens in the vicinity of the McFayden roadblock
complained about "speeding automobiles." Id. at 1308, 1312.

In general, "traffic congestion is one serious problem that
results from street drug sales in the District of Columbia."
Buyers stop illegally, double-park, make U-turns, speed and
disrupt the flow of traffic in the neighborhood. Id. at 1308,
1312. The roadblock in McFayden had a principal purpose of
controlling the traffic problems associated with drug dealing
and "[w]hatever advantage was gained in drug enforcement
was coincidental to the principal purpose of the traffic road-
blocks." Id. at 1313. While the McFayden court cautioned
(id. at 1312) that it might not sustain a roadblock if it were a
"subterfuge," "purportedly established to check licenses" but
"located and conducted in such a way as to indicate that its
principal purpose was the detection of crimes unrelated to
licensing," it rejected the proposition that a roadblock must
have as its sole purpose the checking of licenses and registra-
tions. See 4 Wayne R. LaFave, Search and Seizure s 10.8(a),
at 679-80 (3d ed. 1996), and the 2001 supplement thereto at
122-23.

Here the district court made several "essential findings" as
Rule 12(e), Fed. R. Crim. P., required. One of the court's
findings was: "The roadblock at issue was conducted in a
systematic and nondiscriminatory fashion, for the principal
purpose of vehicular regulation in conjunction with a police
program to increase police presence and to curb drug activi-
ty." Another was that "[t]here is no evidence of subterfuge
in this record." The court treated the purpose of the road-
block as a question of fact, as did the Supreme Court in
Edmond. 531 U.S. at 40-41. See also Ferguson v. City of
Charleston, 121 S. Ct. 1281, 1290-91 & n.20 (2001); Galberth
v. United States, 590 A.2d 990, 1000 n.12 (D.C. 1991). Factu-
al findings on suppression motions may be set aside only if
clearly erroneous, see, e.g., Ornelas v. United States, 517 U.S.
690, 699 (1996); United States v. Garrett, 959 F.2d 1005, 1007
(D.C. Cir. 1992); United States v. Magnum, 100 F.3d 164, 170
n.8 (D.C. Cir. 1996); United States v. Hill, 131 F.3d 1056,
1059 n.2 (D.C. Cir. 1997). As in civil cases, the clearly
erroneous standard applies to Rule 12(e) findings based not
only on testimony but also on documents. See Anderson v.
City of Bessemer City, 470 U.S. 564, 573-76 (1985); 9A

Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure s 2587 (2d ed. 1995).

The district court's findings rested, so far as we can tell, on
the testimony of the government's sole witness. This officer
said that before setting up the roadblock, the police received
information about "incidents" in the southwest neighborhood
where they arrested Davis. Community groups and church
"activists" complained about "speeding, children were unable
to play on the sidewalk, parents actually had their children
playing inside the yard because they were afraid a car might
go out of control or their kids might get hit or something."
After obtaining this information, and information about
"drugs, gun violence, robberies, [and] assaults," the officer
chose the neighborhood for a "safety compliance check." The
objective of "safety compliance checks" is not, the officer
testified, simply to stop speeding (as any roadblock doubtless
would), but also to detect "dead tags, dead inspection, no seat
belt, child restraint violations, various traffic violations we
would normally pull someone over in the car." The officer,
who was in charge of the roadblock, briefed the other officers
"on safety concerns." He gave no instructions "about looking
for narcotics or firearms," and he was not aware that any of
the officers at the scene were instructed about matters "unre-
lated to vehicle safety."

Regardless whether this evidence would have been suffi-
cient under McFayden--an exceedingly close question--it is
not sufficient under the Supreme Court's intervening decision
in Edmond. McFayden treated the overall program under
which the roadblock had been established as "immaterial."
865 F.2d at 1312. But Edmond held that "programmatic
purposes may be relevant to the validity of Fourth Amend-
ment intrusions undertaken pursuant to a general scheme
without individualized suspicion." 531 U.S. at 45-46. In
determining the principal purpose of the safety checkpoint in
this case, the district court made no findings about the
Summer Mobile Force. According to a police manual, the
Summer Mobile Force initiative had as its overall objective
"to restore the public's confidence in the Metropolitan Police
Department through the reduction and prevention of crime

and violence by utilizing short-term, pro-active, high visibility
enforcement techniques." Perhaps inspired by the experi-
ence of New York City, see George L. Kelling & Catherine
M. Coles, Fixing Broken Windows 108-56 (1996), the depart-
ment states that it "is committed to building safe, orderly,
and healthy neighborhoods throughout the District of Colum-
bia in partnership with our community." Among the tactical
approaches mentioned is a "highly trained and supervised
approach to proactive traffic enforcement," using among oth-
er things roadblocks, with the goal of reducing "the number
of traffic violations, accidents, and instances of aggressive
driving on our city streets. Remove the automobile as the
conveyance of choice by narcotics traffickers and individuals
secreting guns and stolen property in the District of Colum-
bia."

Since the district court, bound as it was by McFayden,
does not appear to have taken these "programmatic pur-
poses" into account, we must send the case back for further
proceedings in light of Edmond, 531 U.S. at 48, and the
Court's later opinion in Ferguson v. City of Charleston, 121 S.
Ct. at 1291, holding that all evidence must be considered. We
do not agree with defense counsel that after Edmond the
only thing the district court may consider on remand is the
general purposes of the overall program. The procedural
posture of Edmond--a suit for an injunction to prevent future
roadblocks for narcotics enforcement and a stipulated rec-
ord--led the Court to disregard the specific circumstances of
any one roadblock. Given the very broad objectives of the
Summer Mobile Force initiative, it would be impossible to
discern the purpose of a particular roadblock without deter-
mining the reasons behind it. The record needs clarification
in another respect. Although we know that citizens in the
neighborhood complained about speeding, it is not entirely
clear whether the only purpose of the police in establishing
the checkpoint was to deal with that problem. The objectives
of the citizens are not necessarily the objectives of the police.
It is also uncertain whether, as in McFayden, open air drug
dealing was causing the traffic problems in this neighborhood.
The government had the burden of proof, of course, see

United States v. Matlock, 415 U.S. 164, 177 n.14 (1974), but
the absence of such evidence may not be entirely its fault.
When the government tried to elicit information of this sort
on redirect, the defense objected. All that the government's
witness managed to get on the record was his opinion that
there is "[v]ery high traffic" in areas where there is drug
dealing, and his experience that people arrested for drug
offenses are more likely to have "unregistered automobiles,
altered tags, than a regular citizen." Missing is a link
between the sort of traffic problems mentioned in McFayden
and similar problems stemming from drug trafficking in the
neighborhood where the police located this checkpoint.

Several words of caution are in order. One must be careful
not to fall into the trap of thinking that any "but for" cause of
a roadblock represents its primary purpose within Edmond's
meaning. Whenever something is done for several reasons, it
might not have been done in the absence of any one of those
reasons. If there had not been drug dealing in the neighbor-
hood, the McFayden roadblock would not have been placed
there, yet its primary purpose dealt with vehicular safety.
The assumption underlying the search for the "primary pur-
pose" is that several purposes might have moved the police to
set up a particular roadblock. This is why finding the
primary or predominant purpose will often prove difficult, as
the Supreme Court acknowledged in Edmond. 531 U.S. at
46-47. It is also why findings of the district court, taking
into account all of the available evidence, are entitled to great
respect.

One further matter needs to be mentioned. McFayden
held that a checkpoint, in addition to having a legitimate
primary purpose, must also "promote the state interest in a
'sufficiently productive' fashion." 865 F.2d at 1311-12 (quot-
ing Delaware v. Prouse, 440 U.S. at 660). The defense
argues that the government failed to satisfy this element.
Although the evidence showed that the police issued citations
for 56 moving violations and 30 parking violations, and made
8 traffic arrests, "there was absolutely no evidence of how
many cars in total were stopped; thus there is no way of
knowing what percentage of the cars stopped were represent-

ed by the figures provided by the government." Brief for
Appellant at 24. Such statistical evidence is not, however,
essential. The effectiveness of the checkpoint in fulfilling its
primary purpose may be demonstrated in other ways. Mich-
igan Dep't of State Police v. Sitz, 496 U.S. at 454-55, a suit to
enjoin future sobriety checkpoints, found the State's program
sufficiently effective not only in light of checkpoint-specific
statistics, but also on the basis of expert testimony showing
the effectiveness of similar checkpoints in other States. And
in one of the consolidated criminal cases in Martinez-Fuerte
the Court refused to suppress the evidence and affirmed the
conviction despite the absence of any statistics revealing the
number of cars stopped at the border or the number of illegal
aliens arrested. 428 U.S. at 554, 567. "While it appears that
fewer illegal aliens are apprehended there" than at other
checkpoints, "it may be assumed that fewer pass by undetect-
ed, as every motorist is questioned." Id. at 554. To make
the legality of a seizure pursuant to a particular roadblock
wholly dependent on statistics gathered after the roadblock
ended would, in any event, run into the time-honored doctrine
that a search or seizure cannot be justified by its success,
Byars v. United States, 273 U.S. 28, 29 (1927)--or as it is
usually put, by what it turns up, e.g., United States v. Di Re,
332 U.S. 581, 595 (1948); Wong Sun v. United States, 371
U.S. 471, 484 (1963)--and would ignore that the deterrent
purpose of the exclusionary rule cannot be fulfilled unless the
police can determine ahead of time whether their operation of
a proposed checkpoint will be constitutional. In short, if the
district court concludes on remand that the primary purpose
of the checkpoint related to vehicular regulation, it may then
rely--as the Supreme Court did in Martinez-Fuerte--on non-
statistical evidence or other considerations in determining
whether the checkpoint furthered that purpose.

The case is remanded for further proceedings consistent
with this opinion.

So ordered.