REVISED JUNE 14, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50536
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMA LUCILLE GREEN
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
June 11, 2002
Before KING, Chief Judge, HIGGINBOTHAM and EMILIO M. GARZA, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Emma Lucille Green was stopped at a roadblock checkpoint on
Fort Sam Houston in San Antonio and found to be without license or
proof of insurance. She attempted to flee and military police
arrested her and impounded the car. Crack cocaine was found during
an inventory search of the car resulting in a charge of possession
with intent to distribute crack cocaine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii). Green entered a conditional plea
of guilty and now appeals the district court’s denial of her motion
to suppress the evidence found in her vehicle, alleging it is the
fruit of an unreasonable search in violation of the Fourth
Amendment.
I
In the late evening hours of February 11, 2000 and until the
early morning of February 12, 2000, at Fort Sam Houston in San
Antonio, Texas, military police operated a “Force Protection
Vehicle Checkpoint.” At this particular checkpoint, which was
administered in accordance with a standard operating procedure,
every sixth car traveling north on New Braunfels Avenue would be
stopped at its intersection with Hood Street and directed into an
adjacent parking lot. The checkpoint was marked by signs, cones,
and flares, and the military police operating the checkpoint were
in uniform.
Emma Lucille Green’s car was stopped as a sixth vehicle at the
checkpoint. Operating at all times in accordance with the standard
operating procedure, military police asked her for her driver’s
license and proof of insurance. Green’s inability to produce
either of these documents violated Texas law. The officers then
ran a criminal background check and license plate check on the car,
discovering that Green had no driver’s license and the car was not
hers. At this point the officers asked her to exit the car. Green
refused and attempted to flee. She was apprehended and arrested.
The car was impounded and, in a standard inventory search, officers
2
found the nine rocks of crack cocaine on the front seat in a
plastic bag.
Green moved to suppress the drug evidence as the fruit of an
unreasonable seizure in violation of the Fourth Amendment. Finding
that the checkpoint served national security purposes and was
reasonable, the district court denied her motion to suppress.
Green then pled guilty to the offense, reserving her right to
appeal. She was sentenced to 24 months of imprisonment followed by
a four-year term of supervised relief.
II
In an appeal from the denial of a motion to suppress, we
review questions of law de novo and factual findings of the
district court for clear error.1
A
We first make it plain that after determining the validity of
the programmatic purpose, the scope of our inquiry extends to only
what occurred when Green was stopped. It does not, despite Green’s
urging, extend to an abstract consideration of the scope of
searches of other vehicles.2 With a valid programmatic purpose,3
1
United States v. Valadez, 267 F.3d 395, 397 (5th Cir. 2001).
2
The standard operating procedure included, after presentation of license,
proof of insurance, and registration, informing the driver that they had
impliedly consented to a search, and proceeding to inspect the interior of the
vehicle, including any locked compartments or packages, the engine, and trunk
areas. If a particular area could not be searched, or if the driver refused to
cooperate, they were to be escorted off the base by military police. Gov’t Ex.
1.
3
United States v. Machuca-Barrera, 261 F.3d 425, 433 (5th Cir. 2001).
3
the stop of Green’s vehicle was lawful, and it was not searched in
a relevant sense4 until after the military police had probable
cause to arrest her and impound her vehicle. It was then subjected
an inventory search and the drugs were discovered.5
B
A checkpoint-type stop of an automobile is a seizure
constrained by the Fourth Amendment.6 A suspicionless seizure is
ordinarily unreasonable and therefore a violation of the Fourth
Amendment.7 The Supreme Court has upheld suspicionless stops of
vehicles at immigration8 and sobriety9 checkpoints, and suggested
that, while roving patrols do not pass muster, discretionless stops
4
The record indicates that before she was arrested, one officer possibly
looked under the hood of Green’s car. Assuming arguendo that this search was
unconstitutional, however, it did not lead to the discovery of the crack cocaine
on the front seat of Green’s car, and therefore cannot require the exclusion of
that evidence. Green does not rely on this search to make her case, in any
event.
5
Warrantless inventory searches of seized automobiles do not violate the
Fourth Amendment if they are conducted “pursuant to standardized regulations and
procedures that are consistent with (1) protecting the property of the vehicle’s
owner, (2) protecting the police against claims or disputes over lost or stolen
property, and (3) protecting the police from danger.” United States v. Lage, 183
F.3d 374, 380 (5th Cir. 1999). Green does not argue that the inventory search
violated the Fourth Amendment, but rather that the checkpoint seizure was
unreasonable and the evidence obtained in the inventory search must be excluded
as the fruit of an unlawful seizure.
6
Delaware v. Prouse, 440 U.S. 648, 653 (1979).
7
Chandler v. Miller, 520 U.S. 305, 308 (1997).
8
United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976).
9
Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990).
4
designed to check a driver’s license and registration are
permissible.10
While it initially rejected such an approach,11 the Supreme
Court recently held, in City of Indianapolis v. Edmond12 that a
narcotics checkpoint violated the Fourth Amendment because its
“primary purpose” was indistinguishable from the “general interest
in crime control.”13 “Consistent with this suggestion, each of the
checkpoint programs that we have approved was designed primarily to
serve purposes closely related to the problems of policing the
border or the necessity of ensuring roadway safety.”14 To be valid
a checkpoint, then, must reach beyond general crime control—either
targeting a special problem such as border security or a problem
peculiar to the dangers presented by vehicles.
Green argues that the purpose of this checkpoint was merely to
make individuals on the base aware of security procedures. Green
relies on a memorandum establishing the checkpoints, which states,
in part:
The checks will be conducted to reinforce installation
security awareness and to emphasize to personnel, having
10
Prouse, 440 U.S. at 663.
11
See Sitz, 496 U.S. 449, 450 (rejecting “special needs” approach to
roadblocks that would focus on the purpose of the seizure).
12
531 U.S. 32, 48 (2000).
13
Id.
14
Id. at 41.
5
access to the installation, the security posture which is
being maintained.15
However, this same memorandum also incorporates the Standard
Operating Procedure for the Installation Force Protection Vehicle
Checkpoints, which clearly states its goals:
1. protect national security by deterring domestic and
foreign acts of terrorism;
2. maintain readiness and effectiveness;
3. deter the entrance of persons carrying explosives;
4. protect federal property; and
5. ensure the safety of the soldiers, civilian employees,
retirees and family members on the installation.16
The parties appear to dispute what our standard of review
should be with respect to the primary purpose of the checkpoint.
Green argues that de novo review should apply, relying on the
Supreme Court’s review of the purpose of a drug-testing regime in
its recent decision in Ferguson v. City of Charleston.17 The
Government argues that the purpose of a checkpoint is a factual
finding that should be reviewed for clear error.
We first note that Ferguson, while it cites to Edmond, is a
case involving the “special needs” doctrine in regards to searches,
not roadblock seizures. The Court, in fact, distinguished Ferguson
on these grounds, stating that “[t]his case also differs from the
15
Gov’t Ex. 2.
16
Gov’t Ex. 1.
17
532 U.S. 67, 81 (2001) (“In looking to the programmatic purpose, we
consider all the available evidence in order to determine the relevant primary
purpose.” (citing Edmond, 531 U.S. at 46-47)).
6
handful of seizure cases in which we have applied a balancing test
to determine Fourth Amendment reasonableness.”18 The extent to
which the inquiry into purpose demanded by Edmond and the “special
needs” doctrine is the same is still an open question. In any
event, the Court did not clearly state that in either case was the
question one of mixed fact and law which would require de novo
review.
We agree with the D.C. Circuit that the primary purpose of a
checkpoint is a finding of fact reviewed for clear error.19 We
conclude that the district court did not clearly err in its finding
that “[t]his was a legal checkpoint set up by the military
installation to inspect vehicles and make sure they had valid
license, registration, proof of insurance, security at the military
installation.”
C
Given a purpose of ensuring the security as well as traffic
safety at the installation we must, however, ask whether this
purpose is distinct from the general interest in crime control. If
not, then the teaching of Edmond is that the checkpoint system at
issue violates the Fourth Amendment. We believe that this case
differs substantially from Edmond in two respects. First, the
protection of the nation’s military installations from acts of
18
Id. at 83 n.21; see also Edmond, 531 U.S. at 54 (Rehnquist, C.J.,
dissenting).
19
United States v. Davis, 270 F.3d 977, 980 (D.C. Cir. 2001).
7
domestic or international terrorism is a unique endeavor, akin to
the policing of our borders, and one in which a greater degree of
intrusiveness may be allowed.20 Second, those cases focusing not
on unique, national challenges, but instead on road safety,21 are
concerned with dangers specifically associated with vehicles and
therefore justify suspicionless checkpoint seizures. Since we know
from painful experience that vehicles are often used by terrorists
to transport and deliver explosives in the form of “car bombs,” and
that military installations have historically faced greater risk
than civilian communities of such a bombing, vehicles pose a
special risk.
We conclude that the purpose of this suspicionless checkpoint
stop was not the “general interest in crime control.” Rather its
more narrow purpose was to the protect a military post, distinct
from a general law enforcement mission. We must then proceed to
the balancing of interests that the Court requires in order to
determine whether this stop was valid under the Fourth Amendment.
III
“Roadblock seizures are consistent with the Fourth Amendment
if they are ‘carried out pursuant to a plan embodying explicit,
20
See United States v. Hawkins, 249 F.3d 867, 873 (9th Cir. 2001) (“It is
beyond dispute that the military has a substantial interest in ... ensuring
national security.”); see also id. at 873 n.2 (comparing protection of national
security at military installation to interest in preventing illegal immigration).
21
See Edmond, 531 U.S. at 39-40 (stating that previous cases upholding
checkpoints or implying their validity had focused on highway safety) (citing
Sitz, 496 U.S. at 447-48; Prouse, 440 U.S. at 661).
8
neutral limitations on the conduct of individual officers.’”22 The
Court’s decisions require us to balance the objective and
subjective intrusion on the individual against the Government
interest and the extent to which the program can reasonably be said
to advance that interest.23
The degree of objective intrusion is “measured by the duration
of the seizure and the intensity of the investigation.” 24 In this
case the objective intrusion was virtually identical to that upheld
in Michigan Department of State Police v. Sitz25 and United States
v. Martinez-Fuerte.26 Green’s car was stopped and she was directed
to pull into an adjacent parking lot. She was asked for her
license and proof of insurance and was unable to produce either.
The total duration of the stop before probable cause to arrest
Green arose was considerably less than the three to five minutes
that the Court found minimal in Martinez-Fuerte.27 The seizure of
22
Edmond, 531 U.S. at 49 (Rehnquist, C.J., dissenting) (quoting Brown v.
Texas, 443 U.S. 47, 51 (1979)).
23
See, e.g., Sitz, 496 U.S. at 455. We note again that only the stop is
under consideration here. As the Court in Sitz carefully noted that there was
no allegation in Sitz of ”unreasonable treatment of any person after an actual
detention at a particular checkpoint.” Id. at 450. Consequentially, when
looking at the checkpoint we look at only its seizure component, the actual stop,
not the search that the memorandum indicates should then follow. See Part II.A.
24
Sitz, 496 U.S. at 452.
25
496 U.S. 444, 455 (1990).
26
428 U.S. 543, 566 (1976).
27
Id. at 546-47.
9
Green was only minimally intrusive under the objective prong of
this test.
As to subjective intrusion, the touchstone is the “potential
for generating fear and surprise.”28 Everyone entering Fort Sam
Houston was warned with signs about the possibility of searches.
At the checkpoint, there were signs, cones, and flares. While
Green attempts to characterize the sight of soldiers as
frightening, uniformed military police on the grounds of a military
installation that has been clearly identified to drivers should not
be frightening to “law-abiding motorists.”29 That the checkpoint
stopped every sixth vehicle, rather than every single vehicle,
counters any suggestion of subjective intrusion because it might
dispel any concern of a law-abiding motorist that she had been
singled out. There is no evidence that Green was singled out or
treated arbitrarily or that the officers were operating with
unfettered discretion as to which cars to stop.
The level of intrusiveness must be balanced against the
government interest in the checkpoint and the reasonable
effectiveness of the approach. We have already stated that there
is a strong governmental interest in the protection of our military
materiel and personnel. The military has as much right to protect
28
Sitz at 452.
29
Id.
10
those on roads traversing its enclave as a State has to protect
those on its highways.30
Green argues that this interest differs between closed and
open military installations and that since Fort Sam Houston was, at
the time of Green’s arrest, an open installation, its military
mission and unique attractiveness for violent strikes cannot
suffice to justify a suspicionless stop. Green advances two
arguments in support of this position. First she cites Flower v.
United States,31 where the Supreme Court held that a sidewalk
leafleteer could not be excluded from Fort Sam Houston’s public
streets, for the proposition that the government has abandoned any
special national security interest in an open military base. Of
course it is settled that “[t]he base commandant can no more order
petitioner off this public street .. than could the city police
order any leafleteer off any public street,”32 but nothing in Flower
or reality suggests that opening a military base to the public to
30
See id. at 873 & n.3 (stating that “[i]t is beyond dispute that the
military has a substantial interest ... in ensuring national security” and citing
cases); see also Greer v. Spock, 428 U.S. 828, 837 (1976) (“One of the very
purposes for which the Constitution was ordained and established was to ‘provide
for the common defence,’ and this Court over the years has on countless occasions
recognized the special constitutional function of the military in our national
life, a function both explicit and indispensable.” (quoting U.S. Const.,
Preamble)).
31
407 U.S. 197 (1972).
32
Id. at 198 (stating that the military, when it opened the street to the
public, “abandoned any claim that it has special interests in who walks, talks,
or distributes leaflets on the avenue” but not addressing whether the military
abandoned any special interest (beyond those state authorities would possess) in
who carries weapons of mass destruction onto the base).
11
such an extent deprives the government of the right to respond to
distinct risks faced at a military installation. Green appears to
be urging that we declare Fort Sam Houston, on the authority of
Flower, some sort of “free zone” where the Fourth Amendment
balancing of interests must be identical to that performed for
police action on any public street in America—in other words we
must turn a blind eye to the presence of the United States military
at the installation. This notion lacks textual or jurisprudential
support, and we reject the invitation to search for such a
connection in the interstices between the First and Fourth
Amendments. To the contrary, the military’s concern for the
security of its facility and its creation of a public forum are not
inconsistent—conceptually or programatically. These two can be
complementary in choosing between excluding the public and
practical precaution necessary to secure a military facility.
The conduct of the military police in this case reaches no
farther than those state license checkpoints that have passed
constitutional muster in a number of circuits.33 We also recognize
the additional reasons the military may wish to conduct such
suspicionless stops as weighing even more strongly in favor of the
33
Davis, 270 F.3d at 980; United States v. Brugal, 209 F.3d 353, 357 (4th
Cir. 2000); United States v. Galindo-Gonzales, 142 F.3d 1217, 1222 (10th Cir.
1998); United States v. Trevino, 60 F.3d 333, 335-36 (7th Cir. 1995); Merrett v.
Moore, 58 F.3d 1547, 1551 & n.3 (11th Cir. 1995). We leave for another day the
question of whether license and registration checkpoints on state highways are
constitutional, because of the additional national security interest present in
this case.
12
reasonableness of the search. Consequently, while we might agree
that on an open military base the range of law enforcement activity
that does not violate the Fourth Amendment is narrowed as compared
to a closed base,34 that does not mean that the security of the
installation and its personnel are not a substantial government
interest.35
Green maintains that there is a constitutional difference
between entry points to a military installation and points interior
to that installation in terms of the types of warrantless seizures
that will be considered reasonable. In support of this contention,
she cites to several cases finding checkpoint searches at entry
points constitutional, but overlooks opposing authority for a
checkpoint internal to an open base.36 We see no dispositive
distinction here.37
34
See, e.g., United States v. Ellis, 547 F.2d 863, 866-67 (5th Cir. 1977)
(holding that consent to search automobile without probable cause was validly
obtained where commander of closed military base made it a condition of obtaining
a visitor’s pass to enter the installation).
35
Green’s cited cases are inapposite. For example, she cites to United
States v. Ellis, 15 F. Supp.2d 1025 (D. Colo. 1998), for the proposition that
there is a legal difference between open and closed military bases. In Ellis,
the district court upheld a checkpoint stop of a car within an open military
installation, Fort Carson, that resulted in a narcotics arrest. Green asserts
in her brief to this court that Fort Carson was a closed base, despite the
court’s clear statement to the contrary. Compare Appellant’s Brief at 19 with
Ellis, 15 F. Supp.2d at 1029 (“The situation before this Court involves a
military base that was not closed ....”) (emphasis added).
36
Id.
37
Green also points to a regulatory provision that seems to suggest that
the seizure of her vehicle was not authorized. See 32 C.F.R. § 634.7(a)(3)
(“Stops and inspections of POVs within the military installation, other than at
restricted areas or at an installation gate, are authorized only when there is
a reasonable basis to believe that the stop/inspection is necessary to enforce
13
Finally we must weigh the extent to which this checkpoint
“reasonably advances” its purposes. The Court has admonished us
that this is “not meant to transfer from politically accountable
officials to the courts the decision as to which among reasonable
alternative law enforcement techniques should be employed to deal
with a serious public danger.”38 Furthermore, we should give
deference to the military’s security concerns. 39
Green asks us to examine afresh the base commander’s decision
that stopping every sixth car can be effective at preventing
terrorism or keeping the roads (and thereby the personnel of the
installation) safe from unlicenced drivers. The response is
common sense. Stopping vehicles at regular intervals, rather than
every one, first husbands the resources of law enforcement. It
also reasonably advances the purposes of the checkpoint because it
deters individuals from driving while unlicenced and or
transporting weapons and thereby endangering base personnel.40 It
a traffic regulation or the stop is based on suspicion of criminal activity.”).
Green’s vague citation to this regulation, if it is even charitably construed as
an argument, was not presented to the district court and does not represent
reversible plain error, which requires (1) and “error,” which is (2) “plain,” (3)
“affect[s] substantial rights,” and (4) “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” United States v. Smith,
273 F.3d 629, 633 (5th Cir. 2001) (quoting United States v. Olano, 507 U.S. 725,
732 (1993)).
38
Sitz, 496 U.S. at 453.
39
Dep’t of the Navy v. Egan, 484 U.S. 518, 530 (1988) (stating that
“unless Congress specifically has provided otherwise, courts traditionally have
been reluctant to intrude upon the authority of the Executive in military and
national security affairs.”).
40
The same deterrence theory surely drives the recent adoption of random
luggage searches at the nation’s airports.
14
provides a gauntlet, random as it is, that persons bent on mischief
must traverse.
IV
For the foregoing reasons, we conclude that this checkpoint’s
operation with respect to Green was reasonable, and therefore did
not violate the Fourth Amendment. AFFIRMED.
15