State v. MacK

66 S.W.3d 706, 2002 Mo. LEXIS 21, 2002 WL 215629

• Court: Supreme Court of Missouri
• Decided: February 13, 2002
• Docket: SC 83894
• Status: Published

Opinions

STEPHEN N. LIMBAUGH, JR., Chief Justice.

This is a Fourth Amendment case in which this Court is called upon to determine the admissibility of evidence seized at a certain drug enforcement checkpoint in light of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). The defendant, Todd Mack, was stopped at the checkpoint and subjected to a search of his vehicle, and based on the fruits of the search, he was charged with three counts of possession of a controlled substance in violation of section 195.202, RSMo 1994. He filed a motion to suppress the evidence arguing the search and seizure that led to the charges was unconstitutional. The trial court granted the motion to suppress, and the state, pursuant to section 547.200, RSMo 1994, filed an interlocutory appeal in the Court of Appeals, Eastern District. Because of the general interest and importance of the issue presented, the Court of Appeals then transferred the case to this Court. Mo. Const, art. V, sec. 10. Reversed and remanded.

I.

On June 24, 1999, a Thursday, the City of Troy police department set up a drug checkpoint on northbound Highway 61 at the Old Cap Au Gris exit in Lincoln County. This exit was selected because it did not provide gas or food services to motorists, and the only reason a motorist would take the exit would be to go to a local high school, a local Catholic church, or one of several residences in the area. There were no activities that Thursday night at the high school or the church. The police set up signs on the highway approximately a quarter mile from the Old Cap Au Gris exit that stated “DRUG ENFORCEMENT CHECKPOINT ONE MILE AHEAD” and “POLICE DRUG DOGS WORKING,” intending for drivers to believe that the drug checkpoint was really located at the Highway 47 exit, one exit further than the Old Cap Au Gris exit.

Troy police administered the checkpoint according to a written plan of action entitled “Troy Police Department Drug Enforcement Checkpoint.” The plan called for uniformed officers to be stationed at the top of the ramp in order to stop all exiting vehicles, record the driver’s license number and registration, and ascertain the occupants’ reason for exiting at Old Cap Au Gris. In addition, the officers were to look for any signs of possible drug trafficking, and they were given discretion to interview the driver and passengers separately if they thought it was necessary. If the officers did not find suspicious circumstances that warranted reasonable suspicion of drug trafficking, they released the vehicle and its occupants. However, if circumstances did raise reasonable suspicion, the officers directed the vehicle to the entrance side of the ramp, where one of them asked the driver for permission to search the car. If the driver granted permission, he or she was asked to sign a permission to search form, and the officers then searched the vehicle. If permission was not granted, officers used a drug dog to sniff the exterior of the vehicle, and if the dog indicated the presence of a controlled substance, the vehicle would be searched on that basis instead.

Defendant took the Old Cap Au Gris exit at approximately 11:00 p.m. on June 24 and was stopped at the checkpoint by the Troy police officers. At the suppression hearing, one of the officers described the initial contact as follows:

Q. And at some point in that evening you came into contact with a Todd Mack, right?

A. Yes.

Q. And what was your very first contact with him?

A. The first contact I had with him was it was probably the most obvious veering off of 61 all night. The vehicle — it was dark by then. And the vehicle almost missed the turn. He was going northbound on 61 and all of a suddenly veered off onto the off ramp. And that’s when I made contact with him.

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Q. When you said he was driving somewhat erratically and exited off the ramp, can you describe in more detail exactly how he took that exit?

A. I remember seeing a vehicle coming toward me which would have been northbound 61. It appeared it was going to continue past the off ramp. And suddenly it shot over and almost missing it came up the off ramp. And he was moving a pretty good pace too.

Once defendant was stopped, he informed the officers that he exited at Old Cap Au Gris to get to a bar in Troy. The officers observed that defendant was very nervous, had glazed and bloodshot eyes, and smelled of alcohol. When police questioned defendant’s passenger, Edward As-choff, they discovered Aschoff was wanted under an outstanding warrant and placed him under arrest. Defendant then granted permission to search the vehicle, and the officers discovered various narcotics and drug paraphernalia located under the driver’s seat. As a result, defendant was charged with possession of methamphetamine, cocaine, and methylphenidate.

Defendant first filed a motion to suppress the evidence on June 20, 2000, arguing, inter alia, that the search and seizure were made without a warrant or other lawful authority, as well as without probable cause, and that no exigent circumstances justified the search and seizure. The trial court denied the motion on the basis of State v. Damask, 936 S.W.2d 565 (Mo. banc 1996), in which this Court approved a drug checkpoint strikingly similar to the one at issue. Following the denial of the motion, the United States Supreme Court decided Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), which disallowed evidence obtained through the use of drug checkpoints, absent “individualized suspicion” of wrongdoing. Respondent filed a motion for reconsideration on December 29, 2000, which the trial court granted, later ruling to suppress the evidence. This appeal followed.

On motions to suppress, the state bears the burden of showing that the motion should be denied by a preponderance of the evidence. Sec. 542.296.6, RSMo 2000; State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999).

II.

Defendant argues that this case is controlled by Indianapolis v. Edmond. The pertinent facts in Edmond are as follows: The city of Indianapolis operated vehicle checkpoints at several locations in an effort to reduce and discourage drug trafficking. Indianapolis v. Edmond, 531 U.S. at 34, 121 S.Ct. at 450. A short distance from each location, the police posted a sign informing the public that a drug checkpoint was ahead. Id. at 35-36, 121 S.Ct. at 451. At each location, the police officers stopped a predetermined number of drivers and required them to produce a driver’s license and vehicle registration. Id. at 35, 121 S.Ct. at 450. The officers also looked for signs of impairment and conducted an “open-view examination of the vehicle from the outside.” Id. In addition, a narcoties-detection dog was led around the outside of every stopped vehicle. Id., 121 S.Ct. at 451 Officers were instructed to minimize the detention time of a vehicle if no reasonable suspicion or probable cause existed. Id.

The Court began its analysis by distinguishing several cases in which checkpoints were approved, such as those involving border checkpoints “designed to intercept illegal aliens” and sobriety checkpoints “aimed at removing drunk drivers from the road.” Id. at 37, 121 S.Ct. at 451-52. In contrast, the Court found the primary purpose of the Indianapolis checkpoint was to interdict controlled substances, which the Court considered to be “ordinary criminal wrongdoing.” Id. at 41-42, 121 S.Ct. at 454. The Court refused to “sanction stops justified only by the generalized and.ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime,” id. at 44,121 S.Ct. at 455, and concluded that “[w]hen law enforcement authorities pursue primarily general crime control purposes at checkpoints ..., stops can only be justified by some quantum of individualized suspicion.” Id. at 47, 121 S.Ct. 447. The Court held, therefore, that “[bjecause the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate[d] the Fourth Amendment.” Id. at 48,121 S.Ct. at 458.

The State contends, however, that the checkpoint in this case is fundamentally different than that in Edmond because the required “quantum of individualized suspicion” is present. We agree. In Edmond, a predetermined number of vehicles were stopped, apparently at random, at each checkpoint, and there was no attempt to acquire any quantum of individualized suspicion before making the stops. In this case, though, the entire purpose of the checkpoint was to generate the suspicious conduct necessary to constitute “individualized suspicion,” and this was done by deceiving drivers who were engaged in criminal activity into exiting the highway so as to avoid the checkpoint they expected to encounter at the next exit.

The issue here is simply whether the deceptive drug checkpoint scheme does indeed generate the necessary quantum of individualized suspicion. The “individualized suspicion” that will justify the minimally intrusive “Terry ” stop is present when “a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 892 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under this standard, it is reasonable to conclude that drivers with drugs would “take the bait” and exit at Old Cap Au Gris to avoid being questioned at the next exit. See United States v. Brugal, 209 F.3d 353, 359 (4th Cir.), cert. denied 531 U.S. 961, 121 S.Ct. 388, 148 L.Ed.2d 299 (2000) (holding that a driver’s evasive behavior in exiting a highway to avoid a ruse drug checkpoint supports a finding of reasonable suspicion).¹ That reasonableness is established by the significant efforts to reduce the legitimate reasons for taking the exit. See id. at 359-60. As noted, the checkpoint was set up in an isolated and sparsely populated area offering no services to motorists and was conducted on an evening that would otherwise have little traffic. See id. at 360. It bears mention as well that the defendant took the exit at 11:00 p.m., presumably at a time when there was even less reason for local traffic to be on the road. See id.

The reasonableness of the officers’ conclusions is also supported by the recognition that deceptive drug checkpoints are effective — that drivers with drugs do indeed “take the bait.” As this Court observed in the Damask case, “the particular checkpoints in question were modeled after previous successful checkpoint operations and were planned in such a way as to increase the likelihood of discovering drug trafficking predictably associated with persons stopped at this type of focused roadblock.” State v. Damask, 936 S.W.2d at 573. The checkpoint in this case is no different.

Finally, even if the deceptive drug checkpoint scheme did not alone constitute “individualized suspicion,” defendant’s particular conduct in exiting at the checkpoint must also be considered. See United States v. Arvizu, 2002 U.S. LEXIS 490, *16-17, — U.S.-, 122 S.Ct. 744, 751, 151 L.Ed.2d 740 (U.S., Jan. 15, 2002) (holding that in evaluating the legitimacy of a stop, courts must consider the “totality of the circumstances,” and factors that “by themselves [are] quite consistent with innocent travel [may] collectively amount[] to reasonable suspicion”). According to the officer’s testimony, defendant “suddenly veered off onto the off ramp” and “almost missed the turn,” as if he made the decision to exit only upon learning that a checkpoint was supposedly ahead. This evidence, when coupled with the deceptive checkpoint scheme, certainly compels a finding of “individualized suspicion.” Though the dissent discounts this evidence on the belief that the officers did not rely on the evidence in making the stop, the very reason for introducing the evidence, indeed the only reason, was to show that the officers were even more suspicious of this particular driver’s conduct.

The recent 8th Circuit case of United, States v. Green, 2001 U.S.App. LEXIS 27225, 275 F.3d 694 (8th Cir. Dec. 27, 2001), on which the dissent relies is distinguishable. Although the court did hold, on the basis of Indianapolis v. Edmond, that a stop made at a very similar deceptive drug checkpoint was an unreasonable seizure, the court did not expressly address the issue raised here — whether the ruse used to lure drivers to the checkpoint gave rise to that “quantum of individualized suspicion” sufficient to justify a “Terry ” stop and take the case out of the purview of Edmond. Green is also distinguishable because there was no supplemental evidence of individualized suspicion like the defendant’s conduct in suddenly veering off on the exit in the case at hand. Even if G'reen were not distinguishable, general declarations of law made by lower federal courts do not bind this Court. Hanch v. K.F.C. Nat'l Mgmt. Corp., 615 S.W.2d 28, 33 (Mo. banc 1981).

The dissent also cites several cases decided since Edmond from other state jurisdictions — State v. Lidster, 319 Ill.App.3d 825, 254 Ill.Dec. 379, 747 N.E.2d 419 (2001); Trent v. Commonwealth, 35 Va.App. 248, 544 S.E.2d 379 (2001); Bucha-non v. Commonwealth, 200 Ky.App. LEXIS 1255, 2001 WL 1555654, - S.W.3d - (Dec. 7, 2001); Davis v. State, 788 So.2d 1064 (Fla.Dist.Ct.App.2001) — but these cases are even less helpful than Green because they do not involve “ruse” checkpoints.

III.

Under these circumstances, the State met its burden of proof to show that the checkpoint stop was not a Fourth Amendment violation. The judgment of the trial court is reversed, and the case is remanded.

HOLSTEIN, BENTON and PRICE, JJ., concur. LAURA DENVIR STITH, J., dissents in separate opinion filed. WHITE and WOLFF, JJ., concur in opinion of LAURA DENVIR STITH, J.

1 . Because there was no challenge in the Bru-gal case to the initial stop — a roadblock at the end of the exit to check for drivers licenses and vehicle registrations — the court's analysis turned on the presence or absence of reasonable suspicion for the continued detention of the defendant after the initial stop. Id. at 358.