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March 1999 Controlled Substances By Peter Schoenburg; Stephen McCue
Stephen McCue is the Federal Public Defender for the District of New Mexico. he has proudly fought in the "War on Drugs" since 1986. Signs Along the Highway — Drug-DUI Checkpoint Held Unconstitutional Judith Huguenin and William Martin were traveling east on Interstate 40 when they passed two large signs with the words “Drug-DUI Enforcement Check-point 1_2 Mile Ahead.” One sign was on each side of the road. Martin exited at the next opportunity about 1_4 miles after the signs. The end of the long exit ramp was not visible from the highway. When Martin drove up the exit ramp he was confronted with a new twist on the checkpoint search. The local sheriff’s office had established the signs as a “ruse” to direct motorists to exit off the highway after viewing the warning of the upcoming DUI/Narcotics checkpoint. In fact, there was no checkpoint further down I-40. Instead, the sheriff set up a checkpoint at the end of the ramp of the first exit available to motorists after the posted signs, an exit not frequently used since no services were offered at the exit. At the exit ramp checkpoint Huguenin and Martin were confronted by four sheriff’s officers and a highway patrolman. Each officer was uniformed and armed. Although the government argued that the ostensible goal of this “narcotics/sobriety checkpoint” was “to remove impaired drivers from our highways,” there was no set procedure for stopping cars, or what questions to ask. It was left up to each officer’s discretion on how to question motorists. Martin was asked why he pulled off at that exit and he replied he was in search of gas. The officers noticed the gas gauge said “full.” They also determined that Martin had not been drinking. Instead of allowing him to drive off, officers brought a drug dog to the van Martin was driving, and 265 pounds of marijuana was found hidden under a blanket. In United States v. Huguenin,1 the panel of Sixth Circuit judges began by recognizing that a checkpoint seizure is reasonable only if it survives the balancing test established in Brown v. Texas2 and Michigan Dept. of State Police v. Sitz.3 The test weighs the “gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.”4 The court determined that the primary purpose of the exit ramp checkpoint was to detect narcotics. The checkpoints were supervised by the county’s narcotics officer, a DARE vehicle and narcotics officer were present at the checkpoint, and the expense of setting up and operating the checkpoints was funded entirely from drug interdiction activity. The officers operating the checkpoint were not trained in DUI detection and a drug dog has been present during every operation of the checkpoint while no breath test instrument has ever been present. In determining “the gravity of the public concern,” the court ran into its first dilemma. It found that the road block was a “mixed-motive” or pretextual roadblock with one lawful purpose (arresting drunk drivers) and one other purpose (intercepting illegal drugs). Here the court broke new ground, finding an earlier decision by the Eleventh Circuit in Merrett v. Moore5 not persuasive. Merrett had held that mixed-motive checkpoints were lawful as long as at least one of the underlying purposes is legitimate. Instead, the court in Huguenin found a road block established under the pretext of ensuring compliance with traffic related laws to be unreasonable and unconstitutional.
We believe that the danger inherent in pretextual roadblocks is the potential for giving police the authority to stop every car on the road, question its driver and passengers under the guise of a legitimate traffic related purpose, and then claim enough reasonable suspicion through, for example, the driver’s expression or answers, to conduct a more thorough search of the stopped individuals and vehicles for drugs with insufficient limitations on police discretion. Noting that government checkpoints had been upheld only to detect drunken drivers and illegal immigrants, the court also found that, under the balancing test established in Brown v. Texas, the interference with individual liberty here outweighs the gravity of the public concern about drug trafficking. The court also distinguished the recent Supreme Court case of Whren v. United States6 upholding pretextual traffic stops. The Huguenin panel pointed out that the pretext analysis only applies to police intrusions based on probable cause to stop (the traffic violation). The court noted here that the checkpoint seizure is made without probable cause of any sort. Finally, the court found, in the alternative, that even if the checkpoint had as its primary purpose the detection of intoxicated drivers, the procedure used was unreasonable under the balancing test of Brown v. Texas. Of approximately 2342 vehicles stopped, only seven arrests were made for DUI, yielding a .29 percent level of effectiveness, much lower than the 1.6 percent level effectiveness approved of in Sitz. The length and intrusive nature of the stop was far greater than the checkpoint described in Sitz. (Stops lasting approximately 25 seconds in Sitz versus being questioned twice by different officers, not to determine whether the driver was intoxicated, but to discover where the drivers were traveling and to develop evidence that the vehicle contained contraband). A number of other factors rendered the exit ramp checkpoint more subjectively intrusive than a legal checkpoint. The checkpoint was set up as a trap, it was placed in a secluded area with no notice to the motorist about what was taking place at the exit, there was no procedure as to how the motorist was to be approached, and the procedure did not treat motorists on a non-random basis, but singled out motorists who, for whatever reason, chose to take that exit. Importantly, the court was not distracted from the appropriate constitutional inquiry by the superficial appeal of pulling over only those drivers who chose to take the exit. The same constitutional requirements of employment of standardized procedures and a minimal intrusion imposed on motorists apply regardless of the ruse employed by law enforcement to encourage drivers to enter the roadblock. Signs Along Another Highway People driving on Interstate 20 in Texas, between Abilene and Midland, encounter a sign with a different message. Just past the Dairy Queen and Sonic on the edge of Colorado City, Texas, a billboard rises next to Interstate 20 announcing “JUST SAY NO TO SEARCHES! 915-728-5505.” A phone call reveals a tape-recorded message encouraging law abiding travelers to “just say no” when police ask to search their vehicles for drugs during routine traffic stops. The billboard is a civic message provided by Colorado City lawyer Pat Barber, erected after West Central Texas Interlocal Crime Task Force officers began stopping motorists for minor traffic violations and engaging them in conversation to look for “indicators” that the car may contain drugs. Officers then ask permission to search the car. Barber sensibly was concerned that “an innocent citizen . . . should know that when an unreasonable search request is refused, the officer must let him go.” The Texas Department of Transportation decided they had a problem with Barber’s sign. They said his billboard violated the Highway Beautification Act and threatened a fine of $1000 a day if the sign stayed up. Barber sued the highway department successfully arguing that the sign sits on his own property and carries a political opinion that cannot be censored. He recently won a preliminary injunction from District Judge Suzanne Covington of Austin, Texas and the sign will stay up until trial next year. The case has been reported in the Dallas Morning News7 and quotes Barber as saying “most people don’t know they have a right to say no, and a lot of others are afraid to say no. These officers count on that.” Barber describes Abilene area interdiction officers as “storm troopers” with mirrored sunglasses, black shirts and black pants, and black boots. “It’s meant to intimidate, everyone is a suspect. If we ever got an accurate assessment of what they’re doing, it would show an enormous number of people being terrorized and harassed by an ineffective policy. They can’t stop the flow of drugs. How far do we go to allow them to erode our constitutional rights in an unwinnable war on drugs?” How far indeed. Recent Developments ‘In Re Sealed Case’ Redux In our December 1998 column we reported on In re Sealed Case,8 in which the D.C. Circuit held that the Federal Sentencing Guidelines do not prohibit downward departures for substantial assistance to the authorities in the absence of a government motion. In an order entered November 3, 1998, the D.C. Circuit has ordered rehearing en banc in this case. The D.C. Circuit also vacated part III of the original opinion, which included the holding “even without the government motion Koon authorizes district courts to depart from the guidelines based a defendant’s substantial assistance where circumstances takes the case out of the relevant guidelines heartland.”9 Federal Methamphetamine Penalties Enhanced President Clinton signed the Methamphetamine Trafficking Penalty Enhancement Act of 1998 as part of the Omnibus Appropriations Bill on October 21, 1998. This act raises the penalties for possession and sale of methamphetamine to the same levels as those of crack cocaine. Under the new legislation, 21 U.S.C. § 841(b)(1)(B)(viii) calls for a 5-year mandatory minimum sentence for five grams or more of methamphetamine or 50 grams of a mixture and substance containing a detectable amount of methamphetamine. The 10-year mandatory minimum sentences of 21 U.S.C. § 841(b)(1)(A)(viii) are triggered by 50 grams or more of methamphetamine or 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine. Similar revisions have been made to 21 U.S.C. § 960(b) — importing controlled substances. ‘Bailey Fix’ Legislation Signed In response to the recent Supreme Court decision in Bailey v. United States,10 Congress has “fixed” 18 U.S.C. § 924(c), which mandates consecutive minimum sentences for anyone who uses or carries a firearm during or in relation to a drug trafficking crime or a crime of violence. The new version of 18 U.S.C. § 924(c) signed by President Clinton on Friday November 13, 1998 requires a sentence of “not less than” a specified term for possessing, carrying, brandishing or discharging a firearm “in furtherance of” a drug crime. Use of the phrase “not less than” makes the statutory maximum a potential life sentence.11 The new 924(c) requires a consecutive sentence of not less than 5 years for anyone who “uses or carries a firearm, or who, in furtherance of a crime of violence or a drug trafficking offense possesses a firearm.” The new statute requires a sentence of not less than 7 years if the firearm is brandished and not less than 10 years if the firearm is discharged. The definition of brandish requires only that the defendant “make the presence of the firearm known to another person in order to intimidate that person, regardless of whether the firearm is directly visible to that person.” The new statute provides increased penalties if the weapon is a sawed-off shotgun, semiautomatic assault weapon, or machine gun. This legislation (S. 191) effective November 13, 1998 is codified as Public Law 105-386. Notes 1. United States v. Huguenin, 154 F.3d 547 (6th Cir. (Tenn.) Aug. 18, 1998) (rehearing denied Oct. 19, 1998). 2. 443 U.S. 47 (1979). 3. 496 U.S. 444, 450 (1990). 4. Brown v. Texas, 443 U.S. at 50-51. 5. 58 F.3d 1547 (11th Cir. 1995). 6. Whren v. United States __U.S.___, 116 S. Ct. 1769 (1996). 7. Nov. 27, 1998. 8. 149 F.3d 1198 (D.C. Cir. 1998). 9. 149 F.3d at 1204. 10. 516 U.S. 137, 116 S. Ct. 501 (1995). 11. As with the federal Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), when a federal statutes fails to state a maximum sentence, the maximum available sentence is life. E.g., United States v. Brame, 997 F.2d 1426 (11th Cir. 1993).
Controlled Substances Peter Schoenburg/Steve McCue 320 Central Ave SW, Suite 30 Albuquerque NM 87102 Phone (505) 243-1443 Fax (505) 242-7845 rothlawabq@aol.com | |||||||||
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