United States v. Ricardo Fraire ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-10448
Plaintiff-Appellee, D.C. No.
v.  1:08-MJ-00006-
RICARDO FRAIRE, SMS
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
July 14, 2009—San Francisco, California
Filed August 4, 2009
Before: Barry G. Silverman, Richard R. Clifton and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Silverman
10213
UNITED STATES v. FRAIRE 10215
COUNSEL
Daniel J. Broderick, Federal Defender, Douglas J. Beevers,
Assistant Federal Defender (argued), Fresno, California, for
the appellant.
10216 UNITED STATES v. FRAIRE
Larry G. Brown, Acting United States Attorney, Mark J.
McKeon, Assistant United States Attorney (argued), Fresno,
California, for the appellee.
OPINION
SILVERMAN, Circuit Judge:
Park rangers set up a vehicle checkpoint at the entrance to
the Kings Canyon National Park to “mitigate the illegal taking
of animals in the park” due to hunting, which is prohibited in
the park. All vehicles were stopped for about 15 to 25 sec-
onds, and their drivers asked about hunting. When Appellant
Ricardo Fraire’s vehicle was stopped at the checkpoint, a
ranger noted a strong odor of alcohol on Fraire’s breath. He
subsequently was charged with driving under the influence
and related offenses. In a motion to suppress, Fraire argued
that the suspicionless stop of his vehicle was unconstitutional.
We agree with the district court that it was not. We hold today
that a momentary checkpoint stop of all vehicles at the
entrance of a national park, aimed at preventing illegal hunt-
ing — which is minimally intrusive, justified by a legitimate
concern for the preservation of park wildlife and the preven-
tion of irreparable harm, directly related to the operation of
the park, and confined to the park gate where visitors would
expect to briefly stop — is reasonable under the Fourth
Amendment.
I. Factual and Procedural Background
The facts pertinent to this appeal are drawn primarily from
the testimony of Park Ranger David Schifsky, who testified
at an evidentiary hearing about the background and operation
of the checkpoint at issue in this case.
According to Schifsky, rangers at the Sequoia & Kings
Canyon National Park instituted a vehicle checkpoint in 2007
UNITED STATES v. FRAIRE 10217
to “mitigate the illegal taking of animals in the park.” Hunting
in the park is illegal. The checkpoint was implemented near
one of the multiple park entrances and stopped all vehicles
entering and exiting the park at that point. Rangers posted
signs prior to the checkpoint instructing drivers to prepare to
stop, concluding with stop signs, a cone pattern, a ranger sta-
tion, and a ranger in a reflective jacket directing traffic. All
rangers participating in the checkpoint were uniformed.
After a vehicle was stopped at the checkpoint, a ranger
would approach the vehicle, identify himself or herself as a
park ranger, state that he or she was conducting a hunting
checkpoint, and then ask the driver, “have you been hunting”
or “are you hunting?” If the driver responded that he or she
was not hunting, the ranger would not search the vehicle’s
trunk. Questioning the drivers typically lasted about 15 to 25
seconds, and drivers sometimes had to wait in line for about
one minute before being questioned by a ranger.
On October 13, 2007, Fraire was stopped at the checkpoint.
Ranger Ernesto Felix approached Fraire’s vehicle, smelled the
odor of alcohol, and observed that Fraire’s eyes were “blood-
shot and glassy.” Felix asked Fraire if he had been hunting
and Fraire stated that he had not. Felix then asked Fraire if he
had been drinking and Fraire stated that he had a couple of
beers about an hour or two beforehand. Felix then conducted
field sobriety tests on Fraire, which identified ten signs of
intoxication. Fraire consented to a search of his vehicle,
whereupon Felix found several open alcohol containers in the
rear passenger compartment just behind the driver’s seat.
Fraire was charged by information with operating a vehicle
under the influence of alcohol, driving while under the influ-
ence of alcohol with a blood alcohol content in excess of .08,
and possession of an open container of alcohol in a motor
vehicle. See 36 C.F.R. §§ 4.23(a)(1), 4.23(a)(2), 4.14(b). After
conducting the evidentiary hearing, the magistrate judge ren-
dered an oral ruling denying Fraire’s motion to suppress.
10218 UNITED STATES v. FRAIRE
Fraire appealed the ruling to the district court, which affirmed
the magistrate judge.
II. Standard of Review
A district court’s denial of a motion to suppress evidence
is reviewed de novo. United States v. Bynum, 362 F.3d 574,
578 (9th Cir. 2004). “Factual findings underlying the denial
of the motion are reviewed for clear error.” Id.III. Analysis
[1] The Fourth Amendment prohibits “unreasonable
searches and seizures.” Here, Fraire endured a “seizure” when
his vehicle was forced to stop at the checkpoint. See United
States v. Faulkner, 450 F.3d 466, 469-70 (9th Cir. 2006).
[2] “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) (citing Chan-
dler v. Miller, 520 U.S. 305, 308 (1997)). The Supreme Court
has recognized limited circumstances in which suspicion is
not required, such as where a program is designed to serve
“special needs, beyond the normal need for law enforcement.”
Id. The Court has upheld suspicionless seizures in two vehicle
checkpoint cases. Id.[3] There is a two-step analysis applicable to Fourth
Amendment checkpoint cases. First, the court must “deter-
mine whether the primary purpose of the [checkpoint] was to
advance ‘the general interest in crime control.’ ” See Faulk-
ner, 450 F.3d at 470 (quoting Edmond, 531 U.S. at 48). “If so,
then the stop . . . is per se invalid under the Fourth Amend-
ment.” Id.; see also Illinois v. Lidster, 540 U.S. 419, 426
(2004) (describing this as the “presumptive rule of unconstitu-
tionality”).
[4] If the checkpoint is not per se invalid as a crime control
device, then the court must “judge [the checkpoint’s] reason-
UNITED STATES v. FRAIRE 10219
ableness, hence, its constitutionality, on the basis of the indi-
vidual circumstances.” Lidster, 540 U.S. at 426. This requires
consideration of “the gravity of the public concerns served by
the seizure, the degree to which the seizure advances the pub-
lic interest, and the severity of the interference with individual
liberty.” Id. at 427 (quoting Brown v. Texas, 443 U.S. 47, 51
(1979)); see also Mich. Dep’t of State Police v. Sitz, 496 U.S.
444, 450-55 (1990) (balancing these factors in determining
the reasonableness of a checkpoint stop); United States v.
Martinez-Fuerte, 428 U.S. 543, 561 (1976) (same).
We first address whether the checkpoint was unconstitu-
tional as a general crime control device. In Edmond, the city
of Indianapolis operated vehicle checkpoints on city streets in
an effort to discover and interdict illegal drugs. 531 U.S. at
34. The Court held that the checkpoint program violated the
Fourth Amendment because the “primary purpose” was to
“uncover evidence of ordinary criminal wrongdoing.” Id. at
41-42. The Court distinguished two prior cases permitting
checkpoints, Martinez-Fuerte and Sitz, on the grounds that the
checkpoints in those cases served purposes other than ordi-
nary crime control. Id. at 37-42. In Martinez-Fuerte, the Court
upheld the constitutionality of an immigration checkpoint
near the U.S.-Mexico border. 428 U.S. at 545. In Sitz, the
Court upheld the constitutionality of a sobriety checkpoint
that examined all drivers passing through for signs of intoxi-
cation. 496 U.S. at 447. In Edmond, the Court explained why
the primary purpose of the checkpoints in Martinez-Fuerte
and Sitz were not the detection of ordinary criminal wrongdo-
ing. The Court acknowledged that “[s]ecuring the border and
apprehending drunk drivers are, of course, law enforcement
activities, and law enforcement officers employ arrests and
criminal prosecutions in pursuit of these goals.” 531 U.S. at
42. However, the checkpoint program in Sitz “was clearly
aimed at reducing the immediate hazard posed by the pres-
ence of drunk drivers on the highways, and there was an obvi-
ous connection between the imperative of highway safety and
the law enforcement practice at issue.” Id. at 39; see also id.10220 UNITED STATES v. FRAIRE
at 43. As for Martinez-Fuerte, the objective there was to “in-
tercept illegal aliens” and “to serve purposes closely related
to the problems of policing the border[.]” Id. at 37, 41.
[5] We must now determine whether the checkpoint in this
case is a general crime control device, as in Edmond, or
whether it serves a different purpose, as in Sitz or Martinez-
Fuerte. The district court found that the checkpoint’s pur-
poses included “catching violators, . . . deterrence, education
and in turn wildlife protection.” This finding is supported by
Ranger Schifsky’s testimony at the evidentiary hearing, who
testified that the checkpoint was aimed at mitigating the
effects of the illegal taking of animals in the park. That the
checkpoint accomplished this goal through the use of law
enforcement techniques does not automatically transform it
into a crime control device for Fourth Amendment purposes.
See Edmond, 531 U.S. at 42.
[6] The checkpoint in this case is analogous to the check-
point upheld in Sitz and is distinguishable from the check-
point in Edmond. A critical factor in Sitz was the close
connection between the checkpoint and the harm it was seek-
ing to prevent. Id. at 39 (describing the “obvious connection
between the imperative of highway safety and the law
enforcement practice at issue” in Sitz); id. at 43 (emphasizing
the “close connection to roadway safety”). Likewise, here, the
checkpoint was situated at an entrance to the park and sought
to counter illegal hunting within that park. Unlike the drug
crimes addressed by the Edmond checkpoint, which occur
throughout the nation, the wildlife offenses here are specific
to national parks. Further, just as the Sitz checkpoint pre-
vented an immediate harm to motorists, the checkpoint here
prevents hunters from destroying a precious natural resource.
It does so by catching poachers before they can kill additional
animals, by deterring would-be poachers, and by educating
the park-going public about the hunting prohibition. The goal
was prevention, not arrests.
UNITED STATES v. FRAIRE 10221
[7] Because the primary purpose of the checkpoint is distin-
guishable from the general interest in crime control, the
checkpoint is not per se unconstitutional under Edmond. We
must therefore determine its “reasonableness, hence, its con-
stitutionality, on the basis of the individual circumstances.”
Lidster, 540 U.S. at 426. Our first consideration is “the grav-
ity of the public concerns served by the seizure[.]” Id. at 427(quoting Brown, 443 U.S. at 51). In Faulkner, we described
the gravity of the public concerns served by an informational
checkpoint in a national park (preventing litter, promoting fire
safety, reducing incidents of driving under the influence,
eliminating property destruction and gang activity, and pro-
tecting the environment) as high. 450 F.3d at 472. Here, the
public concerns, including the protection of wildlife and
ensuring the safety of park visitors, are equally pressing.
[8] The second consideration is “the degree to which the
seizure advances the public interest[.]” Lidster, 540 U.S. at
426 (quoting Brown, 443 U.S. at 51). Fraire contends that the
checkpoint cannot be upheld without some empirical data
demonstrating its effectiveness. He notes that the Court in Sitz
relied on empirical data showing a 1.5% arrest rate in uphold-
ing that checkpoint. 496 U.S. at 454. The Court also con-
trasted Delaware v. Prouse, 440 U.S. 648 (1979), which held
a program of suspicionless stops unconstitutional, where there
was no empirical evidence of effectiveness. 496 U.S. at 454
(citing Prouse, 440 U.S. at 659-60). But there is nothing to
suggest that the absence of empirical data was a dispositive
factor in Prouse; rather, the lack of empirical data of effec-
tiveness meant there was nothing to overcome the presump-
tion of ineffectiveness derived from “common sense.” See
Prouse, 440 U.S. at 659-60 (stating that “common sense” sug-
gested the “contribution to highway safety made by the dis-
cretionary stops” would be “marginal at best”); id. at 659(“[A]bsent some empirical data to the contrary, it must be
assumed that finding an unlicensed driver among those who
commit traffic violations is a much more likely event than
finding an unlicensed driver by choosing randomly from the
10222 UNITED STATES v. FRAIRE
entire universe of drivers.”). Here, common sense suggests
the opposite — that the checkpoint would be a reasonably
efficient tool at preventing poaching given the significant
poaching problem and the targeted nature of the checkpoint.
Finally, we have previously observed that in certain cases
effectiveness may be measured “by the relationship of the
checkpoint to its objective, rather than by any measureable
results, or by any results period.” Faulkner, 450 F.3d at 472-
73.
[9] Here, Ranger Schifsky’s testimony established there
was a significant poaching problem within the park. The
checkpoint was closely related to addressing this problem
because it was structured to catch poachers, to deter would-be
poachers, and to educate park visitors about the hunting prohi-
bition. Even if Fraire is correct that some poachers might
avoid detection by falsely claiming that they were not hunting
when questioned by rangers, it is equally true that most hunt-
ers seek to obey the law if they know what it is. Overall, we
believe the checkpoint advanced the public interest to a sig-
nificant degree.
The third and final consideration is “the severity of the
interference with individual liberty.” Lidster, 540 U.S. at 427(quoting Brown, 443 U.S. at 51). This factor is “gauged by the
objective intrusion, measured by the duration of the seizure
and the intensity of the investigation, and by the subjective
intrusion, measured by the fear and surprise engendered in
law-abiding motorists by the nature of the stop.” Faulkner,
450 F.3d at 473 (citation and internal quotation marks omit-
ted).
[10] The objective intrusion here was slight. Contact
between drivers and rangers often lasted only about 15 to 25
seconds, drivers would wait in line at most about one minute,
and the rangers merely asked the drivers whether they had
been hunting but did not search the vehicles or use carcass-
sniffing dogs. See Lidster, 540 U.S. at 427 (finding minimal
UNITED STATES v. FRAIRE 10223
objective intrusion because “each stop required only a brief
wait in line-a very few minutes at most[,]” the contact with
police lasted “only a few seconds[,]” and the “[p]olice contact
consisted simply of a request for information and the distribu-
tion of a flyer”); Faulkner, 450 F.3d at 473 (vehicle stop of
approximately 20 seconds to impart information resulted in
minimal objective intrusion).
[11] The severity of the subjective intrusion is “measured
by the amount of concern and fright that is generated on the
part of lawful travelers.” Faulkner, 450 F.3d at 473. The sub-
jective intrusion from a checkpoint stop is significantly less
than other types of seizures, such as random stops. Martinez-
Fuerte, 428 U.S. at 558. Here, the subjective intrusion was
minimal. The checkpoint was accompanied by signs announc-
ing it, the rangers operating it were uniformed, and all
approaching vehicles were stopped. See Lidster, 540 U.S. at
428 (little reason for anxiety or alarm where police stopped all
vehicles systematically); Sitz, 496 U.S. at 453 (noting the fact
that uniformed officers stopped every approaching vehicle as
showing a minimal intrusion); Faulkner, 450 F.3d at 473-74.
Although not a dispositive point, we also note that the stops
occurred at the park gate, where park visitors expect to stop
anyway (to receive a map, to be informed of park rules, to ask
questions of the rangers, etc.). This is not a situation in which
an encounter with a park ranger would be unexpected, as it
might be if a ranger were to search campers’ tents or detain
hikers on a mountain trail.
IV. Conclusion
[12] The gravity of the public concerns served by the
checkpoint was high, the checkpoint was reasonably related to
these concerns, and the severity of the interference with indi-
vidual liberty was minimal. It follows that the checkpoint was
reasonable under the Fourth Amendment and that the district
court correctly denied Fraire’s motion to suppress.
AFFIRMED.