US v. David Henson

Filing 920091113

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4221

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID LAMONT HENSON, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:07-cr-00053-LHT-1)

Submitted:

November 2, 2009

Decided:

November 13, 2009

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David concurrent following Lamont Henson of plea appeals his convictions and

sentences his guilty

fifty-seven to two counts

months' of

imprisonment of a On

possession

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006).

appeal, Henson argues that the checkpoint stop leading to the seizure of evidence against him was unconstitutional. * no reversible error, we affirm. On September 12, 2006, officers working in the central patrol district in Asheville, North Carolina, decided to conduct a license checkpoint at a five-way intersection in a primarily commercial area that had generated significant complaints and traffic violations. The checkpoint was approved by supervisors Finding

and conducted pursuant to a Special Operations Plan ("SOP") that gave the officers areas authority by to direct patrols in or designated community and the

challenge complaints. officers

defined

traffic seven

violations police

Approximately

marked

cruisers at

wearing

reflective

vests

were

present

checkpoint.

All vehicles passing through the intersection were

stopped to verify license and vehicle registration information.

Henson's plea agreement reserved his right to appeal the denial of his motion to suppress.

*

2

In accordance with the SOP of stopping each vehicle that passed through the intersection, Traffic Safety Officer Don Eberhardt stopped a van driven by Monica Davis. Upon inquiring

for a driver's license from Davis, the officer noticed an open container of beer in the center console. Davis did not produce

a driver's license, for which she later received a citation. When Officer Eberhardt questioned Davis, the front seat

passenger, Henson, repeatedly interfered with the conversation, attempting to answer questions posed to Davis. Officer Eberhardt instructed Davis to accompany him to the rear of the van and ordered Henson to place and keep his hands on the dash. As Officer Eberhardt was speaking with

Davis, he observed Henson furtively place an unknown item under the front passenger seat. Concerned about the presence of

contraband or a weapon, Officer Eberhardt ordered Henson to exit the van. methadone A pat-down search of Henson revealed 167 tablets of and a .22 caliber pistol. A search of the van A

revealed a modified shotgun under the front passenger seat.

subsequent search of Henson's house executed pursuant to a pretrial release warrant uncovered additional firearms. Henson filed a motion to suppress all of the evidence seized during the checkpoint stop and subsequent search of his home, contending the checkpoint was unconstitutional. to 28 U.S.C. § 636 (2006), the 3 district court Pursuant the

referred

suppression suppression the motion.

matter hearing, After

to the

a

magistrate

judge.

Following

a

magistrate

judge

recommended objections

denying to the

considering

Henson's

magistrate judge's report and recommendation, the district court adopted the magistrate judge's recommendation and denied the

motion to suppress. On appeal, Henson contends the vehicle checkpoint stop was a violation of his Fourth Amendment right against an

unreasonable search and seizure.

We review the factual findings

underlying the denial of a motion to suppress for clear error and the legal conclusions de novo. 400 F.3d 187, 193 (4th Cir. 2005). United States v. Johnson, We construe the evidence in

the light most favorable to the Government, the prevailing party below. 1998). Stopping a vehicle at a checkpoint constitutes a United States v. Seidman, 156 F.3d 542, 547 (4th Cir.

seizure of a person within the meaning of the Fourth Amendment. Michigan (1990). Dep't of State Police v. Sitz, 496 U.S. 444, 450

"A search or seizure is ordinarily unreasonable in the City of

absence of individualized suspicion of wrongdoing." Indianapolis v. Edmond, 531 U.S. 32, 37 (2000).

However, the

Supreme Court has recognized "limited circumstances in which the usual rule does not apply." the Supreme Court has Id. a 4 With respect to roadblocks, suspicionless seizure at a

upheld

checkpoint

aimed

at

intercepting

illegal

immigrants,

United

States v. Martinez-Fuerte, 428 U.S. 543, 566-67 (1976), and a sobriety checkpoint aimed at combating drunk driving, Sitz, 496 U.S. at 455. dicta verify that a In addition, the Supreme Court has suggested in roadblock licenses to question all oncoming traffic with to the

drivers'

and

vehicle

registration

interest of serving highway safety would be permissible under the Fourth Amendment. (1979). prevention, However, See Delaware v. Prouse, 440 U.S. 648, 663 checkpoints drug set up for general do not crime pass

including

interdiction,

constitutional muster under the Fourth Amendment.

Edmond, 531

U.S. at 41-42; see also United States v. Morales-Zamora, 974 F.2d 149, 151-53 (10th Cir. 1992) (holding that stop at drivers' license checkpoint was invalid because it was a pretext to check for drugs). This court has noted with approval a traffic safety stop in which police checked drivers' licenses and

registrations.

See United States v. Brugal, 209 F.3d 353, 357

(4th Cir. 2000) (observing that "courts have concluded that a brief stop at a checkpoint for the limited purpose of verifying a driver's license, vehicle registration, and proof of insurance is a reasonable intrusion into the lives of motorists and their passengers even in the absence of reasonable suspicion that a motorist or passenger is engaged in illegal activity"). 5 Other

courts

have

upheld

similar

checkpoints.

United

States

v.

Fraire, 575 F.3d 929, 932-35 (9th Cir. 2009); United States v. Galindo-Gonzales, 142 F.3d 1217, 1221 (10th Cir. 1998); United States v. McFayden, 865 F.2d 1306, 1310-13 (D.C. Cir. 1989), abrogated in part by United States v. Davis, 270 F.3d 977, 981 (D.C. Cir. 2001). In determining the constitutionality of a checkpoint, the court must inquire into both the primary purpose and the reasonableness of the checkpoint. checkpoint was to advance "the If the primary purpose of the general interest in crime

control," Edmond, 531 U.S. at 48, it is per se invalid under the Fourth Amendment. United States v. Faulkner, 450 F.3d 466, 469-

70 (9th Cir. 2006); Mills v. Dist. of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009). If the primary purpose was valid, the

court must then judge the checkpoint's reasonableness on the basis of individual circumstances. U.S. 419, 426 (2004). Illinois v. Lidster, 540

This requires balancing "`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.'" Id. at 420, 427 Factors to (1) is

(quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). weigh intrusiveness include whether the

checkpoint:

clearly visible; (2) is part of some systematic procedure that strictly limits the discretionary authority of police officers; 6

and (3) detains drivers no longer than is reasonably necessary to accomplish the unless purpose other of checking come to a light license creating and a

registration,

facts

reasonable suspicion of criminal activity.

McFayden, 865 F.2d

at 1311-12 (citing Prouse, 440 U.S. at 662; Martinez-Fuerte, 428 U.S. at 558-59; Brown, 443 U.S. at 51). With parties' this and framework the in mind, after reviewing in the the joint

briefs

materials

submitted

appendix, we find the district court did not err in accepting the recommendation of the magistrate judge and in concluding that the primary purpose of the checkpoint was not general crime control, but rather to promote traffic safety by allowing police to check drivers' licenses and vehicle registration. respect by the to The the

court's

reasonableness is also

determination

with

checkpoint

sufficiently

supported

record.

Therefore, the district court properly denied Henson's motion to suppress on the ground that the checkpoint stop did not violate Henson's Fourth Amendment rights. Accordingly, sentence. legal before we affirm Henson's convictions and

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED 7