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04/30/91 RUSSELL GALBERTH AND JAY TAYLOR v. UNITED

April 30, 1991

RUSSELL GALBERTH AND JAY TAYLOR, APPELLANTS
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Nan R. Huhn, Trial Judge, Hon. Herbert B. Dixon, Trial Judge

Rogers, Chief Judge. Ferren and Terry, Associate Judges.

The opinion of the court was delivered by: Rogers

In these consolidated appeals appellants Russell Galberth and Jay Taylor appeal their convictions on the ground that the trial court erred in denying their motions to suppress evidence that was discovered after they were stopped at police traffic roadblocks. *fn1 Guided by Supreme Court precedent, we balance the government interest served by the roadblocks against the liberty interests of the individuals seized. We therefore conclude that appellant Galberth's conviction must be reversed, given Judge Dixon's finding that the roadblock at which Galberth was stopped was designed to combat violence and illegal drug activity. We further conclude that Judge Huhn's findings do not clearly indicate the principal purpose of the roadblock at which appellant Taylor was stopped. We therefore remand for further findings in appellant Taylor's case.

I.

The two roadblocks at issue were established in connection with Operation Clean Sweep, a police department program instituted in August 1986 to address illegal drug trafficking, particularly sales in open air markets, and accompanying violence in the District of Columbia. The program was governed by the Field Operations Bureau which developed a manual for each police district containing guidelines for the various law enforcement techniques employed by Operation Clean Sweep. The facts of the two roadblocks differ:

Galberth roadblock.

Appellant Galberth was stopped at the roadblock at Montello Avenue and Queen Street, N.E., on December 5, 1989. Officer Cephas, a field officer assigned to the roadblock, testified that he received orders that all cars were to be stopped from 9:30 a.m. until 11:30 a.m. and the drivers asked for their licenses and registrations. Eight to ten officers were present, in uniform, and some were wearing visibility jackets; 5 to 6 marked police cars were also on the scene. Officer Cephas's instructions were that if any questions arose, then he was to run a Washington Area Law Enforcement Service (WALES) computer check to see if the driver had a valid license. No barriers, signs, or traffic cones were used to mark the roadblock, but Officer Cephas estimated that the police officers could be seen from about midway up the block. Officer Cephas testified that persons were stopped for approximately 2 to 3 minutes if there was no problem with their license.

The roadblock at Montello and Queen was part of a special operation in the Trinidad area of the city announced by the Mayor to "cut down on the violence and homicides and narcotics trafficking in the Trinidad area, attacking it from three different angles," -- roadblocks, undercover operations, and high visibility "saturation" patrols. Captain O'Donnell, the coordinator for Operation Clean Sweep for the Fifth District, testified that the roadblock program was designed to deal with "traffic problems such as speeding automobiles, vehicles frequenting the area committing traffic violations to purchase narcotics, stolen automobile traffic in the neighborhood, and things of that nature." As he explained, a high volume of narcotics trafficking brings with it a similarly heavy amount of automobile traffic, since many people come to the open air drug markets by car. Captain O'Donnell's commanding officer delegated to him the responsibility to select a site for the roadblocks, to notify his commanding officer of his selection, to assign a supervisor on the scene, and to periodically inspect the roadblock while it was in operation.

O'Donnell selected the Montello Avenue site because he knew from personal observation as well as citizen complaints that the area was plagued by heavy traffic created when individuals looking to buy drugs parked illegally for a brief period, and then sped away after making their purchase. The evidence he offered (in addition to his own observations) relating to traffic congestion, however, was that in the past three years there had been over 100 citizen complaints about drugs, traffic, abandoned cars, and trash in the area of Montello and Queen.

O'Donnell instructed Sergeant Bullock to operate the roadblock from 9:30 a.m. to 11:30 a.m., and then to conduct a high visibility saturation patrol in the Trinidad area. Captain O'Donnell inspected the roadblock while it was in operation, and explained that although the roadblock guidelines suggest using flares, flashing warning lights, or flashlights to increase the roadblock's visibility, *fn2 he saw no need for them in this case because it was daytime and the police could be seen 100 yards before a car entered the intersection. In addition, an escape route was available, allowing cars to turn down Holbrook Terrace and avoid passing through the roadblock.

Sergeant Bullock's report indicated that 226 cars, coming from three directions, were stopped, four arrests were made (three for no permit and one for operating after suspension), and seventeen traffic violation citations were issued.

Appellant Galberth was stopped at the roadblock and asked by Officer Cephas for his driver's license and registration. Galberth told the officer that he did not have his driver's license and that he must have forgotten to bring it. Cephas asked for Galberth's social security number, and the resulting computer check indicated that Galberth's license had expired in 1983. Cephas ordered Galberth out of the van and placed him under arrest for not having a valid operating permit. As Officer Cephas was patting Galberth down, he felt an object in Galberth's front coat that he thought might be a gun. Reaching into the pocket, Cephas found a .38 caliber revolver.

Galberth testified that he did not see the police until he reached the stop sign at the intersection, and that there was no way that he could avoid being pulled over by the police. Mr. Lucas, a passenger in the van that Galberth was driving, testified that he too first noticed the police as the van approached the intersection about 50-75 feet before they came upon the police at the intersection. Lucas saw no visibility jackets, cones or flares, although he did see police officers talking to people in other cars in the area.

Judge Dixon denied the motion to suppress the gun. The Judge found that there was a substantial police presence and that the officers were wearing visibility jackets. He further found that an organized and defined procedure had been used in setting up the roadblock and that no discretion had been left in the hands of individual police officers in the field. In addition, Judge Dixon found that the intrusion on each motorist's liberty was minimal. He also found, however, that the primary purpose of the roadblock was to deter drug traffic and violence in connection with Operation Clean Sweep, and that while relieving the traffic problems at Montello and Queen may have been one factor that went into the determination about where ...


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