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-

SMS RICARDO FRAIRE,

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
COUNSEL

Daniel J. Broderick, Federal Defender, Douglas J. Beevers,

Assistant Federal Defender (argued), Fresno, California, for

the appellant.

UNITED STATES v. FRAIRE 10215
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 seconds, 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 hunting — which is minimally intrusive, justified by a legitimate

concern for the preservation of park wildlife and the prevention 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

10216 UNITED STATES v. FRAIRE
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 station, 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 “bloodshot 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 influence 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 rendered an oral ruling denying Fraire’s motion to suppress.

UNITED STATES v. FRAIRE 10217
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 Chandler 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 “determine whether the primary purpose of the [checkpoint] was to

advance ‘the general interest in crime control.’ ” See Faulkner, 450 F.3d at 470 (quoting Edmond, 531 U.S. at 48). “If so,

then the stop . . . is per se invalid under the Fourth Amendment.” Id.; see also Illinois v. Lidster, 540 U.S. 419, 426

(2004) (describing this as the “presumptive rule of unconstitutionality”).

[4] If the checkpoint is not per se invalid as a crime control

device, then the court must “judge [the checkpoint’s] reason10218 UNITED STATES v. FRAIRE
ableness, hence, its constitutionality, on the basis of the individual 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 public 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 unconstitutional 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 ordinary 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 intoxication. 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 wrongdoing. 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 presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and

the law enforcement practice at issue.” Id. at 39; see also id.

UNITED STATES v. FRAIRE 10219
at 43. As for Martinez-Fuerte, the objective there was to “intercept 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 MartinezFuerte. The district court found that the checkpoint’s purposes 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 checkpoint upheld in Sitz and is distinguishable from the checkpoint in Edmond. A critical factor in Sitz was the close

connection between the checkpoint and the harm it was seeking 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 prevented 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.

10220 UNITED STATES v. FRAIRE
[7] Because the primary purpose of the checkpoint is distinguishable from the general interest in crime control, the

checkpoint is not per se unconstitutional under Edmond. We

must therefore determine its “reasonableness, hence, its constitutionality, on the basis of the individual circumstances.”

Lidster, 540 U.S. at 426. Our first consideration is “the gravity 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 protecting 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 upholding that checkpoint. 496 U.S. at 454. The Court also contrasted 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 effectiveness meant there was nothing to overcome the presumption of ineffectiveness derived from “common sense.” See

Prouse, 440 U.S. at 659-60 (stating that “common sense” suggested the “contribution to highway safety made by the discretionary 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

UNITED STATES v. FRAIRE 10221
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 prohibition. 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 hunters seek to obey the law if they know what it is. Overall, we

believe the checkpoint advanced the public interest to a significant 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 omitted).

[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 carcasssniffing dogs. See Lidster, 540 U.S. at 427 (finding minimal

10222 UNITED STATES v. FRAIRE
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 distribution 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 subjective intrusion from a checkpoint stop is significantly less

than other types of seizures, such as random stops. MartinezFuerte, 428 U.S. at 558. Here, the subjective intrusion was

minimal. The checkpoint was accompanied by signs announcing 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 individual 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.

UNITED STATES v. FRAIRE 10223