United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2006 Decided August 7, 2007

No. 05-3093

UNITED STATES OF AMERICA,

APPELLEE

v.

RANDOLPH BOWMAN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00060-01)

Beverly G. Dyer, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A.J. Kramer,

Federal Public Defender. Neil H. Jaffee, Assistant Federal

Public Defender, entered an appearance.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Kenneth L.

Wainstein, U.S. Attorney at the time the brief was filed, and Roy

W. McLeese, III, Lisa H. Schertler, and T. Anthony Quinn,

Assistant U.S. Attorneys.

Before: GARLAND and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Police officers arrested Randolph

Bowman at a license-and-registration roadblock after

discovering a loaded gun and twenty bags of crack cocaine on

his person. The government subsequently filed a criminal

complaint charging Bowman with violations of the firearms and

narcotics laws, but failed to indict him within thirty days as

required by the Speedy Trial Act. A magistrate judge dismissed

the complaint with prejudice, and thereafter a grand jury issued

an indictment charging Bowman with gun and drug crimes.

After the case was assigned to a federal district judge,

Bowman moved to dismiss the indictment on the ground that the

magistrate had previously dismissed the complaint with

prejudice. He also moved to suppress the gun and drugs on

Fourth Amendment grounds. The district court denied both

motions; Bowman then entered a conditional plea of guilty, and

he now appeals. We affirm the district court’s determination

that the magistrate improperly dismissed the complaint with

prejudice, and therefore also affirm the court’s denial of

Bowman’s motion to dismiss the indictment. But because there

are neither findings nor evidence sufficient to assess the

constitutionality of the roadblock, we remand the case to the

district court for an evidentiary hearing in accordance with our

decision in United States v. Davis, 270 F.3d 977 (D.C. Cir.

2001). 

I

On January 3, 2004, Officer John Bevilacqua of the

Metropolitan Police Department (MPD) stopped Bowman’s red

Chevrolet Nova at a police roadblock at the intersection of

Stanton Road and Bruce Place in southeast Washington, D.C.

According to Bevilacqua’s later testimony, police set up the
3

roadblock to check driver’s licenses and vehicle registrations.

The roadblock was marked by uniformed officers waving

flashlights and police cars with flashing overhead lights. It was

manned by approximately sixteen officers, stopped fifty to sixty

cars that night, and had been in operation for more than an hour

when officers stopped Bowman’s Nova. 

As Bevilacqua approached the car, he noticed a 12-ounce

cup of “foamy,” “amber” liquid in Bowman’s lap. When the

officer asked Bowman for his license and registration, Bowman

attempted to conceal the cup and intentionally spilled out some

of the liquid. Believing that the cup contained beer, Bevilacqua

asked Bowman to get out of the car and to put his hands on the

roof. 

To ensure that Bowman did not have a weapon, Bevilacqua

attempted to pat down Bowman’s midsection. As Bevilacqua

began the pat-down, Bowman brought his elbows down and

moved his hands in toward the center of his body. Bevilacqua

grabbed Bowman by the wrists, placed his hands back on top of

the car, and told him to leave them there. The officer again

attempted to pat down Bowman’s midsection, and Bowman

again brought his hands down, moving them toward his waist.

A struggle ensued, and both men ended up on the ground. As

they struggled, Bowman’s sweater came up in the front,

revealing a handgun in his waistband. Bowman was eventually

restrained and searched. In addition to the gun, the police found

a clear ziplock bag containing twenty smaller bags of crack

cocaine. 

On January 5, 2004, two days after the arrest, the

government filed a criminal complaint, charging Bowman with

possession with intent to distribute cocaine base and possession

of a firearm and ammunition by a convicted felon. On February

6, Bowman’s appointed counsel filed a motion to dismiss the
4

complaint with prejudice, on the ground that the government had

failed to file an indictment within thirty days of the arrest, as

required by the Speedy Trial Act, 18 U.S.C. §§ 3161(b),

3162(a)(1). A magistrate judge signed the order that day. 

On February 10, unaware that the magistrate had dismissed

the complaint with prejudice, the government obtained an

indictment from the grand jury. The indictment charged

Bowman with possession of a firearm and ammunition by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1);

possession with intent to distribute cocaine base, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(C); and using, carrying, and

possessing a firearm during a drug trafficking offense, in

violation of 18 U.S.C. § 924(c)(1). At a status conference held

by a district court judge on February 27, Bowman’s newly

retained trial counsel, likewise unaware of the dismissal with

prejudice, orally moved to dismiss the indictment on the ground

that Bowman had not been indicted within thirty days of his

arrest. On March 16, the government informed the district court

that the magistrate had dismissed the complaint with prejudice,

and the court directed the parties to brief the effect of the

dismissal.

At a motions hearing on March 19, Bowman argued that the

dismissal of the original complaint with prejudice barred further

prosecution, and that, as a result, the court should dismiss the

indictment. On March 31, the district court denied the motion

on two grounds, holding that: (1) under the relevant provision of

the Federal Magistrate’s Act, 28 U.S.C. § 636(b)(1)(A), the

magistrate judge did not have authority to dismiss the complaint

with prejudice; and (2) even if the magistrate did have that

authority, the dismissal order was erroneous as a matter of law

because it should have been made without prejudice. See United

States v. Bowman, No. 04-060, Mem. Op. at 4-10 (D.D.C. Mar.

31, 2004).
5

Bowman subsequently moved to suppress the gun and

narcotics, arguing that they were obtained in violation of the

Fourth Amendment. The district court denied this motion as

well, finding that the roadblock was conducted for a legitimate

purpose and that Bevilacqua had a reasonable basis for detaining

Bowman and conducting a limited pat-down. 

On January 31, 2005, after losing his motion to suppress,

Bowman entered a conditional plea of guilty to one count of

possession of a firearm by a convicted felon. Bowman’s plea

reserved the right to appeal the denial of his motions to dismiss

the indictment and to suppress evidence.

II

We begin with Bowman’s challenge to the district court’s

denial of his motion to dismiss the indictment.

The Speedy Trial Act provides that an indictment must be

filed “within thirty days from the date on which [an] individual

was arrested.” 18 U.S.C. § 3161(b). If no indictment is filed

within that time limit, the charges contained in the complaint

“shall be dismissed.” Id. § 3162(a)(1). The court may dismiss

the complaint with or without prejudice. See id. Although the

Act “clearly allows reprosecution after dismissal without

prejudice for violations of the Act,” prosecution on the same

charge is barred after dismissal with prejudice. United States v.

Bittle, 699 F.2d 1201, 1206 (D.C. Cir. 1983); see White v.

United States, 377 F.2d 948, 949 (D.C. Cir. 1967). In this case,

the magistrate dismissed the complaint with prejudice.

As noted above, the district court denied Bowman’s motion

to dismiss the indictment for two reasons. First, citing a

provision of the Federal Magistrate’s Act concerning the powers

of magistrate judges, the court held that the magistrate lacked
6

authority to dismiss a felony complaint with prejudice. See

Mem. Op. at 4-6; see also 28 U.S.C. § 636(b)(1)(A)

(“Notwithstanding any provision of law to the contrary[,] . . . a

judge may designate a magistrate judge to hear and determine

any pretrial matter pending before the court, except a motion .

. . to dismiss or quash an indictment or information made by the

defendant, . . . and [a motion] to involuntarily dismiss an

action.”). “Because the [magistrate’s] order purported to

dismiss the criminal complaint against the defendant with

prejudice,” the court held, “it was outside the authority of the

magistrate judge and was legally invalid.” Mem. Op. at 7.

Bowman vigorously disputes the district court’s holding

that magistrate judges lack the power to dismiss felony

complaints with prejudice. In support, he cites the Speedy Trial

Act, which permits a “court” to dismiss a complaint with or

without prejudice. 18 U.S.C. § 3162(a)(1). The Act does not

define the term “court,” although it does define “judge” as “any

United States magistrate [or] Federal district judge.” Id. §

3172(1). Bowman also cites Federal Rule of Criminal

Procedure 48(b), which permits a “court” to dismiss a complaint

if “unnecessary delay occurs in . . . presenting a charge to a

grand jury.” FED. R. CRIM. P. 48(b). The Federal Rules define

“court” as “a federal judge performing functions authorized by

law,” and define “federal judge” to include a magistrate judge.

FED. R. CRIM. P. 1(b)(2), (3).

We need not resolve the underlying authority of the

magistrate judge in order to decide this case, because we agree

with the district court’s second reason for denying the motion to

dismiss the indictment. “Even had the magistrate judge the legal

authority to dismiss the complaint with prejudice, the dismissal

order here cannot be sustained.” Mem. Op. at 7.
7

The Speedy Trial Act instructs as follows: “In determining

whether to dismiss the case with or without prejudice, the court

shall consider, among others, each of the following factors: the

seriousness of the offense; the facts and circumstances of the

case which led to the dismissal; and the impact of a

reprosecution on the administration of [the Act] and on the

administration of justice.” 18 U.S.C. § 3162(a)(1); see id. §

3162(a)(2). In United States v. Taylor, the Supreme Court held

that it “is plain from this language [that district] courts are not

free simply to exercise their equitable powers in fashioning an

appropriate remedy, but, in order to proceed under the Act, must

consider at least the three specified factors.” 487 U.S. 326, 333

(1988). Moreover, “the administration of the Speedy Trial Act

and the necessity for thorough appellate review require that a

district court carefully express its decision whether or not to bar

reprosecution in terms of the guidelines specified by Congress.”

Id. at 343 (emphasis added). A court’s failure to “explain” how

it applied those factors constitutes an abuse of discretion. Id.

There is no real dispute that the magistrate failed to comply

with Taylor’s requirement that he “carefully express” and

“explain” his decision in terms of the congressionally mandated

factors. The magistrate signed the appellant’s proposed order to

dismiss with prejudice on the day it was filed, without informing

the prosecutor, holding a hearing, or explaining his reasoning.

The district court was clearly correct in concluding that,

“[u]nder United States v. Taylor, such a bare dismissal was an

abuse of discretion and must be reversed.” Mem. Op. at 8.

Having reversed the magistrate’s order, the district court

proceeded as if there had been no prior determination as to

whether the dismissal was with or without prejudice. In United

States v. Bittle, we held that, “[w]hen a complaint is dismissed

after the thirty-day period for indictment [under the Speedy Trial

Act] has elapsed, and there is no determination whether the
8

dismissal is with or without prejudice, a subsequently filed

indictment should be dismissed only if the complaint should

have been dismissed with prejudice.” 699 F.2d at 1207. For the

following reasons, the court concluded that the complaint should

have been dismissed without prejudice:

The offenses charged are quite serious and suggest that

the defendant may have a significant role in the plague

of guns and drugs that daily injures the people of

Washington, D.C. The circumstances that led to the

dismissal do not indicate any bad faith or lack of

attention by the United States; an indictment was

promptly obtained four days later. It also appears

probable that the magistrate judge inadvertently

dismissed the complaint with prejudice, believing that

the [prosecutor] concurred with the proposed order.

Reprosecution would not offend the Speedy Trial Act

because the time delay was minimal and no prejudice

to the defendant has occurred. On the other hand, the

administration of justice would be negatively impacted

were reprosecution prohibited. The community is

entitled to a resolution of the charges against the

defendant and, if the charges are proved to a jury’s

satisfaction beyond a reasonable doubt, to protection

from him.

Mem. Op. at 9 (footnote omitted). In light of these

considerations, we have no doubt that “the district court properly

exercised its discretion in determining that the complaint should

have been dismissed without prejudice.” Bittle, 699 F.2d at

1202.

Bowman next contends that, regardless of whether the

magistrate judge erred in dismissing the complaint with

prejudice, the district judge was without authority to reverse that
9

order. Bowman argues, first, that only the chief judge of the

district court had the power to overturn the magistrate judge’s

decision to dismiss the complaint. In support, he turns to Local

Rule 57.14(7), which states that the chief judge “shall . . . hear

and determine requests for review of rulings by magistrate

judges in criminal cases not already assigned to a judge of the

Court,” D.D.C. CRIM. R. 57.14(7), and to Local Rule

57.10(a)(2), which states that a criminal case is not assigned to

a district court judge until an indictment or information is filed,

see id. at 57.10(a)(2). We have never held that a violation of

this kind of local court rule can invalidate an indictment. Cf.

United States v. Osum, 943 F.2d 1394, 1401 n.3 (5th Cir. 1991)

(“It is generally stated that local rules governing the assignment

of cases are intended to promote efficient operation of the

district courts and do not normally give defendants vested rights

to any particular procedure.”); United States v. Berberian, 851

F.2d 236, 240 (9th Cir. 1988) (same); Sinito v. United States,

750 F.2d 512, 515-16 (6th Cir. 1984) (same). And in any event,

by its own terms, Local Rule 57.14(7) does not apply once a

defendant has been indicted and the case assigned to a district

judge, as was true here. At the time the district judge reviewed

the magistrate judge’s order, the case had been “assigned to”

that district judge. D.D.C. CRIM. R. 57.14(7).

Relatedly, Bowman argues that the government sought

district court relief too late -- that it should have appealed within

ten days of the magistrate’s order, at which time (preindictment) an appeal could only have gone to the chief judge.

In support of this argument, Bowman points to Federal Rule of

Criminal Procedure 58(g)(2)(A), which states that “[e]ither party

may appeal an order of a magistrate judge to a district judge

within 10 days of its entry if a district judge’s order could

similarly be appealed.” FED. R. CRIM. P. 58(g)(2)(A). The

problem with this argument is that Rule 58, which is entitled

“Petty Offenses and Other Misdemeanors,” applies only “in
10

1

Federal Rule of Criminal Procedure 59(b) provides that,

“[w]ithin 10 days after being served with a copy of [a magistrate’s]

recommended disposition, or at some other time the court sets, a party

may serve and file specific written objections to the proposed findings

and recommendations.” FED. R. CRIM. P. 59(b)(2). The Rule applies

to a magistrate’s “recommendation” regarding certain kinds of

dispositive matters “refer[red] to” the magistrate by a district judge.

FED. R. CRIM. P. 59(b)(1). Although the parties debate whether the

rule would apply to a case like this, they agree that it does not apply

to this case because it did not go into effect until December 1, 2005 --

well after the magistrate dismissed the complaint against Bowman.

See FED. R. CRIM. P. 59.

petty offense and other misdemeanor cases and on appeal to a

district judge in a case tried by a magistrate judge.” FED. R.

CRIM. P. 58(a). The magistrate’s dismissal of a felony

complaint does not fit within any of these categories. See 3B

CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND

PROCEDURE § 913 (3d ed. 2007). And the defendant cites no

other rule or statute limiting the time period for seeking review

of a magistrate’s dismissal of a criminal complaint.1

In sum, even if the magistrate judge had authority to dismiss

the criminal complaint with prejudice, nothing barred the district

court from reviewing that dismissal. Concluding that the district

court properly determined that the complaint should have been

dismissed without prejudice, we affirm its denial of Bowman’s

motion to dismiss the subsequent indictment. See Bittle, 699

F.2d at 1202.

III

We next consider Bowman’s challenge to the district

court’s denial of his motion to suppress evidence. In denying

that motion, the court made two determinations. First, the court

held that the stop of Bowman at the roadblock was
11

constitutional, finding that “there’s no evidence to counter the

government’s evidence that the primary purpose of this

particular checkpoint was to check for licenses and registration,”

Hr’g Tr. 47 (May 20, 2004), and that “the way the checkpoint

was conducted resulted in minimal intrusion for citizens,” id. at

46. Second, the court held that, following the roadblock stop,

Bevilacqua had a reasonable basis under Terry v. Ohio, 392 U.S.

1 (1968), to detain Bowman and to conduct a limited pat-down

of his torso. Hr’g Tr. 49-50. Bowman challenges both

determinations. Because we conclude that a remand is required

to assess the constitutionality of the stop at the roadblock, we do

not reach Bowman’s second challenge.

A

“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). As noted in

Edmond, however, the Supreme Court has recognized “limited

circumstances in which the usual rule does not apply.” Id. With

respect to roadblocks, the Court has “upheld brief, suspicionless

seizures of motorists at a fixed Border Patrol checkpoint

designed to intercept illegal aliens, and at a sobriety checkpoint

aimed at removing drunk drivers from the road.” Id. (citations

omitted); see Michigan Dep’t. of State Police v. Sitz, 496 U.S.

444, 455 (1990); United States v. Martinez-Fuerte, 428 U.S.

543, 566-67 (1976). “In addition,” the Court has “suggested that

a similar type of roadblock with the purpose of verifying

drivers’ licenses and vehicle registrations would be

permissible.” Edmond, 531 U.S. at 37-38 (citing Delaware v.

Prouse, 440 U.S. 648, 663 (1979)); see also Texas v. Brown, 460

U.S. 730, 739 (1983). Taking the Court’s suggestion, this

circuit has twice held that a roadblock is constitutionally

permissible where its principal purpose is “‘to regulate vehicular

traffic by allowing police to check driver’[s] licenses and
12

vehicle registrations.’” Davis, 270 F.3d at 980 (quoting United

States v. McFayden, 865 F.2d 1306, 1312 (D.C. Cir. 1989)).

Where, however, “the ‘primary purpose’ of a roadblock is

general crime control” or the “‘interdiction of illegal narcotics’”

-- as in Edmond -- “it is unconstitutional.” Id. at 979 (quoting

Edmond, 531 U.S. at 38, 41, 42, 44, 46, 47, 48). 

In United States v. McFayden, we held that three factors

must be present for license-and-registration checkpoints to pass

constitutional scrutiny. First, the principal purpose of such

checkpoints must be vehicular regulation. See 865 F.2d at 1311-

12. Second, “the checkpoints must serve to promote that

purpose in a ‘sufficiently productive’ fashion.” Id. (quoting

Prouse, 440 U.S. at 659). Third, “the checkpoints must be

minimally intrusive: (1) they must be clearly visible; (2) they

must be part of some systematic procedure that strictly limits the

discretionary authority of police officers; and (3) they must

detain drivers no longer than is reasonably necessary to

accomplish the purpose of checking a license and registration,

unless other facts come to light creating a reasonable suspicion

of criminal activity.” Id. at 1312 (citing Prouse, 440 U.S. at

662; Martinez-Fuerte, 428 U.S. at 558-59; Brown v. Texas, 443

U.S. 47, 51 (1979)).

We found all three factors satisfied by the roadblock at

issue in McFayden. In that case, officers discovered narcotics

in a car that they stopped at a checkpoint established as part of

the MPD’s “Operation Cleansweep.” First, although Operation

Cleansweep attacked the problem of drug dealing in the District,

the testimony of the Deputy and Assistant Chiefs of Police and

of the Operation’s supervisors persuaded the court that the

roadblocks themselves were set up to control traffic congestion.

“The evidence in this case amply demonstrates,” we said, “that

the principal purpose of the roadblock was to regulate vehicular

traffic. . . . The fact that there may have been a ‘halo’ or ‘spin-
13

off’ effect of deterring drug sellers and buyers . . . did not make

an otherwise legitimate checkpoint unlawful.” Id. Second,

citing data reflecting the number of traffic arrests at the

checkpoints, we concluded that the evidence established “the

effectiveness of the roadblocks for the stated purpose.” Id. at

1313. Finally, we found “that the operation of the roadblock

observed the Fourth Amendment standard of minimal

interference with individual liberty.” Id. The roadblocks were

clearly marked by flares and uniformed police officers, see id.;

“field officers were specifically instructed to check licenses and

registrations of all the cars” and hence did not have

“‘standardless and unconstrained discretion,’” id. (quoting

Prouse, 440 U.S. at 661); and the drivers were not detained once

they produced valid documents, unless other facts created

reasonable suspicion of criminal activity, see id.

Like McFayden, United States v. Davis involved the

discovery of narcotics during a stop at a traffic roadblock.

Unlike McFayden, however, in Davis we concluded that the

findings and evidence in support of the roadblock’s

constitutionality were insufficient in two respects.

First, the district court’s finding that the roadblock was

conducted for the principal purpose of vehicular traffic

regulation rested “on the testimony of the government’s sole

witness,” a police sergeant who was in charge of the specific

roadblock at issue. Davis, 270 F.3d at 981. The officer had

testified that he “chose the neighborhood for a ‘safety

compliance check,’” that he “briefed the other officers ‘on safety

concerns,’” that he “gave no instructions ‘about looking for

narcotics or firearms,’ and [that] he was not aware that any of

the officers at the scene were instructed about matters ‘unrelated

to vehicle safety.’” Id. But the specific roadblock that stopped

defendant Davis had been set up as part of the MPD’s “Summer

Mobile Force,” and “[a]ccording to a police manual, the
14

Summer Mobile Force initiative had as its overall objective ‘to

restore the public’s confidence in the [MPD] through the

reduction and prevention of crime and violence by utilizing

short-term, pro-active, high visibility enforcement techniques.’”

Id. Yet, in “determining the principal purpose of the safety

checkpoint . . . , the district court made no findings about the

Summer Mobile Force.” Id. This was an important defect, we

said, because “Edmond held that ‘programmatic purposes may

be relevant to the validity of Fourth Amendment intrusions

undertaken pursuant to a general scheme without individualized

suspicion.’” Id. (quoting Edmond, 531 U.S. at 45-46). “Since

the district court . . . [did] not appear to have taken these

‘programmatic purposes’ into account,” we concluded that “we

must send the case back for further proceedings.” Id. at 981.

Second, we found the district court’s determination

deficient with respect to McFayden’s requirement that a

checkpoint “‘promote the state interest in a “sufficiently

productive” fashion.’” Id. at 982 (quoting McFayden, 865 F.2d

at 1311-12 (quoting Prouse, 440 U.S. at 660)). Although we

noted that “[t]he effectiveness” or expected effectiveness “of the

checkpoint in fulfilling its primary purpose may be

demonstrated” in a variety of ways (including but not limited to

statistical evidence), the Davis record contained no evidence

regarding efficacy at all. Id. Accordingly, we directed that, “if

the district court concludes on remand that the primary purpose

of the checkpoint related to vehicular regulation,” then it should

go on to determine “whether the checkpoint furthered that

purpose.” Id. at 983.

B

This case is governed by our disposition in Davis. First, as

in Davis, the sole evidence to support the district court’s finding

that the principal purpose of the roadblock was to check for
15

licenses and registrations was testimony to that effect by a single

field officer, Officer Bevilacqua. Also as in Davis, the

testimony established that this particular roadblock was part of

a larger program. Bevilacqua testified that he was a member of

a task force, the “Seventh District High Impact Tactical Team.”

The Team conducted between forty and fifty roadblocks that

year, including the one that stopped Bowman. See Hr’g Tr. 11.

And while Bevilacqua testified that the instant roadblock was

conducted for license-and-registration compliance, he

acknowledged that the Team’s “general[]” responsibilities were

“combatting crime in the Seventh District[,] . . . [p]rimarily the

retrieval of narcotic[s] and guns from the streets. Id. at 10. Yet,

as in Davis, the district court does not appear to have taken these

responsibilities into account in concluding that there was “no

evidence to counter the government’s” description of the

roadblock’s primary purpose. Id. at 47 (emphasis added).

Moreover, again as in Davis, there was no evidence, and the

court made no findings, about the programmatic purpose behind

the series of roadblocks of which this one was only a part. See

Hr’g Tr. at 47 (finding the principal purpose “of this particular

checkpoint”); cf. McFayden, 865 F.2d at 1312-13 (upholding a

roadblock where the Deputy and Assistant Chiefs of Police, and

the supervisors of the overall operation, testified that the purpose

of the roadblock program was traffic control).

Indeed, if anything, the evidence of purpose here was

weaker than that found insufficient in Davis. In Davis, the

testifying officer was the sergeant in charge of the roadblock

that stopped the defendant. He testified about his reasons for

selecting the site, including traffic complaints from community

members and incidents of criminal activity, and also testified as

to the instructions he issued to the officers conducting the

roadblock. See 270 F.3d at 981. In this case, by contrast, the

testifying officer was merely one member of a team of

approximately sixteen officers who conducted the roadblock.
16

As the district court noted, Bevilacqua’s testimony was simply

“that the officers were directed that the purpose of the

checkpoint was to check for licenses.” Hr’g Tr. 45. When

asked whether checking driver’s licenses was the only purpose,

he could only say that “[t]hat’s what I was directed by my

official.” And regarding the programmatic purpose of the forty

to fifty roadblocks that his team had conducted over the course

of the year, all he could say was: “Upon occasion we were

directed, and I don’t know how high, I can only tell you what

my officials tell me, that we are to be looking for driver’s

license[s] in a traffic safety checkpoint.” Id. at 24.

Second, as in Davis, the district court made no finding that

either the roadblock, or the program as a whole, was an effective

means of furthering the purpose of vehicular regulation. Nor

was there any evidence that would have permitted the court to

make such a finding. Cf. Sitz, 496 U.S. at 454-55 (upholding a

sobriety checkpoint where the record demonstrated the

effectiveness of the checkpoint in yielding drunk-driving

arrests). 

Third, there remains the question of whether the checkpoint

was “minimally intrusive.” McFayden, 865 F.2d at 1312. We

did not expressly address this factor in Davis, although we did

note that the checkpoint there was lined by safety flares and

marked police cars, and that all vehicles approaching the

roadblock were stopped. See 270 F.3d at 978-79. Based on

Bevilacqua’s testimony, the district court found similar facts to

be true here as well: the roadblock was clearly visible, “every

car was stopped[,] . . . [a]nd . . . there was no discretion among

the officers as to whether to stop the cars.” Hr’g Tr. 45. The

court also found that drivers who had licenses and registrations

were immediately released from the checkpoint. See id.
17

Bowman does not dispute these findings, but notes that the

court made no findings as to “whether [the officers] had

discretion in the choice of location and time” for the roadblock,

Appellant’s Br. 22, and whether they conducted the roadblock

pursuant to a “set of guidelines” or “standards,” id. at 21.

Although these considerations are relevant to ensuring against

the kind of random, roving stops disapproved in Delaware v.

Prouse, 440 U.S. at 656-58, they are of less relevance with

respect to a roadblock that lasted more than an hour, that

stopped fifty to sixty cars, and at which the officers were

instructed “that every car was to be stopped,” Hr’g Tr. 16

(emphasis added). These circumstances may themselves

constitute a “systematic procedure that strictly limits the

discretionary authority of police officers.” McFayden, 865 F.2d

at 1312; cf. Prouse, 440 U.S. at 659, 663 (holding that a

standardless, “discretionary spot check” to examine a license

and registration was unconstitutional, but noting that this

holding would not preclude the “[q]uestioning of all oncoming

traffic at roadblock-type stops”). Nonetheless, because

McFayden did consider evidence regarding both the siting of a

roadblock and the plan pursuant to which it was conducted

(without indicating the relative importance of that evidence as

compared to the fact that all passing cars were stopped), see 865

F.2d at 1313, and because we are directing a remand on the

roadblock issue in any event, it would be beneficial for the

district court to make findings on this question as well.

C

For the foregoing reasons, we conclude that a remand is

required for further evidentiary proceedings and factual findings

pursuant to United States v. Davis. Indeed, that conclusion is so

manifest that, although the defendant and the government would

each prefer an outright victory, the briefs of both proposed such

a remand as an alternative disposition. See Appellant’s Br. 26;
18

2

The government contends that, even if the roadblock and/or the

stop and frisk were unlawful, the denial of Bowman’s motion to

suppress should be upheld on the alternative ground that his physical

resistance to the pat-down “purged the taint of any prior illegality.”

Appellee’s Br. 37. The government also contends that the stop and

frisk could be upheld on the ground that it was actually a search

incident to arrest for a violation of the District’s “open container” law.

See id. at 46 n.31 (citing D.C. Code § 25-1001). The government’s

first contention was not raised below, and its second was not relied

upon by the district court. Although it is within our authority to

“affirm on grounds other than those presented and relied upon below,”

United States v. Lawson, 410 F.3d 735, 740 n.4 (2005), to do so in this

case and at this stage would unfairly deprive petitioner of an adequate

opportunity to respond. If the government chooses to pursue these

contentions on remand, Bowman will have an opportunity to crossexamine witnesses and present evidence in opposition, and the district

court will have an opportunity to decide the issues in the first instance.

Appellee’s Br. 45. At oral argument, both repeated the view that

a remand would be appropriate. See Oral Arg. Recording at

8:41, 31:38. Finally, having concluded that we must remand on

the question of the lawfulness of the roadblock stop, we need not

and do not reach Bowman’s second argument, that the stop and

frisk that followed the roadblock were unlawful under Terry v.

Ohio.

2
19

IV

We affirm the district court’s judgment that the magistrate

judge improperly dismissed the complaint with prejudice, and

therefore affirm the court’s denial of Bowman’s motion to

dismiss the indictment. Because there are insufficient findings

and evidence from which to assess the constitutionality of the

roadblock, we remand the case to the district court for further

proceedings consistent with this opinion.

So ordered.