                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 10-2385

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

T Y B ROCK,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
            No. 2:09-cr-226—Philip P. Simon, Chief Judge.



   A RGUED N OVEMBER 30, 2010—D ECIDED JANUARY 26, 2011




  Before K ANNE, W ILLIAMS, and T INDER, Circuit Judges.
  W ILLIAMS, Circuit Judge. Ty Brock was stopped at a
vehicle sobriety checkpoint in Lake Station, Indiana in
the early morning hours of November 8, 2009. He did
not pass with flying colors. Officers that approached
Brock’s vehicle smelled a strong odor of marijuana when
he rolled down his window and saw Brock trying to
hide a ceramic plate with a powdery substance, a razor,
and a straw on it under the driver’s seat. Brock was
2                                              No. 10-2385

ordered out of the car and arrested, at which point a
loaded gun was discovered strapped to his ankle. A
search of his car yielded heroin, marijuana, and a second
firearm. Brock moved to suppress the items, arguing
that the stop of his car at the checkpoint violated his
Fourth Amendment rights. After the district court
denied the motion, Brock pleaded guilty to possession
with intent to distribute heroin, 21 U.S.C. § 841(a)(1),
and carrying a firearm in furtherance of a federal drug
trafficking crime, 18 U.S.C. § 924(c). He was sentenced to
sixty months’ imprisonment and three years’ supervised
release.
  Brock appeals the district court’s denial of his motion
to suppress the items found in his car during the check-
point stop. He argues that the sobriety checkpoint in
this case was unreasonably intrusive. We disagree.
Because the checkpoint was neither objectively nor sub-
jectively intrusive in any way that would outweigh the
government’s interest in operating it, the checkpoint
stop did not violate Brock’s Fourth Amendment rights.
We affirm.


                   I. BACKGROUND
  During the weekend of November 7, 2009, law enforce-
ment officers from the Lake County Drunk Driving Task
Force set up a sobriety checkpoint at 2701 Ripley Street
in Lake Station, Indiana. The task force typically set up a
roadblock somewhere in Lake County one weekend per
month. Approaching motorists were given advance
warning of the checkpoint and had the opportunity to
No. 10-2385                                                          3

turn and avoid it beforehand, which strikes us as perhaps
not the best way to catch drunk drivers.1 Officers at the
checkpoint were given specific instructions from the
task force director regarding how to operate the road-
block. Cars were stopped in a pattern whereby eight cars
would be stopped, the next eight would be let through,
and so on. No racial, gender, or age profiling was per-
mitted. When a motorist was stopped at the checkpoint,
an officer would make initial contact with the driver by
asking for a license, registration, and proof of insurance,
and would observe whether the driver seemed impaired.
If the officer determined further investigation was
needed, the car would be directed to pull over into a
separate area. For motorists that were not impaired and
had the documents the officer requested, the process
would take somewhere between one and five minutes.
Over the two nights that the checkpoint was operating


1
   The district court referred to evidence at the suppression
hearing that avoidability is a “requirement of Indiana state
law,” but we are not sure that Indiana law is so clear on this
issue. See, e.g., State v. Gerschoffer, 763 N.E.2d 960, 969 (Ind. 2002)
(“The more avoidable a roadblock is, the less it interferes
with the liberty of individual drivers. A roadblock need hardly
be altogether voluntary, however, or it would have little
enforcement or deterrent value.”); King v. State, 877 N.E.2d
518, 523-24 (Ind. Ct. App. 2007) (degree of avoidability is
simply one of a number of factors in assessing reasonableness
of a roadblock under Indiana Constitution); Snyder v. State, 538
N.E.2d 961, 964 (Ind. Ct. App. 1989) (“if a driver may not choose
to avoid the roadblock by turning around, the roadblock may
become too intrusive.”) (emphasis added).
4                                                  No. 10-2385

(along with another checkpoint the task force had set up
in East Chicago, Indiana) fifty arrests were made, nineteen
of which resulted in charges related to drunk driving.2
   Brock approached the Lake Station roadblock at ap-
proximately 1:00 a.m. on November 8, driving a blue
1994 Mercury. According to checkpoint procedure, officer
Phillip Lewis of the Cedar Lake Police Department ap-
proached the driver’s side of the car, while officer
David Oszust of the St. John Police Department ap-
proached the passenger’s side. Officer Lewis noticed a
strong odor of marijuana when Brock rolled down his
window, and observed that Brock was shaking and ap-
peared nervous as he responded to a request for his
license and registration. At the same time, Officer Oszust
shined his flashlight into the car from the passenger’s
side and saw Brock using his foot to try and hide a
ceramic plate with piles of white and off-white powdery
substances, a razor blade, and a straw on it under the
driver’s seat. Officer Oszust told Officer Lewis what he
saw, and Brock was ordered to place his hands on his
head and exit the vehicle. As Brock got out of the car,
he removed his hands from his head and appeared to
reach for his lower leg area. He was subdued, hand-
cuffed, and arrested, and officers discovered that he
had a loaded .32-caliber handgun in an ankle holster. A
search of his car incident to the arrest yielded heroin,



2
   The record does not indicate how many of the arrests occurred
at the Lake County checkpoint versus how many came from the
East Chicago location.
No. 10-2385                                             5

marijuana, a second loaded weapon, and other drug
paraphernalia.
   Brock was charged with one count each of possession
with intent to distribute heroin and marijuana, 21 U.S.C.
§ 841(a)(1), and with carrying a firearm in furtherance of
a federal drug trafficking crime, 18 U.S.C. § 924(c). He
moved to suppress the guns and drugs, arguing that
the checkpoint was unconstitutional. The district court
held an evidentiary hearing at which Officers Lewis
and Oszust both testified, and the court denied Brock’s
motion in a written order. Brock subsequently entered
into a plea agreement, pleaded guilty to the heroin and
firearm counts, and the government agreed to dismiss
the marijuana charge. Brock was sentenced to sixty
months’ imprisonment and three years’ supervised release,
six months of which will be served in home detention.
Brock appeals the district court’s denial of his motion to
suppress.


                     II. ANALYSIS
  Brock argues that the initial stop of his vehicle at the
sobriety checkpoint violated his Fourth Amendment
right to be free from unreasonable search and seizure. He
concedes that the government has a legitimate interest in
preventing drunk driving, but argues that this particular
checkpoint was unreasonably intrusive on his Fourth
6                                                    No. 10-2385

Amendment rights.3 When reviewing a district court’s
ruling on a motion to suppress, we review legal conclu-
sions de novo, and factual findings and credibility deter-
minations for clear error. United States v. Pineda-
Buenaventura, 622 F.3d 761, 774 (7th Cir. 2010).
  A stop of a vehicle at a sobriety checkpoint constitutes
a seizure within the meaning of the Fourth Amendment,
and its validity depends on whether the seizure was
reasonable. Delaware v. Prouse, 440 U.S. 648, 653-54 (1979).
To determine whether a checkpoint stop is reasonable,
we apply a balancing test set forth by the United States
Supreme Court in Michigan Dep’t of State Police v. Sitz,
496 U.S. 444, 449-50 (1990), in which we weigh the in-
trusion on an individual’s Fourth Amendment rights
implicated in the initial stop against the government’s
interest in preventing drunk driving. In performing
this balancing test, we assess two types of intrusive-
ness—the “objective” intrusion, meaning the duration of
the stop and the intensity of any questioning and visual
inspection, and the “subjective” intrusion, meaning the
stop’s potential for generating fear and surprise to law-
abiding motorists. Id. at 451-52; see also United States v.
Trevino, 60 F.3d 333, 336 (7th Cir. 1995).



3
  Brock does not challenge the validity of his arrest, and instead
only challenges the constitutionality of the initial stop. Clearly,
the officers had reasonable suspicion to further investigate
Brock once they detected the marijuana odor and observed
him trying to hide what appeared to be narcotics under the
car seat.
No. 10-2385                                                7

  “No one can seriously dispute the magnitude of
the drunken driving problem or the States’ interest in
eradicating it.” Sitz, 496 U.S. at 451. Brock recognizes this
and does not challenge the state of Indiana’s legitimate
interest in preventing drunk driving. Instead, he argues
that the checkpoint was unreasonably intrusive in a way
that outweighs that interest. We disagree. The evidence
before the district court demonstrated that the road-
block was neither objectively nor subjectively intrusive.
   Our decision in Trevino is instructive. There, the defen-
dant challenged the validity of a roadblock in Peoria,
Illinois where officers were checking for automobile
equipment violations, and in the course of doing so
discovered a large amount of drugs, money, and a
weapon in the defendant’s car. Trevino, 60 F.3d at 335-36.
Police at the Peoria checkpoint stopped every vehicle that
passed through it, the checkpoint was administered
pursuant to set guidelines, and motorists were made
aware of the fact that they were approaching an official
roadblock. Id. at 338. The average wait for a motorist
was between three and five minutes, depending on
whether traffic backed up. Id. at 335. We applied the
Sitz test to the checkpoint and found it to be valid, noting
that what was dispositive in Sitz was that police were
stopping motorists “pursuant to neutral guidelines” and
were therefore “not at liberty to randomly decide
which motorists would be stopped and which would
not.” Id. at 337. That way, a motorist would know that the
stop was official, and “would have no reason to believe
that he or she was a target of unbridled police discre-
tion.” Id.
8                                               No. 10-2385

   The same conclusion is called for here. Objectively, the
stoppage time for cars at the Lake Station checkpoint
was brief—1-5 minutes on average versus 3-5 minutes
in Trevino. And the initial questioning of motorists was
very limited—simply basic requests for license, registra-
tion, and insurance. The objective intrusion to motorists
stopped at the roadblock was minimal. See Sitz, 496 U.S.
at 452. Nor was the stop subjectively intrusive. As we
noted in Trevino, the most critical factors in assessing
subjective intrusion are first, whether the checkpoint is
set up in a manner which informs incoming drivers that
it is an official stop, and second, whether it gives the
officers unbridled discretion to randomly target indi-
vidual motorists. Trevino, 60 F.3d at 337. Here, the evi-
dence before the district court was that approaching
motorists were warned about the checkpoint and could
turn left or right to avoid it if they wished. Cf. id. at 336
(rejecting defendant’s argument that the checkpoint was
subjectively intrusive due to a lack of advance warning).
The fact that drivers had the option to avoid the check-
point altogether weighs heavily against a finding that
the roadblock was subjectively intrusive. Nor did
officers have “unbridled discretion” to determine which
motorists would be stopped. See id. at 337. Police
operating the roadblock were under instructions to stop
eight cars, then to let the next eight through, and so on in
an alternating pattern. While this is different from the
checkpoints in Sitz or Trevino where every car was
stopped, the difference is not meaningful from the stand-
point of officer discretion. In both circumstances, officers
were “not free to decide which motorists would be
No. 10-2385                                               9

stopped and which would not.” Trevino, 60 F.3d at 338.
Police operating the Lake Station checkpoint were in-
structed to stop cars in a specific alternating pattern, and
there is no evidence in the record (nor does Brock argue)
that they deviated from those instructions in any way.
The Lake Station checkpoint was not subjectively intru-
sive in any way that would outweigh the legitimate
government interest at issue.
  Brock argues that the government failed to put forth
sufficient evidence demonstrating that the checkpoint
was valid. He is correct that it is the government’s bur-
den to demonstrate that the stop was reasonable, see,
e.g., United States v. Pavelski, 789 F.2d 485, 490 (7th Cir.
1986), but we disagree that it did not meet that burden.
The district court heard testimony from the two officers
that initially approached Brock’s vehicle, Officers Lewis
and Oszust, and they testified as to the setup of this
particular roadblock and the specific and neutral guide-
lines they followed in operating it. The district court
found these officers to be credible. While written guide-
lines governing the operation of a checkpoint would
be preferable, there was sufficient evidence in this case
supporting the conclusion that the Lake County check-
point was not intrusive in a manner that would violate
the Fourth Amendment.


                   III. CONCLUSION
  The initial stop of Brock’s vehicle at the Lake Station
checkpoint was reasonable. It was justified by a strong
government interest in preventing drunk driving, and was
10                                           No. 10-2385

not objectively or subjectively intrusive in any way that
would outweigh that interest. The judgment of the dis-
trict court is A FFIRMED.




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