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UNITED STATES v. ZIEGLER

September 8, 1993

UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
PAUL M. ZIEGLER, Defendant-Appellee.



The opinion of the court was delivered by: JAMES WARE

 Plaintiff-Appellant United States of America ("Plaintiff") appeals Magistrate Judge Garrett's January 7, 1993 order granting Defendant-Appellee Paul M. Ziegler's ("Defendant") motion to suppress evidence of driving under the influence of alcohol obtained when Defendant was stopped at a sobriety checkpoint. Because the Court finds that the Magistrate Judge erroneously construed the Constitutional requirements for a sobriety checkpoint, the Court hereby REVERSES the Magistrate Judge's order of suppression and dismissal and REMANDS the case to the trial court for further proceedings consistent with this Order.

 I. BACKGROUND

 The issue presented in this appeal is whether a search at a sobriety checkpoint violates the Fourth Amendment to the United States Constitution if motorists are not given advance publicity of the checkpoint. The Court holds that it does not.

 On June 20, 1992, between the hours of 10:30 p.m. and 1:00 a.m., federal police officers conducted a "systematic vehicle inspection" checkpoint outside the Imjin Road Gate to Fort Ord Army Reserve. The police directed every fifth vehicle into an established inspection site and allowed all other vehicles to pass without inspection and search. At approximately 11:52 a.m., the police counted Defendant's car as a fifth vehicle and directed Defendant to drive into a designated parking stall within the army reserve area. While conducting the inspection and search, the officers detected the smell of alcohol on Defendant's breath. Defendant was subsequently asked to perform a series of field sobriety tests, which he failed. The police also observed several containers of beer in the rear seat of Defendant's vehicle. Based on these circumstances, Defendant was charged with driving under the influence and driving with a blood alcohol content of over 0.08%. Defendant later submitted to a urine test, which indicated that Defendant had a blood alcohol content of 0.19%.

 Defendant waived his right to trial before a U.S. District Court Judge and instead consented to be tried by a U.S. Magistrate Judge. Defendant subsequently filed a motion to suppress evidence and to dismiss the case. The motion essentially sought to suppress all evidence obtained as a result of the systematic vehicle inspection on the grounds that the search was unreasonable and conducted in violation of Defendant's constitutional rights.

 On January 7, 1993, Magistrate Judge Garrett granted Defendant's motion finding that Defendant's stop was unconstitutional because advance publicity of the vehicle checkpoint was not a part of the guidelines followed. Since the evidence was suppressed and there was no further evidence (ie. of express or implied consent) to sustain the government's charges, the case was dismissed.

 II. DISCUSSION

 A. Timeliness of Appeal

 Defendant argues that Plaintiff failed to file a timely notice of appeal and that the appeal should therefore be dismissed. The Court disagrees.

 An appeal from a Magistrate Judge's order must be taken within 10 days of the entry of the decision or order. Fed. R. Crim. Proc. 58(g)(2). Federal Rule of Criminal Procedure 45(a) provides in relevant part: *fn1"

 
In computing any period of time the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday . . . When a period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. As used in these rules, "legal holiday" includes . . . Birthday of Martin Luther King, Jr. . . .

 Magistrate Judge Garrett's order was entered on Thursday, January 7, 1993. Therefore, for purposes of time computation, the time began to run on Friday, January 8, 1993. Defendant filed its notice of appeal on Tuesday, January 19, 1993. Excluding Saturdays, Sundays, and the legal holiday of Dr. Martin Luther King, Jr.'s birthday, Defendant's notice of appeal was filed on the 7th computable day after the time ...


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