State of Texas v. Ryan William Luxon

Opinion filed July 12, 2007

Opinion filed July 12, 2007

In The

Eleventh Court of Appeals

____________

No. 11-06-00097-CR

__________

STATE OF TEXAS,

Appellant

V.

RYAN

WILLIAM LUXON , Appellee

On

Appeal from the County Court at Law No. 2

Henderson County, Texas

Trial

Court Cause No. 2005-1578CL2

O

P I N I O N

Ryan William Luxon was charged with the

misdemeanor offense of driving while intoxicated. In a motion to suppress, Luxon claimed that

he was arrested as the result of an illegal stop and seizure at a roadblock set

up by police officers. Luxon asserted

that the roadblock violated his rights under the Fourth Amendment to the United

States Constitution and Article I, section 9 of the Texas Constitution. The trial court granted Luxon = s motion. In a sole appellate issue, the State

complains that the trial court erred in granting Luxon = s

motion to suppress. Because the State

failed to meet its burden to prove that the warrantless seizure of Luxon was

reasonable under the Fourth Amendment, we affirm the judgment of the trial

court.

Evidence

at Suppression Hearing

On August 13, 2005, Shawn McCullough and Ricardo

Garza were patrol officers for the Payne Springs Police Department. On that day, Officers McCullough and Garza

conducted a driver = s license

checkpoint. Officers McCullough and

Garza were not employed by the Payne Springs Police Department at the time of

the suppression hearing, and they did not testify at the hearing. Instead, the State presented testimony from

Payne Springs Police Chief Tim Meadows.

Chief Meadows testified that he was a sergeant for the Payne Springs

Police Department when Officers McCullough and Garza conducted the subject

checkpoint. He also testified that he

had no personal knowledge regarding the checkpoint and that he learned about the

checkpoint from Officers McCullough and Garza after they conducted it.

Thus, Chief Meadows = s

testimony about the checkpoint was based on information that he received from

Officers McCullough and Garza. With

respect to the operation of the checkpoint, Chief Meadows testified that

Officers McCullough and Garza told him that they were checking driver = s licenses at the checkpoint and that

they were stopping every car that arrived at the checkpoint. Chief Meadows = s

testimony indicated that Officer McCullough stopped Luxon = s vehicle during the operation of the

checkpoint. The State introduced into

evidence Officer McCullough = s

offense report relating to the arrest of Luxon.

The report indicated that Officer McCullough approached Luxon = s vehicle at about 10:30 p.m. while

Officer McCullough was conducting a driver = s

license check at the intersection of Double

Bridge Road and Frazier Lane . The report also indicated that Officer

McCullough arrested Luxon for driving while intoxicated after speaking with

Luxon and smelling an odor of alcohol coming from within Luxon = s vehicle.

Chief Meadows testified that he did not give Officers

McCullough and Garza permission to operate the driver = s

license checkpoint. Chief Meadows said

that Officers McCullough and Garza had previously asked him whether they could

run a driver = s license

checkpoint. At that time, Chief Meadows

believed that driver = s

license checkpoints were illegal, and he testified that he told Officers

McCullough and Garza that he would have to check with Wade Norris, the police

chief at the time, about their request to operate a checkpoint. Chief Meadows testified that he had not

checked into their request when they conducted the checkpoint. He also testified that, as far as he knew,

Chief Norris did not give Officers McCullough and Garza permission to conduct

the checkpoint. Rather, Chief Meadows

said that Officers McCullough and Garza made the decision to operate the

checkpoint on their own, based on the approval of Officer Garza, who was the

senior patrol officer. However, Chief Meadows explained that the operation of

the checkpoint was not an appropriate exercise of Officer Garza = s authority.

Chief Meadows also testified that he did not know

how the checkpoint was set up or where Officers McCullough and Garza conducted

the checkpoint. Chief Meadows believed

that Officers McCullough and Garza set up the checkpoint on County Road 2516, but he said that the

checkpoint could have been set up at any one of the three intersections located

on County Road

2516 in Payne Springs. Chief Meadows

also testified that he did not know how many people Officers McCullough and

Garza stopped during the operation of the checkpoint. While Chief Meadows believed that Officers

McCullough and Garza caught some people driving without licenses, he testified

that he did not know how many arrests resulted from the checkpoint. Chief Meadows said that he had no statistical

information relating to the effectiveness of the checkpoint and that he could

not provide any kind of empirical evidence as to whether the checkpoint worked.

Chief Meadows also testified that the Payne

Springs Police Department did not normally conduct driver = s license checkpoints. He also said that the Payne Springs Police

Department did not have any standardized procedures for conducting checkpoints.

The

Trial Court = s Ruling

The trial court entered findings of fact and

conclusions of law in support of its order granting Luxon = s motion to suppress. In summary, the trial court found that Luxon = s vehicle was stopped pursuant to the

subject driver = s license

roadblock, that the Payne Springs Police Department did not have any

standardized procedures for conducting driver = s

license roadblocks, and that the State did not present any testimony or

empirical evidence demonstrating the effectiveness of the subject roadblock. The trial court concluded (1) that there was

no evidence Officer McCullough followed authoritatively standardized procedures

in operating the roadblock in order to serve the roadblock = s stated purpose and to minimize the

officers =

discretion in operating the roadblock and (2) that there was no testimony or

empirical evidence demonstrating the effectiveness of the roadblock. Based on the absence of such evidence, the

trial court concluded that the roadblock was illegal.

Standard

of Review

We

review a trial court = s ruling on a motion to suppress evidence

for an abuse of discretion. Balentine

v. State , 71 S.W.3d 763, 768 (Tex.

Crim. App. 2002). In reviewing a trial

court = s ruling

on a motion to suppress raising a Fourth Amendment claim, appellate

courts must give great deference to the trial court = s determination of historical facts while

reviewing the trial court = s application of Fourth Amendment search and seizure law de

novo. Torres v. State , 182 S.W.3d

899, 902 (Tex. Crim. App. 2005); Carmouche

v. State , 10 S.W.3d 323, 327 (Tex.

Crim. App. 2000); Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). An appellate court must view the

evidence in the light most favorable to the trial court = s ruling.

State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006) . When, as here, a trial court makes explicit

fact findings, the appellate court determines whether the evidence, when viewed

in the light most favorable to the trial court = s

ruling, supports those fact findings. Id. We also give deference to the trial court = s rulings on mixed questions of law and

fact when those rulings turn on an evaluation of credibility and demeanor. Guzman , 955 S.W.2d at 89 . Where such rulings do not turn on an

evaluation of credibility and demeanor, we review the trial court = s actions de novo. Id. ;

Myers v. State , 203 S.W.3d 873, 879 (Tex. App. C Eastland

2006, pet. ref = d).

The initial burden of proof on a motion to

suppress evidence on the basis of a Fourth Amendment violation rests with the

defendant. Torres , 182 S.W.3d at

902 ; Russell v. State , 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). The defendant meets this burden by

demonstrating that the search or seizure occurred without a warrant. Torres , 182 S.W.3d at 902 ; Russell ,

717 S.W.2d at 9 . Thereafter, the burden

shifts to the State to prove the reasonableness of the warrantless search. Torres , 182 S.W.3d at 902 ; Russell ,

717 S.W.2d at 9-10 .

Constitutionality

of Subject Roadblock

The evidence at the suppression hearing showed

that Officers McCullough and Garza stopped Luxon = s

vehicle at the subject roadblock. By

stopping Luxon = s vehicle

at the roadblock, the officers effectuated a seizure of Luxon within the

meaning of the Fourth Amendment. See

City of Indianapolis v. Edmond , 531 U.S. 32 (2000) ( A It

is well established that a vehicle stop at a highway checkpoint effectuates a

seizure within the meaning of the Fourth Amendment. @ );

State v. Sanchez , 856 S.W.2d 166, 168 (Tex. Crim. App. 1993). Because the officers seized Luxon without a

warrant, the State had the burden to prove that the seizure was reasonable

under the Fourth Amendment. See Russell ,

717 S.W.2d at 9 ) (If the State cannot produce evidence of a warrant, the State

must prove the reasonableness of the search or seizure.).

A roadblock seizure falls into the category of a

suspicionless seizure because it is conducted in the absence of a warrant and

without probable cause or reasonable suspicion.

United States v. Martinez-Fuerte , 428 U.S. 543, 561-62 (1976); Sanchez ,

856 S.W.2d at 168 n.4; see also 40 George E. Dix and Robert O. Dawson, Texas

Practice: Criminal Practice and Procedure '

10.70 (2d ed. 2001). A suspicionless

seizure is deemed reasonable under the Fourth Amendment if it meets the

balancing test set forth in Brown v. Texas , 443 U.S. 47 (1979). See Mich.

Dep = t of

State Police v. Sitz , 496 U.S.

444, 450 (1990) (the Brown balancing test applied to the determination

of the reasonableness of a highway sobriety checkpoint); see also 40

George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure ' 10.71A (2d ed. 2001). Brown requires balancing the public

interest against the individual = s

right to personal security free from arbitrary interference by law enforcement

officers. Brown , 443 U.S. at 50 .

In Delaware v. Prouse , 440 U.S. 648, 658

(1979), the United States Supreme Court stated that A the

States have a vital interest in ensuring that only those qualified to do so are

permitted to operate motor vehicles, that these vehicles are fit for safe

operation, and hence that licensing, registration, and vehicle inspection

requirements are being observed. @ In Prouse , the Supreme Court suggested

that the states could develop methods for conducting spot checks for driver = s licenses. 440 U.S. at 663 . The Supreme Court explained that A [q]uestioning of all oncoming traffic at

roadblock-type stops is one possible alternative [to check for driver = s licenses]. @ Id. However, while a roadblock stop may be a

permissible way to check for driver = s

licenses, A [a]

central concern in balancing these competing considerations [of public interest

and individual liberty] in a variety of settings has been to assure that an

individual = s

reasonable expectation of privacy is not subject to arbitrary invasions solely

at the unfettered discretion of officers in the field. @ Brown , 443 U.S. at 51 . A seizure at a roadblock stop is consistent

with the Fourth Amendment if it is A carried

out pursuant to a plan embodying explicit, neutral limitations on the conduct

of individual officers. @ Id.

The United States Supreme Court upheld the

constitutionality of a sobriety checkpoint in Sitz and a border patrol

checkpoint in Martinez-Fuerte . In

both Sitz and Martinez-Fuerte , the checkpoints were conducted

according to departmental plans and procedures that limited the discretion of

the field officers conducting the checkpoints.

See Sitz , 496 U.S.

at 447-48 ; Martinez-Fuerte , 428 U.S. at 551-54 . However, when a checkpoint is conducted

without procedures limiting the discretion of the field officers conducting the

checkpoint, a serious risk of an abuse of the field officers = discretion exists. See Sanchez , 856 S.W.2d at 175 ( A If the discretion of the officer in the

field is not kept at a minimum, then abuse of that discretion will inevitably

occur, and the Fourth Amendment guarantee against unreasonable searches and

seizures will be undermined. @ );

see also Fink v. State , 866 S.W.2d 333, 336 (Tex. App. C Houston [1st Dist.] 1993, no pet.)

(Because the officers in the field operated a checkpoint on their own

initiative, without supervisory approval and without departmental guidelines, A th[e] situation present[ed] a serious

risk of abuse of the officers =

discretion, and thereby intrude[d] greatly on appellant = s

fourth amendment interest in being free of arbitrary and oppressive searches

and seizures. @ ); 4

Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment ' 10.8(d), at 687-88 (3d ed. 1996).

In Sanchez , the Court of Criminal Appeals

held that a seizure at a roadblock was unreasonable under the Fourth

Amendment. Sanchez , 856 S.W.2d at

169-70 . In Sanchez , four

Department of Public Safety officers conducted a roadblock checkpoint without

obtaining authorization from a superior officer. The officers stopped all northbound traffic

for the purpose of questioning motorists about driver = s

licenses and insurance. The officers

also inspected the stopped vehicles for equipment violations. The defendant arrived at the checkpoint, and

after brief questioning, the officers found marihuana in the trunk of his

vehicle. Id. at 167 .

In a four-judge plurality opinion in Sanchez ,

the Court of Criminal Appeals stated that the Brown test requires

balancing the public interest against the individual = s

right to personal security in light of three factors: (1) the state interest

involved; (2) the level of intrusion on the individual = s

privacy; and (3) the effectiveness of the procedure used in achieving its

stated goal. Sanchez , 856 S.W.2d

at 168 . The Court of Criminal Appeals

then analyzed Sitz and Martinez-Fuerte and distinguished the

checkpoints involved in those cases from the roadblock at issue in Sanchez . Id.

at 168-69 . In Sanchez , there was

no evidence that the DPS officers followed standardized guidelines in operating

the roadblock. Id. at 169 . Unlike the checkpoints in Sitz and Martinez-Fuerte ,

the officers in Sanchez set up the roadblock on their own initiative and

operated the roadblock A without

the authorization or guidance of a superior officer and without established

procedures concerning the location of the roadblock or its operation. @

Id. In Sanchez , the Court of Criminal

Appeals also noted the absence of empirical evidence establishing the

effectiveness of the subject roadblock. Id. at

169-170 . The Court of Criminal Appeals

concluded:

In the absence of evidence of authoritatively

standardized procedures followed in operating the subject roadblock in order to

serve its stated purpose and minimize the officers =

discretion, and in the absence of testimony or empirical evidence demonstrating

the effectiveness of the roadblock, we hold the court of appeals erred in

concluding that the roadblock was reasonable under the Fourth Amendment.

Id.

at 170 .

In the two-judge concurring opinion in Sanchez ,

the concurring justices took issue with the plurality = s

conclusion that A empirical

evidence demonstrating the effectiveness of the roadblock @ is required to establish that a

roadblock is reasonable. Sanchez ,

856 S.W.2d at 173 . Justice Campbell

stated in the concurring opinion that he believed A this

one part of the plurality opinion is without solid foundation. @

Id. Justice Campbell also stated that Sitz ,

Prouse , and Martinez-Fuerte could not reasonably be read A to absolutely require the

government to produce statistical evidence of effectiveness with respect to any

particular law enforcement technique. @ Id. However, the concurring justices agreed with

the plurality = s

conclusion that a roadblock is unreasonable under the Fourth Amendment if the

roadblock is not operated according to departmental procedures or guidelines

minimizing the discretion of the officers in the field. Id.

at 174-75. In the concurring opinion,

Justice Campbell explained that, A had

the checkpoint been conducted with executive-level approval and according to

written, departmental guidelines, the delicate balance of competing interests would

certainly have led to a different result . @ Id.

at 175.

We note that Sanchez is not binding

precedent because it is a plurality opinion.

State v. Hardy , 963 S.W.2d 516, 519 (Tex. Crim. App. 1997). However, six of the justices in Sanchez

agreed that a roadblock is unreasonable under the Fourth Amendment unless the

officers conducting the roadblock followed appropriate procedures or guidelines

minimizing their discretion in conducting the roadblock. Thus, a majority of the justices on

the Court of Criminal Appeals agreed on this issue. Brown , Sitz , and Martinez-Fuerte

provide strong support for the reasoning of the six justices in Sanchez . Therefore, we elect to follow the sound

reasoning in Sanchez that, A [i]n

the absence of evidence of authoritatively standardized procedures followed in

operating [a roadblock] in order to serve its stated purpose and minimize the

officers =

discretion @ the

roadblock was unreasonable under the Fourth Amendment. See Sanchez , 856 S.W.2d at 170 .

In a case decided after Sanchez , the Court

of Criminal Appeals considered whether a sobriety checkpoint operated by a city

police department was reasonable under the Fourth Amendment. Holt v. State , 887 S.W.2d 16 (Tex.

Crim. App. 1994). In Holt , the

Court of Criminal Appeals construed Sitz to require A that for any DWI checkpoint program to

pass constitutional muster, it must at a basic minimum be authorized by a

statewide policy emanating from a politically accountable governing body. @

Id.

at 19. The Court of Criminal Appeals

concluded as follows:

Because a governing body in Texas has not

authorized a statewide procedure for DWI roadblocks, such roadblocks are

unreasonable and unconstitutional under the Fourth Amendment of the U.S.

Constitution unless and until a politically accountable governing body sees fit

to enact constitutional guidelines regarding such roadblocks.

Id. Thus, the Court of Criminal Appeals held in Holt

that a roadblock is unreasonable under the Fourth Amendment in the absence of a

statewide policy authorizing the roadblock.

In Schenekl v. State , 30 S.W.3d 412 (Tex.

Crim. App. 2000), the Court of Criminal Appeals clarified the balancing test to

be used in a Fourth Amendment analysis.

Based on an analysis of United States Supreme Court cases decided after Brown ,

the Court of Criminal Appeals determined that the proper balancing test is

two-pronged rather than the three-pronged test that it applied in Sanchez

and Holt . Schenekl , 30

S.W.3d at 414 . The Court of Criminal

Appeals explained:

In

Brown , the Supreme Court . . . indicated that the test may involve the

consideration of three factors: A 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. @ We recognized these factors and applied them

to sobriety checkpoints in State v. Sanchez and Holt v. State . Since Brown , however, the Supreme

Court has articulated the balancing test as being merely two-pronged.

We believe that the proper balancing test is

two-pronged, weighing the State = s

interest against the level of intrusion.

The effectiveness of a given procedure, the advancement of the public

interest, and the availability of alternative means are not separate prongs,

but fall within the consideration of whether the action promotes a legitimate

governmental interest. This test applies

to both random stops and checkpoints.

Id.

at 414. In Schenekl , the Court of

Criminal Appeals neither overruled Sanchez or Holt nor stated

that the results in those cases would have been different had it applied a

two-pronged balancing test.

In balancing the

competing interests in this cause, we must weigh the State = s interest against the level of

intrusion. Schenekl , 30 S.W.3d at

414 . Chief Meadows testified that

Officers McCullough and Garza conducted a driver = s

license checkpoint. Prouse

recognized that A the

States have a vital interest in ensuring that only those qualified to do so are

permitted to operate motor vehicles. @ Prouse , 440 U.S. at 658 . Chief Meadows had limited knowledge about the

operation of the checkpoint. He

testified that he did not know how the checkpoint was set up. While he testified that Officers McCullough

and Garza told him that they were stopping every car that arrived at the

checkpoint, he also testified that he did not know how many cars they stopped

or how many arrests resulted from the checkpoint. Chief Meadows also did not know where

Officers McCullough and Garza conducted the checkpoint. Officers McCullough and Garza did not testify

at the suppression hearing. Thus, the

record lacks evidence establishing the details of the checkpoint. The record also lacks evidence demonstrating

the effectiveness, if any, of the checkpoint in advancing the State = s interest.

In considering the level of intrusion, the

roadblock in this cause was similar to the roadblock in Sanchez . The evidence at the suppression hearing

demonstrated that Officers McCullough and Garza B

the officers in the field B

set up the subject roadblock on their own initiative. Officers McCullough and Garza made the

decisions as to where, when, and how to operate the roadblock. They conducted the roadblock without the

authorization or guidance of a supervisory officer. The evidence also showed that the roadblock

was not conducted pursuant to a departmental plan of the Payne Springs Police

Department and that the Payne Springs Police Department did not have any

departmental procedures for the purpose of limiting the discretion of the field

officers conducting the roadblock.

Thus, in this cause, the operation of the

roadblock was left to the unfettered discretion of the officers in the

field. Based on a lack of evidence

showing the details as to how Officers McCullough and Garza conducted the

roadblock, the record in this cause does not distinguish the stop of Luxon = s car at the roadblock from a random

stop of a car. The evidence showed that

Officers McCullough and Garza did not follow any authoritatively standardized

procedures in operating the roadblock.

Luxon = s

expectation of privacy was A subject

to arbitrary invasions solely at the unfettered discretion of officers in the

field. @ Brown , 443 U.S. at 51 . Thus, the operation of the roadblock

presented a serious risk of abuse of the field officers =

discretion and thereby intruded greatly on Luxon = s

Fourth Amendment interest in being free from arbitrary and oppressive searches

and seizures. See Brown ,

443 U.S.

at 51 ; Sanchez , 856 S.W.2d at 174 ; Fink , 866 S.W.2d at 336 . As such, we find that the level of intrusion

on Luxon = s privacy

interest outweighed the State = s

interest. See Brown , 443 U.S. at 51 . Therefore, the seizure of Luxon at the

roadblock was unreasonable under the Fourth Amendment. See Sanchez , 856 S.W.2d at 170 ; see

also Enax v. State , 877 S.W.2d 548 (Tex. App. C Beaumont

1994, no pet.); Fink , 866 S.W.2d at 336 .

Additionally, the roadblock was unreasonable under the Fourth Amendment

because there was no evidence that a governing body in Texas had authorized a statewide procedure

for conducting such roadblocks. Holt ,

887 S.W.2d at 19 .

The State concedes in its brief that the seizure

of Luxon was unreasonable under the reasoning of Sanchez . The Court of Criminal Appeals decided Sanchez

in 1993. The State argues in its brief

that the legislature invalidated the holding in Sanchez when it enacted

Section 521.025 of the Texas Transportation Code in 1995. See Tex.

Transp. Code Ann. '

521.025 (Vernon 2007). Section 521.025(b) of the Transportation Code provides

that A [a] peace

officer may stop and detain a person operating a motor vehicle to determine if

the person has a driver = s

license as required by this section. @ By enacting the Transportation Code, the

legislature recodified existing statutes without substantive changes to the

law. See Tex. Transp. Code Ann. ' 1.001 ( Vernon 1999).

The recodification took place A as

a part of the state = s

continuing statutory revision program. @ Section 1.001(a). Section 521.025 recodified former Tex. Rev. Civ. Stat. art. 6687b, ' 13 (1977). See Act of May 29, 1983, 68th Leg.,

R.S., ch. 345, 1983 Tex. Gen. Laws 1793 , 1816-17, repealed by Act of May

1, 1995, 74th Leg., R.S., ch. 165, '

1, 1995 Tex. Gen. Laws 1025 , 1545.

Former Article 6687b, section 13 provided that A [a]ny

peace officer may stop and detain any motor vehicle operator for the purpose of

determining whether such person has a driver = s

license as required by this Section. @

Section 521.025(b) of the Transportation Code was

merely a recodification of prior law without substantive change. Nothing in Section 521.025(b) of the

Transportation Code indicates that the legislature enacted it in response to Sanchez

or that the legislature disagreed with the holding in Sanchez . Additionally, although the Court of Criminal

Appeals did not specifically address former Article 6687b, section 13 in Sanchez ,

the holding in Sanchez certainly affected the subject matter of Article

6687b, section 13 B stopping

a motor vehicle operator for the purpose of determining whether the operator

had a driver = s

license. In statutory construction, A it is presumed that the legislature is

aware of case law affecting or relating to the statute. @ Miller v. State , 33 S.W.3d 257, 260 (Tex. Crim. App.

2000). The legislature could have

specifically addressed Sanchez in Section 521.025 of the Transportation

Code. Instead, it enacted Section

521.025 of the Transportation Code without material change to former Article

6687b, section 13. The language in

Section 521.025 does not indicate that the legislature considered Sanchez

in any way in enacting Section 521.025.

Therefore, the language in Section 521.025 provides no support for the

State = s claim

that the legislature intended to invalidate the holding in Sanchez .

Even if the legislature had intended to invalidate

the Sanchez holding in enacting Section 521.025 of the Transportation

Code, the roadblock would have been subject to a Fourth Amendment analysis. [1] As explained above, based on the principles

stated in Brown , Sitz , Martinez-Fuerte , and Holt ,

the seizure of Luxon at the subject

roadblock failed to satisfy the Fourth Amendment = s

reasonableness requirement. Thus, the

seizure of Luxon was unreasonable whether or not the legislature intended to

invalidate the holding in Sanchez .

In Schenekl , the Court of Criminal Appeals

addressed the constitutionality of Section 31.124 of the Texas Parks

and Wildlife Code. See Tex. Parks & Wild. Code Ann. ' 31.124 (Vernon 2002). Section 31.124 is included in Chapter 31 of

the Parks and Wildlife Code, which is entitled the Water Safety Act. See Tex.

Parks & Wild. Code Ann. ' 31.001 (V ernon 2002). The Water

Safety Act requires boats to carry a certificate of number and various safety

devices. See Schenekl , 30 S.W.3d

at 415 . Section 31.124(a) provides that,

A [i]n order to enforce the provisions of

[the Water Safety Act], an enforcement officer may stop and board any vessel

subject to [the Water Safety Act] and may inspect the boat to determine

compliance with applicable provisions. @ Thus, Section 31.124(a) authorizes

enforcement officers to stop and board boats, without probable cause or

reasonable suspicion, for the purpose of performing a water safety check. See Schenekl , 30 S.W.3d at 413, 416 .

In Schenekl , the Court of Criminal Appeals

applied the two-pronged balancing test, weighing the State = s interest against the level of

intrusion. The State has an important

interest in promoting recreational water safety. Schenekl , 30 S.W.3d at 416 . Random boat stops for the purposes of

conducting safety checks are necessary to promote the State = s interest because, A unlike cars on highways, boat

checkpoints are impractical because there are no established avenues of

transport on the water. @ Id.

at 415 . In determining that the level of

intrusion involved in a random boat stop under Section 31.124(a) is minimal,

the Court of Criminal Appeals distinguished boat stops from automobile stops:

Prouse is distinguishable from our case in

two important respects. First, as previously discussed, there are not effective

alternative mechanisms available for enforcing boating regulations. Second, in Prouse , the Court noted

that automobile travel is a basic, pervasive, often necessary means of

transportation in our society. As such,

there is a heightened expectation of privacy while in a car as compared to a

boat. Boating is not basic, pervasive,

or generally necessary, as is motor vehicle transportation. It is more commonly associated with

recreation than necessity.

Id.

at 416. Balancing the State = s interest with the minimal level of

intrusion on the individual = s

rights, the Court of Criminal Appeals concluded that Section 31.124 was

constitutional. Id.

As explained in detail in Schenekl ,

automobile stops are distinguishable from boat stops. Therefore, this cause is distinguishable from

Schenekl . In this cause, Luxon

had the A heightened

expectation of privacy while in a car as compared to a boat. @

For the reasons stated above, the operation of the roadblock at the

unfettered discretion of Officers McCullough and Garza involved a substantial

intrusion on Luxon = s

expectation of privacy.

The trial court did not abuse its discretion in

granting Luxon = s motion

to suppress. We overrule the State = s issue.

This

Court = s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

July 12, 2007

Publish. See Tex. R. App. P. 47.2(b).

Panel

consists of: Wright, C.J.,

McCall,

J., and Strange, J.

[1] We note that the courts construed former Article 6687b,

section 13 in light of Fourth

Amendment principles set forth in United States Supreme Court cases. See Webb v. State , 739 S.W.2d 802

(Tex. Crim. App. 1987) (The Court of Criminal Appeals examined the State = s claim that Article 6687b, section

13 authorized a checkpoint under Fourth Amendment principles set forth in Brown ,

Prouse , Martinez-Fuerte , and other cases.); Meeks v. State ,

692 S.W.2d 504, 507-08 (Tex. Crim. App. 1985) ( A The continued viability of [former

Article 6687b, section 13] is in question in light of the decision of the

United States Supreme Court in [ Prouse ]. @ ); Koonce v. State , 651

S.W.2d 46, 47-48 (Tex. App. C Dallas 1983, no pet.) (Because the State failed to present

evidence demonstrating that the warrantless search was reasonable under the

guidelines set forth in Prouse , the court did not reach the

constitutional issue of whether [former Article 6687b, section 13] per se

violated the Fourth Amendment.). These

cases demonstrated that a search or seizure conducted pursuant to former

Article 6687b, section 13 was reasonable only if the search or seizure complied

with the requirements of the Fourth Amendment.