Higbie v. State

W.C. DAVIS, Judge,

concurring and dissenting.

There are two inherent problems with the majority opinion handed down this day. First, although affirming the holding below that “this particular roadblock” ran afoul of appellant’s Fourth Amendment rights, the majority ignores the caveat accompanying the holding, to wit:

We hold that appellant had a reasonable expectation of privacy at the time and place of the stop. If the police had had extrinsic evidence that appellant was driving while intoxicated, such as his driving in an unsafe manner, then they would have had probable cause to stop him. Moreover, if the State had acknowledged the true purpose of the roadblock and had presented evidence that the timing and location of this roadblock were not arbitrary, but had been carefully selected because of an unusually high proportion of drunken drivers observed at the location at similar hours on previous occasions, and that such a roadblock was more effective than other means to protect the public, then a different question would be raised concerning the reasonableness of this limited intrusion on the privacy of the drivers within the principle of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. *241 1868, 20 L.Ed.2d 889 (1968).... (Emphasis added)

Higbie v. State, 723 S.W.2d 802 (Tex.App.—Dallas 1987). Because no such evidence was presented by the State regarding these matters, the Court of Appeals correctly held the warrantless seizure to be violative of appellant’s constitutional rights.

The second problem with the majority opinion is interrelated with the first. While the appeals court suggests that under certain circumstances such a roadblock might be reasonable, the majority paints with a much broader brush in finding DWI checkpoints per se unconstitutional. In so doing, the majority ignores express language to the contrary by the Supreme Court of the United States, dismissing that Court’s Fourth Amendment analysis and reasoning regarding roadblock-type stops as mere “dictum.” As will be shown, infra, said dictum has been reinforced by later interpretation of the same issues by the Court.

It is axiomatic that the stopping of an automobile and detention of its occupants constitutes a “seizure” within the meaning of the Fourth and Fourteenth Amendments to the federal constitution, regardless of the limited purpose for the stop or length of actual detention. Delaware v. Prouse, 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976). The Fourth Amendment, however, does not prohibit all seizures; only those deemed “unreasonable” will fail to pass constitutional muster. As the Supreme Court made clear in both Prouse and Martinez-Fuerte , both supra, a seizure is not per se unconstitutional under the Fourth Amendment simply because the stop is not based on either probable cause or reasonable suspicion. Rather, seizures may also be determined “reasonable” if there are limitations placed on the “unbridled discretion” of the field officers. Id. See also Brown v. Texas, 443 U.S. 47 , 99 S.Ct. 2637 , 61 L.Ed.2d 357 (1979). The Prouse Court stated:

The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law en-forcemnt agents, in order ‘to safeguard the privacy and security of individuals against arbitrary invasions ...’ Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon ‘some quantum of individualized suspicion,’ other safeguards are generally relied upon to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.’

Id., 440 U.S. at 655 , 99 S.Ct. at 1397, citing Camara v. Municipal Court, 387 U.S. 523 , 87 S.Ct. 1727 , 18 L.Ed.2d 930 (1967).

Since the decision in Prouse, supra, the Supreme Court has returned to the issue of checkpoints. In Brown v. Texas, supra, the Court noted that as an alternative to a stop based upon individualized suspicion, a seizure may also “be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown v. Texas, 443 U.S. at 51 , 99 S.Ct. at 2640 . Then in United States v. Villa-monte-Marquez, 462 U.S. 579 , 103 S.Ct. 2573 , 77 L.Ed.2d 22 (1983), the Court had the following to say regarding the roadblock stop:

Alternative methods, such as spot checks that involve less intrusion, or questioning of all oncoming traffic at roadblock-type stops, would just as readily accomplish the State’s objectives in furthering compliance with auto registration and safety laws.

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... Random stops without any articula-ble suspicion of vehicles away from the border are not permissible under the *242 Fourth Amendment [citations omitted] but stops at fixed checkpoints or at roadblocks are. (Emphasis supplied).

Id. 103 S.Ct. at 2582 .

Contrary to the finding by the majority today that the “dictum” in Prouse, supra, has no importance to the issue at bar, a more logical conclusion based upon the Supreme Court’s repeated reference to that language is that the traffic safety roadblock has continued viability under Fourth Amendment analysis.

Utilizing the Supreme Court’s analysis regarding such traffic safety roadblocks, a number of state courts have held sobriety checkpoints to be constitutional under the Fourth Amendment. See generally cases cited in State v. Henderson, 114 Idaho 293 , 756 P.2d 1057 , 1062 n. 3 (Idaho 1988). States that have decided to the contrary have usually done so either on the basis of state constitutions or legislative prohibitions. Id. Others have done so due to the nature of the particular police operation, including this Court in Webb v. State, 739 S.W.2d 802 (Tex.Cr.App.1987). See generally, cases cited in State v. Henderson, supra, 756 P.2d at 1062-1064 . See also 37 ALR 10 -34 (Supp.1988). As one commentator has said:

Some decisions are to be found upholding practices along these lines, while other courts have struck down on constitutional grounds a particular police operation of a sobriety checkpoint. However, the decisions in the latter category focus in the main upon certain precautions the police failed to take or certain excesses the police engaged in, and thus should not be construed as holding that a sobriety checkpoint operation is under all circumstances unconstitutional. Because that is so, and because also the Supreme Court’s discussion of immigration checkpoints and driver’s license inspection checkpoints appears to lend some support to the practice here under discussion, it seems fair to conclude that a DWI roadblock is constitutional if properly conducted.

4 W. Lafave, Search and Seizure § 10.8(d), at 70 (2d Ed.1987). See also State v. Henderson, supra. I would agree with the above assessment. The Supreme Court has in post Prouse cases pointed out that roadblocks may be a viable law enforcement tool even though they are not based upon individualized suspicion. It is this very lack of particularized suspicion that then requires a stricter set of safeguards in order for the roadblock to pass constitutional muster.

In Webb, supra, we were faced with a similar fact situation to that found in the instant case. Although a plurality opinion, Webb, supra, contains a good discussion of the constitutional ramifications of a traffic safety roadblock or checkpoint. I would refer the reader to that opinion for a discussion of various state cases not contained infra. There we identified three main factors to be analyzed to determine the reasonableness of a suspicionless stop: (1) the interest or need of the government for the particular practice; (2) the discretion exercised by officers in the field; and (3) the intrusion to the individual affected by this procedure. These factors, it was pointed out, correspond to the three factors listed in Brown, supra, namely: (1) gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty. Brown v. Texas, 443 U.S. at 51 , 99 S.Ct. at 2640 .

As to the first factor, it cannot be doubted that the State has a strong interest in deterring the drunk driver. As we noted in Webb, supra, the Supreme Court took notice of the public interest in South Dakota v. Neville, 459 U.S. 553 , 103 S.Ct. 916 , 74 L.Ed.2d 748 (1983) wherein it was said “(t)he carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court ... has repeatedly lamented the tragedy.” The problem is of huge proportion, raising analogies of the carnage of war. Perez v. Campbell, 402 U.S. 637 , 91 S.Ct. 1704 , 29 L.Ed.2d 233 (1971) (Blackmun, J., concurring) (“The slaughter on the highways of this Nation exceeds the death toll of all our wars”); Breithaupt v. Abram, 352 U.S. 432 , 77 S.Ct. 408 , 1 L.Ed.2d 448 (1957) (“The in *243 creasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield.”) For one to doubt the existence of the problem, and the corresponding vital interest in public safety, is to deny the logical nexus between alcohol and accidents. Moreover, there exists a real need for a systematic program of deterrence. Traditional means — stops based upon individualized probable cause or reasonable suspicion — do not constitute a viable alternative alone to fight the alcohol menace on our nation’s highways. Professor LaFave writes:

... [I]t might be contended that the public interest argument is relatively weak in the DWI context because instances of suspected driving while intoxicated can be detected by officers on routine patrol and thus can be dealt with under the Terry reasonable suspicion approach. * * * But ... a rather strong argument can be made that mere patrol and stoppings based upon the Terry standard do not produce what the Camera [Ca-mara] Court referred to as ‘acceptable results.’ For one thing, even if a patrolling officer is fortunate enough to be in the vicinity where a drunk driver is operating his vehicle, it does not necessarily follow that the driver will at that particular time drive his car in such a fashion as to create a reasonable suspicion justifying a stop. And the chances of such observation in the first place are rather slight, given the substantial number of intoxicated drivers on the roads. * * * It is by no means surprising, therefore, that it has been reliably estimated that only one of every 2,000 drinking drivers is apprehended.

4 LaFave § 10.8(d) at 72-73. See also State v. Superior Court of the County of Pima, 143 Ariz. 45 , 691 P.2d 1073 (1984) (appellate court noted that traditional methods such as increased patrols had not produced reduction in injuries from alcohol-related accidents);’ State v. Coccomo, 177 N.J.Super. 575 , 427 A.2d 131 (1980) (intoxicated motorist arrested at checkpoint had not exhibited any erratic driving prior to stop).

Against the public interest discussed ante we must also balance the Fourth Amendment interests which will obviously be threatened or intruded upon by operation of a sobriety or other type of checkpoint. Relevant to this issue are the thoughts of the Supreme Court in Martinez-Fuerte stating why the roadblock in that case was not impermissibly intrusive:

First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocations of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harrassing stops of individuals than there was in the ease of roving patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review.

United States v. Martinez-Fuerte, 428 U.S. at 559 , 96 S.Ct. at 3083-84 .

The safeguards outlined above are as relevant to a temporary checkpoint as to a fixed checkpoint. While the Martinez-Fuerte court was obviously concerned with permanent checkpoints, the same analysis has been used in the license cases such as Brown, supra, where the roadblocks are necessarily of a temporary nature. It is not the permanence of the checkpoint that *244 is the issue; rather, it is the presence of adequate safeguards surrounding the operation that determines the constitutionality of the roadblock stop. As was stated in Webb, supra, the operation must be conducted according to criteria formulated in advance by administrative officials. The procedures used must be uniform and be minimally intrusive to the rights of the motorist. The field officers actually running the checkpoint should be instructed to stop each vehicle, inform the driver of the purpose for the stop, and perhaps hand him literature on the program. For example, in Maryland, comprehensive regulations were formulated and then reviewed and approved by the Superintendent of the state police, the Attorney General, and the Governor. As prescribed in the regulations, locations were selected on the basis of data on alcohol-related accidents supplied by the Highway Administration. Three locations were selected for each operation, with times and places approved in advance by a state police administrator. Safety was a primary consideration in choosing locations as well. Checkpoints had to be well lit, marked well in advance of the actual stop, with adequate surface shoulders and a safe place for motorists to make a U-turn before reaching the checkpoint. Officers were also allowed to temporarily suspend operations to relieve traffic congestion. See Little v. State, 300 Md. 485 , 479 A.2d 903 (1984).

Regarding the stop itself, the regulations provide the following details:

All traffic approaching the checkpoint will be stopped as long as traffic congestion does not occur. The trooper will approach each motorist and state, ‘I am Trooper (John Doe) of the Maryland State Police. You have been stopped at a sobriety checkpoint set up to identify drunk drivers.’ If there is no immediate evidence of intoxication, a traffic safety brochure developed specifically for this enforcement strategy will be given to the motorist. The trooper will suggest to the motorist that he read the brochure at a later time for a more complete explanation of the stop. The motorist will then be assisted to safely proceed.

Id. 479 A.2d at 906 ..

The Maryland regulations specifically instruct officers to look for particular, articu-lable signs of intoxication:

... an ‘odor of alcoholic beverage about the driver, slurred speech, the general appearance, and/or behavior normally associated with DWI violators.’ If these observations give the officer reason to believe that the driver may be intoxicated, the vehicle may be referred to the shoulder for additional investigation. There, the motorist is asked to produce a driver’s license and vehicle registration and may be asked to perform certain coordination tests. If these tests produce sufficient evidence of intoxication, the motorist is arrested.

Of interest is the provision requiring each motorist to choose whether or not he or she will proceed to the checkpoint, and whether to speak with the officer once the stop is made. As the Little court stated:

A motorist wishing to avoid a sobriety checkpoint may make a U-turn onto a side road prior to reaching the roadblock. No action is taken against a driver doing so unless the motorist drives erratically. For example, on several occasions, drivers ran off the road while trying to turn around and they were stopped. Likewise, a driver who stops at the checkpoint but refuses to roll down the car window is allowed to proceed. If other signs of intoxication are observed, the driver may be followed to detect signs of erratic driving.

From the above it is clear that a set of neutral guidelines can be developed in order to combat the very real menace of drunk driving. Another good example may be found in Arizona, in two cases cited by the majority as footnote material. The Arizona Supreme Court in State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1 , 663 P.2d 992 (1983) focused on the procedures used in operating the roadblock and found them to be constitutionally deficient. The court went on to make suggestions for a proper stop. A year later in the case of *245 State v. Superior Court of the County of Pima, supra, the Arizona court, noting that certain omissions had been corrected, held the roadblock to be valid under the Fourth Amendment. The Massachusetts Supreme Court has also held its own sobriety checkpoint a permissible constitutional intrusion in Commonwealth v. Trumble, 396 Mass. 81 , 483 N.E.2d 1102 (1985), after earlier reversing a conviction due to improper procedures used in the roadblock discussed in Commonwealth v. McGeoghegan, 389 Mass. 137 , 449 N.E.2d 349 (1983).

It is apparent that Maryland and other states have developed comprehensive, minimally intrusive plans to further the important state interest of deterring motorists besotted with alcohol. At least one state has been asked to invalidate a sobriety checkpoint stop on the same basis as relied upon by the majority today to invalidate all such roadblocks. In Ingersoll v. Palmer, 43 Cal.3d 1321 , 241 Cal.Rptr. 42 , 743 P.2d 1299 (1987), the petitioners contended the validity of a sobriety checkpoint stop must be determined by a standard requiring individualized suspicion of wrongdoing. The California Supreme Court disagreed, because the primary purpose of the stop was not to detect crime or gather evidence, but to promote public safety by deterring intoxicated drivers from driving on the public roads. Therefore, the court concluded “the propriety of the sobriety checkpoint stops involved here is to be determined not by the standard pertinent to traditional criminal investigative stops, but rather by the standard applicable to investigative detentions and inspections conducted as part of a regulatory scheme in furtherance of an administrative purpose.” Id. at 1304.

To this point in time, it is not clear that this state has undertaken such a task. Although there is some evidence in the record that the instant checkpoint was set up according to a “neutral plan” formulated by administrative personnel, such a plan, without more, does not fulfill Fourth Amendment reasonableness requirements. In Webb, supra, it was noted:

The procedures may have been neutral, but the entire scheme seen in the whole may nevertheless be violative of the Fourth Amendment’s prohibition against unreasonable seizures. Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985) is a perfect example. In Meeks , a variety of different law enforcement agencies supplied officers to man a roadblock set up on U.S. Highway No. 90 in West Texas between Sanderson and Marathon. At trial, the evidence reflected that the roadblock was set up to ‘enforce all the laws,’ the different agencies working togeather on ‘anything that would be a violation of some type.’ 692 S.W.2d at 506 .

We went on to find that the “all purpose” roadblock, even though operated pursuant to ostensibly neutral guidelines and for the purpose of checking driver’s licenses, was not authorized regardless of the fact that the officer making the stop had initially asked to see Meek’s license.

While the “pretext” test utilized in Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985) would appear to have been largely displaced by the balancing test in roadblock situations, it should still have application in cases such as the instant one where the record reflects a general investigatory stop devoid of the type of “safeguards” envisioned by the Supreme Court. Where the State contends that the sole purpose for a roadblock was as a statutorily permitted license checkpoint, but the evidence, as here, clearly indicates the operation was intended as investigatory, the pretext standard may still apply. As pointed out by the majority in the first pages of the opinion, the Court of Appeals decided that the roadblock was a subterfuge for arresting drunk drivers. Since it was a subterfuge operation, I would hold the stop invalid under Meeks, supra. However, if further analysis of the roadblock issue was necessary under Prouse, supra, and its progeny, I would still find the roadblock invalid due to lack of proper operative guidelines and level of intrusion, but would provide guidance as to necessary safeguards as has been done by other state’s courts. Under a properly developed program wherein the State is honest as to its intentions, I would hold a sobriety checkpoint to be permissible under the Constitution where there can be *246 shown a demonstrated need for the program, that regulations have been promulgated and approved by top administrative personnel such as found in the cases cited infra, to sharply limit the discretion of the field officers, regulate the operation of the checkpoint, and limit the degree of intrusion to the individual. The intrusiveness factor may be favorably balanced in particular by publicizing the State program, providing advance notice of the upcoming stop by means of signs and lights, observing proper safety precautions to protect drivers and officers, and specifying the actions to be taken and communication which may be made between officer and motorist should the driver choose to procede to the stop. Because this type of stop is without doubt intrusive, it is important to strictly limit the time which each motorist is detained. To this end, I would favor the Maryland approach. A 15 to 20 second period of direct communication, if the driver chooses to do so, would appear to be adequate and would prevent the stop from becoming a general purpose investigatory stop of the type that is clearly prohibited under Meeks, supra, as well as Fourth Amendment principles.

In conclusion, I reiterate my concern over the majority’s treatment of the Supreme Court’s Fourth Amendment analysis of roadblock stops. In underscoring the distinction between roving stops and other alternative types of stops, that Court held that the roving stop made without reasonable suspicion was contrary to the Fourth Amendment. But, the Court was also careful to state that, “[t]his holding does not preclude the State of Delaware or other states from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” Prouse, 440 U.S. at 663 , 99 S.Ct. at 1401 . Although technically dictum, the language used was not mere rhetoric. Rather, it implicitly acknowledged the constitutionality of a different method of temporary seizure, one where “viability” depends not upon the existence of probable cause but upon the existence of neutral criteria which restrict and restrain the officers’ operational discretion. That the Court made specific refernce to this language in later opinions reinforces the point.

The nexus between Fourth Amendment analysis and roadblock-type cases is best explained in the following passage from Ingersoll, supra:

This {Prouse) dictum was not mere rhetoric, however. It is analytically consistent with the court’s holdings in other cases. Standardless and unconstrained discretion on the part of the government officers is what the court sought to circumscribe in the regulatory inspection and stop cases. (Almeida-Sanchez v. United States (1973) 413 U.S. 266, 270 , 93 S.Ct. 2535, 2538 , 37 L.Ed.2d 596 ; Camara v. Municipal Court, supra, 387 U.S. 523, 532-533 , 87 S.Ct. 1727, 1732-1733 .) Accordingly, such stops and inspections for regulatory purposes may be permitted if undertaken pursuant to predetermined specified neutral criteria (Delaware v. Prouse, supra, 440 U.S. 648, 662 , 99 S.Ct. 1391, 1400 ) such as the criteria articulated for a checkpoint stop (United States v. Martinez-Fuerte, supra, 428 U.S. 543, 553-554 , 96 S.Ct. 3074, 3080-3081, 3082-3086 ).

Id. at 1308.

Deterrence, not a greater number of arrests, is the primary goal of a properly formulated and operated sobriety checkpoint program. Logically, if such checkpoints are truly accomplishing their purpose, DWI arrests, as well as DWI accidents, should decrease over time. It is for that reason that the argument asserted by the majority, stating that roving patrols based upon individualized suspicion are more effective, or are at least another effective means “in eradicating the intoxicated motorists,” at 238 (emphasis supplied), begs the question.. Other states have recognized the fallacy in applying this “least intrusive rule,” instead focusing upon the effectiveness of the roadblock in meeting the state interest of deterrence, balanced against the level of intrusion. State v. Record, 150 Vt. 84 , 548 A.2d 422 *247 (1988); Ingersoll v. Palmer, supra. 1 In Texas, as elsewhere, drunk driving is not merely a crime, it is a serious public safety problem. A vehicle driven by a drunk or intoxicated driver is as much, if not more, a hazard as a vehicle with defective brakes or lack of an adequate lighting or steering system. A sobriety checkpoint acts to keep such dangerous instrumentalities off the public roadways, thereby logically decreasing the number of DWI arrests in areas of roadblock operation.

It is the characteristic of motorized vehicles as hazardous or dangerous instru-mentalities that demonstrates the distinction between a sobriety stop and an improper general “dragnet” stop. The automobile is stopped for reasons directly related to public safety, and not for purposes of criminal investigation. In this sense it is analogous to a permissible vehicle equipment inspection- checkpoint. Moreover, the fact that an officer may have the opportunity to observe a motorist’s demeanor at the checkpoint is not determinative of the checkpoint’s validity any more than an airport screening operation, a “roadblock” of all commercial air travelers, is a criminal investigative search impermissible under individual constitutional guarantees.

For the reasons given above, I will concur in the disposition of the first ground for review and in the result. I must respectfully dissent to the Court’s analysis of the Fourth Amendment sobriety checkpoint issue for the reasons I have outlined ante.

McCORMICK, P.J., joins.

. It is the "alternative" of a roadblock stop and not the alternative of traditional methods employed by police agencies, that is the crux of the issue. While the State must without doubt demonstrate the need for such a practice, it does not follow that other tactics must be shown as wholly ineffective. However, if traditional methods were as effective as suggested by the majority opinion, the highway carnage judicially noticed by this nation’s highest court would not exist.