Fink v. State

866 S.W.2d 333, 1993 Tex. App. LEXIS 2954, 1993 WL 444152
CourtCourt of Appeals of Texas
DecidedNovember 4, 1993
DocketNo. 01-93-00028-CR
StatusPublished
Cited by3 cases

This text of 866 S.W.2d 333 (Fink v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fink v. State, 866 S.W.2d 333, 1993 Tex. App. LEXIS 2954, 1993 WL 444152 (Tex. Ct. App. 1993).

Opinion

OPINION

DUGGAN, Justice.

Appellant, Michael R. Fink, was charged by information with the misdemeanor offense of driving while intoxicated. In a motion to suppress evidence, appellant claimed he was arrested after an unlawful detention at a driver’s license checkpoint. The trial court denied appellant’s motion to suppress1 and, upon appellant’s plea of nolo contendere, assessed punishment at two-years confinement in the Harris County jail, probated for two years, and a fine of $300. On appeal, appellant claims that he was illegally seized and arrested in violation of the fourth amendment to the United States Constitution and article I, section 9 of the Texas Constitution. We reverse the judgment and remand the cause to the trial court.

On September 13, 1992, Pasadena Police Officer Susan Clinton, along with three other officers, set up a roadblock checkpoint at the 2900 block of Lafferty in Pasadena. Beginning at 10:30 p.m., the officers detained all north and southbound traffic to check for driver’s license and insurance violations.

Appellant arrived at the roadblock at approximately 12:30 a.m. He slowly rolled past the officers without stopping, until Officer Clinton tapped on the hood of appellant’s car. When appellant stopped his car and rolled down his window, Officer Clinton smelled a strong odor of alcohol. The officer requested appellant’s driver’s license. As appellant searched for it, he took his foot off the brake and the car began rolling. Officer Clinton asked appellant to pull his car into the parking lot, where she arrested him for driving while intoxicated.

Recently, the Texas Court of Criminal Appeals considered the reasonableness of a roadblock set up in nearly an identical manner as the one before us. In State v. Sanchez, 856 S.W.2d 166 (Tex.Crim.App.1993), the court first noted that the stopping of a vehicle constitutes a “seizure” for fourth amendment purposes. Id. at 168. The fourth amendment, however, does not prohibit all seizures, only those that are unreasonable. Id.

A roadblock search falls into the category of a “suspicionless search”. [United States v.] Martinez-Fuerte, 428 U.S. 543, 561-62, 96 S.Ct. 3074, 3084-85 [49 L.Ed.2d 1116 (1976)]. A “suspicionless search” is a search conducted in the absence of a warrant and without probable cause or reasonable suspicion. These types of searches originated as an administrative or regulatory necessity, such as building inspections where premises are inspected in the absence of any indicia of violations.

Id. at 168, n. 4.

A “suspicionless search” is reasonable when it meets the balancing test established in Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). Sanchez, 856 S.W.2d at 168. The public interest must be balanced 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. Brown, 443 U.S. at 50-51, 99 S.Ct. at 2640; Sanchez, 856 S.W.2d at 168.

In Sanchez, the defendant was indicted for unlawful possession of between 50 and 200 pounds of marijuana in the trunk of his vehicle. Sanchez, 856 S.W.2d at 167. Four Texas Department of Public Safety officers set up a roadblock checkpoint in Victoria County without the authorization of a superior offi[335]*335cer. Id. All northbound traffic was stopped for questioning concerning driver’s licenses and insurance, and vehicles were inspected for equipment violations. Id. After brief questioning of the defendant, the officers discovered the marijuana in his truck. Id. In a plurality opinion, the court held that “[i]n 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,” the roadblock was unreasonable under the fourth amendment. Id. at 170.

In reaching its conclusion, the court in Sanchez observed that: (1) the roadblock was established by four individual officers; (2) the record was void of any showing that the officers followed standardized guidelines in operating the roadblock; (3) the officers acted without the authorization or guidance of superior officers; (4) the officers acted without established procedures concerning the location of the roadblock or its operation; and (5) the record was void of any showing demonstrating the effectiveness of the roadblock in achieving its stated goals. Id. at 169-70.

In the case before us, Officer Clinton was the only witness to testify at the hearing on the motion to suppress. The record reflects that: (1) the four officers decided to set up the roadblock; (2) the four officers determined the location of the roadblock; (3) no department guidelines existed concerning license and insurance roadblocks; (4) no supervisors instructed the officers to set up or maintain the roadblock; (5) no department guidelines existed concerning the time or manner of execution of the roadblock.

The State argues that this Court should depart from the Sanchez holding, and instead follow the policy considerations set forth in the Sanchez concurring opinion and recognized in the lead opinion. The concurrence balanced the level of intrusion on the defendant’s privacy against the following governmental interest in the inspection of driver’s licenses and insurance.

It is abundantly clear that the state has “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,” Delaware v. Prouse, 440 U.S. [648] at 658, 99 S.Ct. [1391] at 1398 [59 L.Ed.2d 660 (1979) ], and hence that licensing, registration, liability insurance, and vehicle inspection requirements are being observed. It is equally clear that this strong state interest — at least with respect to statutory licensing and insurance requirements — cannot be adequately dealt with by more traditional law enforcement techniques involving case-by-case determinations of what persons are to be interfered with. In other words, it would be impractical to require law enforcement personnel to have a warrant or some level of individualized suspicion in this context. Compare United States v. Martinez-Fuerte, 428 U.S. at 557-562, 96 S.Ct. at 3082-85. This is so because, as common sense dictates, there is never an observable indication, from a moving vehicle, of a licensing or insurance statute violation. See Higbie v. State, 780 S.W.2d 228, 237 (Tex.Crim.App.1989) (plurality opinion).
It is also plain that highway checkpoints are reasonably effective in advancing the state interest in question. First, as noted previously, there is no practical alternative technique for detecting licensing and liability insurance violations.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Texas v. Ryan William Luxon
Court of Appeals of Texas, 2007
State v. Luxon
230 S.W.3d 440 (Court of Appeals of Texas, 2007)
State v. Kadelak
655 A.2d 461 (New Jersey Superior Court App Division, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
866 S.W.2d 333, 1993 Tex. App. LEXIS 2954, 1993 WL 444152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fink-v-state-texapp-1993.