Higbie v. State

780 S.W.2d 228, 1989 Tex. Crim. App. LEXIS 182, 1989 WL 118822

• Court: Court of Criminal Appeals of Texas
• Decided: October 11, 1989
• Docket: 194-87
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of driving while intoxicated, a misdemeanor, in violation of Art. 6701Z-1 V.A.C.S. and sentenced to 60 days in jail, probated for 24 months, and assessed a $350 fine. The Dallas Court of Appeals reversed and remanded, holding that the trial court should have suppressed evidence of appellant’s intoxication because it was the fruit of an illegal stop. 723 S.W.2d 802. We granted State’s Petition for Discretionary Review to determine whether the Court of Appeals substituted itself as the fact-finder, and whether it erred in holding that the roadblock was violative of the Fourth Amendment. We will affirm the Court of Appeals.

Appellant requested and received a hearing on a motion to suppress evidence concerning intoxication taken as a result of the roadblock. At the hearing Officer Carter, a member of the Dallas Police DWI Task Force, testified that under orders from their supervisors he and other members of the DWI Task Force established a roadblock at the 5800 block of Beltline Road in Dallas. Officer Carter stated that he had been instructed to conduct a roadblock for the purpose of checking driver’s licenses.

During cross-examination, defense counsel elicited from Carter that in the area of the roadblock there were bars one-half to three quarters of a mile down the road and one just a quarter of a mile down the road from the roadblock. The roadblock was established between 1:30-1:45 a.m., just before the bars closed at 2:00 a.m. The roadblock stopped only eastbound traffic traveling away from the bars into a residential area, however, traffic coming out of the residential area was not subject to the roadblock. Carter stated that “most” of the officers at the roadblock were members of the DWI Task Force. The officers subjected every car to the stop allowing the motorists to proceed only after they produced a valid driver’s license and the questioning officer had no suspicion that the driver may be intoxicated. Carter further testified that neither he nor any other officer, to his knowledge, actually wrote a citation for driving without a license during that particular night’s roadblock.

At the close of this testimony the trial judge denied appellant’s motion to suppress any evidence of intoxication against appellant. Appellant subsequently entered a plea of nolo contendré to the trial court and was found guilty of DWI by the trial judge. The Dallas Court of Appeals reversed appellant’s conviction finding that it' was a result of evidence ascertained at an illegal stop.

I

The State, in its first ground for review, asserts that the Court of Appeals improperly substituted itself as the fact-finder. Specifically, the State is implicitly challenging the authority of the Courts of Appeals, as in this instance, to review the totality of evidence presented to the trial judge at a suppression hearing and determine whether a rational trier of fact has made a conclusion that is in contradistinction to the evidence. Here, the Court of Appeals determined that any rational trier of fact should have concluded that the “driver’s license roadblock” was a mere subterfuge for arresting drunk drivers. The State claims that the purpose of a roadblock, like intoxication, identity, and intent, is solely a question of fact to be determined by the trier of fact and is not reviewable by an appellate court. We do not agree.

Whether the determination of a roadblock’s purpose by the trier of fact is a question of law or fact, or a combination thereof, is a question of first impression. If it were solely a question of fact, as the State asserts, then we, as well as the Courts of Appeals, would be bound by the findings of the trier of fact, barring any procedural or substantive errors by the trial judge. The crux of the problem, however, is that any discussion of a roadblock’s purpose necessarily implicates the Fourth Amendment to the United States Constitution due to the fact that a roadblock constitutes a seizure. See United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116 (1976).

When a trial court is asked on a motion to suppress to review the legality of a seizure and any subsequent search, it will look to the reasonableness of the officer’s activities in light of all the circumstances surrounding the questioned activity. It is the trial court’s determination of whether the officer’s search was reasonable, constitutional, that a reviewing appellate court will be asked to conduct. “Under the Fourth Amendment the determination of the reasonableness of a seizure is a conclusion of law.” United States v. Bowles, 625 F.2d 526, 533 (5th Cir.1980) citing United States v. Mendenhall, 446 U.S. 544, 551 n. 5, 100 S.Ct. 1870, 1875 n. 5, 64 L.Ed.2d 497 (1980) (Powell, J., concurring in part and concurring in the judgment.) It is axiomatic that conclusions of law are always reviewable by an appellate court.

When we review the reasonableness of a seizure, our analysis focuses on whether there was probable cause or reasonable suspicion for police officers to conduct a particular seizure or search. The standard for determining the existence of probable cause is for this Court to review the totality of the circumstances where there is a Fourth Amendment challenge. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 rehearing denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). Therefore, “the duty of the reviewing court is to look to the ‘totality of the circumstances’ to determine if there exists a substantial basis for concluding that probable cause existed at the time of the questioned action.” Angulo v. State, 727 S.W.2d 276, 278 (Tex.Cr.App.1987). See also Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Cr.App.1988). Likewise, the reviewing court will look to the totality of the circumstances to determine if a police officer had reasonable suspicion based on articulable objective facts to believe an individual was involved in criminal activity.¹ See Dickey v. State, 716 S.W.2d 499, 503 n. 4 (Tex.Cr. App.1986) and Hernandez v. State, 523 S.W.2d 410, 412 (Tex.Cr.App.1975).

The stopping of an individual at a roadblock, whatever its expressed or implied purpose, is a seizure within the meaning of the Fourth Amendment. Martinez-Fuerte, 428 U.S. at 556, 96 S.Ct. at 3082. The State asserts that a determination of the purpose of a roadblock, however, is one of pure fact. In support of its contention, the State cites a litany of other instances² where the determination of specific issues is a question of fact that is solely within the domain of the trier of fact. The problem with this series of fact questions is they relate to determinations of the mental state or physical impairments of an individual. Here, we are dealing with the law of search and seizure. The former lends itself towards the assessment of a witness’ perceptions of another individual, a province more appropriately suited to the trier of fact. The latter, in contradistinction, entails a review of the facts, but then, those facts are applied to the law of search and seizure to determine if probable cause or reasonable suspicion existed at the time of the questioned activity, which as noted is a question of law. This mixture of law and fact is inescapable. Therefore, we hold that the determination of a roadblock’s purpose is a mixed question of law and fact to be ascertained from looking to the totality of the circumstances and a weighing of all the evidence. This determination is expressly within the bounds of the reviewing court. The State’s first ground for review is overruled.

II

The State, in its second ground for review, asserts that the Court of Appeals erred in holding sobriety checkpoints, driving while intoxicated roadblocks, are unconstitutional and therefore violative of. the Fourth Amendment to the United States Constitution.³ The State, as have all other states that have found DWI roadblocks constitutional, relies on dictum⁴ in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) to the effect that although random stops of motorists are unconstitutional, “[questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” Id. at 663, 99 S.Ct. at 1401. This one seemingly innocuous sentence in Prouse, in context almost a throw away phrase, has become the plinth of the State’s argument that all DWI roadblocks are constitutional under the Fourth Amendment.⁵ We do not agree.

The seizure of presumably innocent citizens is an affront to a series of rights that an individual possesses because he is a citizen of this State and the United States. These rights are the right to be let alone, the right to privacy, and the right to travel.

Justice Brandéis, articulating the right to be let alone, wrote that:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the rights most valued by civilized men.

Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandéis, J. dissenting). More recently, the United States Supreme Court has reiterated this proposition when it commented, “The guarantees of the Fourth Amendment stand ‘as a protection of ... values reflecting the concern of our society for the right of each individual to be let alone.’ [citation omitted]” Schneckloth v. Bustamonte, 412 U.S. 218, 242, 93 S.Ct. 2041, 2055-56, 36 L.Ed.2d 854 (1973). It is not an immutable right that an individual is to be let alone at all times, but rather, it expresses a general proposition that each individual in a civilized society has the right to expect that the government will not interfere with his existence unless they have a compelling need to protect either him or other persons from some pervasive harm.

Correlative to the right to be let alone is the right to privacy. Justice Douglas observed:

[S]pecifie guarantees in the Bill of Rights have penumbras, formed from emanations from those guarantees that help give them life and substance, [citations omitted] Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment.... The Third Amendment in its prohibition against the quartering of soldiers [‘in any house’] ... without the consent of the owner_ The Fourth Amendment explicitly affirms the ‘right of the people [to be free] against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’

Griswold v. State of Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965). The right to privacy, premised on numerous amendments to the Bill of Rights, joined with the right to be let alone recognizes the importance we as a nation of free people have attached to the right to be permitted to go about our business unfettered by the ever watchful government.

In conjunction with these two analogous rights, we must add the right that is specifically curtailed by the DWI roadblocks— the right to travel. As Justice Brennan noted in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969):

This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.

Id. at 629, 89 S.Ct. at 1329.

All three of these rights are materially intruded upon by the State when it insists on stopping motorists at a roadblock without some legitimate basis predicated on probable cause or reasonable suspicion. It is the expectation of each individual in a free society that when they enter their vehicles to travel from one point to another that they will not be subjected to a detention and questioning without some manifestation of wrongdoing on their part.

The law of the land as embodied in the Fourth Amendment is explicit in its requirement that a search or seizure must be predicated upon probable cause. This truism, however, has been interpreted by the United States Supreme Court to permit police action against an individual premised on evidence that is less than probable cause. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Now, when a police officer observes suspicious conduct “which leads him reasonably to conclude in light of his experience that criminal activity may be afoot,” Id. at 80, 88 S.Ct. at 1884, and that the suspect may be armed he may stop and frisk the suspect for weapons. However, “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. at 1880. The effect, then, of Terry is that officers are permitted to conduct brief stops for investigatory purposes with a lesser quantum of proof than required for an arrest where the officer can later demonstrate specific articulable facts existed and not just an “inchoate and unparticular-ized suspicion or ‘hunch.’ ” Id. at 27, 88 S.Ct. at 1883.

A DWI roadblock is in direct conflict with Terry’s fundamental requirement of specificity — individualized suspicion consisting of articulable and objective facts that criminal activity is afoot. At a roadblock, motorists are subject to detention and investigation without any particularized reasonable suspicion. The effect is that the officers are permitted to conduct a wholesale investigation of individuals on the presumption that in all the motorists detained at the DWI roadblock there is at least one who has committed, at a minimum, the offense of driving while intoxicated. Terry and its progeny, however, do not permit “hunches” to be the basis for stopping everyone at a particular point so as to subject each individual citizen to an open ended investigation.

This unfounded stop further impinges on the three fundamental rights previously discussed. The roadblock, in the first instance, impedes our right to travel to our destination uninterrupted and without fear of governmental intrusion. Second, it invades our right to privacy. When we enter our vehicle there is an expectation that if there is no evidence of criminal activity discernible by observation we will not be subjected to detention and interrogation by representatives of the State. Finally, in a civilized democratic society we demand that as long as our conduct is not injuring others we will be let alone by the representatives of the State. As citizens of the State of Texas and the United States we have the expectation and the right to be let alone.

Ill

Traditionally, the Supreme Court’s Fourth Amendment jurisprudence required an analysis that viewed a search or seizure as presumptively unreasonable, and therefore unconstitutional, if it was not premised upon a warrant or probable cause. It followed that neither requirement could be excluded unless there was an exception. The most notable exception was the Terry reasonable suspicion test that permits an officer to conduct a frisk of a person he has legitimately stopped and believes is in possession of a weapon. More recently, the Court has reiterated the Fourth Amendment reasonableness or balancing test that it has developed over two decades. As then Justice, now Chief Justice, Rehnquist noted:

Our focus in this area of Fourth Amendment law has been on the question of ‘reasonableness’ of the type of governmental intrusion involved. ‘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.’ Delaware v. Prouse, supra, [440 U.S.], at 654 [99 S.Ct. at 1396].

United States v. Villamonte-Marquez, 462 U.S. 579, 588, 103 S.Ct. 2573, 2579, 77 L.Ed.2d 22 (1983). This balancing test consists of viewing the facts in each particular case and pronouncing whether the questioned search or seizure was “reasonable.” The evolution of the traditional Fourth Amendment analysis to the current Fourth Amendment inquiry has resulted in an area of search and seizure law that permits searches and seizures that lack even an indicia of suspicion. These types of searches and seizures have been more aptly delineated as permissible “suspicionless searches and seizures.”

DWI roadblocks constitute a suspicion-less search and seizure. The question is whether this type of roadblock is in conformity with current federal law. The answer is a resounding “No” when viewed in light of other types of permissible suspi-eionless searches and seizures.

The Supreme Court has addressed six⁶ areas, exceptions if you will, of permissible suspicionless searches and seizures not covered by the dual requirements of the Fourth Amendment. The first area of sus-picionless searches and seizures is most often characterized as administrative inspections. These inspections entail administrative agents conducting a routine building inspection, pursuant to an “area” search warrant, to enforce health and safety codes without any individualized suspicion of illegality on the part of the residents or owners. See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). In Camara, appellant sought a writ of prohibition to stop his prosecution for violating the San Francisco Housing Code by refusing to allow a war-rantless inspection of his residence in an apartment building. See Camara, 387 U.S. at 525, 87 S.Ct. at 1728. The Supreme Court, recognizing this as an exception to the probable cause requirement of the Fourth Amendment, validated these suspi-cionless searches by determining that in the balance the governmental interest of protecting the public safety in housing outweighed the minimal intrusion on the privacy interests of the individual. See id. at 534-535, 87 S.Ct. at 1733-34. This validation focused on three grounds: (1) “such programs have a long history of judicial and public acceptance,” (2) experts in the field unanimously agree this method is the only effective means to enforce health and safety codes since violations are not observable from the outside of a building, and (3) the “inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen’s privacy.” Id. at 537, 87 S.Ct. at 1735.

The second area of suspicionless searches and seizures concerns permanent border patrol checkpoints to stem the flow of undocumented workers moving across the southern border of the United States. See United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In Martinez-Fuerte, the appellant was stopped at a permanent border roadblock that is 66 miles north of the United States and Mexican border in California. The border patrol officers discovered after a brief series of questions that appellant’s two female passengers were in this country illegally. See id., 428 U.S. at 547, 96 S.Ct. at 3078. The Court held that although individualized suspicion is normally required for a constitutional search or seizure “the Fourth Amendment imposes no irreducible requirement of such suspicion.” Id. at 561, 96 S.Ct. at 3084. The Court analogized this type of limited temporary detention for investigative purposes to that outlined in Camara. They accomplished this by suggesting that Camara, as in all suspicionless searches and seizures, requires a balancing of the individual’s rights with the governmental intrusiveness sought to be protected. See id. To determine if the governmental interest outweighs the individual right, the reviewing court must look to the three factors the Supreme Court utilized in Camara. First, there should be evidence of a substantial period of judicial and public acceptance of the questioned governmental activity. Second, there is no other means of effective law enforcement. Third, the purpose of the search is not aimed at the discovery of crime. If these factors all are met then the “invasion of the urban citizen’s privacy” is minimal, i.e. acceptable. In Martinez-Fuerte, the Supreme Court found that the reasonableness of the procedures, stopping all persons at a permanent roadblock and briefly questioning them to ascertain their citizenship, constituted a minimal intrusion upon the motorist’s interests. Further, the Court found the record demonstrated the need for this type of specific law enforcement technique⁷ and that there was a governmental necessity to control our borders.

The Court felt the “subjective intrusion” of the motorist was less if you stopped all persons at a roadblock rather than using roving patrols. See United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The logic, here, is that “[bjecause motorists, apparently like sheep, are much less likely to be ‘frightened’ or ‘annoyed’ when stopped en masse, a highway patrolman needs neither probable cause nor articulable suspicion to stop all motorists ... but he cannot without articu-lable suspicion stop less than all motorists." Prouse, 440 U.S. at 664, 99 S.Ct. at 1401-02. (Rehnquist, J. now C.J. dissenting). In addition, this permanent roadblock stop is the best law enforcement technique because there are no outwardly observable signs of illegality when viewing a vehicle to determine if it contains undocumented workers.

The important thing to note about this second area of permissible suspicionless searches, and about Martinez-Fuerte, is the tremendous restraint the Supreme Court used in authorizing PERMANENT, FIXED roadblocks. As stated in Martinez-Fuerte:

Routine [fixed/permanent] checkpoint stops do not intrude similarly [to roving-patrol stops] on the motoring public. 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 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.

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In summary, we hold that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant.... Our holding today is limited to the type of stops described in this opinion, (emphasis supplied)

428 U.S. at 559, 566-567, 96 S.Ct. at 3086-87.⁸

The third area of permissible suspicion-less searches and seizures is roadblocks for the purpose of checking driver’s licenses, and vehicle registration. In Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the Supreme Court held that the practice, by the police in Delaware, of randomly stopping vehicles, lacking any individualized suspicion, violated the Fourth Amendment. Although Prouse is cited as the case permitting roadblocks, it is only, as the concurring opinion concedes (page 246), in dictum that the Court suggested the “[questioning of all oncoming traffic at roadblock-type stops is one possible alternative” to unconstitutional random stops. Significantly the Court in its concluding paragraphs, and not in dictum, reiterated its long standing position concerning Fourth Amendment rights as it applies to persons in vehicles on public highways when it wrote:

“An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive and often necessary mode of transportation to and from one’s home, workplace and leisure activities. Many people spend more hours each day traveling in cars than walking in streets.... Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles.” (emphasis supplied)

Id. at 662, 99 S.Ct. at 1400-01.

The impetus for validation of temporary roadblocks occurred in two subsequent cases. The Supreme Court stated “we agree” and cited to the Prouse dictum when this Court, the Court of Criminal Appeals, approved a stop at a routine driver’s license roadblock to ascertain if the driver was in compliance with our driver’s license statute. See Texas v. Brown, 460 U.S. 730, 736, 739, 103 S.Ct. 1535, 1540, 1541, 75 L.Ed.2d 502 (1983). See also United States v. Villamonte-Marquez, 462 U.S. 579, 588, 103 S.Ct. 2573, 2579, 77 L.Ed.2d 22 (1983) (here the Supreme Court cited to the same dictum as though it were the holding in Prouse)9

License and registration checkpoints appear to meet all the criteria outlined in Camara, 387 U.S. at 537, 87 S.Ct. at 1735. The Court has noted that suspicionless stops to check drivers’ licenses are widely used by state law enforcement agencies. See Martinez-Fuerte, 428 U.S. at 561 n. 14, 96 S.Ct. at 3084 n. 14. Like administrative searches, a roadblock for license check purposes is the only viable law enforcement tool because, as with health and safety code violations, there are no outwardly visible manifestations that the driver is in violation of a driver’s license or registration statute by observing a moving vehicle. Further, the investigation at this specific purpose roadblock is not intended at detecting evidence of a crime but rather the enforcement of administrative regulations.

IV

The Supreme Court has traditionally required that at the very least there be reasonable suspicion that criminal activity is afoot and that the articulable objective facts point to a particular individual. As Fourth Amendment law evolved, the Supreme Court went from focusing on the totality of articulable facts giving rise to an officer’s particularized suspicion to balancing the needs of society with the intrusion upon individual interests. The Court stated that:

Consideration of the constitutionality of such seizures involves a weighing of the gravity of public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the individual liberty.

Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). This balancing test is the basis for analyzing searches and seizures that have failed to meet a minimal standard of reasonable suspicion. The balancing test requires the reviewing court to analyze Fourth Amendment challenges similar to the cost benefit analysis a business performs to determine the financial suitability of a particular business activity, i.e. level of individual intrusion versus societal benefits. The Court has seen fit to compartmentalize this erosion of the Fourth Amendment by delineating an entire area of Fourth Amendment law devoid of any Fourth Amendment analysis by its creation of the aforementioned area of suspicionless searches and seizures.

DWI roadblocks do not qualify as exceptions to the probable cause or reasonable suspicion requirements of the Fourth Amendment by just characterizing them as suspicionless searches and seizures. To qualify as a “reasonable” suspicionless search or seizure the police activity must meet the traditional balancing test, but the societal benefits must comport with the three balancing factors¹⁰ explicated in Ca-mara and thereby outweigh the intrusion on the individual’s interests. As will be seen, these types of roadblocks fail to meet any of the three tier analysis of Camara.¹¹

As to the first ground used in the balancing test between society’s interests and intrusion on the individual, a “long history of judicial and public acceptance”, there is no evidence that DWI roadblocks have such a history of judicial and public acceptance. To the contrary, there is still an ever increasing debate as to their constitutionality; and they have been sparingly utilized and only have come into use in the last decade.¹²

The second ground from Camara, that this is the only effective means of accomplishing the societal purpose; merits added weight since originally pronounced in 1967 because, as stated previously, more recent cases from the Supreme Court have all used this ground (no other means of effective law enforcement) as the determinative factor that will, in itself, cause a seizure to run afoul of the Fourth Amendment. See Villamonte-Marquez and Martinez-Fuerte, Delaware v. Prouse, etc. DWI roadblocks are not the only means of enforcing the strong public interest in eradicating the intoxicated motorists. There are clearly alternatives to curbing the carnage of the intoxicated driver that are in fact working. These alternatives include use of special DWI tasks forces, such as the officers in this case were assigned to, in a fashion where extra police are sent out to patrol roads suspected of being, at particular times, more subject to travel by intoxicated drivers. Law enforcement personnel are trained to watch for intoxicated drivers by looking for outwardly visible articulable facts, e.g. driving at inconsistent speeds, unable to stay in one’s lane, disregarding traffic signals and signs, and driving at night without lights.¹³ Increased public awareness to the problem of alcohol related accidents and deaths and a corresponding change in the public’s heretofore somewhat permissive attitude toward intoxicated drivers has, just in the last decade, been brought about by public service advertising in the media and in drinking establishments themselves, as well as by grass roots efforts by groups like Mothers Against Drunk Drivers (MADD) as well as other crime victim groups. Criminal penalties for driving while intoxicated in Texas have been steadily increased over this time period, and have been made more sophisticated in their application. Moreover, there is no evidence that DWI roadblocks will be effective in curbing incidents of DWI.

Third and finally, the inspections at a DWI roadblock are aimed at detecting criminal activity.¹⁴ Criminal sanctions may be imposed for violations of the Texas DWI Statute. It is a misdemeanor on the first two convictions and any subsequent convictions may result in felony penalties.

It is beyond dispute that tragedy strikes the families, friends, and victims of persons driving while intoxicated. What is in dispute is just how to prevent this tragic phenomenon on our nation’s highways. It is our duty to administer justice in accordance with the laws of this State. This is not the end, but only the beginning of our responsibilities as a court. We also must zealously scrutinize the ever increasing onslaught by the government to curtail our individual freedoms in the name of public safety and compelling state interest. These words are not to be invoked as a mere talisman by the State every time it wishes to discover potential criminal activity by circumventing the dictates of the Fourth Amendment.

We live in a nation where each individual is presumed to be innocent of criminal activity. For the State to assume criminal conduct has occurred thereby permitting it to take preemptive actions results in scenarios of the Orwellian state. As the members of the Court of Criminal Appeals in Oklahoma have found:

The Court finds such activities by law enforcement authorities, while commendable in their ultimate goal of removing DUI offenders from the public highways, draw dangerously close to what may be referred to as a police state. Here, the state agencies have ignored the presumption of innocence, assuming that criminal conduct must be occurring on the roads and highways, and have taken an ‘end justifies the means approach. The Court is not so naive to think that criminal conduct does not occur regularly.... Yet, a basic tenet of American jurisprudence is that the government cannot assume criminal conduct in effectuating a stop such as the one [DWI roadblock] presented herein.

Oklahoma v. Smith, 674 P.2d 562, 564 (Okl.Cr.App.1984).

Y

We now turn to the specifics of appellant’s case. As previously noted, the determination of a roadblock’s particular purpose in appellant’s cause of action, as in all search and seizure cases, is to be settled by the reviewing appellate court because it is a mixed question of law and fact. The assessment of the intent of authorities in erecting a roadblock is done by viewing all of the facts in the totality of the circumstances. To recapitulate, the roadblock was established within less than a mile of bars located on Beltline Road, it was erected to stop those motorists going in only one direction (everyone leaving the bars could only travel in that direction), it was conducted shortly before the bars closed at 2:00 a.m., and “most” of the officers at the roadblock were members of the DWI Task Force. These facts conduce to show that for all intents and purposes this particular roadblock was for the specific purpose of apprehending motorists who were driving while intoxicated and was not, as Officer Carter testified, a driver’s license check point.

We therefore hold that the Fourth Amendment requires the assessment of, at a minimum, reasonable suspicion to stop and detain individuals for investigatory purposes.¹⁵ There is, however, a limited area of exceptions that permits suspicion-less searches and seizures for what would best be described as the enforcement of administrative or regulatory statutes where there is no visible manifestation of individual violations. DWI roadblocks are not part of such an excepted area. Rather, they are designed to be merely preemptive in nature, and are premised on nothing more than inarticulable facts — hunches that criminal conduct exists on our roads, and as such are suspect as an infringement upon our individual freedoms of privacy and travel.¹⁶ Accordingly, we affirm the Court of Appeals' holding that this particular roadblock was violative of appellant’s Fourth Amendment rights.

1 . Although we recognize that "[r]easonable suspicion is a lesser quantum of proof than probable cause,” Daniels v. State, 718 S.W.2d 702, 704 (Tex.Cr.App.1986), we do not see any logical inconsistencies with applying the totality of the circumstances standard to both the probable cause and reasonable suspicion determinations.

2 . The State cites cases concerning intoxication, identity, insanity, intent, mental state, duress, entrapment, and questionable conduct by police officers.

3 . The concurring opinion by Judge Davis states that the majority "ignores the caveat” (at p. 240) implicit in the Court of Appeals majority opinion and then quotes at length the Dallas Court of Appeals reasoning as to why they believed this particular roadblock was unconstitutional. We did not, however, fail to see the caveat as the concurring opinion asserts; we merely did not feel compelled to follow a Court of Appeals opinion that was so strikingly similar to Webb v. State, 739 S.W.2d 802 (Tex.Cr.App.1987), a (two judge) plurality opinion (authored by the writer of the concurring opinion) from this Court.

4 . The concurring opinion asserts that "based upon the Supreme Court’s repeated reference to that language [the dictum in Prouse ] ... the traffic safety roadblock has continued viabili-ty_” (at p. 241) (emphasis added). The fallacy of this argument is that the dictum has only been elevated to precedential proportions in a limited number of cases, and in no circumstance has the Supreme Court ever used the words nor condoned the creation of "traffic safety roadblocks.” Although the Supreme Court suggested the viability of roadblocks for the enforcement of administrative regulations concerning a driver’s license and vehicle registration road block in Prouse, it has never expanded upon this to include suspicionless stops at roadblocks to enforce state driving while intoxicated laws or other similar penal statutes.

5 . The concurring opinion subscribes to the theory (at p. 241) that this dictum has become the law because it has "been reenforced by later interpretation of the same issues by the Court." (emphasis added). Not so. The constitutionality of sobriety checkpoints has never been addressed by the Supreme Court. Therefore, the cases cited in the concurring opinion, and those of this opinion, can only be utilized for the purposes of analogy and extrapolation of similar issues.

6 . Although there are six areas of permissible suspicionless searches and seizures approved by the United States Supreme Court, we will only address three of those six areas. In addition to the three areas discussed, the Court has seen fit to permit customs officials the right to board vessels that are capable of making open sea to inspect their documents. See United States v. Villamonte-Marquez 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). Also, the Court has found INS agents have the right to make immigration "sweeps" at the work place, without probable cause or reasonable suspicion, to find undocumented workers. See INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). More recently, the Supreme Court has held that railroad personnel and-Customs Service agents may be subject to blood or urinalysis tests without even reasonable suspicion because the privacy interests of the employees is minimal compared to the governmental interest of public safety on the railways and drug interdiction at the U.S. borders. See Skinner v. Railway Labor Executives’ Association, — U.S.-, 109 S.Ct. 1402, 103 L.Ed.2d 639 and National Treasury Employees Union v. William Von Raab, — U.S. -, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).

7 . The record demonstrated that in 1973 approximately 17,000 undocumented workers were apprehended at the roadblock in question. See Martinez-Fuerte, 428 U.S. at 554, 96 S.Ct. at 3081.

8 . Regrettably the concurring opinion misses the tenor of Martinez-Fuerte when it states, "The safeguards outlined above are as relevant to temporary checkpoint as to a fixed checkpoint" (concurring opinion page 243). When the Court states, "motorists who use these highways are not taken by surprise,” “The regularized manner in which established checkpoints are operated,” and "Our holding today is limited to the type of stops described in this opinion” it intended to limit its permission and its rationale to ONLY fixed permanent checkpoints. The concurring opinion makes a giant leap from fixed, permanent routine checkpoints to random, temporary checkpoints without any appreciation of the obvious distinctions between the two.

9 . The facts in this case concerned U.S. Customs officers boarding a vessel in a ship channel to check the ship’s documentation. Officers detected the odor of marihuana when they boarded the ship and upon looking through an open hatch they discovered bales of the contraband. Although the concurring opinion implies this is some type of roadblock case (at p. 242), this case is wholly inapposite from sobriety checkpoint cases. The Court in authorizing this type of suspicionless search did so based on a one hundred and ninety-three year old federal statute and the unique fact of the ship’s immediate accessibility to the open sea. They clearly recognized the dissimilarities between state vehicle registration law checkpoints and the boarding of oceangoing vessels. See id., 462 U.S. at 586-587 and 592-593, 103 S.Ct. at 2578-79 and 2581-82.

It is most unfortunate that the concurring opinion recapitulates the continuing elevation of dictum to precedence when it quotes the Supreme Court’s discussion in Villamonte-Mar-quez of the Prouse dictum that improperly paraphrases the majority opinion of Prouse as permitting roadblocks for safety purposes. Any implication that Villamonte-Marquez stands for the proposition that a driving while intoxicated roadblock is constitutional connotes an entirely false impression. The Supreme Court, in Villa-monte-Marquez, distinguished that case from stops on roadways when it said “It seems clear that if the customs officers in this case had stopped an automobile on a public highway near the border, rather than a vessel in a ship channel, the stop would have run afoul of the Fourth Amendment because of the absence of articulable suspicion." Id., at 588, 103 S.Ct. at 2579. The court went on to say that it was because of the important factual differences between vessels in waters having ready access to the open sea and automobiles on principle thoroughfares in the border area, the “overarching principle of 'reasonableness’ embodied in the Fourth Amendment” required a different result.

10 . Especially factor two, that there was NO other means of effective law enforcement, which was the determining factor in Villamonte-Mar-quez and Martinez-Fuerte, as well as Camara.

11 . Likewise, constitutionality is not imbued by merely creating "neutral guidelines,” as the concurring opinion suggests, for the administration of roadblocks. The concurring opinion relies heavily on the analysis that its author utilized in the plurality (two judge) opinion in Webb v. State, 739 S.W.2d 802 (Tex.Cr.App.1987). See pp. 242-245. The problem, however, is that this misconstrues the Supreme Court’s Fourth Amendment analysis in this area. Webb relied on the three part test set out in Brown (delineated in today's opinion in the paragraph preceding this footnote insertion) which stated that determining the constitutionality of a seizure that is less intrusive than a traditional arrest involves a weighing of "the gravity of the public concern served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown, 443 U.S. at 50, 51, 99 S.Ct. at 2640. True, in Brown, the Supreme Court required that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Id. 443 U.S. at 51, 99 S.Ct. at 2640 (emphasis supplied). This "plan”, however, only serves to placate the central concern in balancing the three competing considerations of 1) public concern, 2) degree of advancement and 3) severity of interference. This central concern is that privacy will not be arbitrarily invaded by officers. Id. at 51, 99 S.Ct. at 2640. It is only "to this end" of curbing arbitrariness that the fact a seizure was carried out pursuant to a plan has any relevance.

12 . The states are divided as to what grounds to hold DWI roadblocks unconstitutional. This division falls into three categories: (1) unconstitutional under the Fourth Amendment to the United States Constitution, (2) unconstitutional under a particular provision of a state’s constitution, or (3) unconstitutional as procedurally applied under either state or federal guidelines. 37 ALR4th 1.

13 . The Arizona Supreme Court in holding that DWI roadblocks in Arizona were unconstitutional under the Fourth Amendment stated that its decision turned upon the State’s stipulation as noted in the opinion:

In the past, the foremost method of enforcing the DWI laws has been by observing how the person drives. The state has stipulated that ‘DPS officials, by observing and patrolling, regularly arrest drivers for DWI when there are no roadblocks. DPS officers are trained to detect drunk drivers on the road on the basis of observation. An experienced DPS officer .becomes highly skilled at detecting drunk drivers by watching how a person drives. Without roadblocks, an experienced DPS officer can detect many drunk drivers.’

State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d 992, 996 (1983). Subsequently, the Arizona Court has reversed its position, on other grounds, as to the constitutionality of DWI roadblocks. State v. Superior Court of the County of Pima, 143 Ariz. 45, 691 P.2d 1073 (1984).

14 .The concurring opinion argues that deterrence, and not the detection of criminal activity, is the "primary goal" of sobriety checkpoints. See p. 246. The author draws heavily from Ingersoll v. Palmer, 43 Cal.3d 1321, 241 Cal.Rptr. 42, 743 P.2d 1299 (1987). Jngersoll would seem to be poor authority in view of the fact that it reflects the lack of unanimity, contrary to the concurring opinion’s assertions, even among members of the same court. Two justices joined the lead opinion, three concurred in the result without opinion and three justices dissented. Justice Broussard’s dissenting opinion points out numerous inconsistencies in the In-gersoll opinion that are mirrored in Judge Davis' analysis:

The majority concedes that if the primary purpose of the roadblock were to detect crime, the detention of a driver without individualized suspicion that the driver had engaged in criminal activity would be unconstitutional. In fact, the roadblock has two purposes: detection of drunk drivers and collection of evidence. The majority maintain, however, that the primary purpose of these roadblocks is to promote public safety by deterring drunk driving. The majority assert that this is a regulatory or administrative purpose, and conclude that detention without individualized suspicion is permissible by analogy to the administrative search doctrine....

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A drunk driving roadblock ... differs from the usual administrative or regulatory inspection because there is no 'regulatory’ agency to enforce the drunk driving prohibition other than the police and the criminal courts, [footnotes omitted] The clear purpose of these laws is not to regulate, but to detect and punish criminal drunk driving. Nothing distinguishes this crime from any other serious one.

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If we allowed detentions without individualized suspicion to deter crime, we would allow preventative detentions in high crime areas. But we do not allow such practices, (citations omitted) ... What distinguishes the permissible administrative inspection from other searches is not that they are only intended to deter, but that they carry out an administrative scheme that is not part of the penal system. There is no such administrative scheme here.

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A request to look at one’s license is far less accusatory than an inspection for red, watery eyes, slurred speech, alcohol on the breath, open containers in the car, and the other signs of intoxication. It does not follow that, because a roadblock may be permissible to check for driver’s licenses, it must be permissible to check for drunk driving.

To call a drunk driving roadblock an administrative inspection ignores its true purpose — apprehension of drunk drivers. The fact is that the apparatus of the law enforcement system is moved to the scene of the roadblock — with breathalyzers ready to take evidence for introduction at a criminal trial, police officers ready to arrest offenders, and police vans ready to take suspects away, (emphasis supplied)

Id., 241 Cal.Rptr. 42, 743 P.2d at 1319-1320.

15 . The concurring opinion asserts that where there exists a neutral set of guidelines for the creation of a sobriety checkpoint and the "State is honest as to its intentions”, the Fourth Amendment has been complied with. Justice Broussard best demonstrates this fallacy when he writes:

The majority seem to suggest that as long as a neutral plan assures that the roadblock is run safely and without arbitrariness, the individual’s interest in being free from police detention does not weigh in the balance at all. This antiseptic approach denies the unavoidable invasion of privacy which occurs when a citizen is confronted by the police and his demeanor inspected for evidence that he is committing a crime. Furthermore, the protection of the neutral plan is illusory.... As there is apparently no remedy for violations of the neutral plan, the plan is no protection against arbitrariness.

Ingersoll, 743 P.2d at 1322.

16 . We have held, today, that this DWI roadblock was unconstitutional under the Fourth Amendment to the United States Constitution. Although it is neither timely nor popular to rule against the politically charged issue of removing drunk drivers from our highways, it is imperative that we never forget as citizens of a free land we must on occasion pay the price for our continued freedom from tyranny. This price we pay for our freedom is often high but we cannot succumb to these quick fix alternatives of law enforcement when the result is to unduly repress the general freedoms we are afforded under the'United States Constitution.