State v. Sanchez

856 S.W.2d 166, 1993 Tex. Crim. App. LEXIS 134, 1993 WL 216690

• Court: Court of Criminal Appeals of Texas
• Decided: June 23, 1993
• Docket: 168-91
• Status: Published

Opinions

OPINION ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellee was indicted for unlawful possession of marijuana. Appellee filed a motion to suppress evidence seized during a Texas Department of Public Safety (DPS) automobile roadblock stop. The trial court granted appellee’s motion, finding “that such a checkpoint stop for the purpose of checking insurance coverage in addition to a Driver’s License check is not authorized by law and is therefore an illegal stop.... ” The State appealed.¹ The Thirteenth Court of Appeals reversed. State v. Sanchez, 800 S.W.2d 292 (Tex.App.—Corpus Christi 1990). We granted appellee’s petition for discretionary review to determine whether “the Court of Appeals erred in reversing the trial court’s order to suppress the evidence seized as a result of an unlawful warrantless stop of [appellee’s] vehicle.”

On the morning of April 30, 1987, four DPS officers set up a roadblock checkpoint in Victoria County without the authorization of a superior officer.² The evidence established that all northbound traffic was stopped for questioning concerning driver’s licenses and insurance, and vehicles were visually inspected for equipment violations. Appellee arrived at the roadblock and, after brief questioning, officers discovered between 50 and 200 pounds of marijuana in the trunk of appellee’s vehicle.³ Appellee’s motion to suppress sought to have the evidence of the marijuana suppressed as the fruit of an allegedly illegal search.

The Thirteenth Court of Appeals, noting that such a roadblock was not prohibited by Texas statutes and finding the level of intrusion produced by the roadblock indistinguishable from the intrusion arising from the stops at issue in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) and Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), held that the subject roadblock was reasonable under the Fourth Amendment to the United States Constitution. We will reverse.

The stopping of a vehicle constitutes a “seizure” for Fourth Amendment purposes. Martinez-Fuerte, 428 U.S. at 556-58, 96 S.Ct. at 3082-83; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). The Fourth Amendment does not prohibit all seizures, but only those that are unreasonable. A “suspicionless search”⁴ is deemed reasonable under the Fourth Amendment when it has met the balancing test set forth in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Brown requires that the public interest 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) effectiveness of the procedure used in achieving its stated goal. Brown, 443 U.S. at 50-51, 99 S.Ct. at 2640. We hold that the court of appeals erred in finding the subject roadblock reasonable under the Brown balancing test.

The United States Supreme Court has applied the Brown balancing test to determine the constitutionality of a sobriety checkpoint program established by a state police department. Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). In Sitz, the Michigan Department of State Police and its Director established a pilot sobriety checkpoint program pursuant to governmental authority.⁵ An advisory committee, comprised of members from the state police force, local police forces, state prosecutors, and the University of Michigan Transportation Research Institute, set forth the guidelines governing checkpoint operations, site selection and publicity. Id. 110 S.Ct. at 2484. The first checkpoint operated under the program was conducted with the cooperation of a county sheriff’s department. The checkpoint was operated for one hour and fifteen minutes before its operations were suspended pending the outcome of litigation challenging its constitutionality. During the period of operation, 126 vehicles passed through the checkpoint. The average delay per vehicle was 25 seconds. Of three drivers detained for sobriety testing, two were arrested. Id. The Michigan state courts concluded that the checkpoint violated the Fourth Amendment. Applying the Brown balancing test, the United States Supreme Court reversed. The Court recognized that the state interest involved in addressing the DWI problem was great, citing statistics demonstrating the extent of alcohol-related accidents. Id. 110 S.Ct. at 2485-85. Addressing the level of intrusion on individual motorists, the Court said

[The] checkpoints are selected pursuant to the guidelines, and uniformed police officers stop every approaching vehicle. The intrusion resulting from the brief stop at the sobriety checkpoint is for constitutional purposes indistinguishable from the checkpoint stops we upheld in Martinez-Fuerte [, United States Border Patrol checkpoints].

Id. 110 S.Ct. at 2487. In light of the fact that 1.5 percent of the drivers passing through the checkpoint at issue were arrested for alcohol impairment, the Court concluded that the checkpoint’s effectiveness in meeting its goals was sufficiently established. The Court held that “the balance of the State’s interest in preventing drunken driving, the extent to which this system can be reasonably said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program.” Id. 110 S.Ct. at 2488.

In reaching its decision in Sitz, the Supreme Court contrasted the sobriety checkpoint at issue there with the random roving-patrol stop at issue in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In Prouse, a Delaware Highway Patrol officer was not acting pursuant to departmental procedures or guidelines and had not observed traffic violations or suspicious acts prior to stopping the vehicle. Prouse, 440 U.S. at 650-51, 99 S.Ct. at 1394-95. Concluding that this sus-picionless stop was unconstitutional, the Court stressed both the lack of objective standards governing the officer’s exercise of discretion and the absence of empirical evidence establishing the stop’s effectiveness in promoting highway safety. The Court stated that:

This kind of standardless and unconstrained discretion is the evil the court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.

Prouse, 440 U.S. at 661, 99 S.Ct. at 1400. Any incremental increase in highway safety produced by such a random stop was insufficient to justify the intrusion on an individual’s privacy. Id. at 659, 99 S.Ct. at 1399.

The Sitz Court also referred to its decision in Martinez-Fuerte, where the Court had addressed the constitutionality of permanent United States Border Patrol checkpoints established at various locations near the United States — Mexico border for the purpose of detecting illegal aliens. Similar to the establishment of the checkpoint at issue in Sitz, the locations of the checkpoints at issue in Martinez-Fuerte were selected by Border Patrol supervisory officials upon consideration of stated objective factors and were operated pursuant to standard Border Patrol procedures. Further, the effectiveness of the border checkpoints was demonstrated with empirical evidence. Martinez-Fuerte, 428 U.S. at 554, 96 S.Ct. at 3081. Based upon the use of standardized procedures and the evidence demonstrating the checkpoints’ effectiveness in achieving the stated goals, the Supreme Court upheld the border checkpoints as constitutional.

In contrast to the checkpoints at issue in Sitz, which were established by the State Department of Police pursuant to guidelines set forth by an advisory committee appointed by the State Department of Police and the checkpoints at issue in Martinez-Fuerte, which were established and operated by the United States Border Patrol, the roadblock at issue in the instant case was established by four individual Department of Public Safety officers. In further contrast to the stops at issue in Martinez-Fuerte and Sitz, the record in the instant case is void of any showing that the DPS officers followed standardized guidelines in operating the subject roadblock. Rather, the participating officers acted without the authorization or guidance of a superior officer and without established procedures concerning the location of the roadblock or its operation.⁶ In addition, the State offered no evidence demonstrating the effectiveness of the roadblock in identifying violators. In both Martinez-Fuerte and Sitz, the effectiveness of the respective roadblocks was demonstrated with empirical evidence. The evidence in Martinez-Fuerte revealed that the ratio of illegal aliens detected to vehicles stopped was approximately .5 percent. In Sitz, approximately 1.5 percent of the drivers passing through the checkpoint were arrested for DWI. Although these figures are not overwhelming, the Supreme Court has stressed the importance of some empirical evidence to establish the effectiveness of the stop in achieving its stated goals.⁷ Our search of the record reveals that there is no evidence establishing the effectiveness of the roadblock at issue in the record of 100 plus pages from the hearing on appel-lee’s motion to suppress.⁸

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.⁹ See Sitz; Brown; Van Natta.

The judgment of the court of appeals is reversed and this cause is remanded to the trial court.

McCORMICK, P.J., and MILLER and WHITE, JJ., dissent.

1 . We note that the last entry in the record is the granting of appellee's motion to suppress and the State’s appeal.

2 . One of the officers testified that authorization is only required when six or more officers are involved in the roadblock.

3 .We need not discuss the particular facts leading to the discovery of the marijuana in appel-lee’s trunk as they do not bear on the propriety of the roadblock stop, at issue here.

4 . A roadblock search falls into the category of a "suspicionless search”. Martinez-Fuerte, 428 U.S. at 561-62, 96 S.Ct. at 3084-85. A "suspi-cionless 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.

5 . The Michigan court of appeals detailed the events leading to the implementation of the program:

1982 P.A. 310 established the Michigan Drunk Driving Task Force in the Department of State Police, M.C.L. § 257.625j; M.S.A. § 9.9325 (10). The Task Force was charged with reviewing all aspects of the drunk driving problem in the state. In September, 1985, the Task Force submitted its final report which set forth thirty-five recommendations for combatting alcohol-related traffic accidents. One suggestion was the implementation of sobriety checkpoints on public highways. Due to legislative opposition, defendants did not attempt to implement sobriety checkpoints at that time.

In his State of the State Address on January 29, 1986, Governor Blanchard directed defendants to implement a sobriety checkpoint pilot program. In February, 1986, defendant Gerald L. Hough, Director of the Michigan Department of State Police, appointed a Sobriety Checkpoint Advisory Committee ... [which] drafted guidelines for the program.

Sitz v. Department of State Police, 170 Mich.App. 433, 429 N.W.2d 180, 181 (Mich.Ct.App.1988).

6 . We note that while the checkpoint at issue in Sitz was established by a state-wide law enforcement agency pursuant to a directive from the governor, and the checkpoints at issue in Martinez-Fuerte were established by a national authority, the Supreme Court has not specifically addressed the issue of whether checkpoints implemented by county or local law enforcement agencies would be acceptable.

7 . Texas courts have also stressed the importance of some proof of effectiveness. In State v. Van Natta, the Fort Worth Court of Appeals held that the Supreme Court’s holding in Sitz did not automatically validate all DWI roadblocks and emphasized the need for a showing of the roadblock's effectiveness in achieving its stated purpose:

We are not called upon to judge the effectiveness of the technique ... since the State failed to make even a prima facie showing that the roadblock ... had any effect whatsoever in advancing the State's interest.

State v. Van Natta, 805 S.W.2d 40, 42 (Tex.App.-Fort Worth 1991). The court held that the State failed to satisfy the effectiveness prong of Brown as approved in Sitz. Id. at 42.

8 . The only testimony that could possibly be said to bear on the issue of effectiveness was elicited by appellee, as follows:

Q: [Defense counsel] Were any citations issued during that time [between when the roadblock was set up and Appellee’s arrest]?

A: [DPS Officer] Yes, Ma’am.

Q: Do you recall what they were for?

A: No, Ma’am.

9 .We note that in addressing the third prong of the Brown balancing test, the court of appeals stated that the Supreme Court in Sitz held that no showing of effectiveness was necessary. The court of appeals misreads the case. Sitz held that it was for "politically accountable officials” and not "the courts” to determine "which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger." Sitz, 110 S.Ct. at 2487. It did not condone a complete absence of a showing of effectiveness; but merely held that it was not the responsibility of the courts to choose among law enforcement alternatives. As stated above, there was empirical evidence establishing the effectiveness of the roadblock in Sitz, thus satisfying the third prong of Brown.