Higbie v. State

• Citation: 780 S.W.2d 228
• Decision Date: 11 October 1989
• Docket Number: No. 194-87,194-87
• Parties: David Edward HIGBIE, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 228

780 S.W.2d 228

David Edward HIGBIE, Appellant, v. The STATE of Texas, Appellee.

No. 194-87.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 11, 1989.

Rehearing Denied Nov. 22, 1989.

Tex McConathy, Dallas, for appellant.

Henry Wade, Former Dist. Atty., John Vance, Dist. Atty., Michael A. Klein, Former Asst. Dist. Atty., William Randell Johnson, Elizabeth Hardeman, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of driving while intoxicated, a misdemeanor, in violation of Art. 6701l-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 contendre 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 instances ² 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 dictum ⁴ 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, "[q]uestioning 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 Brandeis, 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....