Meeks v. State

• Decision Date: 26 June 1985
• Docket Number: 61654,Nos. 61653,s. 61653
• Citation: Meeks v. State, 692 S.W.2d 504 (Tex. Crim. App. 1985)
• Parties: Celeste Lloyd MEEKS & Lawrence Hugh McCullough, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 504

692 S.W.2d 504

Celeste Lloyd MEEKS & Lawrence Hugh McCullough, Appellants, v. The STATE of Texas, Appellee.

Nos. 61653, 61654.

Court of Criminal Appeals of Texas En Banc.

June 26, 1985.

Gerald H. Goldstein, Mark Stevens, San Antonio, Martin Underwood, Comstock, Edward A. Mallett, Houston, for appellants.

Thomas F. Lee, Dist. Atty., Del Rio, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

ONION, Presiding Judge.

These are appeals from convictions for possession of more than four ounces of marihuana, where the punishment was assessed by the jury at five years' imprisonment for each appellant.

On appeal appellants contend the court erred in overruling their motion to suppress the alleged marihuana and in later admitting such evidence on the ground that the "license check" statute (Article 6687b, § 13, V.A.C.S.) was used as pretext to justify a "roadblock" manned by various federal, state and local peace officers to enforce criminal laws generally, thus violating appellants' rights to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 9 of the Texas Constitution. Appellant McCullough also contends the evidence is insufficient to support his conviction for possession of marihuana noting he was only a passenger in the car under the control of another.

The record reflects that the seizure and search in question occurred on November 3, 1977, at a roadblock established on U.S. Highway No. 90, one mile west of Sanderson by various law enforcement officers. All traffic going east or west was stopped. Traffic cones placed on the highway narrowed the lane so that the vehicles could be forced to the shoulder of the road and stopped. Flashing lights were also utilized.

Sheriff Dalton Hogg, Terrell County Sheriff, testified at the suppression hearing that this type of roadblock was conducted two or three times a year, and there had been approximately seven roadblocks prior to November 3, 1977. They were coordinated to be convenient for each of the state and federal agencies who decided as a "group" on a time. Sheriff Hogg could not remember who initiated the idea for the November 3rd roadblock, but he was its "coordinating officer." The record shows that at the roadblock there were Texas Department of Public Safety officers including Highway Patrol officers, Narcotics officers from Laredo (200 to 300 miles away) and License and Weight Division officers. There were deputy sheriffs from Terrell and Brewster Counties, "Auto Theft" officers from Del Rio, Parks and Wildlife officers (Game Wardens), Alcoholic Beverage Commission officers from Pecos, and from time to time federal Border Patrol officers. One officer testified there were 20 officers present, another said 15, and Sheriff Hogg stated at least 12 officers were present. Most of the officers were in uniform and visibly armed. There were estimates of seven to nine law enforcement vehicles, most of which were marked police vehicles. There was some testimony the roadblock was in existence for 24 hours, but there was other testimony it commenced at 1:30 p.m. on November 3, 1977 and ended at 6 a.m. the next day. One officer estimated 200 vehicles were stopped within a 12 hour period.

Sheriff Hogg testified the officers were there to "enforce all the laws." They were working together on "anything that would be a violation of some type." The alcoholic beverage officers would enforce the alcohol laws, the narcotic officers, the narcotic laws, the game wardens, the parks and wildlife laws, etc.

D.P.S. Officer Donald Ray Tucker stated they were there checking driver's licenses, equipment, overweight vehicles, checking for stolen vehicles, any felony violation that came to their attention as well as fugitives. Acknowledging he was a narcotic officer stationed in Laredo, he stated they were also looking for controlled substance violations.

Doyle Holdridge, another D.P.S. officer stationed in Laredo, testified initially they had come to the roadblock several hundred miles away to check driver's licenses. He then stated it was for "enforcement of any laws that's violated," including "DWIs, stolen cars, you know, apprehension of felons, wanted people, just anything that comes around." (Emphasis supplied). He acknowledged he didn't give any traffic tickets, that such cases were turned over to local troopers as they were 300 miles from their base and didn't want to return 300 miles to check on "an old driver's ticket, the disposition on it." The record also reflects:

"Q. All right. But they send you there with a number of other officers to enforce a lot of different laws.

"A. Yes, sir.

"Q. Not just to check licenses?

"A. I don't understand the question.

"Q. Well, they don't ask narcotic officers and Highway Patrolmen and Parks and Wildlife Department people all just to check licenses, they were there enforcing various laws that these officers are charged with enforcing in the State of Texas.

"A. Yes, sir.

"Q. And all these people weren't sent there just 300 miles from Pecos, Laredo and all parts in between just to look at driver's licenses?

"A. That's correct."

The roadblock commenced about 1:30 p.m. on November 3, 1977. About 1:45 p.m. the third or fourth car stopped by the officers was a 1972 Plymouth automobile being driven east. It contained the appellants. The officers acknowledged they had no prior information about the car or its occupants. They observed no traffic violations or any other violation of the law or any suspicious conduct. They had no articulable and reasonable suspicion that the driver was unlicensed or that the vehicle was not registered. Appellant Celeste Meeks was driving the Plymouth, and appellant McCullough was a passenger. D.P.S. narcotic officer Tucker, not in uniform, but visibly armed and wearing a badge, asked Meeks for a driver's license, and she produced one from Georgia. Tucker observed a spare tire, bumper jack, luggage and articles of clothing in the back seat of the vehicle. As Meeks rolled down the car window, Tucker smelled a slight odor of marihuana (non-burning) but "nothing very definite." Tucker observed the passenger, McCullough, was extremely nervous, with a rapid heart beat visible through his tight shirt. Tucker then observed the vehicle was equipped with air shocks on the rear which are normally used for heavy loads. As he went down to inspect them, the odor of marihuana was strong. He also noticed at this time the vehicle bore a Georgia license plate at the rear of the car. Tucker then asked Meeks what was in the trunk, and she replied "junk." Tucker testified she agreed when he asked if he could look in the trunk. She got out of the car and went to the rear of the car. After Tucker's second request, she handed him the car keys. The trunk was opened and approximately 437.8 pounds of marihuana was found. During this time McCullough had been removed from the vehicle by other officers.

Neither appellant testified at the hearings on the motion to suppress. The motions were overruled. At the joint trial on the merits, the State offered much the same evidence along with that of the chemist that the substance seized was marihuana. The appellants again did not testify. The jury found the appellants guilty and assessed punishment at five years for each.

The State relies upon Article 6687b, § 13, V.A.C.S., to justify the initial stop. It reads in pertinent part:

"... any peace officer may stop and detain any motor vehicle operator for the purpose of determining whether such person has a driver's license as required by this section."

The continued viability of this statute is in question in light of the decision of the United States Supreme Court in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), where the Court stated:

"[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or either the vehicle or an occupant is otherwise subject to seizure for violation of the law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment."

In Luckett v. State, 586 S.W.2d 524 (Tex.Cr.App.1979), and McMillan v. State, 609 S.W.2d 784 (Tex.Cr.App.1981), this Court held Prouse would not be given retroactive application or effect. Thus once these alleged offenses occurred and were tried before the date of the Prouse decision we need not decide whether Article 6687b, § 13, V.A.C.S., violates the prohibitions of the Fourth Amendment and Article I, § 9, Texas Constitution, against unreasonable searches and seizures.

Nonetheless, the stop in the instant case was not justified as a check on the driver's license of the appellant Meeks. The Court has upheld the validity of stops under Article 6687b, § 13, where the stop was made for the sole purpose of determining whether the driver had a valid driver's license and to determine the fitness of the driver and vehicle. Oliver v. State, 455 S.W.2d 291 (Tex.Cr.App.1970); Black v. State, 491 S.W.2d 428 (Tex.Cr.App.1973); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973); Tardiff v. State, 548 S.W.2d 380 (Tex.Cr.App.1977); Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App.1977); Dillard v. State, 550 S.W.2d 45 (Tex.Cr.App.1977); Fatemi v. State, 558 S.W.2d 463 (Tex.Cr.App.1977); White v. State, 574 S.W.2d 546 (Tex.Cr.App.1979); Razo v. State, 577 S.W.2d 709 (Tex.Cr.App.1979); Luckett v. State, supra; McMillan v. State, supra. If a license check is not the sole reason for a detention, that detention is not authorized by the statute and cannot be upheld. Fatemi v. State, supra.

While the statute purports to give peace officers the right to stop and detain motorists for the limited purpose of checking their driver's or operator's...