Webb v. State

• Decision Date: 07 October 1987
• Docket Number: No. 1008-85,1008-85
• Citation: 739 S.W.2d 802
• Parties: Lee Clark WEBB, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 802

739 S.W.2d 802

Lee Clark WEBB, III, Appellant, v. The STATE of Texas, Appellee.

No. 1008-85.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 7, 1987.

John R. Leigh, W. John Allison, Jr., on appeal only, Dallas, for appellant.

Henry Wade, Dist. Atty., and Elizabeth L. Phifer, John D. Nation, Chris Ewert and Keith Anderson, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted of the offense of driving while intoxicated and punishment was assessed at thirty days confinement in the Dallas County Jail and a $300 fine. Sentence was suspended and appellant was placed on probation for a period of two years. The Court of Appeals for the Fifth Supreme Judicial District reversed the conviction based upon that court's determination that the driver's license checkpoint where appellant was stopped and arrested was an impermissible pretext stop under Art. 6687b, § 13, V.A.C.S.; that court further holding the roadblock as conducted violated appellant's Fourth Amendment rights. Finding the trial court erred in failing to suppress the fruits of the roadblock seizure, the appeals court entered a judgment of acquittal in the case. Webb v. State, 695 S.W.2d 676 (Tex.App. Dallas 1985). We granted the State's petition for discretionary review to address the Court of Appeals' holding concerning the constitutionality of the roadblock as well as to address its disposition of the case.

At the hearing on the motion to suppress only one witness testified, Dallas Police Officer Paul Simpson. He testified that on December 17, 1982, he and other officers "had a roadblock set up for checking driver's licenses" from 7:00 p.m. to 10:00 p.m. on Greenville Avenue. After further questioning Simpson admitted that the roadblock was placed on Greenville Avenue because of its proximity to establishments that sold alcoholic beverages. He then also agreed with defense counsel's statement that the "purpose was not a driver's license check but it was, in fact, for a D.W.I. check."

Appellant was stopped at the roadblock at about 9:10 p.m. Simpson and Officer Akins stopped appellant in the middle of Greenville Avenue and asked him to exit his car. Simpson said that he did not hear Akins ask appellant for his driver's license, but that Akins had asked every driver that had come through previously. Simpson smelled alcohol on appellant's breath, observed him, and decided that appellant was intoxicated. He then arrested appellant, took him to a van the police had parked at the site, and eventually transported him to jail.

The State insists that the record shows the roadblock was ostensibly set up as a driver's license checkpoint and not as DWI roadblock. We disagree. Simpson's testimony must be reviewed as a whole, and, as the record reflects, the testimony shows that the roadblock was, at the least, a combination of a DWI roadblock and a driver's license checkpoint. Simpson initially stated that the roadblock was a driver's license checkpoint. But on cross-examination he admitted that it was, in fact, a DWI checkpoint. This testimony and the fact that the police positioned themselves near places which sold alcoholic beverages and had a van waiting to take those arrested to jail, substantiates the claim that the purpose, or at least one purpose of the roadblock was to check for drunken drivers.

Appellant was "seized" for purposes of the Fourth Amendment when his automobile was stopped at the roadblock and he was detained. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Numerous cases have stated that the purpose of this Amendment is "to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court, 387 U.S. 523, at 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967); Terry, supra; Brignoni-Ponce, supra; Prouse, supra; Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). This reasonableness requirement of the Fourth Amendment is implemented by measuring the facts upon which an intrusion is based against " 'an objective standard' whether this be probable cause or a less stringent test," like reasonable suspicion. Prouse, 440 U.S. at 654, 99 S.Ct. at 1396. "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." Id. Three basic standards have evolved from the balancing of the government interest in a law enforcement practice against that practice's intrusion on an individual's Fourth Amendment interests: probable cause, reasonable suspicion, and in those cases where individualized suspicion is not required, a balancing test which includes certain factors like the government's need for the practice, i.e., the public interest, the limitation of the field officers' discretion, and the degree of intrusion on the individual. Camara, supra; Terry, supra; Martinez-Fuerte, supra; Brown v. Texas, supra.

Our starting point in evaluating the reasonableness of the DWI roadblock is Camara, supra, in which the Supreme Court employed a balancing test to hold that a search, by warrant, not based upon any individualized suspicion was reasonable. Camara, supra, involved an administrative inspection program under which a housing inspector was permitted to make a warrantless, routine, annual inspection for violations of the city's Housing Code. The Supreme Court noted that such an inspection is "a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime." But, the Court also held that such administrative searches are significant intrusions protected by the Fourth Amendment, although not protected by as high a standard as probable cause. The reasonableness of the search was determined by balancing the need to search against the invasion which the search entailed. The Court held that suspicion of the individual premises to any degree was not necessary because of the nature of the inspections. The Court examined three factors in analyzing the reasonableness:

First, such programs have a long history of judicial and public acceptance.... Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results. Many such conditions--faulty wiring is an obvious example--are not observable from outside the building and indeed may not be apparent to the inexpert occupant himself. Finally, because 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.

Camara, supra, is the foundation case for the balancing test in a "suspicionless" search or seizure case. In the 1970's several immigration control cases involving stops discussed, distinguished, and relied upon Camara, supra, in determining the applicable standard of reasonableness and the important factors in the balancing test. Because case law applicable to the police use of roadblocks has evolved primarily as a result of these immigration control cases, we now review those cases.

The immigration cases sought to use the lesser standard for evaluating reasonableness by balancing the strong government need for a particular practice against the invasion of privacy caused by the particular practice used. Cf. Camara, supra. In the first case, Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) the government sought to rely on Camara's lesser standard of reasonableness governing administrative inspections to justify a random vehicular stop and search by a roving patrol of Border Police at a point removed from the border or its functional equivalent. The Court refused to apply Camara's suspicionless search balancing test standard. While acknowledging the government's interest in controlling the flow of illegal aliens, two other key factors were relied upon in this decision, the discretion of the officers and the intrusion upon the individual. The unfettered discretion of the officers in the field was a significant basis in finding the random stop unreasonable. The Court held that absent probable cause or consent, the search was an unreasonable one and violated the Fourth Amendment. The government interest was not so great as to allow such arbitrary intrusions to those using the highways.

Brignoni-Ponce, supra, and United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975) followed Almeida-Sanchez, supra, and also involved Border Patrol seizures and searches. In Brignoni-Ponce, the Court held that a roving Border Patrol stop of a moving vehicle was permissible only if the officer is "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that a vehicle contains illegal aliens. In arriving at this less than probable cause standard the Court once again balanced the accepted strong government/public interest in preventing the flow of illegal aliens into this country against the "interference with individual liberty that results...