Regina H. HOLT, Appellee, v. The STATE of Texas, Appellant.
No. 599-93
Court of Criminal Appeals of Texas, En Banc.
June 15, 1994.
887 S.W.2d 16
Steven H. Swander, Fort Worth, for appellee.
Tim Curry, D.A. & Susan Ayers, Warren Spencer & Leslie Hardy, Asst. Dist. Attys., Fort Worth, Robert Huttash, State‘s Atty., Austin, for the State.
MILLER, Judge.
Appellee was charged with driving while intoxicated (“DWI“) after she was arrested at a sobriety checkpoint set up by the Arlington Police Dеpartment. Appellee filed a motion to suppress evidence seized through the sobriety checkpoint, alleging that the checkpoint violated her rights under the Fourth Amendment to the United States Constitution as well as
A brief discussion of the facts surrounding this roadblock is necessary. In the early morning hours of May 25, 1991, the Arlington Police Department conducted a field sobriety checkpoint within the city limits of Arlington in the 1200 block of West Division. The evidence established that the checkpoint had been set up pursuant to written guidelines and procedures established in 1988 by a committee of police officers having supervisory authority within the Arlington Police Department. The Arlington City Council had previously granted policy-making authority to the Chief of Policе, who approved such guidelines. The City Council did not consider these procedures. The location of the checkpoint at issue had been selected by the sergeant in the Traffic Division, who was the supervisor of the checkpoint, and had been approved by the Traffic Division Commander. The location was selected on the basis of several significаnt factors that were supported by research done by officers within the Traffic Division. This particular site had been determined to be tied for third in terms of the number of DWI arrests made at the location over a certain period of time. Findings of fact by the trial judge further indicate that the date and location of the checkpoint was distributed to the media, and a relаted story about the checkpoint had appeared in a local newspaper the morning of the checkpoint.
It was also established that the officers at the scene, under the supervision of the Traffic Division sergeant, posted warning signs, illuminated the roadside, and directed traffic into the funnel of the checkpoint. Over a three hour period, eаch and every one of the 341 automobiles that approached the location was stopped. A police officer would explain the purpose of the checkpoint to the driver and engage the driver in a brief conversation while looking for signs of intoxication. If no signs of intoxication were observed, the driver was allowed to pass. If signs of intoxication were detected, the driver was asked to move his vehicle to an isolated area where an officer would administer field sobriety tests. Each car was detained for an average of 10-15 seconds at the initial stop. During this roadblock, ten DWI arrests were made.1
In a DWI roadblock situation, the Brown test involves a balancing of the public interest in the roadblock against the individual‘s right to privacy in light of three factors: (1) the state‘s interest in preventing accidents caused by drunk drivers; (2) the effectiveness of the DWI roadblock in preventing such accidents; and (3) the level of the intrusion on an individual‘s right to privаcy that is caused by the roadblock. In addition to Brown, the U.S. Supreme Court has handed down the landmark decision of Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990), analyzing DWI roadblocks under the Brown test. The issue we are truly faced with in the instant case is whether, in light of Sitz, DWI roadblocks are constitutional without express authorization and implementation by a statewide governing body. We hold here that Sitz does so require.2
Much debate is given to language in Sitz stating that ”Brown was not meant to transfer from politically accountablе officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed” in creating a DWI roadblock. Id., at 453, 110 S. Ct. at 2487. The Court held that the choice among reasonable alternatives remains with government officials who have a unique understanding of, and responsibility for, the public resources necessary to effectuate such roadblocks. Id. The Supreme Court also addressed the decision of the Michigan Court of Appeals, Sitz v. Department of State Police, 170 Mich. App. 433, 429 N.W.2d 180 (Mich. App. 1988), where that court analyzed DWI checkpoints under the Brown three-step test and found them to violate the Fourth Amendment. In overruling the Michigan Appellate Court, the Supreme Court placed emphasis on the fact that politically accountable officials are charged with making detеrminations as to the techniques to be employed when dealing with a serious public danger. This indicates to this Court that it is inappropriate to determine whether any alternative is constitutional until a politically accountable governing body at the State level has authorized these roadblocks. We can look to the background in Michigan for support for this рosition.
We believe that the mechanics which Michigan utilized to authorize and implement DWI roadblocks demonstrate the proper practice to follow in order to establish a constitutionally viable set of guidelines for DWI roadblocks. The facts of how the Michigan plan was first implemented are laid out in Sitz v. Department of State Police, supra,
The procedures followed in Michigan and outlined above were never questioned by either the Michigan Appellate Court or the U.S. Supreme Court. The Michigan plan was analyzed under a Fourth Amendment reasonable analysis by both courts. We believe that the Supreme Court implicitly makes it a requirement that for any DWI checkpoint program to pass constitutional muster, it must at a basic minimum be authorized by a statewide policy emanating from a politically accountable governing body. The procedure followed in Michigan in enacting such a program is an example to be followed in Texas when considering DWI checkpoint programs.
The Fort Worth Court of Appeals stated that the above-quoted language from the U.S. Supreme Court in Sitz, 496 U.S. at 453, 110 S. Ct. at 2487, “instructs courts to defer to officials’ choice of enforcement techniques when analyzing prong two of the Brown test.” Holt, supra, 852 S.W.2d at 49. We believe this is incorrect. The courts, under Sitz, are not to blindly defer to whatever enforcement techniques are chosen by the officials. Not only must the threshold finding of stаtewide authorization be made by the courts, but once a state empowers its peace officers with the authority to conduct DWI roadblocks, the enforcement techniques chosen by such officials must be analyzed by the courts to insure that they are in fact reasonable. To blanketly sanction whatever methodology was used by peace officеrs authorized to conduct DWI roadblocks would circumvent the entire realm of Fourth Amendment search and seizure jurisprudence.
Because a governing body in Texas has not authorized a statewide procedure for DWI roadblocks, such roadblocks are unreasonable and unconstitutional under the Fourth Amendment of the U.S. Constitution unless and until a politically accоuntable governing body sees fit to enact constitutional guidelines regarding such roadblocks.3
The judgment of the court of appeals is reversed and the cause is remanded to the trial court.
CAMPBELL, Judge, dissenting.
This is not a difficult case. The question presented is simply whether a state sobriety checkpoint must be authorized by the Legislature or some other “statewide governing body” beforе the checkpoint can be valid under the Fourth Amendment to the United States Constitution.1 Not surprisingly, the only other high court to address this question, answered it in the negative. See State v. Barker, 252 Kan. 949, 850 P.2d 885, 888 (1993).
From 11:00 p.m., Friday, May 24, 1991, to 2:00 a.m., Saturday, May 25, 1991, the Arlington Police Department conducted a sobriety checkpoint in the 1200 block of West Division Street. The checkpoint was conducted safely and politely аccording to written guidelines promulgated by supervisory personnel within the police department. The location of the checkpoint was also approved by supervisory personnel. All traffic (341 vehicles) was stopped briefly so that officers could look for signs of intoxication on the
Holt was later charged with driving while intoxicated. She filed a pretrial motion to suppress all evidence of her arrest on the ground that the checkpoint stop had not been “reasonable” under the Fourth Amendment and
The State appealed the trial court‘s ruling under
The majority of this Court now reverses the judgment of the Second Court on the theory that, in Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990), “the Supreme Court implicitly makes it a requirement that for any DWI checkpoint program to pass constitutional muster, it must at a basic minimum be authorized by a statewide policy emanating from a politically accountable governing body.”2 887 S.W.2d, at 19. The only explanation offered for this conclusion is that “the Supreme Court [in Sitz] placed emphasis on the fact that politically accountable officials are charged with making determinations as to the techniques to be employed when dealing with a serious public danger.” Id., at 18.
The language in Sitz to which the majority refers is, in context, as follows:
The [Michigan] Court of Appeals ... consider[ed] as part of the balancing analysis [under Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979)3] the “effectiveness” of the proposed checkpoint program. Based on extensive testimony in the trial record, the court concluded that the checkpoint program failed the “effectiveness” part of the [balancing] test, and that this failure materially discounted [Michigan‘s] strong interest in implementing the program. We think the Court of Appeals erred....
The actual language from Brown v. Texas, upon which the Michigan courts based their evaluation of “effectiveness,” describes the balancing factor as “the degree to which the seizure advances the public interest.” This passage from Brown was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should bе employed to deal with a serious public danger. Experts in police science might disagree over which of several methods of apprehending drunken drivers is preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, аnd a responsibility for, limited public resources, including a finite number of police officers.... [None of our precedents] supports the searching examination of “effectiveness” undertaken by the Michigan court.
Sitz, 496 U.S., at 453, 110 S. Ct., at 453-54 (citation omitted; emphasis added).
In both Brown and Sitz, the Supreme Court was concerned with the ever-ubiquitous clash between society‘s need for рublic safety and order, and the individual‘s desire to be let alone. In neither Brown nor Sitz did the Supreme Court attempt to prescribe which entities must safeguard the public‘s interest. The Supreme Court‘s only concern, under the Fourth Amendment, was the delicate balance of the competing interests in question.
One case cited by the majority, State v. Barker, 850 P.2d 885, is on point, but its holding is diametrically opposed to the majority‘s holding. The Barker court held that “[s]pecific legislative authorization is not a prerequisite to the validity of sobriety checkpoints [under the Fourth Amendment].” State v. Barker, 850 P.2d, at 888.
The other cases cited by the majority are not even on point. In State v. Blackburn, 63 Ohio Misc. 2d 211, 620 N.E.2d 319, 324 (Mun. 1993), an Ohio municipal court held that, “[i]n the absence of any substantial justification,” sobriety checkpoints were unlawful under the state constitution. In Sims v. Collection Div. of Utah, 841 P.2d 6, 9 (Utah 1992), the Utah Supreme Court held that susрicionless investigatory checkpoints were unlawful because they were not even within the police department‘s general police powers. Finally, in State v. Thorp, 71 Wash. App. 175, 856 P.2d 1123, 1127 (1993), a Washington appellate court held unremarkably that “a roving stop [of a moving vehicle] made without probable cause or articulable suspicion” violated the Fourth Amendment. (Emphasis added.)
I continue to share the position held by noted Fourth Amendment scholar Professor LaFave (and the cases cited in his treatise) that sobriety checkpoints, to be valid under the Fourth Amendment, need only be established pursuant to a plan approved by supervisory officers of the law enforcement agencies involved which contains standards with regard to time, place, and other matters. See State v. Sanchez, 856 S.W.2d 166, 174 (Tex. Crim. App. 1993) (Campbell, J., concurring); 4 W. LaFave, Seаrch and Seizure: A Treatise on the Fourth Amendment § 10.8(d), at 76 (2d ed. & Supp. 1994).
I respectfully dissent.
McCORMICK, P.J., and WHITE, J., join.
Gary Charles BIGNALL, Appellant, v. The STATE of Texas, Appellee.
No. 473-93.
Court of Criminal Appeals of Texas, En Banc.
Sept. 14, 1994.
Concurring Opinion of Judge Miller on Denial of Motion for Rehearing Nov. 16, 1994.