King v. State
733 S.W.2d 704
Tex. App.
1987
Check Treatment

*2 traffic, bars and restaurants. Eastbound Dallas, Klein, appellee. Michael restaurants, traveling toward bars and STEPHENS, Before HECHT and stopped. began was not The roadblock at McCRAW, JJ. approximately 1:30 a.m. and lasted a little STEPHENS, Justice. an hour. Most of over the bars the area Ray King appeals Sargent Michael his conviction closed at 2:00 a.m. Gibbons was while intoxicated. The as- member of DWI Selective Enforcement punishment thirty days’ sessed confine- Unit of the Traffic Division of the Dallas ment, probated years, Department. Sargent for two Police a fine five Gibbons had dollars, suspension choosing stop; hundred no discretion in whom to year. Although stopped. driver’s license one westbound traffic was The loca- appellant points asserts nine of error on tion and time of the left roadblock were supervisor’s appeal, point we find his first of error Gibbons’ dis- error, ap- Appellant stopped In his dispositive. point first cretion. argues pellant produce the trial erred in check and asked to his li- King overruling suppress rolled his car his motion to evidence cense. When down checkpoint, Sargent window at the imately fifty prior Gibbons feet stop point. to the A “strong noticed a odor of an alcoholic bev- sign bearing the words “driver’s license erage” breath. Gibbons placed check” was prior on the road King step asked out of his car. Another lines, flare to advise motorists of the na- King officer escorted across the street upcoming stop. ture The officers gave King where a third officer a “field present at the roadblock in sobriety Appellant test.” was then arrest- instructed to take action on violation of *3 driving ed for while intoxicated. they the during stop, law observed the and the officers wide had discretion in this Sargent Benningfield primary purpose area. The for the road- Sargent Benningfield testified that he question block in was to check driver’s responding King’s subpoena was to duces licenses. Prince, tecum on behalf on Chief and that We will constitutionality first address the possession he had in his several officers’ in roadblock the case at bar. There activity reports ques- from the in are two holding alternative rationales for Sargent Benningfield tion. was not unconstitutional; by this roadblock follow- present at per- the roadblock and had no ing the rationale set in Higbie forth knowledge concerning sonal (Tex.App. 723 S.W.2d 802 —Dallas arrest. The ques- roadblock in filed) pet. by following and the ratio- tion was conducted under John T. Padgett nale set forth in supervision. Typically, McGuire’s driver’s S.W.2d 780 license checks are conducted at or near filed). First, recently as this Court wrote “target Target sites.” sites are areas in Higbie: which, in based data accrued the two arresting officer testified that the previous years, high [T]he probability have a purpose to roadblock was violations, violations, fatalities, DWI other check for valid driver’s licenses. How- injuries. and serious primary purpose The ever, the stop intent or of all driver’s license roadblocks conducted must be measured the circum- is to check whether the driver of the auto- surrounding stop. stances If all traf- possesses operator’s mobile a valid license. traveling fic in stopped both directions is present The officers at a driver’s license daylight heavily broad on street tra- appropri- roadblock are authorized to take citizens, variety versed ate enforcement action wide we they should come DWI, problem determining across would have little violations such as violations, drug weapons, stop. the intent of the On or no insurance. the other hand, participating The officers li- if a driver’s the roadblock occurs the mid- night stops cense roadblock are told to look for dle of the all traffic traveling “enforceable violations of the The away law.” from the bars on a street typical driver’s license check includes the closing where bars are the intent is not presence standing by of several officers began as check clear.... The at 1:45 sobriety administer field tests in the a.m., event about the time when the were bars stopped one of the drivers a license closing. just the street down suspected driving check is while intoxi- only from a The number of bars. check cated. stopped traveling away from the traffic area; it bars and toward a residential did

Sargent McGuire coming resi- stop traffic All dential area toward the bars. super- McGuire testified that he officers on the check were members of con- vised the driver’s license roadblock Driving Squad. 12,1985, While Intoxicated April ducted on at 1:30a.m. at the circumstances, Given all these it becomes Lane. All the officers block apparent the roadblock was there catching specific purpose members of the DWI Selective Enforce- up approx- officer’s ment Unit. Flare lines were set drunk drivers. stop tiz, 2585, 2588, U.S. S.Ct. (1975). driver’s licenses 45 L.Ed.2d 623 This sufficiently persuasive is not to contra- constitutionality driving test for the of a apparent dict the intent of as while intoxicated roadblock involves demonstrated circumstances. first, three considerations: whether Therefore, hold that the seizure of public interest in a while intoxi- appellant pursuant was not to a routine outweighs cated roadblock the individu- license driver’s check as authorized un- second, degree right privacy; al’s 6687b, der article 13. roadblock, opposed to which the to a method, Higbie, (emphasis pub- 723 S.W.2d at 804 less intrusive advances original). The interest; third, circumstances described lic whether the valid nearly Higbie, are identical with cir- public justify interest is sufficient surrounding cumstances particular Webb, intrusion committed. Hence, present case. we conclude that the 678, 681-83, citing Brown *4 stop officers' that in the case 47, 49, 2637, v. 443 U.S. 99 S.Ct. purpose at bar was of check- 2639, (1979). 61 357 L.Ed.2d ing sufficiently per- drivers’ licenses not Higbie, 723 Higbie, S.W.2d at 804-05. In apparent suasive to contradict the intent of we balanced each of the set considerations as demonstrated the circum- above, forth Higbie and concluded that the stances. Having roadblock was unconstitutional. Higbie, determining In after that previously Higbie determined in that a in roadblock in fact a was substantially roadblock identical subterfuge drivers, ap to catch drunk we roadblock case was unconsti- plied balancing test set forth in v.Webb balancing tutional under test set forth State, 695 S.W.2d 676 —Dallas Webb, hold, in we likewise reasons 1985,pet. granted) to determine if the road Higbie, set forth in roadblock block nonetheless met the constitutional the case at bar is unconstitutional under required by criteria as Higbie In Webb. balancing Higbie, the Webb test. See 723 stated: S.W.2d at 805-06. Having held that the roadblock was Second, the the case at not a routine license check as authorized bar was not authorized under Texas Re 13, under article 6687b but instead was § vised Annotated Civil Statutes article unquestionably while intoxicat- 6687b, (Vernon Supp.1987). Recently, 13§ check, ed we must examine now it State, Padgett (Tex. v. 723 S.W.2d 780 light general law war- 1987, filed), App. this Court rantless searches and seizures. In Webb 17, 1985, May held a 2:00 a.m. at State, v. we first ad- the 1800 block Lane invalid be constitutionality dressed the of a DWI cause the roadblock was not conducted for case, In roadblock. we determined purpose sole driver’s licens a number of criteria to examine as to therefore, es was authorized whether a DWI check is constitutional. 6687b, article of the Texas Revised § “As with all warrantless searches and In Padgett, Civil Statutes. we stated: seizures, constitutionality of DWI 6687b, Article of the Texas Re- roadblocks is determined any peace Statutes vised Civil authorizes legitimate governmental interest “stop officer to and detain motor against degree of intrusion on the operator vehicle deter- rights.” individual’s Fourth Amendment mining person such whether a driv- State, 678, citing 695 Webb license.” er’s TEX.REV.CIV.STAT. Prouse, 648, 665, 440 Delaware v. U.S. 6687b, (Vernon Supp. ANN. art. 660; 99 S.Ct. 59 L.Ed.2d 1986). The courts of this state have con- Brignoni-Pounce, United States 873, 878, sistently held that a license U.S. 95 S.Ct. driver’s (1975); such, L.Ed.2d 607 United States v. Or- check must be stop, So, Q. to-wit: determine whether the up set about driver had a valid driver’s thirty license. minutes before the bars were clos- Meeks v. ing after; thirty ended about minutes Crim.App.1985), and cases cited therein. is that correct? “If a license check is not the sole reason Well, A. license check was set detention, for a that detention is not au- thirty thirty minutes before and minutes by the statute and cannot be thorized after. Meeks, upheld.” cit- Q. you Did have a Mi- warrant for ing Fatemi v. 558 S.W.2d 463 chael arrest? No, A. ma’am. Padgett, 723 S.W.2d at 781. Q. you Did see him involved in bar, McGuire the case at like the officers moving kind of violation? in Padgett, suppression testified at No, A. ma’am. hearing although made Q. Didn’t him weaving using see

check for a valid driver’s license there were improper signal? turn stop. additional reasons for the Sar- No, A. ma’am. gent McGuire testified as follows Q. you And had no warrant for his sponse question: to this arrest. Q. Okay. you And weren’t there to A. Correct. license, just enforce invalid driver’s but Q. you any probable Did laws; all the correct? for his arrest? check; awas driver’s license *5 Well, A. I thought think that when I anything light that comes to other than possibly intoxicated, he was that, oper- he we can take action. ating a motor vehicle. Q. you Let me ask you this: So Q. you got And licenses; before him out of the for driver’s correct? car, you didn’t him see violate law? Yes, A. Sir. No, ma’am. Q. Making proper equipment—main- taining proper equipment on a vehicle? Therefore, upheld cannot be as a that, investigative stop Sargent

A. You can look at also. valid since Gib- “specific, bons did not have the articulable Q. Okay; overweight vehicles? necessary facts” to “warrant the intrusion A. You could look at that. of the freedom of a citizen.” Clearly, a driver’s license check was not the Furthermore, although Sargent Benning- for the in the regarding “target field testified sites” and present case. fact roadblocks were set to upheld Neither can the be as target sites, testimony service the this does investigative stop. In order to make a “specific not constitute articulable facts investigative stop proba valid for less than reasonably ... which would warrant cause, police “spe ble officer must have intrusion the freedom a citizen.” See which, cific and articulable facts Padgett, 723 at 782. S.W.2d light experience personal of his knowl Therefore, summary, edge together taken with rational inferenc 6687b, 13, was not authorized article facts, reasonably es from those would war because it was not rant the intrusion of the freedom of a citi conducting driver’s Al- license checks. State, zen.” McMillan v. roadblock, ternatively, light 786 Gib circumstances, surrounding officer, was a subter- bons, expressly stated fuge catch drunk drivers which was suppression héaring he did not pass unconstitutional because it failed to stop King than as reason to test set forth in part Webb. roadblock. Gibbons Hence, point following first of error is sus- gave response stemming from the questions by these defense counsel: tained. The evidence

709 Further, King Crim.App.1977). seizure of at the when the evi- invalid roadblock suppressed by should the trial proba- have been dence raises a fact issue cause, court. ble the defendant entitled to have jury instructed accordance with arti- the record in this case indicates While State, Washington cle 38.23. 663 prop- acquittal, that we should order an S.W.2d [1st remedy —Houston er is to reverse conviction ref’d). I would hold that a Dist.] for a trial since we remand the cause new concerning probable fact issue cause was have held that the admission of the unlaw- questioned raised on whether the fully seized evidence was trial error. was a driver’s license check that is statuto- Adams v. rily authorized under Texas Revised Civil (en banc). Crim.App.1982) 6687b, 13, or an unautho- Statutes article of the trial court is re- rized D.W.I. check. versed and remanded for a new trial. alleges third error McCRAW, Justice, concurring. should have been instructed on the seizure, legality of his and his motion to majority’s disposition I concur with the suppress illegal. states that the arrest was case because the trial court stating: The motion continues by failing committed reversible error If the State contends that the arrest required instruct the under Texas roadblock, conducted within a lawful Code of Criminal Procedure article 38.23. I alleges that the arrest was would reach the issue of the constitu- Defendant probable without violation tionality of the Constitutional roadblock. 4th, 5th, 6th and 14th Amendments issues should not reached it is unless abso- to the Constitution of the United States lutely necessary and the matter cannot be repug- of America and also in the matter resolved another basis. See Smith v. 9,10, nant to Article Section 19 and 29 (Tex.Crim.App. 1983); the Constitution of the State of Texas parte Salfen, Ex and Article 15 of the Texas of Crim- (Tex.Crim.App.1981). King properly Code requested inal Procedure. submitted and an instruction *6 language which traced the of the statute: added.) (Emphasis by No evidence obtained an officer or probable placed The issue of cause was person any provi- in violation of dispute by suppress. the motion to See sions Constitution or laws of the Roberts, In 545 S.W.2d at 158. order to State of or of the Constitution or conflicting if there is determine evidence America, of the United of laws States issue, this court must review the testi- against be admitted in shall evidence mony concerning of the road- any accused on the trial of criminal case. disregarding presented jury, to the block any legal In case where evidence jury’s presented evidence outside the hereunder, raises an issue shall suppression hearing. presence See be instructed that if it believes or has a (Tex. Skatell v. doubt, reasonable evidence was App. pet). Worth no Our —Fort provisions of obtained violation of the following facts discloses that the were view Article, event, this then and in such presented jury by testimony disregard shall such evidence so road- present officers at the scene of the obtained. (1) Arresting Officer Gibbons block: CRIM.PRO.ANN. art. 38.23 TEX.CODE Ellzey were members of the DWI Officer (Vernon 1979). Unit) (DWI Enforcement Unit Selective arrest; (2) all the offi- the time of When the issue of unlawful arrest were initially set cers who suppress, raised a motion to the State Unit; (3) the focus part part of of the DWI showing the burden of that there was apprehend intoxi- Unit was to probable for arrest. of the DWI the warrantless (4) drivers; in the DWI Unit officers Roberts v. cated specially (5) job; trained “tar- get areas” were set out for DWI enforce-

ment and of Harry one those areas Hines and Highway Northwest road- —the one-quarter

block was located to one-half area; (6)

mile from target Officer Gib- stated, large

bons “There was a of amount

people who were while intoxicated (7) target] areas;” large there was a [the

concentration bars and restaurants serv-

ing areas; beverages target alcoholic

(8) the only roadblock was conducted on the (9) highway;

westbound lane a divided

the roadblock commenced at 1:30 a.m. and a.m.,

ended at while 2:30 the bars and a.m.; (10) closed 2:00

restaurants

ten the twelve officers at the evening

roadblock on the in question were operate intoxilyzer

certified to machine

used Department. Dallas Police I ques-

would hold that this evidence raises a

tion the factual issue of the probable

nature the roadblock and the stop King.

cause for initial The trial submitting request- erred Stone,

ed instruction. See Stone I error,

would sustain third

reverse trial court and

remand for new trial. Antonio, Bruner, appel-

James L. San lant. Cabrera, Atty.,

Gloria Asst. Dist. San Antonio, appellee. *7 HARRIS, parte

Ex Allen Glen CADENA, C.J., Before and BUTTS Appellant, CHAPA, JJ. Texas, Appellee. The STATE of OPINION No. 04-86-00564-CV. BUTTS, Justice. appeals Allen Harris Glen from order

Court of Appeals expunction his denying criminal record. San Antonio. We affirm. July 8, 1987. TEX.CODE CRIM.PROC.ANN. art. 55.- (Vernon Supp.1987) provides:

A person who been arrested felony commission either or misde- meanor is entitled records