Webb v. State

¶1dissenting.

¶2I dissent. I would hold that the act of stopping appellant’s vehicle at a roadblock was not an unreasonable seizure and thus, not prohibited by U.S. CONST. amend. IV. Therefore, I would affirm.

¶3In a motion to suppress hearing it was established that appellant was stopped in his vehicle at a police roadblock, found to be intoxicated, and arrested. The roadblock was located on Greenville Avenue in Dallas because of “its proximity to establishments that sell alcoholic beverages.” On the day of the arrest the roadblock was operative between the hours of 7:00 p.m. and 10:00 P.M. Appellant was arrested at 9:20 P.M. All cars, without exception, traversing the location of the roadblock were stopped. Three times the arresting officer *684testified that the roadblock was a “drivers license checkpoint.” He later testified, however, that it was a “D.W.I. check.” The issue of the purpose of the roadblock is further confused by the stipulation of the parties during the guilty plea that the officer “arrested the defendant while checking driver’s license check [sic].” Thus, a preliminary issue is whether a checkpoint to detect intoxicated motorists should be governed by the same rules of law that govern a checkpoint to detect unlicensed drivers. I would hold that they should be treated identically, therefore, the inconsistent testimony is insignificant.1

¶4When a peace officer detains a person it is a “seizure” within the meaning of the Fourth amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This is true even if there is no accompanying search. United States v. Martinez-Fuerte, 428 U.S. 543, 546, 96 S.Ct. 3074, 3077, 49 L.Ed.2d 1116 (1976) (slowing of an automobile is a “seizure”). If there is an unlawful seizure, then any probable cause to arrest emanating from that seizure will be likewise unlawful. Thus, if appellant was detained unlawfully, any subsequent probable cause to believe that he was intoxicated would be obtained unlawfully. There is no evidence of probable cause for the officers to believe that appellant was an unlicensed driver, and, prior to the seizure, there was no probable cause to believe that appellant was intoxicated. A seizure may be lawfully made, however, in the absence of probable cause providing the government’s need to seize is balanced against the invasion which the seizure entails. Terry, 392 U.S. at 21, 88 S.Ct. at 1879. The government’s need to seize may be determined by “its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979).

¶5In Prouse the Supreme Court considered the constitutionality of a motorist’s detention for the purpose of checking his drivers license under circumstances where there exists no probable cause and no reasonable suspicion that the motorist is unlicensed. Prouseheld that such a seizure is unreasonable and thus violative of the Fourth Amendment. I would distinguish Prouse, however, as well as this court’s similar holding in Koonce v. State, 651 S.W.2d 46 (Tex.App.—Dallas 1983, no pet.), in that the detention in Prousewas a “spot check” with no limit on the “unbridled discretion" of the officer to stop whomever he wished. In the present case the seizure resulted from a roadblock in which every motorist was stopped, thus every motorist was treated equally and the random aspect of a spot cheek was eliminated. This method is regarded favorably by the Supreme Court, which stated, “This holding does not preclude the State of Delaware or other States from developing methods of spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion .... Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” Prouse, 440 U.S. at 663, 99 S.Ct. at 1401 (emphasis added).2

¶6I thus conclude that a balancing test consisting of the governmental need to check drivers licenses to prevent dangerous drivers, versus the degree of intrusion and the driver’s anxiety created by the stop, favor the legality of the seizure: provided, the officer’s “unbridled discretion” is deducted from the equation. The roadblock *685method of stopping every driver achieves this condition.

¶7Does it follow that the principles making a roadblock legal to detect unlicensed drivers apply to allow a roadblock to detect intoxicated drivers? By balancing the pertinent factors, I would hold that a roadblock may also be utilized to detect intoxicated drivers.

¶8The laws prohibiting unlicensed drivers and intoxicated drivers are similar in that they are prophylactic in nature: the former seeks to prevent accidents by unqualified drivers, the latter by disabled drivers. “Intoxicated” and “unlicensed” are both states-of-being or conditions rather than discernable acts. An alternative to detecting unlicensed or intoxicated drivers at a roadblock is to investigate erratic and dangerous driving — or even an accident — conditions these laws are designed to prevent.3See Prouse, 440 U.S. at 660, 99 S.Ct. at 1399. Or, as Justice Rehnquist sarcastically suggested, the state could “check license and vehicle registrations as the wreckage is being towed away.” Prouse, 440 U.S. at 666, 99 S.Ct. at 1402 (Rehnquist, J., dissenting).

¶9I would hold that, if anything, there is a stronger government interest in detecting an intoxicated motorist than in detecting an unlicensed one because, in my judgment, the intoxicated driver is more dangerous. The Supreme Court in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), stated:

The situation underlying this case — that of the drunk driver — occurs with tragic frequency on our Nation’s highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 (1957) (“The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield”); Tate v. Short, 401 U.S. 395, 401, 91 S.Ct. 668, 672, 28 L.Ed.2d 130 (1971) (BLACKMUN, J., concurring) (deploring traffic irresponsibility and the frightful carnage it spews upon our highways:); Perez v. Campbell, 402 U.S. 637, 657 and 672, 91 S.Ct. 1704, 1715 and 1722; 29 L.Ed.2d 233 (1971) (BLACKMUN, J., concurring) (“The slaughter on the highways of this Nation exceeds the death toll of all our wars”); Mackey v. Montrym, 443 U.S. 1, 17-18, 99 S.Ct. 2612, 2620-2621, 61 L.Ed.2d 321 (1979) (recognizing the “compelling interest in highway safety”).

¶10103 S.Ct. at 920.

¶11On the other hand, the intrusion created in this case by the roadblock to detect intoxication was no greater than that for a license check. In neither instance is the automobile searched, and probable cause to believe that a driver is intoxicated may be determined at the time of the stop by observing the driver’s general demeanor and odor. Once probable cause to believe a driver is intoxicated exists, the fact that the driver may be further detained and tested for intoxication is not germane to the degree of intrusion resulting from the initial seizure.

¶12In the present case all persons stopped at the roadblock were asked for their driver’s licenses, but there is no indication that they were systematically requested to step from their cars or otherwise detained. Appellant was requested to get out of his car, but the total evidence that probable cause to believe that appellant was intoxicated was formulated at or near the time appellant was initially stopped. Thus I would hold that the degree of intrusion caused by the roadblock was not unreasonable.

¶13*686The Supreme Court in Prousediscussed the anxiety suffered by the driver when spot checks are made, but conceded that stopping every vehicle creates substantially less psychological intrusion. Prouse, 440 U.S. at 657, 99 S.Ct. at 1898; Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083. Regardless, I would hold that the driver stopped at a DWI roadblock would suffer no greater anxiety than at any unlicensed driver roadblock.

¶14Although stopping every motorist, without exception, at the roadblock resolves the issue of “unbridled discretion” as to the individual motorists, there remains the issue of whether the roadblock itself was the product of the officer’s unbridled discretion. I would hold that it was not.

¶15The evidence reveals that during evening hours the roadblock was placed on Green-ville Avenue because of “its proximity to establishments that sell alcoholic beverages.” The court asked the arresting officer: “[Y]ou didn’t just indiscriminately happen to pick a street?” The officer answered: “That’s correct.” Further, the Greenville Avenue location was one of a series of roadblocks located near taverns. Three other Dallas areas were targeted — Samuel Boulevard, Harry Hines, and Industrial Avenue — thus demonstrating an overall plan or system of which the Greenville Avenue roadblock was only a part.

¶16The roadblock remained in place for three hours. I find this length of time sufficient to dispel any speculation that the purpose of the roadblock was to surreptitiously catch just one motorist or a few specific motorists. Further indication that appellant was not “targeted” for an arrest is the fact that the roadblock was in operation for more than two hours before appellant was apprehended.

¶17By authority of Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660, I would hold that the roadblock — whether to check for unlicensed motorists or drunk drivers — was not indiscriminately established or operated and that the seizure did not violate the Fourth Amendment. I would, accordingly, affirm.