No. 05-07-01426-CR
Opinion Filed February 2, 2009. DO NOT PUBLISH TEX. R. APP. P. 47
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-82214-06.
Before Justices MORRIS, FRANCIS, and MURPHY.
Opinion By Justice MURPHY.
After the trial court denied appellant's motion to suppress, he pleaded guilty to failure to register as a sex offender. In a single point of error, appellant challenges the denial of his suppression motion, asserting the checkpoint at which he was stopped was actually an impermissible sobriety checkpoint and was therefore illegal. We affirm the trial court's judgment.
Background
On August 4, 2006, appellant was stopped at a checkpoint established by the Richardson Police Department and was arrested for driving without a valid driver's license. Appellant was subsequently charged with failing to register as a sex offender in Texas. Appellant filed a motion to suppress all evidence emanating from the stop at the checkpoint, contending the checkpoint violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution and under Article I, Section 9 of the Texas Constitution. At the hearing on appellant's motion, appellant introduced a general order from the Richardson Police Department governing the use of driver's license checkpoints. The order mandates a checkpoint be approved by an officer with the rank of sergeant or above. The order further requires: traffic must be alerted to the presence of the checkpoint through flares, signs, or other means; the checkpoint may not be initiated between 1:00 a.m. and 3:00 a.m.; when possible, traffic flow must be stopped in both directions; all drivers will be checked for driver's licenses immediately; officers may request only that the operator of the vehicle produce a valid driver's license; officers may not request other documents, such as proof of insurance, unless there is probable cause to believe the law is being violated; and officers may not use the checkpoint for the purpose of searching for outstanding warrants or other documents. Following the checkpoint, the supervisor in charge is required to prepare a memo to the captain of patrol operations outlining the date, time, and location of the checkpoint, setting out research that supports the selection of the location of the checkpoint, and detailing the results of the checkpoint. Officer Alan Thompson testified he was the acting supervisor on August 4, 2006. Lieutenant Martin approved the shift's proposal to conduct a driver's license checkpoint. Martin and Sergeant Sheryl picked the location. Sheryl told Thompson how to set up the checkpoint, and told him he would be in charge. Thompson believed a checkpoint had been conducted at the same location in the past and it was a safe area at which to conduct a checkpoint due to the one-way traffic. Further, the traffic flow was sufficient for a number of contacts without overwhelming the checkpoint. Officer Roger Steinman testified he took part in the driver's license checkpoint on August 4, 2006. He was not involved in setting up the checkpoint or choosing the location. He understood the purpose of the checkpoint was to verify people who were driving were licensed to do so. Steinman assumed the location was selected due to the number of driver's license violations in the area. He did not believe the frontage road was a high area for driving while intoxicated (DWI) violations. There were no real bars or open businesses on the frontage road at the time of the checkpoint. Signs were posted ahead of the checkpoint to alert oncoming traffic to the existence of the stop. At the checkpoint, investigators from the operational unit were stopping every car and asking for a driver's license. When traffic became congested, every car was waved through the checkpoint until the congestion was cleared. The officers then resumed stopping every car. An individual producing a valid driver's license was detained for less than one minute and, upon producing the license, was free to leave. Steinman was located in a second line to the side of the main checkpoint. If a driver was unable to produce a valid driver's license, the driver was sent to Steinman's line so he or another officer could run a computer check to determine if the driver had a valid driver's license. That computer check also automatically searched for outstanding warrants. No check for outstanding warrants was performed for persons producing a valid driver's license. The computer check took somewhere between two and five minutes. Steinman believed the checkpoint was a minimal intrusion on the driver. Appellant was sent to Steinman's line after failing to produce a valid driver's license. Appellant gave Steinman an Illinois identification card. Steinman ran a computer check at that point and found appellant had an Illinois driver's license that was suspended. He also discovered an outstanding Illinois arrest warrant for appellant's failure to register as a sex offender. Steinman arrested appellant for driving without a valid driver's license. Following the checkpoint, Thompson prepared a memo to Captain Hughes regarding the checkpoint. In the memo, Thompson stated the checkpoint was conducted between 12:30 a.m. and 3:00 a.m. in the 1400 block of the northeast frontage road of Central Expressway. Thompson further stated the location was selected: due to the number of DWI arrests that occur there. From 06/01/06 to 07/15/06 23 arrests for DWI were made on the frontage roads and Central Expressway. This particular location was selected because it required less manpower due to one-way traffic, there were limited opportunities for violator escape and there was enough area to conduct the checkpoint safely. The checkpoint resulted in forty-four citations, which included one citation for a minor driving under the influence and three citations for consumption of alcohol by a minor. There were four arrests, two for DWI, one for driving with a suspended license, and one for no driver's license. Handwritten on Thompson's memo was "Business burglaries played a large role in setting up a checkpoint. This provided a central location that would net a high number of vehicles and in the area of recent offenses along Arapaho." Thompson believed this sentence was written by Martin. After the Richardson police determined appellant had relocated to Texas, he was charged with failing to register as a sex offender in this state. Appellant sought to suppress all evidence emanating from the stop at the checkpoint. The trial court denied appellant's motion and made findings of fact and conclusions of law. The trial court specifically found that appellant's vehicle was stopped pursuant to standardized procedures written by the Richardson Police Department for conducting driver's license roadblocks, the procedures limited discretion of the field officers conducting the checkpoint, and the driver's license roadblock was conducted after a field officer obtained authorization from a superior officer pursuant to the written standardized procedures. The trial court also concluded the roadblock was a driver's license checkpoint and not a sobriety checkpoint, the level of intrusion was minimal, the written procedures sufficiently limited the field officer's discretion so appellant's expectation of privacy was not subjected to arbitrary invasions solely at the unfettered discretion of officers in the field, and that the roadblock did not violate appellant's constitutional rights. Appellant filed this appeal from the denial of the suppression motion. Standard of Review
We review a trial court's ruling on a motion to suppress raising a Fourth Amendment claim under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007); Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App. 2005). We give almost total deference to a trial court's determination of historical facts, particularly when the trial court's findings are based on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Guzman, 955 S.W.2d at 89. We review de novo mixed questions of law and fact that do not depend on an evaluation of credibility and demeanor as well as the trial court's application of Fourth Amendment search and seizure law. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008); Torres, 182 S.W.3d at 902; Guzman, 955 S.W.2d at 89. We review the evidence in the light most favorable to the trial court's ruling. Garcia-Cantu, 253 S.W.3d at 241. When, as here, the trial court makes explicit fact findings, we determine whether the evidence, viewed in the light most favorable to the ruling, supports those fact findings. State v. King, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). Applicable Law
The Fourth Amendment guarantees that the people shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Appellant has not argued that Article I, Section 9 of the Texas Constitution affords him protection that is distinct from that of the Fourth Amendment, so we analyze the claim solely under Fourth Amendment jurisprudence. Manns v. State, 122 S.W.3d 171, 194 n. 97 (Tex.Crim.App. 2003). A Fourth Amendment seizure occurs when a vehicle is stopped at a checkpoint. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990); Holt v. State, 887 S.W.2d 16, 18 (Tex.Crim.App. 1994). The "Fourth Amendment does not proscribe all state-initiated . . . seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno, 500 U.S. 248, 250 (1991); see Brown v. Texas, 443 U.S. 47, 50 (1979). Whether a particular law enforcement practice is reasonable is judged by balancing the promotion of a legitimate governmental interest against the intrusion on the individual's Fourth Amendment interests. Brown, 443 U.S. at 51; Schenekl v. State, 30 S.W.3d 412, 414 (Tex.Crim.App. 2000). In considering whether a particular action promotes a legitimate governmental interest, we look at the effectiveness of the procedure, the advancement of the public interest, and the availability to the government of alternative means. Schenekl, 30 S.W.3d at 414. In balancing these competing interests, we must ensure "an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Brown, 443 U.S. at 51; see Schenekl, 30 S.W.3d at 413. Although a search or seizure is generally unreasonable without individualized suspicion or wrongdoing, a brief, suspicionless seizure for the purpose of verifying a valid driver's license can be permissible under the Fourth Amendment. See City of Indianapolis v. Edmond, 531 U.S. 32, 37-38 (2000); Delaware v. Prouse, 440 U.S. 648, 663 (1979) (suggesting checkpoint for purpose of verifying drivers' licenses and vehicle registrations would be permissible to serve a highway safety interest). It is impermissible in Texas, however, to use a checkpoint for the purpose of determining whether the driver of a vehicle is intoxicated. Holt, 887 S.W.2d at 19 (absent an authorized statewide procedure, DWI checkpoints are unreasonable and unconstitutional under the Fourth Amendment). Analysis Type of Checkpoint
Appellant contends the trial court abused its discretion by determining the checkpoint was a permissible driver's license checkpoint and did not violate appellant's constitutional rights. Relying on the memo Thompson prepared following the checkpoint and Thompson's testimony, appellant argues the evidence showed the checkpoint was actually an impermissible sobriety checkpoint. A checkpoint's primary purpose is determined by examining the available evidence. Edmond, 531 U.S. at 45-46. The determination must be conducted "only at the programmatic" level and is not determined by the subjective motives or beliefs of the individual officers involved. Id. at 48. Here, the Richardson Police Department issued a general order governing driver's license checkpoints. The police complied with the general order by having an officer with the rank of sergeant or above approve the checkpoint; commencing the checkpoint prior to 1:00 a.m.; using signs to alert the public to the existence of the checkpoint; requesting only a valid driver's license from the operator of each vehicle; and preparing a memo following the checkpoint that included the information required by the general order. Thompson stated in his memo following the checkpoint and in his testimony at the hearing that he believed the location was selected due to DWI violations in the area. Thompson was not involved in the selection of the checkpoint location, however, and his subjective belief regarding the location and purpose of the checkpoint does not control. Id. at 46. Further, Thompson's testimony was contradicted by Steinman, who stated he believed the purpose of the checkpoint was to ascertain whether the operator of a vehicle had a valid driver's license. Steinman did not believe the selected location was a good place for a sobriety checkpoint because there were no bars or open businesses on the frontage road at the time of the checkpoint and he did not believe the frontage road was a high area for DWI violations. Viewing the evidence in the light most favorable to the trial court's ruling and giving great deference to the trial court's findings of historical fact, we conclude the trial court did not err by determining the purpose of the checkpoint was to verify the operator of a vehicle had a valid driver's license. Constitutionality of Checkpoint
Appellant also asserts the checkpoint violated his rights under the Fourth Amendment because the level of intrusion caused by the checkpoint outweighed the State's interest in conducting the checkpoint. Relying on State v. Sanchez, 856 S.W.2d 166 (Tex.Crim.App. 1993) (plurality op.), and State v. Luxon, 230 S.W.3d 440 (Tex.App.-Eastland 2007, no pet.), appellant argues the manner in which the checkpoint was conducted intruded on his Fourth Amendment right to be free from arbitrary and oppressive searches and seizures. In Sanchez, four Department of Public Safety officers conducted a checkpoint without the authorization of a superior officer. The officers stopped all northbound traffic for the purpose of questioning motorists about driver's licenses and insurance. The officers also visually inspected the vehicles for equipment violations. Sanchez was stopped at the checkpoint and briefly questioned. The officers then found marijuana in the trunk of his car. Although there was no majority opinion in Sanchez, six justices agreed the checkpoint was unreasonable under the Fourth Amendment because there was no evidence of standard procedures governing the operation of the checkpoint. Sanchez, 856 S.W.2d at 170, 174. Individuals stopped at the checkpoint were subject to the unfettered discretion of the officers. Id. at 170, 174. The situation therefore presented a serious risk of an abuse of discretion, and the stop was unreasonable under the Fourth Amendment. Id. at 170, 174 In Luxon, two patrol officers for the Payne Springs Police Department conducted a driver's license checkpoint with the permission of a senior patrol officer. The Payne Springs Police Department did not normally conduct driver's license checkpoints and did not have standard procedures for operating such a checkpoint. The senior patrol officer also did not have the authority to approve the checkpoint. Although the patrol officers reportedly stopped every vehicle going through the checkpoint, there was no available information regarding the effectiveness of the checkpoint. Luxon was stopped at the checkpoint and subsequently charged with DWI. The Eastland Court of Appeals noted the checkpoint was conducted without procedures that limited the discretion of the officers. Luxon, 230 S.W.3d at 444. Therefore, the "operation of the roadblock presented a serious risk of abuse of the field officers' discretion and thereby intruded greatly on Luxon's Fourth Amendment interest in being free from arbitrary and oppressive searches and seizures." Id. at 447. The United States Supreme Court recognized in Prouse that "the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles." Prouse, 440 U.S. at 658. Here, unlike in Sanchez and Luxon, the Richardson Police Department had written standard procedures for conducting a driver's license checkpoint. Martin, who had a rank above sergeant, approved the location of the checkpoint. Both Thompson and Steinman testified the written procedures were followed in conducting the checkpoint. They also testified that all vehicles were stopped unless traffic became congested and then all vehicles were waved through until the congestion cleared. Accordingly, the field officers had no discretion as to which vehicles were stopped. After stopping a vehicle, the officers could request only a valid driver's license. Steinman testified an individual with a valid driver's license was detained for less than a minute and that a computer check on those individuals unable to produce a valid driver's license took less than five minutes. He testified the intrusion on each individual was minimal. The trial court concluded appellant's expectation of privacy was not subject to the "unfettered discretion of officers in the field," the level of intrusion caused by the checkpoint was minimal, and the checkpoint did not violate appellant's constitutional rights. Viewing the evidence in the light most favorable to the trial court's ruling, we conclude the trial court did not err by concluding the State's vital interest in assuring the safety of the roadways outweighed the minimal level of intrusion caused by the checkpoint. Accordingly, the checkpoint did not violate appellant's rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Texas Constitution, and the trial court did not err in denying appellant's motion to suppress. We overrule appellant's sole point of error. We affirm the trial court's judgment.