Dane Whitworth. David Sheppard, Ruth Ellen Gura and Gerry orris ...

drivers is not observable at the time of the
stop.
When there is not probable cause to
believe that a driver is violating any one
of the multitude of applicable traffic and
equipment regulations, or other articulable
facts amounting to reasonable suspicion
that the driver is unlicensed or his vehicle
unregistered, we cannot conceive of any
legitimate basis upon which a patrolman
could decide that stopping a particula~
driver for a spot check would be more
productive than stopping any other driver.
This kind of standardless and uncon-
strained discretion is the evil the Court has
discerned when in previous cases it has in-
sisted that the discretion of the official in
the file be circumscribed at least to some
extent." See Delaware v. Prouse, supra
at P1400. The Court went on to recognize
that operating or travelling in an auto-
mobile is a basic privilege of all citizens,
and it is a necessary mode of transporta-
tion to accomplish one's activity in the
home, workplace, and at leisure. The
Court further reasoned that were the in-
dividual subject to unfettered governmen-
tal intrusion every time he entered an
automobile, the security guaranteed by the
Fourth Amendment would be seriously cir-
cumscribed. As pointed out in Terry v.
Ol~io, supra, people are not shorn of all
Fourth Amendment protection when they
step from their homes onto the public
sidewalks, nor are they shorn of those interests
when they step from the sidewalks
into their automobiles. See Delaware v.
Prorise, supra, at P.1401. In Prouse, the
Court clearly held that officers may not
stop the individual in an automobile absent
"at least an articulable and reasonable
suspicion that a motorist is unlicensed
or that an automobile is unregistered", or
that either the vehicle or the occupant is
otherwise subject to seizure for violation
of law and that absent those articulable
suspicions stopping an automobile and detaining
the driver in order to check all
travellers for driver's license and registration
violations was unreasonable under the
Fourth Amendment. However, the Court
did suggest that a stop of all traffic at a
roadblock to check for driver's license
violations would be an alternative to random
stops. See Delaware v. Prorise, supra,
at P. 1401. The Court of Criminal Appeals
has recently held that "while it is true that
'the pervasive schemes of regulation of
16 VOICE for the Defense 1 November 1987
motor vehicle' necessarily leads to reduc- suspecting that he was violating the DWI
ed expectations of privacy: Califort~ia v. laws, absent some observable conduct in
Carney, 471 US. at 392, 105 S. Ct. 2070, the operation of the automobile or unusual
85 L. Ed. 2d414, that regulation does not activity of the Defendant himself?
dispel such expectations altogether". See The State admits, that the seizing of-
Chapa v. State, 914-85, April 8, 1987. ficers are operating without any reasonable
The opinion of the Dallas Court of Ap- suspicion of the Defendant or any other
peals in Webb v. State, 695 S.W. 2d, 676, person and are in effect, operating a
indicates a belief by that Court that a broad dragnet to stop all citizens in order to arrest
constitutional exception to Terry v. Ohio, the few. That the foregoing procedure is
may exist so long as a balancing test is efficient is unquestioned. Unfettered police
employed by balancing legitimate gov- conduct is always more efficient, but also
ernment interest against the degree of always more detrimental to the personal
intrusion on the Sndividual's Fourth expectations of freedom and privacy en-
Amendment rights and specifies a three joyed by all citizens. The Supreme Court
part test. (1) The gravity of the public did not come close to stating that the of-
concern served by the seizure, (2) The ficers in Brown v. Teras, could stop
degree to which the seizure advances the everyone in the neighborhood without any
public interest, and (3) The severity of the suspicion whatsoever, to search for the
interference with individual liberty. Citing offense of drug abuse simply because there
Brolvn v. Te.vas, 443 US. 45, 99 S. Ct. was a high frequency of.dmg abuse in that
2637, 61 L. Ed. 2d 357 (1979). The neighborhood. Such clgrly violates that
foregoing reasoning is sophistry because mandates of Terry and its progeny, yet the
it omits the essential inquiry demanded by State urges that it can stop all traffic
Brown & Terry to wit: "to this end, the to search for evidence of driving while
Fourth Amendment requires that a seizure intoxicated.
must be based on specific, objective facts The State is unable to cite any case as
indicating that society's legitimate interests authority for that proposition and Brown
require the seizure of the particular indi- v. Terns, supra; stands squarely against it.
vidual, or that the seizure must be carried If one were to subscribe to the reasoning
oirtprrrsrmnt lo aplan etnbodying explicit advanced by the State, one would have to
neutral lintitations on the conduct of in- ignore the clear mandate of Terry and
dividual oficers. " The Court recognized Brown, that some reasonable suspicion and
that in some circumstances an officer may particularized information on the in-
detain a suspect briefly for questioning dividual be in the possession of the police
although he does not have probable cause officer before the balancing test can be ap-
to believe that suspect is involved in crim- plied. Otherwise, an automobile indeed
inal activity as is required for a traditional will have become a "talisman" in the face
arrest. However, under Terry v. Ohio, of which the Fourth Amendment protec-
supra, the officers are required to have a tions simply fade away and disappear. See
reasonable suspicion based on objective Collidge v. New Hampslrire, 403 US.
facts that tlte individual is involved in 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564
criminal activity. See Brown v. Texas, (1971). If this were not the case, the
supra. The Supreme Court reversed the question arises as to why there is a distinc-
Appellant's conviction in Brown, because tion between border searches and other
the officers had no specific articulable facts searches under the Fourth Amendment.
ihat gave rise to a reasonable suspicion that See United States 1,. Brignoni-Ponce, 422
thesubject wasdoing anything in theAlley US. 873, 95 S. Ct. 2574,45 L. Ed. 2d,
except looking suspicious. The Court noted 641 (1975). Has every street in the United
that the fact that the Alley was frequented States now become "the functional
by drug users, standing alone, was not a equivalent" of an international border
basis for concluding that the Defendant which permits unfettered intrusion of law
himself was engaged in criminal conduct. enforcement into the privacy expectations
And so it is with traffic stops pursuant to of the citizens in their automobiles?
Dallas DWI roadblocks. Under the most In Padgetr I State, No.
neutral criteria one can imagine, how can 05-86-00341-CR, January 6, 1987, the
the police cite any particularized conduct Fifth Court of Appeals at Dallas, revisited
on the part of any driver as a basis for the roadblock scenario and reversed the