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

IN THE COUNTY CRIMINAL COURT NO. 1
OFDALLASCOUNTY,TEXAS
20 VOICE for the Defense I November 1987
Memorandum of Law
by Emmett Calvin
329 (Cr. App. 1985). Thus. f~lddetentions in
Texas are valid only if supported by "specific
THE STATE OF TEXAS *
VS. * NO. 1234567
JOHN DOE I
MEMORANDUM OF LAW
As a prelude, in connection with this Motion
to Suppress the fruits of this roadblock arrest,
the State has In the past relied upon Rev. Civ.
Stat. Am. Art. 6687b, sec. 13, asauthority for
such roadblocks. Meek v. Slate, 692 S.W.2d
504 (Tex. Cr. App. 1975) noted thaf "The continued
viability of this statute is in question in
light of the decision of United States Supreme
Court in Delaware v. Prouse, 440 US. 648
(1979):'
and arti~nlahle facts, which ia light of his experience
and general knowkdgc, reasonably
warrants sucha stop.'! lhompson v. State, 533
S.W.2d 825, 826 (Tex. Crim. App. 1976).
Nowhere in this format do we arrive at any
authorized "crap shoot" as suggested here.
namely, that we can catch a percentage of
drunks in this manner. There certainly is no
evldence thal as to this defendant, the police had
any specific or articulahle facts as to criminal
activity prior to the detention, if indeed the facts
later developed.
It is understandable why there was prior
relianceon Sec. 13, for the State is well aware
that under state law any arrest of a person
without warrant and without probable cause is
". . . persons in automobiles on public
roadways may not for that reason alone
have their travel and privacy interferred
with at the unbridled discretion of police
officers." Delaware v. Prouse, supra,
at 663.
The simple approach of the DalIas police in the
recent past has been to set up the roadblocks
under their formula, make the stops on the
theory that these were merely stops solely for
a license check under Sec. 13 and then lie in
the courtroom as to the purpose of the stop.
They did not meet withsuccess when an officer
would "slip" and tell the truth as in Webb v.
Srate, 695 S.W.2d 676 (Tex. App. Dallas,
1985, pet. granted) nor even when they lied.
Higbie v. State. No. 05-86-00188 CR (Tex.
App. Dallas, 1113187).
It now appears that the State has come out
of the closet and chat the Dallas police will
testify that, without regard to a Texas State
statute, the roadblock detentions are executed
for the purpose of catching D.W.I. suspects.
With this testimony comes an array of statistics
to reflect that the roadblock outwaghs the individual's
right to privacy; the degree to which
such a roadblock. as ornosed to a less intrusive
mahod, advance% the public interests; and linally,
whether thc vdid puhllc interat i\ sullicicnt
to justify the partic;lar intrusion committed.
This evidence is framed in the balancing test
suggested in the dicta of Prouse and Brown v.
Tm.433 US. 47,49 (1979). Onecannothelp
but wonder whether we can rely upon such
evidence produced by the same officers that
have been lying about the purpose of such stops
until recently. However, reliability of the
evidence would appear to pale in the face of
a more fundamental problem wilh these detentions,
Emmett Colvin, born Stuttgarr, Arkantsas,
July 18, 1918; admifted to bar, 1942,
Arkansas; 1948, Tennessee and US. District
Court, Easfern District of Arkansas;
1960, Texas; 1961, US. District Court,
Wesrenn District of Texas; 1962, U. S. District
Cortr% Northern District of Texas and
U.S. Court ofAppeals, 5th Circuit; 1963,
US. District Court, Southern District of
Texas; 1965, US. District Court, Eastern
District of Texas and US. Supreme Couc
1967, U.S. Court of Appeals, 10th Circuit;
1970, US. Court of Appeals, 8th Circuit.
Education: Arkansas State Universiry; St.
huis Universify and Universiry ofArkansas
(LL.B., 1942). Delta Iheta Phi. Assisrant
Districf Attorney, Dalh, 1961-1963.
Dean National College for Crimi~tal Defense,
1982-1984. Member: State Bar of
Texas (Chairman, Criminal Law Section,
196g1967); Dallm Counry Criminal Bar
Association (President, 1970); Texas
Criminal Defense Lawyers Association
(Presidenk, 1977-1978); National Associahen
of Criminal Defense Lawyers (Director,
1977%). (Board Cert$ed, Criminal
Lnw, Tern Board of Legal Specialization.)
First, we elimmate the suggestion that this
was merely an investigative stop. Under Texas
law, the one immutable reauirement for making
on investigative stop is that the officer have
solnc reaionahlc basis for belicvina - that the surpect
isa~nnwtcd with current criminal activity.
I TEXAS CRIMINAI. I'XALTICE GUIDE. D.
10-9, citing Gearing v. State, 685 S.W.2d 326,
deemed an unreasonable seizure unless it is
specifically authorized by statute and these
statutes are strictly construed. Honeycun v.
State, 299 S.W.2d 662,664 flex. Crim. App.
1973). If. as here, it is claimed that the situation
authorizes an arrest without warrant in
Texas, then it must be shown that the authority
for such arrest comes squarely within some
classification Bstahlished by statutes anthorizing
such arrest, if not, the authority does not
exist. Heath v. Boyd. 175 S.W.2d 214, 141
Tex. 569 (1943): Hmeycan v. Stare, supra. The
legality of warrantless arrests are governed by
state law, pmvided the restrictions on right to
arrest are at least as stringent as those imposed
by the United States Constitution. Milfon v.
State, 549 S.W.2d 190, 192 [Tex. Cr. App.
1977).
Article 15.22 provides that a person is arrested
when "he has ken actually placed under
restraint or taken into custody. . . ." Thus, it
is fundamental that when one's liberty of movement
is restricted or restrained, the arrest is
complete. Brewster v. State, 606 S.W.2d 325
(Cr. App. 1980). The power of a peace officer
to arrest is set forth in the statutory scheme of
Article 14.03, C.C.P. andin this authorization,
the State can findno support for the action taken
here. Without engaging in the jargon ofprouse
and Brown, the plain response to the State's
position here is that, there being no specific
statutory authority for the arrest here, no
authority exists. The arrest being illegal, the
fruits thereof must be suppressed, under the
State Constitution, as well as the4th and 14th
Amendments to the Constitutionof the United
States.
The Texas design that the matter of power
of arrest be controlled by statute is indeed
wholesome. Our historical polrcy in the premises
would appear to balk at the concept here
urged-that the anthority to arrest may stem