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Click here for the full text of this decision FACTS:On Aug. 13, 2005, Shawn McCullough and Ricardo Garza were patrol officers for the Payne Springs Police Department. On that day, officers McCullough and Garza conducted a driver’s license checkpoint. The officers stopped Ryan William Luxon and as a result of the stop charged him with the misdemeanor offense of driving while intoxicated. In a motion to suppress, Luxon claimed that he was arrested as the result of an illegal stop and seizure at a roadblock set up by police officers. Luxon asserted that the roadblock violated his rights under the Fourth Amendment to the U.S. Constitution and Article I, �9 of the Texas Constitution. McCullough and Garza were not employed by the Payne Springs Police Department at the time of the suppression hearing, and they did not testify at the hearing. Instead, the state presented testimony from Payne Springs Police Chief Tim Meadows. Meadows testified that he was a sergeant for the Payne Springs Police Department when McCullough and Garza conducted the subject checkpoint. He also testified that he had no personal knowledge regarding the checkpoint and that he learned about the checkpoint from McCullough and Garza after they conducted it. With respect to the operation of the checkpoint, Meadows testified that McCullough and Garza told him that they were checking driver’s licenses at the checkpoint and that they were stopping every car that arrived at the checkpoint. Meadows’ testimony indicated that McCullough stopped Luxon’s vehicle during the operation of the checkpoint. The state introduced into evidence McCullough’s offense report relating to the arrest of Luxon. The report indicated that McCullough approached Luxon’s vehicle at about 10:30 p.m. while McCullough was conducting a driver’s license check at the intersection of Double Bridge Road and Frazier Lane. The report also indicated that McCullough arrested Luxon for driving while intoxicated after speaking with Luxon and smelling an odor of alcohol coming from within Luxon’s vehicle. Meadows testified that he did not give McCullough and Garza permission to operate the driver’s license checkpoint. Meadows said that McCullough and Garza had previously asked him whether they could run a driver’s license checkpoint. At that time, Meadows believed that driver’s license checkpoints were illegal. Meadows said that McCullough and Garza made the decision to operate the checkpoint on their own, based on the approval of their senior patrol officer. However, Meadows explained that the operation of the checkpoint was not an appropriate exercise of that officer’s authority. Meadows also testified that he did not know how the checkpoint was set up or where McCullough and Garza conducted the checkpoint. Meadows believed that McCullough and Garza set up the checkpoint on County Road 2516 but he said that the checkpoint could have been set up at any one of the three intersections located on County Road 2516 in Payne Springs. Meadows also testified that he did not know how many people McCullough and Garza stopped during the operation of the checkpoint. While Meadows believed that McCullough and Garza caught some people driving without licenses, he testified that he did not know how many arrests resulted from the checkpoint. The trial court granted Luxon’s motion to suppress evidence resulting from the stop. The trial court entered findings of fact and conclusions of law in support of its order granting Luxon’s motion to suppress. In summary, the trial court found that Luxon’s vehicle was stopped pursuant to the subject driver’s license roadblock, that the Payne Springs Police Department did not have any standardized procedures for conducting driver’s license roadblocks, and that the state did not present any testimony or empirical evidence demonstrating the effectiveness of the subject roadblock. The trial court concluded that: there was no evidence McCullough followed authoritatively standardized procedures in operating the roadblock to serve the roadblock’s stated purpose and to minimize the officers’ discretion in operating the roadblock; and that there was no testimony or empirical evidence demonstrating the effectiveness of the roadblock. Based on the absence of such evidence, the trial court concluded that the roadblock was illegal. HOLDING:Affirmed. By stopping Luxon’s vehicle at the roadblock, the court stated that the officers effectuated a seizure of Luxon within the meaning of the Fourth Amendment. Because the officers seized Luxon without a warrant, the state had the burden to prove that the seizure was reasonable under the Fourth Amendment. A roadblock seizure, the court stated, falls into the category of a suspicionless seizure because it is conducted in the absence of a warrant and without probable cause or reasonable suspicion. A suspicionless seizure, the court stated, is deemed reasonable under the Fourth Amendment if it meets the balancing test set forth in the 1979 U.S. Supreme Court opinion Brown v. Texas. While a roadblock stop may be a permissible way to check for driver’s licenses, the U.S. Supreme Court stated in Brown that “[a] central concern in balancing these competing considerations [of public interest and individual liberty] in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” A seizure at a roadblock stop is consistent with the Fourth Amendment if it is “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” In this case, McCullough and Garza set up and operated the roadblock on their own initiative, without the authorization or guidance of a supervisory officer or the guidance of a departmental plan that limited the discretion of the field officers conducting the roadblock. Thus, Luxon’s expectation of privacy was “subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” The operation of the roadblock, the court stated, 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. As such, the court found that the level of intrusion on Luxon’s privacy interest outweighed the state’s interest. Therefore, the seizure of Luxon at the roadblock was unreasonable under the Fourth Amendment. Additionally, the roadblock was unreasonable under the Fourth Amendment because there was no evidence that a governing body in Texas had authorized a statewide procedure for conducting such roadblocks. According, the court held that the trial court did not abuse its discretion in granting Luxon’s motion to suppress. OPINION:McCall, J.; Wright, C.J., and McCall and Strange, JJ.

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