Judge Michael McC _ nick - Voice For The Defense Online

mobile and detaining the driver were unreasonablein the absence of an articulableand reasonable suspicion that the driverwas unlicensed or the vehicle was notregistered. The Court was careful to notethat the holding would not prevent a Statefrom developing methods for spot checkswhich wereless intrusiveordidnot involveunre~~ained police discretion.In Texas, prior to the Prouse decision,suspicionless license checks were authorizedunderArt. 6687b, Sec. 13, V.A.C.S.,which provided that any peace officercould stop and detain any motor vehicle inorder to determine whether the dnver hada valid license. Such stops were traditionallyprohibited if used as a subterfuge tocover up an unlawful stop based only onmeresuspicion. SeeMcMillan v. State, 609S.W.2d 784 (Tex.Cr.App. 1980), at 787,citing White v. State, 574 S.W.2d 546(Tex.Cr.App. 1978). See also Fatemi v.State, 558 S.W.2d 463 (Tex.Cr.App.1977).The Prouse decision was not given retroactiveeffect. See Luckett v. State, 586S.W.2d 524 (Tex.Cr.App. 1979). Thus, forstops conducted before that decision wasdelivered, the Court of Criminal Appealsdeferred consideration of the continuingviability of Art. 6687b, Sec. 13, V.A.C.S.See Meeks v. State, 692 S.W.2d 504(Tex.Cr.App. 1985)(roadblock was conductedon November 3,1977).The Court recently reconsidered theroadblock issue in a plurality decisiondelivered in Webb v. State,739 S.W.2d 802(Tex.Cr.App. 1987). In that case, officersset up a license check roadblock close inlocation to an establishment which sold alcoholicbeverages. In fact, the purpose ofthe roadblock was a d.w.i. check. TheCourt found that theroadblock wasproperlyconsidered a combiiation d.w.i. andlicense check.After holding that the defendant, whowas stopped, was seized for FourthAmendment purposes, the Court reviewedthe federal law regarding automobiledetentions. The Court held that suspicionlessstops were considered with regard tothree factors: the government's interest,the officers' discretion, and the intrusioneffected upon the individual. Based uponthese factors, the instant d.w.iAicensecheck was impermissible. Onpage 812, thecourt noted that under proper circumstances,aroadblock operation set up solely todetermine motorists' sobriety may be constitutionallypermissible under both thestate and federal constitutions. The instantroadblock, however, lacked proper constitutionalsafeguards and operationalguidelines to protect motorists from unreasonableseizures. The stops were madeas a subterfuge to conduct general investigationof the motorists. The decision wasonly a plurality, however, and the benchand barknst &nit a fin31 dctcrnlination onTex;~s n)adblocks in the future.3. Public and plain view exceptions.a. The federal mle.Thedocttineoftheplainviewexceptionto the warrant requirement permits an officerto seize evidence or contrabandwithout a warrant iftheofficer is ina publicplace and observes the evidence or contraband(public view), or if the officermade a legitimate intrusion upon thedefendant's privacy right when the item isdiscovered (plain view). This dochine ispredicated on the notion that if the officerhas legally observed an object in plainview, the owner's privacy interest withregard to the item observed is either nonexistentbyvirtueofthepublicobservation,or is vitiated by the officer's legal intrusion.The only interests remaining arepossessory. The doctrine was recently articulatedinTerns v. Brown, 460 US. 730,103 S.Ct. 1535,75 L.Ed.2d 502 (1983).In that case, the defendant's w wasstopped at night during a routine drivers'license check. A policeman shined hisflashlight into the defendant's car and sawan opaque, green party balloon, knottednear the top, fall from the defendant's handto the seat beside him. Based on his narcoticsexperience, the officer was awarethat drugs were frequently packaged insuch a manner. While the defendant wassearching his glove compartment for hislicense, the officer noticed a small plasticvial, loose white powder, and an open bagof balloons in the glove compartment. TheCourt of Criminal Appeals reversed thecase because it found that before the plainview doctrine could be used to justify thesearch and later seizure, the officer had toknow that incriminating evidence was beforehim when he seized the balloon.Brown v. State, 617 S.W.2d 196 (Tex.Cr.App. 1981).Thesupreme Courtreversed. The Courtnoted that in the plurality decisiondelivered in Coolidge v. New Han~pshire,403 US. 443, 91 S.Ct. 2022,29 L.Ed.2d564 (1971), awarrantless seizureofprivateproperty was permitted if three requiremen&were satisfied:1. The police officer must be in ?i properposition to view the item or the initial intrusionmust belawhl.2. The officer must discover the iucriminatingevidence inadvertently (he orshemnst not know in advancethelocationof evidence intending to seize it).3. It must be immediately apparent tothe officer that the item observed may heevidence of a crime, contraband, or otherwisesubject to seizure.Thus, if the officers are engaged in alawful activity in a particular place whenthe evidence is discovered, they may seizeit immediately. The Court concluded thatno impermissible search occurred in theBrown case and a valid plain view seizurewas made.The most important section of theBrolvn case concerned the court's discussionof the "immediately apparent" requirement.The Texas Court of CriminalAppeals held thattheofficerhad to "know"that the evidence before him was incriminatorybefore the seizure was justified.The Supreme Court held that thisinterpretation was too strict. Rather, therule merely requires that the facts availableto the officer would warrant a reasonableperson to believe that the item observedwas evidence of a crime or contraband. Itdoes not require that the belief be corrector more likely true than false. A practical,nontechnical probability that the evidenceis incriminating or contraband is all that isnecessary. Based on the facts presented inBrown, theofficerreasonably believed thatthe balloon contained an illicit substance.In Arizona v. Hick., U.S. -,'I07S.Ct. 1149,94 L. Ed. 2d 347 (1987), theSupreme Court considered the limits of apermissible search conducted pursuant tothe plain view doctrine. In that case, a bulletwas fired through the floor of thedefendant's apartment and injurda manbelow. Police entered the apartment tosearch for the shooter, other victims, andweapons. While there, they seized threeweapons and discovered a stocking