Officers on their own set up a driver’s license checkpoint, and defendant was stopped and found DUI. The checkpoint was unlawful. State v. Luxon, 230 S.W.3d 440 (Tex. App. — Eastland 2007):
Chief Meadows testified that he did not give Officers McCullough and Garza permission to operate the driver’s license checkpoint. Chief Meadows said that Officers McCullough and Garza had previously asked him whether they could run a driver’s license checkpoint. At that time, Chief Meadows believed that driver’s license checkpoints were illegal, and he testified that he told Officers McCullough and Garza that he would have to check with Wade Norris, the police chief at the time, about their request to operate a checkpoint. Chief Meadows testified that he had not checked into their request when they conducted the checkpoint. He also testified that, as far as he knew, Chief Norris did not give Officers McCullough and Garza permission to conduct the checkpoint. Rather, Chief Meadows said that Officers McCullough and Garza made the decision to operate the checkpoint on their own, based on the approval of Officer Garza, who was the senior patrol officer. However, Chief Meadows explained that the operation of the checkpoint was not an appropriate exercise of Officer Garza’s authority.
Chief Meadows also testified that he did not know how the checkpoint was set up or where Officers McCullough and Garza conducted the checkpoint. …
. . .
In balancing the competing interests in this cause, we must weigh the State’s interest against the level of intrusion. Schenekl, 30 S.W.3d at 414. Chief Meadows testified that Officers McCullough and Garza conducted a driver’s license checkpoint. Prouse recognized 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. Chief Meadows had limited knowledge about the operation of the checkpoint. He testified that he did not know how the checkpoint was set up. While he testified that Officers McCullough and Garza told him that they were stopping every car that arrived at the checkpoint, he also testified that he did not know how many cars they stopped or how many arrests resulted from the checkpoint. Chief Meadows also did not know where Officers McCullough and Garza conducted the checkpoint. Officers McCullough and Garza did not testify at the suppression hearing. Thus, the record lacks evidence establishing the details of the checkpoint. The record also lacks evidence demonstrating the effectiveness, if any, of the checkpoint in advancing the State’s interest.
In considering the level of intrusion, the roadblock in this cause was similar to the roadblock in Sanchez. The evidence at the suppression hearing demonstrated that Officers McCullough and Garza–the officers in the field–set up the subject roadblock on their own initiative. Officers McCullough and Garza made the decisions as to where, when, and how to operate the roadblock. They conducted the roadblock without the authorization or guidance of a supervisory officer. The evidence also showed that the roadblock was not conducted pursuant to a departmental plan of the Payne Springs Police Department and that the Payne Springs Police Department did not have any departmental procedures for the purpose of limiting the discretion of the field officers conducting the roadblock.
Thus, in this cause, the operation of the roadblock was left to the unfettered discretion of the officers in the field. …
Protective sweep was unjustified where the only information that officers had was that defendant was alone inside, and he had come out. [A sweep is for people, not evidence.] Robertson v. Commonwealth, 49 Va. App. 787 (2007):
By contrast, in the case at hand, the officers had no such information indicating the presence of another individual inside appellant’s dwelling. The evidence demonstrates that Officer Thompson was told by Tiffany that appellant was alone in the house. The admitted videotape supports her statement. In the thirty-five minute tape, the camera was focused entirely on the front door and windows of the house. At no point did police appear to see or hear another individual inside the house. The tape also shows appellant yelling at the officers before they entered, “Ain’t nobody else in the house!”
The instant case resembles the circumstances of United States v. Colbert, 76 F.3d 773 (6th Cir. 1996), cited by the dissent in Williams, 49 Va. App. at 463-64, 642 S.E.2d at 306-07 (Humphreys, J., dissenting). In Colbert, the Sixth Circuit held that a “[l]ack of information cannot provide an articulable basis upon which to justify a protective sweep.” 76 F.3d at 778. The Court explained, “[A]llowing the police to justify a protective sweep on the ground that they had no information at all is directly contrary to the Supreme Court’s explicit command in Buie that the police have an articulable basis on which to support their reasonable suspicion of danger from inside the home.” Id.
In the case at hand, the officers similarly had no information by which they could reasonably infer that another individual could be present inside the dwelling after appellant was detained outside. Moreover, on cross-examination, when asked why police needed to secure the house, Officer Thompson replied, “You’ll have to ask them. … Typically, a procedure would be, even though there’s one person in the house, we don’t know if there’s anybody else in the house and we’re securing the house.” The evidence shows, therefore, that the officers did not possess a reasonable suspicion that, after appellant’s arrest, appellant’s dwelling harbored an individual posing a danger to the officers or others, as required by the standard set forth in Buie.
Even if an officer witnesses only a minor traffic violation, a motion to suppress on the ground that the stop was pretextual must fail. Trujillo v. State, 286 Ga. App. 438, 649 S.E.2d 573 (2007).*
