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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Wednesday, January 19, 2011

The Court of Criminal Appeals Supports a Marginal Traffic Checkpoint against El Paso

In a per curiam opinion joined by seven of the nine judges, the Texas Court of Criminal Appeals held that the presence of a drug-sniffing dog at a license-and-insurance traffic checkpoint did not violate the defendant's right to be secure in his person in the absence of probable cause.
Let's discuss this in order by time. At a night traffic checkpoint, the officers asked all the drivers for license and registration. Lujan said he didn't have his license with him. Lujan said that he and his passenger had been to see one friend. The name of the friend that the passenger gave was different. Lujan was patted down for officer safety, and the patdown showed the officer's Lujan's possession of about $1,562. The officers then had a dog sniff the vehicle. The dog alerted and cocaine was found in the car doors. At trial, Lujan moved to suppress on the ground, that instead of being merely an allowable license-and-insurance checkpoint, the checkpoint was also looking for other violations of law, especially for driving while intoxicated. The trial court overruled the motion. The Eighth Court of Appeals in El Paso reversed and remanded. The CCA took the case on a petition for discretionary review, and reversed El Paso. They held that even though the officers might have found violators of laws in addition to license and insurance violations, the officers would have let anybody who had a driver's license and proof of financial responsibility pass in the absence of reasonable suspicions or probable cause arising because the officers could see the vehicle, just as they could see the vehicles if they had merely been watching the traffic from the side of the road. Lujan got extra attention because he lacked his license, which was a legitimate reason for officers to stop him. He appears to have consented to a search of the vehicle. The CCA judges also found that the dog sniff was OK, which seems consistent with checking the plain smell of a public object. Judge Cheryl Johnson concurred saying that she didn't like having a drug dog at a checkpoint, but in this case, the officers would have found the dope even if the dog had not alerted. Judge Lawrence Meyers dissented. He thought that the Eights had correctly assessed the purpose of the checkpoint. Its purpose was illegal, and the majority gave too much credit to the trial judge's assessment of the evidence.

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