A very recent case decided by the Texas Court of Criminal Appeals, the State’s highest court of appeals to hear criminal cases, has established the lawfulness of roadside checkpoints under certain circumstances.
This case will affect not only Driving While Intoxicated cases, but all criminal cases and the citizenry in general. I’ll explain. The Fourth Amendment to the U.S. Constitution ordinarily prohibits the police from stopping your car on a roadway unless the police have some specific, articulable information that gives them reasonable suspicion that you are violating the law.
Over the years, appeals courts have carved out several exceptions to this ordinary rule, including one known as the special needs doctrine. Essentially, the special needs doctrine provides that the Government may, for example, stop your car without any information whatsoever that you have engaged in criminal wrongdoing so long as the program set up to stop your car is designed to serve special needs, beyond the normal need for law enforcement.
If on the other hand, the program or checkpoint is set up to detect evidence of ordinary criminal wrongdoing, this would be a violation of the Fourth Amendment as it is not a special need.
In other words, the Consitution forbids roadside checkpoints that are nothing more than generalized crime detection. The Constitution does not recognize a general interest in crime control as justification for a suspicionless stop of your car.
Which brings us to the recent case decided by the Texas Court of Criminal appeals. In January of 2011 the Court decided the case of Lujan v. State of Texas In Lujan, the Court was faced with a case where the evidence presented at the trial court was contradictory with regard to the true nature of the program. Was the checkpoint established for the purpose of conducting a license and registration check, and therefore Constitutional, according to the Texas Court of Criminal Appeals? Or was this a case where the checkpoint was nothing more than an unconstitutional attempt at generalized crime control?
For one brief paragraph, the Court seemed as though it would embark on an extended discussion of the distinction between suspicionless checkpoint regimes justified as a special needs exception, and those suspicionless search and seizure regimes that are forbidden by the Fourth Amendment.
The Court informed the reader that:
the legality of the checkpoint in this case turns on whether its primary purpose was to check drivers’ licences and insurance, or whether the primary purpose was general crime control.
But the Court very quickly diposes of the issue presented, essentially holding that the trial Court impliedly found that the primary purpose of the checkpoint was to check for license and registration, and therefore lawful.
What I find troubling about the decision is that the Court is willing to premise a decision that is a significant Fouth Amendment pronouncement on a lower Court’s implied findings. Additionally, the Court is upholding a regime of suspicionless searches under a special needs doctrine and does not even once use the term or acknowledge the existence of the doctrine.
As a practical matter, all Texans should be concerned about this decision. If our elected representatives in Austin wanted to establish a law creating a checkpoint regime they could do so. The Court of Criminal Appeals gave us the blueprint for a lawful checkpoint law over fifteen years ago. What happened in Lujan is very different. In Lujan, the Court essentially endorsed the creation of checkpoint systems by any law enforcement agency that chooses to undertake them.