I had the pleasure of hanging out with Lawrence at a conference last summer (SPI), and am proud to have him as a colleague, and facebook friend.
Facebook is how I got Lawrence thoughts on the Lujan disaster. Larry wrote out the following, as a comment to my shameless facebook link to my own blog post on Lujan vs. State.
Before you read Mr. Boyd’s insight, you must be forewarned that his thoughts and writings are the intellectual property of Knowles publishing, and not to be reproduced without their consent.
A type of roadblock to verify drivers licenses and vehicle registration may be permissible, but checkpoints to detect evidence or ordinary criminal wrongdoing are not. During the direct-examination in Lujan, the “AO” stated that the officers were just there to check drivers licenses; however, on cross, he stated that the purpose of their unit was to take care of racing, DWI, traffic enforcement, narcotics, and other particular tasks. They were present for any violations they would see.
In the trial court in future cases, we have to have the court issue specific findings of fact and conclusions of law that the Judge did not believe that the roadblock was there for the primary purpose of checking for licenses but that the presence of dogs and other admissions by the police undermined the credibility of the officer to the extent that the trial court concluded that it was an impermissible “general purpose roadblock.”.
When I spoke @ the Stu Kinard Advanced DWI course on 11/18, 2010, I warned everyone there that, since this appeared to be a settled area of the law, then why would the Court of Criminal Appeals grant a petition in this case?
As you point out, our Court appears to be on an activist binge to eliminate our Fourth Amendment rights again. So much for judicial self-restraint. If you haven’t read the Foster case, they also greatly reduced the State’s burden to show reasonable suspicion of DWI by requiring only “some minimal level of objective justification” for the stop. I expect more bad news forthwith.
Judge Meyer’s dissent in Lujan is worth reading because The Supreme Court of the United States has “never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).
The checkpoint in Lujan included a K-9 unit. So, if the primary purpose of this checkpoint program was, as the majority concludes, to check drivers’ licenses and insurance, then the deputies did not need drug-sniffing dogs. This was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight. Based upon the facts of this case, Judge Meyer disagreed with the majority and would have concluded that the primary purpose of the checkpoint was to “uncover evidence of ordinary criminal wrongdoing,” in contravention of the Fourth Amendment.