Bringing a Dog to Cat Fight, Makes it a Dog Fight

Gerardo Lujan was convicted of possession of cocaine after the El Paso police discovered cocaine hidden in the passenger side of his vehicle. Lujan had been stopped at a police checkpoint that was set up to stop every vehicle on both sides of the road to check for driver’s licenses and insurance. Curiously, the officers also had with them a drug-sniffing dog to detect and alert if any of the detained persons possessed drugs or had drugs in their vehicle.

Following Lujan’s conviction, the 8th District Court of Appeals (El Paso) reversed the conviction, holding that the “license and insurance checkpoint” was actually a subterfuge for general criminal enforcement. The 8th Court focused on the holding of the U.S. Supreme Court in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), wherein the Court noted that it has “never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.”

The State appealed the 8th Court’s reversal to the Court of Criminal Appeals. The CCA agreed with the legal standard articulated by the 8th Court, but disagreed in its analysis. Originally prepared by Judge Holcomb before his retirement, the opinion states:

If the primary purpose of the checkpoint is lawful – a license check as opposed to general law enforcement – police can act on other information that arises at the stop. The checkpoint’s primary purpose of license and insurance verification does not prohibit the police from considering other unrelated offenses that they discover during the stop.

The CCA went on to hold that the checkpoint was not unreasonable, despite the presence of a drug-sniffing dog, the fact that the officers conducting the checkpoint were part of the drug-interdiction team, and the fact that the checkpoint was set up on a stretch of road known for drug smuggling.

Disagreeing with the CCA’s conclusion regarding the lawfulness of the checkpoint, Judge Johnson concurred “because [she] thinks that the drugs would have been discovered without the dog’s alert.” She point out, however, that:

if the checkpoint were truly for only licenses and insurance, the dog would be a valuable resource wasted and better used at a location where its specialized skills were in demand. I agree with the court of appeals that the checkpoint was a subterfuge for general criminal enforcement.

Judge Meyers dissented, stating that bringing a drug-sniffing dog to a license and insurance checkpoint

was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight. Based on the facts of this case, I disagree with the majority and would conclude that the primary purpose of the checkpoint was the ‘uncover evidence of ordinary criminal wrongdoing,’ in contravention of the Fourth Amendment.

In this case, it appears the Fourth Amendment was trumped by the doctrine of “the ends justify the means.”