             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-0303-10

                                GERARDO LUJAN, Appellant

                                                  v.

                                    THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE EIGHTH COURT OF APPEALS
                            EL PASO COUNTY

        J OHNSON, J., filed a concurring opinion.


                            CONCURRING OPINION

        El Paso County deputy sheriffs set up a checkpoint, ostensibly to target uninsured and

unlicensed drivers. That claim is undermined by the presence of a drug dog at a checkpoint near the

Mexican border and I-10, a known route for drug transport. Drug dogs are trained to detect the

presence of illegal drugs; they are less useful for sniffing out expired driver’s licenses. Mere

membership in the assigned unit does not adequately explain the dog’s presence. The assigned unit

was not a traffic unit; as the majority notes, it had multiple duties, including racing prevention, DWI,

traffic enforcement, and, notably, narcotics. The deputies’ regular responsibilities and specialized
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training were not relevant to a checkpoint for only licenses and insurance, and 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.

       That said, appellant did not have a driver’s license and was therefore subject to arrest. His

passenger had no identification, but did have outstanding warrants, and he was arrested. The

checkpoint was in an area known for drug transport. Appellant and his passenger had different

stories about where they had been. Appellant was extremely nervous. The deputy patted appellant

down, an appropriate action when an arrest is possible and even more appropriate when

circumstances and training would reasonably alert an officer that things were not as they might

appear to be. The pat-down revealed a large amount of cash. The circumstances, as a whole, gave

rise to reasonable suspicion that criminal activity, specifically drug transport, was afoot.

       And appellant gave permission to search his car. Even without the alert from the drug dog,

the drugs were very likely to be found. Law officers know that door panels are a popular location

for contraband and could have manually investigated the possibility pursuant to the consent to

search. Further, appellant was subject to arrest for lack of a driver’s license, and his passenger was

under arrest. Whether the deputy arrested appellant for lack of a license or possession of controlled

substances after a manual search of the car, no one would have been available to take possession of

the car, and the car would have been impounded, leading to an inventory search or a dog sniff at the

impound lot.

       Because I think that the drugs would have been discovered without the dog’s alert, I concur

in the judgment of the Court.
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Filed: January 12, 2011
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