           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

             M EYERS, J., filed a dissenting opinion.

                               DISSENTING OPINION

      As the majority states, the legality of the checkpoint in this case depends upon

whether its primary purpose was general crime control or to check drivers’ licenses and

insurance. 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 this case included a K-9 unit. So, if the primary purpose of this
                                                                             Lujan dissent – page 2

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, I disagree with the majority and would conclude that the primary purpose of

the checkpoint was to “uncover evidence of ordinary criminal wrongdoing,” in

contravention of the Fourth Amendment.1 Id. at 42.

       I also note that the majority is correct to acknowledge that police officers may act

upon information properly learned at “a checkpoint stop justified by a lawful primary

purpose, even where such action may result in the arrest of a motorist for an offense

unrelated to that purpose.” Id. at 48. However, what is missing here, in my opinion, is a

lawful primary purpose. Drug-sniffing dogs have no place at a checkpoint designed for

license and insurance verification. Because I would affirm the court of appeals, I

respectfully dissent.




                                                                     Meyers, J.

Filed: January 12, 2011

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       1
        In reaching its conclusion, the majority places too great an emphasis on the trial court’s
evaluation of the deputies’ credibility.
