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



                             GERARDO LUJAN, Appellant

                                              v.

                                 THE STATE OF TEXAS

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


       PER CURIAM .1 JOHNSON , J., filed a concurring opinion. MEYERS, J., filed a
dissenting opinion.

       The court of appeals held that the checkpoint where drugs were discovered in Appellant’s

vehicle was illegal because it was not for the sole purpose of checking drivers’ licenses and

insurance. We reverse.

       A motion to suppress hearing was held on July 10, 2006. At the hearing, Deputy Sheriff

Hernandez testified that he was working a stationary vehicle check on February 9, 2006. The



       1
       This opinion was originally prepared by Judge Holcomb before his retirement on
December 31, 2010.
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purpose of the checkpoint was to target uninsured motorists and unlicensed drivers. An entire unit

of the criminal interdiction unit was assigned, comprised of six to seven officers, including a

supervisor and a K-9 unit. The officers stopped every vehicle that came through the checkpoint, both

north and southbound. If the drivers had their licenses and insurance, they were waved through the

checkpoint. Deputy Hernandez was checking northbound traffic, and he stopped Lujan’s vehicle.

Lujan informed Deputy Hernandez that he did not have a driver’s license. He was directed to pull

to the side of the road and park so Hernandez could issue a citation. Hernandez asked Lujan to step

out of the vehicle and move over by his patrol car.

       Hernandez then asked Lujan’s passenger for his identification, and he had none. The

passenger did tell Deputy Hernandez his name and birthdate. The passenger told Hernandez that he

and Lujan had been at a friend’s house buying roosters. Deputy Hernandez returned to Lujan, who

also told him that they had been at a friend’s house, but he gave a different name for the friend.

       Hernandez went to his patrol unit to call in the names of both Lujan and the passenger for

a warrant check and then returned to Lujan to complete the citation. While completing the citation,

dispatch contacted Hernandez and informed him that the passenger had outstanding warrants.

       Hernandez and another officer, Deputy Gonzales, approached the vehicle and arrested the

passenger. Deputy Hernandez placed the passenger in the back seat of his patrol car while Deputy

Gonzalez spoke further with Lujan. Gonzalez informed Lujan why his passenger was being arrested

and told Lujan that he was going to conduct a pat down of him for safety reasons. He felt two bulges

in Lujan’s pockets, both of which were cash totaling $1,562.

       Deputy Hernandez’s suspicions were aroused by Lujan’s extremely nervous behavior and the

large amount of cash. He asked Lujan for permission to search the vehicle and Lujan agreed. The
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K-9 officer was called over and his dog immediately alerted on Lujan’s vehicle. The K-9 officer

signaled Deputy Gonzalez to secure Lujan. He then pried the switch panel off of the passenger side

door and discovered bags of white powdery substance hidden inside the door. Hernandez testified

that, from the time Lujan was stopped to the time the drugs were discovered was six or seven

minutes.

        On cross-examination, Deputy Hernandez testified that his unit was not a traffic unit. At the

time they were a criminal interdiction unit responsible for traffic enforcement, DWI enforcement and

underage drinking. The unit did not exclusively check for unlicensed vehicles, but handled multiple

tasks including racing, DWI, traffic enforcement, and narcotics. Immigration was not one of their

tasks, but if they stopped someone who they suspected was illegal they would hold him for the

border patrol. Deputy Hernandez testified that their intention was not to check for immigration

status. The dog and his handler were part of the unit and the entire unit was assigned to do a check

for unlicensed drivers and uninsured motorists that day. Deputy Gonzalez testified that they were

checking for drivers’ license and insurance. They would also enforce any other violations that they

saw, such as expired inspection or registration stickers, missing license plates, or illegal immigration.

        At the conclusion of the hearing, the trial court denied Lujan’s motion to suppress. The trial

court did not make any written findings of fact or conclusions of law. Pursuant to a plea bargain,

Lujan pled guilty to a lesser included offense of possession of cocaine in an amount more than four

grams but less than 200 grams and was sentenced to four years of imprisonment.

        On direct appeal, Lujan argued that the checkpoint was not merely to check for drivers’

licenses and insurance; it was a checkpoint for general criminal activity. The court of appeals held

that the checkpoint was not solely for the purpose of checking drivers’ license and insurance. The
                                                                                       LUJAN -- 4

criminal interdiction unit that handled racing, DWI, traffic enforcement, narcotics, and other tasks

with a K-9 unit was searching for any evidence of criminal wrongdoing, which is not permitted.

Lujan v. State, No. 08-06-00321-CR at 6 (Tex. App.–El Paso, December 9, 2009) (not designated

for publication) citing City of Indianapolis v. Edmond, 531 U.S. 32, 39 (2000). The court of appeals

noted that, while Deputy Hernandez stated that they were only doing the assigned task of a drivers’

license and insurance checkpoint, Deputy Gonzalez stated that they were there for any violation they

came across. The court of appeals held that a checkpoint that is used to determine if there are any

ongoing criminal violations is too deep of an intrusion upon an individual’s Fourth Amendment

rights. Lujan, No. 08-06-00321-CR at 6.

       We granted grounds one and two of the State’s petition for discretionary review2 to determine

whether the court of appeals erred in its analysis.

       The trial court’s ruling on a motion to suppress is reviewed for abuse of discretion. Guzman

v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). The trial court is given almost complete

deference in its determination of historical facts, especially when based on an assessment of



       2
           The State’s grounds read as follows:

       (1) By finding that checking for drivers’ licenses and proof of insurance was not the
       sole purpose for the checkpoint and that the officers conducted a
       general-crime-control checkpoint, did the court of appeals substitute itself as the
       factfinder and misapply the standard of review applicable when the trial court denies
       a suppression motion without express findings?

       (2) Did the court of appeals err by focusing its checkpoint analysis on the testimony
       of an individual officer at the scene and whether checking drivers’ licenses was the
       sole purpose of the checkpoint, thereby suggesting that an officer's intention to
       pursue other criminal activity that he came across transforms an otherwise valid
       checkpoint into a general-crime control checkpoint?
                                                                                           LUJAN -- 5

credibility and demeanor. The same deference is given to the trial court with respect to its rulings

on the application of the law to questions of fact if resolution of those questions depends on an

evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

Mixed questions of law and fact that do not turn on credibility and demeanor are reviewed de novo.

Id. When the trial court does not make express findings of fact, the reviewing court must view the

evidence in the light most favorable to the trial court’s ruling and should assume the trial court made

implicit findings of fact that support its ruling as long as those findings are supported by the record.

Id. at 855-66.

       A vehicle stop at a highway checkpoint is a seizure for Fourth Amendment purposes.

Edmond, 531 U.S. at 40. A checkpoint to verify drivers’ licenses and vehicle registration is

permissible, but a checkpoint whose primary purpose is to detect evidence of ordinary criminal

wrongdoing is not. Id., at 39; see also Delaware v. Prouse, 440 U.S. 648, 663 (1979). 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. The primary purpose of

the checkpoint is a mixed question of law and fact since the question turns on an evaluation of the

credibility of the officers who testified at the suppression hearing. Guzman, 955 S.W.2d at 87.

       Because the trial court denied Lujan’s motion to suppress without express findings, this Court

must assume that the trial court made implicit findings of fact that support its ruling as long as those

findings are supported by the record. State v. Ross, 32 S.W.3d at 855-66. In this case, the trial court

implicitly found that the primary purpose of the checkpoint was the permissible purpose of checking

drivers’ licenses and insurance. This finding is supported by the record. Deputy Hernandez

explicitly testified that the purpose of the checkpoint was to target uninsured motorists and
                                                                                         LUJAN -- 6

unlicensed drivers. He denied an intent to check the drivers’ immigration status. Deputy Gonzalez

testified that drivers were waved through the checkpoint if they produced a driver’s licence and proof

of insurance. Viewed in the light most favorable to the trial court’s ruling, this evidence supports

the implicit finding that the primary purpose of the checkpoint was to check drivers’ licences and

insurance.

        As noted by the court of appeals, the deputies offered what could be considered conflicting

testimony regarding the purpose of the checkpoint. Deputy Hernandez stated that they were only

doing the assigned task of a drivers’ license and insurance checkpoint, but Deputy Gonzalez testified

that they were there for any violations they came across. Lujan, No. 08-06-00321-CR at 6. The

court of appeals believed Deputy Gonzalez’s testimony over that of Deputy Hernandez. This

credibility decision is one for the trial court. In denying the motion to suppress, the trial court

implicitly believed Deputy Hernandez’s testimony that this was only a license and insurance

checkpoint. The testimony of both deputies can also be read in a way in which there is no conflict

and to suggest that this was a proper checkpoint with license and insurance checks as its primary

purpose. The credibility of the two deputies was essential in deciding the primary purpose of this

checkpoint. One can read the deputies’ testimony to indicate that they were looking primarily at

license and insurance, but if another criminal violation presented itself then they would investigate.

This is presumably the manner in which the trial court interpreted the testimony. Read in that light,

the trial court implicitly found that this was a proper checkpoint. Ross, 32 S.W.3d at 855.

Considering the standard of review, the court of appeals erred in rejecting the implicit fact findings

of the trial court.

        The two deputies testified at the suppression hearing that this was a license and insurance
                                                                                           LUJAN -- 7

checkpoint. They also testified that they were part of a criminal interdiction unit that handled racing,

DWI, traffic enforcement, narcotics, and other tasks. The court of appeals relied on this testimony

about other duties of the unit to conclude that the deputies were not merely conducting license and

insurance checks at the checkpoint. However, the deputies did not testify that these other duties were

their primary purpose at the time they were working the checkpoint. The trial court implicitly found

that, while their unit also handled all of those other tasks; on this particular day the entire unit was

assigned to the checkpoint and their primary purpose was drivers’ license and insurance checks. The

court of appeals also relied on the fact that there was a K-9 unit present, but the K-9 officer and his

dog were part of the interdiction unit. If the interdiction unit as a whole was assigned to work this

the checkpoint for license and insurance checks, the K-9 officer was also there for that reason and

not to do general criminal enforcement. The fact that the K-9 officer had his dog with him does not

render the checkpoint illegal. The court of appeals concluded that the license and insurance

checkpoint was a subterfuge for general criminal enforcement. The trial court’s denial of the motion

to suppress is an implicit finding that it was not.    .

       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 police from considering other

unrelated offenses that they discover during the stop. Edmond, 531 U.S. at 48. In Edmond, the

Supreme Court made clear that officers are not required to conduct the license and registration check

wearing blinders and ignoring any other violations of the law that they observe. Officers can still

act on what they learn during a checkpoint stop, even if that results in the arrest of the motorist for

an offense unrelated to the purpose of the checkpoint. Id.
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       A brief suspicionless stop at a checkpoint is constitutionally permissible if its primary

purpose is to confirm drivers’ licences and registration and not general crime control. Id., at 39. In

denying the motion to suppress, the trial court implicitly found that the primary purpose of this

checkpoint was a permissible license and insurance check. Ross, 32 S.W.3d at 855. This finding

was supported by the record.

       We reverse the judgment of the court of appeals and affirm the judgments of the trial court.


DELIVERED: January 12, 2011
PUBLISH
