Wednesday, March 30, 2011

More boondoggle than bonanza: Southbound checkpoints face Fourth Amendment challenges

Interesting testimony this morning on southbound checkpoints (SBs 288 and 294), an idea which was first suggested by senators on the Finance Committee as a possible revenue generator, aiming to tap into cartel profits heading south to fill their short-term budget hole.

Rob Kepple of the Texas District and County Attorneys Association told the Senate Transportation and Homeland Security Committee that, under existing Fourth Amendment jurisprudence in Texas, it's "not a viable policy" to use southbound checkpoints to "bootstrap our way" into expanded asset seizures or to check immigration status. Ouch!

The most problematic question, said Kepple is whether DPS can do its own checkpoints aimed at searching for money, guns, drugs, stolen cars, etc., as opposed to checking for drivers licenses and liability insurance? Courts look at the intent of the checkpoint, he said, and if the intent is to generate forfeiture revenue that probably won't cut it.

Under federal law, according to Kepple and other resource witnesses, after travelers pass a "point of no return" (when it's clear their intent is to leave the country), their Fourth Amendment rights are waived and authorities can search them. Beyond those points, restricted by state and federal court rulings, the Legislature has only ever authorized driver license and insurance checkpoints. Other states have also approved DWI checkpoints. But more invasive searches such as those performed at the border simply aren't allowed, according to resource witnesses (with the notable exception that Border Patrol agents have special, additional authority within 50-80 miles of the border). But outside that "point of no return," said Kepple, state law enforcement has no authority to conduct suspicion-less searches at checkpoints.

DPS already has authority to do DL/insurance checkpoints, but has never prioritized them or implemented policies to perform them, DPS chief Steve McCraw told the committee (taking some of the wind out of Chairman Williams' SB 9, scheduled to come up later in the hearing). Even if they did begin such checkpoints, said McCraw, they couldn't staff them with drug dogs, narcotics officers, etc., without violating restrictions on only using checkpoints for limited, well-defined purposes.

The District Attorney from El Paso, Jaime Esparza, said El Paso and surrounding counties have been doing DL and insurance checkpoints for years. He says DPS has even assisted local agencies in his jurisdiction at DL/insurance checkpoints, including near the bridges, but they were temporary, targeted, locally controlled, and not aimed at seizing money or guns.

A border mayor whose name I didn't catch said the provision in the bill allowing checkpoints within 250 yards of the river was unrealistic because his town and many others had major commercial centers within that zone. The "point of no return" area, by contrast, was a much more well-defined space that doesn't include people going to and from businesses, homes, etc..

Matt Simpson from the ACLUTX said the Legislature should get a chance to evaluate the proposed feasibility study before implementation in order make an informed decision, given that the scope of authority, etc., is uncertain even according to the expert testimony. That sounds to me like a terrific suggestion. Evaluate the study you're mandating before leaping into this. Simpson also suggested that the state look at the cost-benefit analysis for federal checkpoints - how much cash they receive vs. expenses, etc. - before assuming that southbound checkpoints will generate profit. Another good point.

Some of the testimony after the expert resource witnesses was pretty over the top, railing against the drug war generally instead of criticizing specific bill provisions, and about a dozen speakers in someone inevitably proved Godwin's Law. But a significant number of (very different kinds of) people showed up at 7:30 in the morning, mostly to criticize the bills.

Committee substitute language allows the feds to supervise the checkpoints, but testimony at the hearing said that was already allowed, but that the agency simply chose not to do so, understandably assigning troopers instead to cover DPS' traditional, core functions. Indeed, I'm not sure why DPS should provide staffing support for the feds: Do we really need to subsidize the feds on this when they can borrow to pay for the cost while Texas must tax?

This southbound checkpoint scheme sounds like more boondoggle than bonanza.

RELATED: More on checkpoints from Texas GOP Vote. AND MORE: From Karen Brooks at the Dallas News.


Shadowguv said...

The voters who elected Senators Hinojosa, Uresti, and Lucio should consider seriously whether these folks have the temperament and judgment to serve the people of Texas.

I don't know off hand if they supported the franchise tax reform legislation that CREATED this budget mess. What I do know is that they wish to raise revenue by seizing assets of those (almost) never charged with a crime.

Is this where we are now? Stopping ordinary citizens and taking their property without due process? Really?

This is the result of the Legislature and Rick Perry ignoring the LBB and Comptroller warnings that the franchise tax overhaul would be billions short of revenue neutral.

Balance the budget the right way. Have the guts to slash spending or raise taxes. To even consider asset seizure as a measurable revenue item is an embarrassing, frankly scary thought.

rodsmith said...

hmm could also say that if this applies!

"after travelers pass a "point of no return" (when it's clear their intent is to leave the country), their Fourth Amendment rights are waived"

If they are in an area no longer under the CONSTUTION guess they have every legal right to whip out a gun and shoot your ass if you get in their way when they are leaving!

You can't have it both way. Either they are in the country and ALL rights apply or they are NOT in your country and then you have no right to do a damn thing about them!

Paul UK said...

Hang on that "Point of no return" is generally recognised to be one which a person will soon to be enter foreign territory, such as the air side of an airport which services international flights, the bond areas of sea ports and roads on the border.

Anonymous said...

Don't worry, they will find some way to rationalize this theft. That's government for you, always helpful.

The people of Oregon, via initiative, outlawed civil forfeiture. You should have seen the pigs howl.

Shadowguv said...

Another reason why this is folly, faulty oversight:

Atlanta and Fulton County police are being sued in order to compel them to release asset seizure reports that are required by state law.

They refuse to report for 2008, 2009, and 2010, how much was seized and how it was spent. The article quotes a source as claiming that the Fulton DA used seized assets to purchase football tickets. No details were released and the organization in question refuses to comment or release the information as required by law.

This is the best we can do?

Anonymous said...

Look forward to more of this as state governments look at more ways to fund their excesses. We can't expect anyone in government to show restraint.

One of these days, the Americans who are sticking their heads in the sand will be sorry that the Constitution matters less to those who have sworn to uphold it than it does to those Americans who goose-step behind them in response to the latest government-manufactured "crisis."

Anonymous said...

“One of these days, the Americans who are sticking their heads in the sand will be sorry that the Constitution matters less to those who have sworn to uphold it than it does to those Americans who goose-step behind them in response to the latest government-manufactured "crisis."”
One of the most accurate analysis of American and Texas society I have seen to date. The way Texans let their government erode every ounce of freedom is comical. Because Texans are such blow hearts about how free they are.

Anonymous said...

Checkpoints, yet another violation of our rights. Add it to the list of gov’t violations of our right:
They violate the 1st Amendment by placing protesters in cages, banning books like “America Deceived II” and censoring the internet.
They violate the 2nd Amendment by confiscating guns.
They violate the 4th and 5th Amendment by molesting airline passengers.
They violate the entire Constitution by starting undeclared wars for foreign countries.
Impeach Obama and sweep out the Congress.
(Last link of Banned Book):

Anonymous said...

I would never set foot in Texass!