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.