'Show me your papers, comrade': DPS vehicle checkpoints further degrade Fourth Amendment

The Texas Department of Public Safety is now conducting roadblocks in the Rio Grande Valley in  which they're checking for drivers license and insurance, looking for evidence of DWI, and running warrant checks on drivers, DPS Col. Steve McCraw informed us in a column in the McAllen Monitor (Sept. 30):

This short-term effort was conceived as a response to various criminal activities and unsafe driving behaviors identified in South Texas. For example, in 2010, 2011 and 2012, the Rio Grande Valley’s Cameron, Hidalgo and Willacy counties led the state in the number of citations DPS issued to drivers for “no driver license.” The same area is second only to the Houston area for “no insurance” citations issued by DPS during the same time period. In fact, 15 percent of all DPS-issued “no driver license” citations in the state occurred in the same three counties in the Rio Grande Valley in 2012.

Some uninformed individuals have claimed that these checkpoints are illegal — which is false. A traffic regulatory checkpoint is an authorized law enforcement strategy that has been upheld by the U.S. Supreme Court (City of Indianapolis vs. Edmond, 531 U.S. 32, 2000) and by the Texas Court of Criminal Appeals (Lujan vs. State, 331 S. W. 3d 768, 2011). DPS conducts traffic regulatory checkpoints under its general authority to enforce the laws protecting public safety.

I want to reassure the public that these traffic regulatory checkpoints are used only for the purpose of determining compliance with specific regulatory traffic statutes, including failure to display a driver license, failure to maintain financial responsibility, as well as vehicle safety and registration requirements. As with any other traffic stop, if a violation is found, a citation or warning is issued, and warrant checks are conducted. Troopers also have the authority to address obvious criminal violations; such as, driving while intoxicated.

Whether or not these checkpoints result in immigration detentions, let's not kid ourselves. These are pure "pretext stops." McCraw's first justification given for the checkpoints was a response to "various criminal activity"; the rest are excuses, not reasons. The 2011 Texas case he cites overturned a lower court opinion out of El Paso forbidding the tactic. They upheld the checkpoint even though drug-sniffing dogs were deployed to check every car.

So basically, Texas law enforcement may use license and insurance checks as a fig leaf to justify a tactic that, in my youth, was associated in the public discourse mainly with totalitarian Communist states. Growing up, I can well remember my attorney father associating this practice with Communist Russia ("Show me your papers, comrade," was a running household joke) and proudly contrasting it with the "freedoms" enjoyed in America where, he naively believed, such disgraceful abuses by government would never be allowed.

Even the Texas Court of Criminal Appeals majority in 2011 granted that "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." But how to distinguish "primary" from secondary purposes? Here, responding to "various criminal activities" was McCraw's first justification, with the license and insurance checks offered up afterward more as an excuse than a reason. But under the CCA holding, they get to do it until some federal court calls them on it.

FWIW, the US Supreme Court case cited by McCraw (City of Indianapolis v. Edmond) actually ruled against, not for, using checkpoints for general crime control purposes. In a concurrence, Justice Clarence Thomas opined, "I rather doubt that the Framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing." That's certainly my view. Checkpoints are another example where court-created exceptions to the Fourth Amendment in practice have swallowed the rule.