Texas Highway Searches: Not Always By Consent To Search

About ten years ago Texas state troopers began “consent” searches of automobiles stopped for traffic offenses. This practice spread throughout the state, but originated in my part of the state, near my law office in far west Texas, on Interstates 10, 20, and 40, as well as some of the other major highways throughout Texas. There is a trooper on IH 10 near Sonora, Texas who “profiled” drivers and who began to stop cars for speeding or other traffic offenses while looking for large amounts of drugs and money. He got a few big busts, and then other troopers started doing the same thing. Governor Perry and the Texas legislature had about the same time created some local “drug task force” units funded to “interdict” drugs and money on Texas highways. Then , post 9/11, fewer smugglers took the plane and most switched to cars, driving from Florida to California with their illegal loads. When they got caught by the Texas troopers, there was much publicity for the arresting officers and the vehicles and money obtained by the search were split between the locals and the state. This resulted in shiny new cars for the cops and more salaries and expense money for the DA’s offices and their staffs.

The result of all this has been the arrest of hundreds of college students and other young people for small amounts of marijuana and small quantities of drugs from ecstasy to cocaine, and lately, methamphetamine. In Texas, these are misdemeanors or “state jail” felonies, calling for automatic probation or incarceration in short term prisons, called “state jail facilities.” In my experience, very few of these stops result in seizures of major amounts of drugs or even marijuana. But it has resulted in arrest and conviction records for young people and in the erosion of constitutional rights against search and seizure. In fact, these searches have become so much a part of the highway landscape that I occasionally observe these searches while traveling. There is even a website by former Texas narcotics officer Barry Cooper devoted to those wanting to avoid these stops.

The stops usually go down like this: The Texas Department of Public Safety troopers would ask the (usually young)driver if they had any drugs in the car. The request is in the form of a statement beginning with…”it is part of my duties to intersect the movement of narcotics and money derived from narcotics…Do you have any drugs on you? Do you mind if I search your car?” Many drivers say yes, not realizing they have a right to refuse. Often the troopers would suggest that “drug dogs” would be brought in to search the car. It has become so common that people have told me their sons or daughters have been subjected to searches of their cars after being stopped for speeding on US 84 between Lubbock and I-20. Many Texas Tech students travel that highway going back to their homes in the metroplex. Such searches are often not consensual, and are coerced. Don’t agree to have your car searched, even if you have nothing illegal in the car!

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