It's Memorial Day, which means its time for illegal law enforcement checkpoints on the Guadalupe and Comal Rivers in New Braunfels and Comal County. Over the past several years, my office has filed several suppression motions in Possession of Marjuana cases dealing with illegal police checkpoints on the Guadalupe and Comal Rivers.
A "checkpoint" is a fixed place where law enforcement stops everyone, or people at random, without reasonable suspicion or probable cause to believe the person stopped is committing a crime.
The person is then subjected to to a search, inspection or questioning. Typically, the river cases go something like this: A person is floating in an inner tube on one of the rivers and has a cooler (or a tube holding a cooler) attached to his tube. A police officer, who may be standing either on the riverbank or in the river itself, informs the person that he has to stop because the cop needs to search the cooler for glass or styrofoam. This is even if the tuber, or the others in his group, have had no glass or styrofoam in their possession. Sometimes, if the cop is smarter than the average bear, instead of telling the person that the cooler will be searched, he asks "May I look in your cooler for glass or styrofoam?" while he motions the tuber over to his location. The cooler gets searched, a baggy of weed gets found, and if none one else pipes up to claim the contraband, the person attached to the cooler is on his way to jail for possession of marijuana. Law enforcement checkpoints on the Guadalupe or Comal Rivers are illegal.
Our Texas Court of Criminal Appeals has held, for over a decade now, that law enforcement checkpoints are illegal unless the Legislature authorizes the police to conduct a specific type of checkpoint. The Texas Parks and Widlife Code, for instance, permits law enforcement to randomly stop and board boats on waterways to inspect for required safety equipment. The Legislature, however, has never passed any statute that allows law enforcement to conduct checkpoints in order to search for glass or styrofoam on a river. Any contraband seized as a result of detaining someone at a river checkpoint without reasonable suspicion or probable cause can be excluded from evidence in a criminal case. If you are stopped at a river checkpoint and are charged with a crime as a result a stop and search at an illegal checkpoint, you should have your attorney consider filing a motion to suppress any evidence seized.
If a cop asks you for consent to search your cooler on the river, you can legally say "no." Happy Memorial Day tubers.