Baptist pastor beaten + tazed by Border patrol . Marc Victor is representing Steve Anderson in this case of Government gone bad....if it was ever good to begin with of course.
YouTube videos about the case:
(Below is the motion to dismiss)
STATE OF ARIZONA,
MOTION TO DISMISS WITH PREJUDICE
COMES NOW, Defendant Steven Anderson, by and through undersigned counsel, and moves this Court to dismiss the charges against him with prejudice as they were the result of an illegal seizure of his person in violation of the Fourth Amendment to the United States. This Motion is supported by the accompanying Memorandum of Points and Authorities.
RESPECTFULLY SUBMITTED this ____ day of June, 2009.
MARC J. VICTOR, P.C.
Marc J. Victor
Attorney for Defendant
MEMORANDUM OF POINTS AND AUTHORITIES
On April 14, 2009, at approximately 9:50 p.m., defendant Steven Anderson (hereinafter “Mr. Anderson”) was driving eastbound on Interstate 8 near milepost 78 in Yuma County, Arizona. Mr. Anderson was driving a maroon 4-door Hyundai sedan. Mr. Anderson approached a Border Patrol checkpoint on Interstate 8 where there were signs, lights, temporary buildings, multiple marked Border Patrol vehicles, and numerous uniformed Border Patrol agents.
Mr. Anderson slowed as he approached the place to stop, where Border Patrol Agent Gomez was standing. As Mr. Anderson was creeping to the stop, he passed Border Patrol Agent Spoonamore who was standing close to the traffic lane with a Border Patrol K-9. According to Agent Spoonamore, the K-9 “alerted” to Mr. Anderson’s car so he signaled Agent Gomez to send Mr. Anderson to a secondary inspection area.
When Mr. Anderson stopped next to Agent Gomez, Mr. Anderson rolled his driver window down slightly and Agent Gomez asked “are you a U.S. citizen?” Mr. Anderson replied “May I go, am I free to leave?” Agent Gomez then directed Mr. Anderson to the secondary inspection area. When Mr. Anderson questioned this direction, he was told that he was being directed to the secondary inspection area because the K-9 had alerted to his car and it was trained to alert to “concealed humans and narcotics.” Mr. Anderson questioned whether the K-9 did in fact alert to his car and stated to the Border Patrol agents that he had a right to drive down the highway without being stopped.
The Border Patrol agents refused to allow Mr. Anderson to proceed and repeatedly directed him to the secondary inspection area. Mr. Anderson refused to go to the secondary inspection area and stayed in his car where he was initially stopped. Border Patrol agents diverted all traffic on Interstate 8 through the other inspection lane that was in operation and called Arizona DPS.
Arizona DPS Officers Jones and Mitchell arrived in about 45 minutes and each asked Mr. Anderson to proceed to the secondary inspection area. Mr. Anderson again refused. This entire time, Mr. Anderson was sitting in his locked car, was non-violent, and was videotaping the encounter.
DPS Officer Jones contacted his supervisor who instructed Officer Jones to break the car windows and use a chemical irritant spray to incapacitate Mr. Anderson while he was extracted from the car. DPS Officers Jones and Mitchell decided instead to deploy a Taser to incapacitate Mr. Anderson rather than the directed chemical irritant spray. Officer Mitchell used a small hammer to make a hole in Mr. Anderson’s car’s front passenger window, stuck the Taser through the hole, and shot Mr. Anderson with the Taser. Border Patrol Agent Spoonamore smashed out the front driver window with an expandable metal baton, allowing access to the driver door lock. Mr. Anderson was extracted from the car and handcuffed, suffering facial lacerations from the flying glass and glass on the ground where he was forced to lie for handcuffing.
Mr. Anderson was charged, via Complaint, with one count of Obstructing a Highway and one count of Resisting Order Directing, Regulating, Controlling Motor Vehicle.
Through discovery and Rule 15 interviews, it is clear that no Border Patrol agent or supervisor at the checkpoint was aware of any written policies, procedures, or guidelines for operating the checkpoint. In addition, it was clear that cars were diverted to the secondary inspection area for no reason other than the K-9 handler signaling to the primary inspection agent that the K-9 had alerted to a car.
The K-9 agent, Agent Spoonamore, stated his K-9 was trained to detect “concealed humans and certain narcotics,” but was unable to describe how his K-9 could tell the difference between “concealed humans” and “unconcealed humans.” In addition, Agent Spoonamore stated there was no difference in a K-9 alert for human scent and the scent of narcotics.
No agent could state what violation of law Mr. Anderson committed by refusing to proceed to the secondary inspection area.
LAW AND ARGUMENT:
While border checkpoints away from the actual border with another country are permitted, their scope is limited to brief questions to verify a right to be in the country. General crime checkpoints, such as checkpoints set up to interdict narcotics, are not permitted. While the checkpoint Mr. Anderson encountered looked like a border checkpoint, the manner in which it was run, coupled with the lack of written policies or procedures and unfettered discretion of agents at the checkpoint, effectively turned it into a prohibited general crime checkpoint.
The Fourth Amendment to the United States Constitution guarantees people to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A seizure occurred here when Mr. Anderson was stopped at the checkpoint. United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976) (“checkpoint stops are seizures within the meaning of the Fourth Amendment.”), and see Michigan Department of State Police v. Sitz, 496 U.S. 444, 450 (1990) (“a Fourth Amendment seizure occurs when a vehicle is stopped at a checkpoint.”).
The Supreme Court has, however, held that a brief detention at a border checkpoint during which all is required is a response to a brief question or two, and possibly the production of a document, is not an unreasonable seizure. Martinez-Fuerte, 428 U.S. at 557-558.
In this case, the stop of Mr. Anderson did not involve just a brief question or two. In fact, his car was subjected to a K-9 inspection for narcotics before any stop was made or questions could be asked.
Limitations on Border Checkpoints.
The Supreme Court dealt comprehensively with border checkpoints in Martinez-Fuerte. In that case, the defendants challenged the constitutionality of checkpoints for illegal aliens away from the actual border. The Court upheld the checkpoint, but only because of its limited scope, lack of discretionary enforcement activity, and limited intrusion.
The permissible scope of a border checkpoint is limited to “a brief question or two and possibly the production of a document,” and a visual inspection “limited to what can be seen without a search.” Id. at 558.
Here, Mr. Anderson was required to drive close to a K-9 that sniffed his car. Before Mr. Anderson arrived at the primary inspection area, where Agent Gomez asked if he was a U.S. citizen, Agent Spoonamore had already made the decision to have Mr. Anderson sent to secondary inspection based solely on the K-9 alert. The K-9 was trained to alert to “concealed humans and certain narcotics.” Since Agent Spoonamore could not discern the difference between an alert for “concealed humans” and “unconcealed humans,” and the K-9 did not alert to every car (all driven by humans), the alert must have been for narcotics.
Since Mr. Anderson was required to slow while he drove by a K-9 sniffing for narcotics, the scope of this checkpoint exceeded that allowed by Martinez-Fuerte.
The discretionary activity in this case went far beyond that approved in Martinez-Fuerte.
Border checkpoints away from the actual border are allowed because they “both appear to and actually involve less discretionary enforcement activity.” Id. at 559. The discretionary activity that does occur is subject to post-stop judicial review for unreasonableness. Id.
In this case, interviews with the Border Patrol agents, the acting checkpoint supervisor, and the field operations supervisor (who happened to be at the checkpoint when Mr. Anderson arrived) revealed that none of them had knowledge of or had ever seen written policies, procedures, or guidelines for operating the checkpoint. Agent Spoonamore stated he had complete discretion as to when to deploy his K-9, when to take a break, and which vehicles in either of the two lanes to have his K-9 sniff prior to the primary inspection stop. Agent Gomez, the agent at the primary inspection stop, stated his job was to verify citizenship but could give no answer when asked what he was to do if the vehicle occupants denied citizenship. Agent Gomez stated he only sent cars to the secondary inspection area when Agent Spoonamore, or another K-9 handler, signaled him that there was a K-9 alert.
This checkpoint was run with no administrative direction known to the agents running it. No agent had any knowledge of written procedures. Complete unfettered discretion was in the hands of Agent Spoonamore and his K-9 to send vehicles for secondary inspection. This was not limited discretionary enforcement activity as approved in Martinez-Fuerte.
The intrusion in this case exceeds that allowed by Martinez-Fuerte.
In Martinez-Fuerte, the defendants argued that the checkpoint was overly intrusive because some cars were sent to secondary inspection. Id. at 560. The Court disagreed because “Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy.” Id.
Here, Mr. Anderson was not directed to secondary inspection for a limited inquiry into residence. In fact, the decision to send him to secondary inspection was made before he ever stopped at the primary inspection area for Agent Gomez to ask if he was a U.S. citizen.
The Supreme Court allows border checkpoints because of the limited nature of inquiry for residence status. This case involves far more intrusion than a question or two, it involved to forced submission to a K-9 inspection before the first question could even be asked and it therefore exceeded the intrusion allowed at border checkpoints.
Why Mr. Anderson was Actually Referred to Secondary Inspection.
Mr. Anderson was actually sent to secondary inspection because the K-9 alerted to the perceived presence of narcotics in Mr. Anderson’s car.
Border Patrol Agent Spoonamore stated that his K-9 alerts to the scent of “concealed humans and certain narcotics.” Agent Spoonamore also stated that he cannot tell the difference between his K-9 alerts, so he cannot tell what the K-9 is alerting to. Further, Agent Spoonamore was unable to say how his K-9 can distinguish between “concealed humans” and “unconcealed humans.” Common sense tells us that a person sitting up in a seat smells the same as he would lying down on a seat covered by a blanket. In other words, to suggest that a human’s scent changes when he conceals himself is ludicrous. Certainly, if all known occupants exit a car and the K-9 alerts to the trunk, it is reasonable to believe that he has alerted to a concealed human, but that is only because all known humans are out of the car.
Here, Agent Spoonamore’s K-9 alerted to Mr. Anderson’s car, but did not alert to every car driven by. The K-9 must have detected something about Mr. Anderson’s car that was different than every other car. Since the only other substances the K-9 is trained to alert to are certain narcotics, the K-9 must have been alerting to narcotics.
Since cars were only referred for secondary inspection for a K-9 alert, and the K-9 must be alerting to the odor of narcotics, this checkpoint was effectively turned into a narcotics detection checkpoint.
Narcotic Detection Checkpoints are Illegal General Crime Checkpoints.
While some types of checkpoints are allowed, the Supreme Court has held that narcotics checkpoints, being general crime checkpoints, violate the Fourth Amendment. City of Indianapolis v. Edmund, 531 U.S. 32, 48 (2000).
In Edmund, the City of Indianapolis set up checkpoints in high drug trafficking areas, stopped motorists to ask for a driver license and look in their car, and have a narcotics detection K-9 walk around the vehicle. Id. at 35. The Court found that the primary purpose of the checkpoints were to “advance the general interest in crime control,” and declined to suspend “the usual requirement of individualized suspicion where police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes.” Id. at 44. Emphasizing its holding, the Court held that “Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.” Id at 42.
Here, since the K-9 alerts to some vehicles but not others, it must be a narcotics alert. Since the reason Mr. Anderson was directed to secondary inspection was the K-9 alert, this checkpoint was effectively an illegal narcotics checkpoint.
The Border Patrol had set up what was ostensibly a legal border checkpoint. Looking further, however, revealed that it was run without direction, policies, procedures, or guidelines. Decisions were left to the complete unfettered discretion of agents who did not even know if there were written policies, procedures, or guidelines. Agent Gomez, the agent who first speaks with motorists, stated that the only time he referred vehicles to secondary inspection was at the direction of a K-9 handler. The K-9s could not possibly detect a concealed person vis-à-vis an unconcealed person, so they must be alerting to narcotics. Referral to secondary inspection, a procedure that is supposed to be limited to verifying residency, was turned into an area for a search for narcotics.
Narcotic checkpoints are prohibited as general crime checkpoints and are a violation of the Fourth Amendment. Mr. Anderson’s Fourth Amendment right to be free from unreasonable searches and seizures was violated and his detention and subsequent arrest were illegal.
The defendant moves that the Court find that his Fourth Amendment rights were violated resulting in an illegal seizure of his person. The defendant further moves that the fruits of that seizure, the criminal charges he faces, be dismissed with prejudice.
RESPECTFULLY SUBMITTED this ____ day of June, 2009.
MARC J. VICTOR, P.C.
Marc J. Victor
Attorney for Defendant
Original mailed to the Court, and a
copy mailed June ___ , 2009, to:
William Katz, esq.
Yuma County Attorney’s Office
250 W. 2nd St., Suite G
Yuma, Arizona 85364
Attorneys for Plaintiff
 After Mr. Anderson was arrested, his car was thoroughly searched and no narcotics were found.