Post details: Homeland Security Agents Reveal Illegal 'Shotgunning' Practice

2008-05-26

Permalink 01:45:54, Categories: Privacy, News, Right to Travel, Homeland Security?, 1582 words   English (EU)

Homeland Security Agents Reveal Illegal 'Shotgunning' Practice

A few days after I was illegally stopped by a Homeland Security Roving Patrol late at night along SR86 in Southern Arizona, the news article appearing below was published in the Arizona Daily Star. The article discusses two Border Patrol agents who are suing the Department of Homeland Security for retaliating against them. The agents publicly revealed information regarding an often practiced but illegal enforcement technique known as 'shotgunning' by other DHS agents.

[More:]

According to the whistleblowers, 'shotgunning' occurs when agents on Roving Patrol stop vehicles absent reasonable suspicion and make up an excuse for the stop after the fact. This practice is illegal because agents are required to have reasonable suspicion BEFORE initiating a stop, not after.

Of course many of us who live within one hundred miles of the Southern border have been aware of this common intimidation tactic utilized by Homeland Security agents for years.

I was the target of just such an illegal stop on May 14th and blogged about it here. Additionally, a video of the incident is available from YouTube below:


According to the news article, the Border Patrol agents revealed the illegal practice after one of the agent's wives was targeted for just such a stop and later arrested on drug charges. The agents testified in various legal proceedings regarding the illegal practice resulting in an acquittal for the agent's wife.

Shortly thereafter, both agents were disciplined for allegedly revealing "sensitive" Border Patrol enforcement practices to the public. Given that the 'sensitive' information revealed related to illegal practices, I can see why Homeland Security didn't want the agent's talking but to brazenly discipline the agents for daring to testify at legal proceedings regarding the matter goes a long way to showing just how unaccountable & out of control this federal agency is.

The New Mexico chapter of the ACLU agreed to represent the agents in a lawsuit claiming retaliation for breaking the 'wall of silence' regarding illegal Border Patrol practices. I note that it's quite interesting the ACLU picked up the case and NOT the Border Patrol Union which normally represents agents who have been unfairly targeted for retaliation by Homeland Security.

The ACLU press release regarding the lawsuit is available here and a copy of the court complaint can be found online here.

In addition to the text of the news article appearing below, I've also included another account of 'shotgunning' experienced by a friend of mine who also happens to be a local defense attorney. The incident occurred several years ago.

The text of the news article follows this account:

Date: Tue, 24 Jun 2003
From: ---------------

I also commend and support Terry's action 100%. I have my own Border Patrol harassment story from three weeks ago that I've already shared with Terry but will share with everyone else.

------ ----- and I have some friends who were living near Three Points for a few months (I think they moved within the last few days), and we would regularly drive there on Monday nights to have dinner and play music, and we would come home to Tucson late at night.

On June 2, we left their house around midnight, and we were driving north on AZ-286 approaching the intersection with AZ-86. About a mile before the intersection, we passed a USBP SUV with the lights and engine off, and it then turned on the engine and lights and pulled onto the road behind us.

It was pretty obvious that I was going to get pulled over. I could have pulled into the Chevron & convenience store parking lot at the intersection and let him come up to the vehicle at that time. But I considered that this behavior might give the BP an unreasonable fear that I might be preparing for an armed standoff, so I drove to the stop sign, stopped, looked both ways, and made my right turn onto AZ-86.

The BP just blew through the stop sign at about 30 mph, fast enough that it was impossible for the driver to keep his vehicle on the right side of the road. By doing this, he was able to catch up to me shortly after turning onto 86. He then waited another mile before flashing the lights. I pulled safely off to the side of the road, shut off the engine, and kept my hands on the steering wheel.

The two BP agents approached the vehicle, one on the driver's side and one on the passenger's side. Both ----- and I rolled down the windows. The exchange went something like this:

DE: "Good evening."
BP: "Good evening. Where are you coming from?"
DE: "Our friends' house."
BP: "What are you doing out so late?"
DE: "Playing music and visiting friends." (the amp and one guitar
were in the uncovered bed of the truck)
BP: "It's kinda late dontcha think?"
DE: "No."
BP: "Where ya headed?"
DE: "Home. Tucson."
BP: "Mind if I search your vehicle?"
DE: "I don't consent to a search of my vehicle. I'm a criminal
defense attorney (chuckle)."
BP: (chuckles too) "Where are you coming from?"
DE: "Our friends' house."
BP: "What are their names?"
KM: starts to answer
DE: cuts off ------, "our _friends_."
BP: "mind if I bring the K9 to sniff around your vehicle."
DE: "Yes I mind because I'd like to get home. However, you have the
authority to bring the dog around without my consent, so if you want
to do that you're within your authority."
BP: "Yes I am." bring the dog around, dog finds nothing
BP: "OK you're free to go."

Reasons why I type this exchange out:

1) there is a fine line between standing up for your rights and
ensuring that you'll spend the night in a federal holding cell. I
could have simply refused to answer ANY of his questions, but it was easier on everyone if I answered a couple just to expedite the matter.

2) know the extent of the authority of law enforcement officers at a roadside stop. They may not search your vehicle without your consent, but bringing the K9 out to sniff outside is not considered a "search" for Fourth Amendment purposes.

3) not everyone who gets pulled over is an attorney. But feel free to bluff by saying "I've done work with attorneys" as you are refusing consent to a search. Gives the officers a sense that you are refusing on the basis of defending your rights, as opposed to having something to hide.

4) DON'T BE NERVOUS. They'll pick up on it and try to rattle you.

5) USE GOOD JUDGMENT.

I think everyone in Tucson should expect to go through a similar
encounter in the near future if they leave the city limits for points south/west/east. I've seen the Border Patrol buildup that Terry is describing with my own eyes, and it's pretty scary.

Now, onto the original news article:

2 whistle-blowing agents sue Patrol, alleging retaliation
By Howard Fischer
Capitol Media Services

Tucson, Arizona | Published: 05.22.2008

Two Border Patrol agents assigned to Southern Arizona are suing the agency, accusing the Tucson Sector chief of illegally retaliating against them for publicly exposing illegal practices.

The lawsuit, filed Wednesday in U.S. District Court, says Robert Gilbert suspended the law-enforcement powers of agents Juan Curbelo and William Leafstone Jr. because they publicly disclosed a Border Patrol practice of "shotgunning," which, according to the lawsuit, involves stopping vehicles without reasonable suspicion a crime has been committed.

Since August 2007, the two have been assigned to build fences along the border. And Curbelo also drew a two-month maintenance assignment, with his duties including painting guardrails, mowing grass and unclogging sewage lines.

Dove Haber, a Border Patrol agent who handles media inquiries, said Wednesday that her agency does not comment on pending litigation.
According to the lawsuit, the two agents' problems began in 2006, when Curbelo's ex-wife, Concepcion, and children were stopped by a Border Patrol agent near Rodeo, N.M. She was charged with possessing and transporting marijuana.

The suit says Curbelo and Leafstone, reviewing the arrest report, found "numerous inconsistencies that were an effort to cover up an obvious lack of reasonable suspicion" for having stopped the vehicle in the first place.

Curbelo eventually contacted the Border Patrol's inspector general to complain, not only about the "shotgunning" but also other concerns about how his ex-wife's arrest was handled, concerns Leafstone also shared with that office.

Leafstone also agreed to testify at a hearing on behalf of Curbelo's ex-wife. The judge concluded the traffic stop was illegal and the charges against her eventually were dismissed. Within days of that hearing, the lawsuit says, Gilbert directed both to turn in their badges and firearms because the agents had "divulged sensitive Border Patrol information."

The suit, filed on their behalf by the American Civil Liberties Union, contends the officers were punished for exercising their First Amendment free-speech rights, in particular the right of Leaf-stone to testify in a legal proceeding. It seeks a court order returning the men to their full job positions and responsibilities.

"It's our contention that the Border Patrol is punishing these officers for breaking the agency's 'code of silence' and shedding light on a practice that brazenly violates the privacy rights of motorists," Peter Simonson, executive director of the ACLU of New Mexico, said in a prepared statement.

"Rather than being suspended from their jobs, Agents Curbelo and Leafstone should be congratulated for taking a principled stand, knowing full well that it might not sit well with some of their fellow officers," he said.

Comments:

Comment from: Matt [Visitor]
I was just wondering if you had seen this video of the Modesto PD's 'sobriety checkpoints'.

http://www.youtube.com/watch?v=xAwZ-HvM4WU

What's interesting is at around 1:40, the officer introduces himself in an almost incoherent sentence that includes the words 'driver's license'. I'm not sure if he actually asked for it but the driver nevertheless produces it promptly. My question has always been whether or not they have the authority to demand your driver's license and registration at these checkpoints absent probable cause and routinely from each driver. I've never been stopped at one of these checkpoints but I would like to have a plan for my first time. As of now, my plan is to not give it unless the officer specifically mentions it in scope of the checkpoint. Have there been any SCOTUS rulings on this?
Permalink 2008-05-26 @ 22:19
Comment from: Checkpoint USA [Member]
For a good overview on SCOTUS cases associated with checkpoints, checkout:

http://www.roadblock.org/federal/casefed.htm

To my knowledge, the only suspicionless checkpoints SCOTUS has specifically carved out a 4th Amendment loophole for are sobriety checkpoints & permanent immigration checkpoints located at nexus points for border traffic within 100 miles of an international border.

SCOTUS specifically struck down drug checkpoints in City of Indianapolis v. Edmund. The court has also indicated it would consider creating another 4th Amendment loophole for license/registration checkpoints under limited conditions if such a case came before them. As of yet however, no such case has so it's never been ruled on.

If you want to read more about some of the legal issues involved with such a case, I currently have one in the 9th circuit that partially addresses this issue. You can read the opening brief here:

Also, checkout my page on suspicionless checkpoints for a list of States that don't allow sobriety checkpoints within their borders (this may apply to documentation checks as well) along with information on how to procure copies of Checkpoint Guidelines in States that do allow suspicionless checkpoints.
Permalink 2008-05-31 @ 20:48
Comment from: MIke [Visitor]
In researching this a bit further, It turns out the Supreme Court has already clarified that the Boarder Patrol *can* conduct brief, suspicion-less detainments well inside the US to determine citizenship. The case UNITED STATES V. MARTINEZ-FUERTE was heard in 1976 (apparently they've been doing this for some time). (http://supreme.justia.com/us/428/543/). The only thing the don't cover is roving checkpoints. If the checkpoint is 'fixed' and searches are not performed, they need no warrant, so says the SCOTUS.
Permalink 2008-06-06 @ 16:08
Comment from: Checkpoint USA [Member]
"In researching this a bit further, It turns out the Supreme Court has already clarified that the Boarder Patrol *can* conduct brief, suspicion-less detainments well inside the US to determine citizenship. The case UNITED STATES V. MARTINEZ-FUERTE was heard in 1976 (apparently they've been doing this for some time). (http://supreme.justia.com/us/428/543/). The only thing the don't cover is roving checkpoints. If the checkpoint is 'fixed' and searches are not performed, they need no warrant, so says the SCOTUS."

Actually, in Martinez-Fuerte, SCOTUS ONLY considered the case of permanent checkpoints:

"Our prior cases have limited significantly the reach of this congressional authorization, requiring probable cause for any vehicle search in the interior and reasonable suspicion for inquiry stops by roving patrols. Our holding today, approving routine stops for brief questioning is confined to permanent checkpoints. We understand, of course, that neither longstanding congressional authorization nor widely prevailing practice justifies a constitutional violation".

Permanent checkpoints are those that have permanent structures, are located at nexus points for traffic originating at the border and are well known in local communities.

The checkpoint depicted in my videos is classified as a 'temporary' or 'tactical' checkpoints and is located along a secondary route consisting primarily of domestic traffic - not border traffic.

As such, the ruling in Martinez-Fuerte does not apply to this checkpoint. Apples and oranges.

Further, the court only approved permanent checkpoints for the sole purpose of brief stops to make an immigration query. The court considered any expansion of the scope of the checkpoint to be impermissible:

"The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop."


"...We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search....And our holding today is limited to the type of stops described in this opinion (permanent checkpoint stops - not temporary checkpoints). -[A]ny further detention. . . must be based on consent or probable cause.' (U.S. vs. Brignoni-Ponce)"

Given that the Border Patrol is not shy about admitting these temporary checkpoints are used to look for terrorists, weapons, and illegal drugs, it's clear the scope of the checkpoint depicted in my videos clearly exceeds the scope of any checkpoint ever approved by SCOTUS.

Additionally, SCOTUS used the lack of Border Patrol resources in 1976 as an excuse to justify permanent checkpoints. In 1976, there were only about 1,500 Border Patrol agents across the country. Today, there are over 3,000 agents in the Tucson sector alone which only covers 280 miles of border. As such, the conditions that existed in 1976 which prompted the Martinez-Fuerte ruling are no longer applicable today.
Permalink 2008-06-10 @ 00:22
Comment from: Randy [Visitor]
These check points are a good thing, Keep illegal activity out of our Country. I would glady stop at one of these. I am fed up with all the Drugs coming over our border. Around 75 or 80% of all meth and herion comes over our Southern border. We have to do what we can to stop this. Too many of our teenagers are being infested with these drugs how else I would ask will we fight against this ?
Permalink 2008-06-12 @ 17:53
Comment from: rudya [Visitor]
Hey Randy [Visitor]
Our founding fathers fought way to hard for our rights for us to just give them up so easily for a perceived threat. Those who fight this sort of abuse are true patriots. Those who meekly submit are sheep. Benjamin Franklin wrote: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Those words are so true.
Permalink 2008-06-16 @ 20:03
Comment from: IBMMuseum [Visitor]
I was "shotgunned" last night, the third U.S. Border Patrol vehicle stop I have experienced in the last ten months. The agent's opening question was for me to make a statement of citizenship, which I answered with a query to why I was stopped. His second question was "What?". My response was that he had to have reasonable suspicion to stop me.

He then told me (oh joy, because I drive a white van) that my vehicle "matched the description" of a "bolo" they were looking for. I told him that I knew that was a common "shotgunning" tactic used to go further on a fishing trip of questions. Under further talk the agent admitted that descriptions of such "bolos" were suitably generic as to cover many vehicles.

The agent asked if I was from the area, a question I deflected to say he was exceeding his jusidiction. He also asked if the vehicle was registered to me, but I did confirm that question. At no point did I declare my citizenship, and he stated at one point it was obvious I am a U.S. citizen.

The irony was that the stop occured as I was travelling to my military Reserve duty...

I asked and received the agents' names and a phone number for their office...

Sorry, I have no resources to record a YouTube video of the three vehicle stops I have been subject to...

Oh, I do have a reply for "Randy" (I would gladly stop at one of these..."): You pitiful sell-out...
Permalink 2008-06-21 @ 20:41
Comment from: vince Pipard [Visitor]
94 Freeway Fascism - Border Patrol Checkpoint harasses Americans

America is sliding towards being a third world police state. Americans need to wake up to this danger and to fight back to protect whatever Civil Liberties we have left after 8 years of assaults by the Bush Administration.
The US Border Patrol, in my opinion, are fascist Un-American agents of an emerging Police State who pull over and harass, not just Mexicans, but also US Citizens at their Totalitarian-style Checkpoints.
I should know as I was pulled over and illegally searched by these Border Patrol Traitor Scum on Saturday (9/27/08), at their checkpoint on San Diego freeway 94 east of Jamul.

I am not a "profile" type of suspect for these cops. I am a "white guy" - my family has been in America since 1700. I was stopped and harassed nonetheless as the emerging American police state we live in is gradually expanding and touching more people's lives. As I was sitting in Detention on the side of an American Highway I began, in my mind, to update the words of WWII Minister Martin Neimoller, as I thought that "first they will come for the" immigrants and then "they will come for me", the Native Born United States Citizen.

What I experienced is that San Diego assigned Border Patrol Officers Villalobos, Ward, Kennedy, and a dumpy short blonde female are illegally (in my opinion), popping open people's car trunks on freeway 94 by scaring and bullying people into giving "Consent" to search the vehicles. These Officers gave me and other Motorists an offer we could not refuse at their checkpoint stop. Either give "consent" for them to search our cars and trunks or else we are pulled over to the side of the freeway where we have to sit on a bench and be stared at and humiliated in front of all of the other motorists passing by.

I innocently gave the first officer who was manning the actual booth, my wife and my passports, cooperated with him more than he deserved by telling him I had been in Mexico buying floor tile; however, when he then asked me to "give consent" to him to search my trunk I went "huh!!" and then the full impact of the stop hit me fast! I quickly shot back at him that I already went through Immigration at Tecate and that I was not going to open anything for him. He repeated his question a few more time and then asked me to pull over to the side of the road; whereupon three other officers descended on my car, ordering me out of the car and to step away from the car and to sit on a bench. The other three officers each asked me to give consent to search my trunk and I repeatedly told them no, that I am a paid up member of the ACLU and that I am refusing to give consent to search my trunk voluntarily as a matter of principle.

Subsequently, the lead officer said that either I gave consent or he would bring out his "dogs' to smell my car, and I told him that he still did not have consent to open my trunk. By this point the officer's demeanor showed that he appeared "hellbent" on getting into my trunk one way or another.

Officers Ward, Kennedy and Villalobos then brought out their Phony Scam "Sniffing Dogs" who ran around my car and then barked & sort of leapt up a few times while running around the car; whereupon the lead officer then declared that he now had the legal right to forcibly open my trunk, and demanded that I give him my car key, and so I involuntarily complied.
The officer then searched my car as well as my trunk and undercarriage for about 10 minutes and of course found nothing of interest, as I all I had in my trunk was a spare tire and a box of floor tile.
I don't know if the Border Patrol either got ripped off by whomever sold them the dog, or if the whole dog-sniffing thing is an actual scam where the dog barks at every car so the Border Patrol can pretend they have probable cause to search in every case, or lastly, and more likely, that the dog did not "signal" anything at all by his "bark", and the officer was probably full of shit.

In my case these agents also took my Passport, (which I had on me), and my California Drivers License and went inside and made photocopies of all of it to keep for their files. The officer in charge even sent the blond female officer back inside with loud orders to copy all of the pages in my Passport. (Was this to somehow scare or intimidate me?) They then returned our IDs and Passports and gave me my keys back and told us nonchalantly that we could now leave.
During the 30 minutes of our Detention I argued with the lead agent, I think he was Officer Ward, over what he was doing and we bantered back and forth about the 4th Amendment on Search and Seizure law, with him claiming that he took 7 classes in Criminal Law in College. Apparently he must have been forgotten to take a class in Civil Liberties and Constitutional Law.

Also, In the midst of this My wife then began taking pictures of the four Agents while we were sitting on the Bench and it totally freaked them out, with them running over yelling to stop taking pictures.

In summary, this is the kind of thing that happens in old B-rated Nazis movies where fat-faced fascists bark out "Papers Please" to scared citizens. It is crystal clear to me now that the Border Patrol needs to be driven off of America's Highways and Neighborhoods by the Citizenry as they are a Clear and Present Danger to all of our Civil Liberties.

I found out later by searching the Internet that Citizens do not have to give ID to them and that I did not actually have to even talk to them, so I apparently went way overboard in giving them my passport and drivers license and chatting with them about where I had been and where I was going. From now on it will be their problem to figure out my nationality as I am only going to say, "Am I being Detained" and "Am I free to go", and I suggest all of you readers stand up for freedom and do the same and not even roll down the window when stopped by these fascist scum.

We are losing our Country, not to Undocumented Immigrants, (who are the ones actually building and saving this Nation in every measure). but to a creeping Police State that is chipping away at our Liberty a little at a time, conditioning us to live in a Totalitarian State.

============================
If would powerful to see a picket line along the side of the 94 freeway some weekend afternoon with flyers and signs informing people that they do not have to give consent for their cars to be searched or for their trunks to be opened and that the Checkpoints are an anathema to a free society.

next time I will follow the advice on the web links below:

http://www.liveleak.com/view?i=133_1210305250&p=1
http://www.youtube.com/watch?v=UrFRObbSDDo
Permalink 2008-10-01 @ 20:29

Comments are closed for this post.

Roadblock Revelations

Welcome to Checkpoint USA's blog. Here you'll find general information and discussions regarding growing threats to our right to privacy & travel.

While I refer to court cases along with state and federal law frequently in this blog, nothing written here should be construed as legal advice. I am not an attorney. Rather, I'm someone concerned about the growing disregard for individual rights present at all levels of government.

My conclusions are my own based upon personal experience and research. The law is made purposely complex however and varies significantly from place to place and circumstance to circumstance.

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