As previously indicated, the state charge against me for honking my horn at a federal Border Patrol checkpoint setup along a state highway inside the country while being illegally detained in the lane of traffic by federal agents has been dismissed in Pima County Justice Court after an hour-long hearing on July 11, 2014.
As part of my testimony during the hearing, I read from a fourteen page written statement along with ten supporting exhibits. That statement and the exhibits have been re-created below. Additionally, I've requested a copy of the audio record of the hearing from the court and will post it once it becomes available. I'm also planning on uploading video footage of the encounter in the near future.
Below appears the text of the written statement I read in court along with applicable links. For those who follow the checkpoint issue closely, you'll probably find several of the exhibits I presented in court interesting. These would include recent ACLU complaints and a FOIA lawsuit regarding internal Border Patrol checkpoints, information regarding Operation Stonegarden where local cops collect overtime pay for assisting Border Patrol agents in the field and a recent Border Patrol law bulletin informing agents they can't legally detain people for not answering questions or because they don't like their attitude.
Please note that on May 12th, 2014, I submitted a public records request to the Pima County Sheriff's Dept seeking all documentation the department has regarding its participation in the Operation Stonegarden federal grant program along with deputy Avila's participation in the program (see exhibit #10). This documentation request also included deputy Avila's incident report associated with this case. Indeed, all of the documentation requested by me is related to this case. Nearly two months later, my public records request has gone unanswered. Under the state open record's law, such a failure to respond to a public records request and fulfill it in a timely manner represents a violation of state law at Title 39-121 & in this case has interfered with my ability to properly prepare for this hearing.
I have routinely traveled along the SR-86 corridor since 1993 while going to and from my work site no where near the border. Since its inception in 2008, I estimate I have been seized & detained absent individualized suspicion by CBP agents at the roadblock approximately 350 times while traveling from work.
"It is agreed that checkpoint stops are 'seizures' within the meaning of the 4th Amendment"- United States v. Martinez-Fuerte - 428 U.S. 543
During these seizures, I routinely exercise my right to not answer investigatory questions while being interrogated by CBP agents manning the roadblock. I also record these detentions & interrogations to create a record of the compelled interactions:
“The Supreme Court has repeatedly held that refusal to answer law enforcement questions cannot form the basis of reasonable suspicion. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ("We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.")- U.S. v. Santos 403 F.3d 1120 (2005)
The exercise of my rights in this manner has resulted in me becoming well known at this roadblock. It has also resulted in me being the target of harassment by some CBP agents on a recurring basis. In recent years, the harassment has expanded to include not just Border Patrol agents but also officers & deputies from local law enforcement agencies such as the Tohono O'odham Police Dept. and the Pima County Sheriff's Dept. who work with Border Patrol agents in an attempt to compel individuals seized at the roadblock to cooperate with agents when they have no legal obligation to do so. Oftentimes this results in local law enforcement personnel finding questionable reasons to cite travelers with dubious applications of state law to compel individuals to identify themselves to federal agents who don't have the authority to compel identification otherwise & to harass individuals for exercising their rights while being seized by federal agents at the roadblock.
In the past few years, I've been cited in just such a manner on three separate occasions with this one being the third. The previous two cases (case #TR09-001179 & TR13-050961) were adjudicated on April 10, 2009 and July 1, 2013 respectively. During these prior incidents, I was similarly detained by CBP agents in the lane of traffic at this same roadblock. Then as now, CBP agents sought the assistance of local law enforcement to harass me by requesting that they find a reason to cite me while detaining me in the lane of traffic against my will. Shortly thereafter in both cases, I was charged with impeding the flow of traffic under 28-704(A) by TOPD Officer Carrasco in the first case and stopping unnecessarily in the lane of traffic under ARS 28-871(A) by deputy Audetat with the PCSD in the second. Both cases were dismissed by the presiding judge or hearing officer. The alleged violation currently before this court is based on a similar set of circumstances & represents a continuation of the harassment I've been subjected to at this federal roadblock while just trying to drive home from work unmolested since January of 2008.
"We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens...& at a sobriety checkpoint aimed at removing drunk drivers from the road...In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing."- City of Indianapolis v Edmond
Additionally, SCOTUS has ruled that because every roadblock stop represents a 4th amendment seizure & roadblock stops are suspionless at their inception, such stops must be limited in scope, limited in duration, minimally intrusive & individual officers and/or agents must be limited in their discretion with any further detention or searching after the initial stop based on consent or probable cause.
The Tucson Sector Border Patrol has been coming under fire lately for operating their internal roadblocks & roving patrols in a fashion that does not comport to the limitations imposed on such operations by the courts. This has recently resulted in three formal complaints from the ACLU of Southern Arizona along with one lawsuit against the Border Patrol (see exhibit #4 [part a, part b, part c & part d]). The circumstances surrounding this citation in which deputy Avila and the Border Patrol worked closely together during my detention and subsequent citation provides more evidence that the Border Patrol is operating their roadblocks illegally.
In addition to Deputy Avila's participation in the Operation Stonegarden program, he was being paid overtime from the federal grant program in order to deploy at the roadblock. Under the terms of the federal grant, Deputy Avila's deployment at the federal roadblock had to be pre-approved by the Border Patrol making his deployment a joint task force operation in which general crime control played a primary role:
“All overtime deployments must be pre-coordinated with the Border Patrol in order for your agency to be eligible for reimbursement.”- Operation Stonegarden Grant Program Award Letter, Exhibit #2
220;What is the role of the Customs & Border Protection (CBP)/Border Patrol (BP) in OPSG?
Border Patrol is the lead agency for operations under the Operation Stonegarden program. Consistent with grant guidance, OPSG funded activities & equipment shall support the Border Patrol mission. All OPSG activities must be pre-coordinated with your local Border Patrol Station OPSG Coordinator.” - Arizona Department of Homeland Security Operation Stonegarden (OPSG) Grant Program FAQ, Exhibit #3
After stopping at the roadblock, the agent at primary merely stared at me for several seconds without saying a word. I asked the agent his name since most of his name tag was obscured behind a vest with only his first initial, J, visible. The agent then stated his last name (Tackett). Agent J. Tackett then questioned me regarding my citizenship. When I didn't respond, the agent stated my last name making it clear he already knew who I was. When I asked Agent Tackett for his first name, he stated he was the one asking the questions, not me. When I indicated I was also asking questions, Tackett became angry, picked up a spike strip & placed it in front of my vehicle (see exhibit #1, photo #3). Tackett then indicated I was being detained despite already knowing who I was & having no probable cause to justify a detention. Existing case law and Border Patrol legal guidance makes it clear such detentions are illegal. In fact, a CBP Law Bulletin issued in 2012 stated agents cannot legally extend a detention at a roadblock merely because someone refuses to answer questions or because an agent doesn't like their attitude:
“A subject's 'bad attitude' or refusal to answer questions, without more, does not constitute 'reasonable suspicion' & does not justify 'detention'.”- 2012 Law Bulletin For Border Patrol Agents, Exhibit #5
Even more compelling, U.S. Supreme Court case from 1976 makes it clear that agents need consent or probable cause to extend the initial detention at roadblocks:
"...We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search....& our holding today is limited to the type of stops described in this opinion. -'[A]ny further detention...must be based on consent or probable cause.'”- U.S. V Martinez-Fuerte (1976)
After Agent Tackett created an unsafe condition on the roadway by placing a spike strip in front of my vehicle & illegally extending the detention, I honked my horn in order to warn other motorists of the unsafe conditions created by Agent Tackett & to get the attention of his supervisor who was sitting underneath a canopy on the south side of the road. When not setup correctly, roadblocks can pose a significant safety risk to the traveling public since they directly interfere with the natural flow of traffic. Drivers who either aren't expecting a roadblock in the area or aren't paying attention, can easily cause an accident by slamming into vehicles stopped at the roadblock. When agents like Tackett further hold up traffic by illegally extending detentions in the lane of traffic, the danger to motorists is increased. In fact, just such an incident occurred at a roadblock I was stopped at several years ago within one mile of the location of the current CBP roadblock:
“But in this case, while Bressi was at the front of the line speaking with officers for only a minute, an accident occurred toward the back of the line.”- Exhibit #6, Plaintiff's Motion For Summary Judgment, Case #CIV 04-264 TUC-AWT
A quick google search online also reveals that accidents occur across the country due to suspionless roadblocks setup along highways (see exhibit #7).
When I asked Agent Tackett if he was detaining me, he answered in the affirmative. At the same time, supervisory agent G. Serrano walked over to the driver side door of my vehicle (see exhibit #1, photo #4) while another agent began running to Deputy Avila's patrol car (see exhibit #1, photo #5).
I asked Agent Serrano why his subordinate was detaining me in the lane of traffic. The supervisor indicated I was being detained for not answering their questions – this despite CBP policy that prohibits detention for failing to answer questions. Agent Serrano then walked to the back of my vehicle & began talking on his radio. Given that I was being illegally detained in the lane of traffic & unable to move due to the spike strip placed in front of my vehicle, I honked the horn again to warn other motorists of the unsafe conditions that still existed in the roadway, to protest the detention & to get the attention of Deputy Avila so he could put a stop to the Border Patrol's unsafe, illegal activity.
It should be noted that the statute I was eventually charged with violating by Deputy Avila in this case, ARS 28-954(, explicitly allows for the honking of a horn to warn other driver's of dangerous conditions:
“If reasonably necessary to ensure the safe operation of a motor vehicle, the driver shall give an audible warning with the driver's horn but shall not otherwise use the horn when on a highway”- ARS 28-954(
Since one of the primary purposes in honking the horn was to warn other drivers of the obstruction created by Agent Tackett in the highway, my use of the horn within this context was perfectly lawful.
Additionally, my other purposes for honking the horn – to get Deputy Avila's attention and to protest the Border Patrol's illegal detention – are similarly protected as expressive speech under federal case law associated with the 1st Amendment and Arizona's Constitution. Because the honking of the horn was designed to convey a message and that message was likely to be understood by those hearing it within the context of the situation, the horn honking qualifies as expressive speech which is entitled to 1st amendment protections. This is especially true in this situation since the honking was directly related to the illegal actions of federal agents, served as a warning to other motorists of unsafe conditions created by federal agents, drew attention to my vehicle from other motorists who could then act as witnesses regarding the encounter and couldn't be considered a noise disturbance for the general public given that the honking took place within the boundaries of a federal roadblock miles away from any private residence or business.
Indeed, given the way the statute is being enforced, it should be struck down as overly broad since its construction & enforcement violates free speech protections. There are many instances during the course of a day when a honk represents protected expressive speech. Some of these include honking to let someone know it's time to leave, a driver honking in support of a picketer on a street corner, another driver honking in support of the troops as a street corner sign may request, wedding guests celebrating a marriage, etc. Since the construction of the statute in this case creates no exceptions for such constitutionally protected expressive speech & there are many instances where honking would constitute protected speech, the statute should be considered overly broad resulting in prior restraint and hence unconstitutional. Regardless, in my case, there's no question that the statute, as applied by Avila, violated my 1st amendment rights while also interfering with my right to warn other motorists of unsafe conditions on the highway.
As Avila approached my vehicle from the rear, Agent Serrano came back over & told me I would be allowed to go on my way after the sheriff's deputy had spoken to me about impeding traffic. In so doing, Serrano essentially admitted CBP had no legitimate basis for detaining me & were most likely doing so in order to give the deputy an opportunity to find a reason to charge me with something. After Avila arrived (see exhibit #1, photo #6), Agent Tackett moved to the front of my vehicle & removed the spike strip he had placed down earlier (see exhibit #1, photo #7). Deputy Avila made no indication he saw what Tackett had done or even knew that the Border Patrol had thrown a spike strip down in front of my vehicle to begin with.
After Avila walked up to my window, he asked me to roll it down. After partially rolling it down, Avila noted my recorder & set the tone for the rest of the encounter by asking me if I was a constitutionalist, a strange question coming from a man who swore an oath to the Constitution in order to wear the uniform he wears. I responded by asking him if he was detaining me & Avila said it was the Border Patrol that was detaining me & he just wanted to know why I was blocking traffic. I told Avila that he had answered his own question when he indicated the Border Patrol was detaining me & that I merely wanted to go on my way.
Avila then started asking for my driver's license. With each demand I asked him if he was detaining me. After the second time, Avila stated he wasn't detaining me but that he wanted to know my name. In return, I asked him why he needed to know. This went on several times before Avila stated he just wanted to know who he was talking to. Avila then turned to a Border Patrol agent & asked him if they wanted me to go to secondary. The agent responded that I wouldn't answer their questions. While Avila appeared to mull over what to do next, I asked him if he was taking jurisdiction over the stop since he seemed to be actively assisting the Border Patrol with my detention at this stage.
Up to this point, Deputy Avila's actions left me somewhat confused as to what his intent was given that I was being detained by federal agents at a federal roadblock yet Avila was a county deputy. His next two statements removed any ambiguity as to his intent however. After asking an agent whether or not he wanted me to move to secondary, Avila turned to me & stated I had to follow the lawful orders of the Border Patrol making it clear he was actively assisting the federal agency with their illegal detention & interrogation. This despite the fact that Avila is not a federal agent, has no training or certification in federal immigration enforcement, was granted no lawful authority to participate in a federal immigration checkpoint & had no lawful authority to intercede on the Border Patrol's behalf. When I responded that I had indeed followed every LAWFUL order from the Border Patrol, Avila clearly stated, No you have not”. When I stated I have no legal obligation to answer their questions & they can't lawfully detain me for failing to do so, Avila responded with:
“You need to follow their orders OK You are blocking traffic. You are now violating traffic laws here.”- Roadblock Encounter Transcript, Exhibit #8
By so doing, Avila made it clear he intended to use state traffic laws as a pretext to compel me to cooperate with the Border Patrol while they were illegally detaining me in the lane of traffic. At this point, the Border Patrol supervisor sensed things were getting out of control & told Deputy Avila twice to cut me loose (see exhibit #1, photo #8):
“Cut him loose. I know who he is”- Roadblock Encounter Transcript, Exhibit #8
Avila ignored Supervisory Agent Serrano's order however & instead of cutting me loose as the Border Patrol instructed him to do, he instead began demanding my name again. I asked Avila why he was questioning me & whether or not he was being paid overtime from the federal Operation Stonegarden grant program.
At this stage, Avila told me to go on my way. Somewhat surprised by the sudden about-face, I asked him if I was free to go & Avila said he wasn't stopping me. I said all right, thanked him & began pulling away. As I pulled away however, Avila said, “I will in a moment”.
Sure enough, after I left the roadblock heading towards Tucson, Deputy Avila came up behind me in his patrol car & turned on his lights (see exhibit #1, photo #9). I pulled over & Avila came up to the passenger side window demanding that I roll it all the way down while stating, “I'm stopping you now” (see exhibit #1, photo #10).
I asked him why he pulled me over & initially he refused to tell me. After I persisted however, he said he pulled me over for honking my horn at the roadblock, something he never mentioned while I was being detained by the Border Patrol at the roadblock. Avila then demanded that I get out of the vehicle because my phone was active (see exhibit #1, photo #11). I got out & we moved to the front of his vehicle. I asked Avila if he was operating under Operation Stonegarden & he said yes. He then asked for my driver's license just when a Border Patrol agent pulled in behind Avila's patrol car, got out & walked over towards us (see exhibit #1, photo #12). The agent was the same agent who had been working at the roadblock on the south side of the road & initially ran to Avila's parked patrol car after I entered the roadblock.
I asked Avila why the agent was there, & despite the obvious absurdity in his response, he stated the agent was not involved with the traffic stop even though he had clearly left his duty station at the Border Patrol roadblock in order to be present during the traffic stop. When I asked Avila what the agent's name was, Avila became agitated & ordered me to ignore the agent despite the agent being an obvious witness.
After I gave Avila a driver's license & other documentation, he went back to his patrol car. I in turn asked the Border Patrol agent what he was doing there & what his name was. The agent indicated he was there as backup for the deputy when Avila came rushing over & told me to back up, clearly not wanting me to talk with the agent.
As I waited for Avila to return with my documentation, two more Border Patrol vehicles pulled in behind Avila's patrol car (see exhibit #1, photo #13) & two agents got out & went over to talk with the other agent resulting in at least three federal agents, one county deputy, three Border Patrol vehicles & one PCSD vehicle on the side of the road in response to a traffic stop for horn honking. It was undoubtedly quite a sight for anyone passing by.
After several minutes, the late coming Border Patrol agents left leaving only the first agent still on-scene. Several minutes later, Avila returned with a ticket for allegedly using my horn in excess at the roadblock (see exhibit #1, photo #14). After Avila issued me the ticket, I asked him if he had checked the Border Patrol's encroachment permit to see if their roadblock was in compliance with state law & ADOT regulations. Avila feigned ignorance of any such requirement & refused to look into it further despite me pointing out that the encroachment permits issued by ADOT to the Border Patrol from the roadblock were required to be kept on sight for review and that the Border Patrol was in violation of several provisions including a provision that only allowed the roadblock to be operated at irregular times and on irregular dates (see exhibit #9). I then asked Avila if he was being paid time & a half under the federal grant & he responded in the affirmative. After that, Avila refused to answer any more questions, returned to his vehicle & drove off.
I turned to the Border Patrol agent while Avila was returning to his vehicle & asked the agent his name & star number. The agent refused to answer & instead left the scene in the same direction that Deputy Avila was leaving (see exhibit #1, photo #15).
I returned to my vehicle & began traveling back to Tucson once again when I saw both Deputy Avila & the Border Patrol agent parked in front of the Border Patrol substation in Three Points, AZ (see exhibit #1, photo #16). I pulled in next to them & asked Deputy Avila the name of the Border Patrol agent he was talking with. Avila feigned ignorance, refused to provide the agent's name & accused me of harassing the federal agent before driving off (see exhibit #1, photo #17). When I turned to the federal agent to try & get his name directly again, the agent put his vehicle in reverse & drove off as well (see exhibit #1, photo #18).
Avila's presence & participation in roadblock operations in this manner impermissibly expanded the scope & intrusiveness of the roadblock in violation of existing SCOTUS guidance on roadblocks. Additionally, deputy Avila, who has no training or certification regarding federal immigration law or federal roadblocks, actively assisted the Border Patrol in their illegal detention & went so far as to insist that I obey the Border Patrol even after the on-scene Border Patrol supervisor ordered Avila to 'cut me loose' because he knew who I was. After Avila did cut me loose, he compounded his legally questionable actions by following me in his patrol car in order to stop me outside the boundaries of the roadblock & write me a citation for honking my horn at the roadblock. This despite the fact, the horn was used in compliance with state law to warn other motorists of unsafe conditions created by the Border Patrol & to warn supervisory personnel about the situation. This despite the fact the horn honks also represented 1st amendment protected expressive speech by protesting an illegal detention by Border Patrol agents in a way that would be readily understandable to everyone present while not creating a noise disturbance for the general public due to the location of the roadblock.
Avila's collusion with the Border Patrol continued during the traffic stop when several agents from the roadblock came out to the traffic stop to assist him. At all times, Avila refused to identify the agents to me on request while allowing the agents full access to the traffic stop site. The collusion continued at the Border Patrol Substation in Three Points, AZ where Avila and an agent from the roadblock were observed conversing side by side after the traffic stop & where Avila continued to deny any knowledge of the identity of the agent while claiming harassment on my part for attempting to identify a potential witness.
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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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