NOTE: Jeff Peek, partner at Peek & Toland, authored this piece on April 10, 2011. He subsequently updated the piece with a post script on May 3, 2011.
Waiting on the side of I-35 for the “big catch” requires a patient fisherman. Atop a berm facing traffic aided by a clear sunny morning provided this Hill County patrolman the perfect perch from which to pounce. The target ? Drug shipments headed north to Dallas where distribution routes send them out all over the country. But how can you tell which car, which van, which trailer is carrying the mother load ? How do you distinguish ? Well, you look for Hispanics. Mainly Hispanic men. No other identifying factor is more important or more used in this hunt. Not type of vehicle, not age, not time of day.
Sure it helps if you have inside information, a tip, a lead provided by a snitch or undercover officers, but law enforcement is not content to just sit back and wait for only those opportune moments. They have been to briefings and trainings with DEA and ICE and know that on any given day, at any given time, hundreds of pounds of cocaine, marijuana, heroin, and crystal meth is making its way up the I-35 corridor. So maybe, just maybe, if they begin stopping vehicles, the law of averages will eventually pay off and they will make the big score. Sure, this kind of random approach will led to many more misses than hits, but law enforcement is used to the patient, tedious, routine of traffic stop investigations. Every officer has a story (or 20) about how a random traffic stop led to an arrest and search of a vehicle which resulted in large amounts of drugs being found.
Problem is though, these vehicle stops aren’t random. Not in the truest since. They aren’t stopping every 10th car. They aren’t looking for Whites, Blacks or Asians. They aren’t even looking for traffic violations, however I have no doubt they’ll find a violation to justify their stop. After all how else do you explain a Police Chevy Tahoe Canine unit, dog on board, just hanging out on the side of the highway ? Running radar ? How convenient to have a drug dog in the backseat,…..you know ….just in case.
I know what you’re thinking. Jeff, you are just being cynical. You have been a defense attorney too long. Officers don’t profile. They’re professionals. They have sworn to uphold and respect the constitution. If they tell you in their police report that they pulled the car over for speeding, then that is the truth. When they make that arrest they have to sign a sworn Probable Cause Affidavit in which upon filling they swear the contents within are the truth, and there are all sorts of felonies the officer would be committing if he falsified an arrest report. So it must be the truth. Right ?
Well don’t tell that to Roberto and Jaime Moreno. On March 31, 2011 Jaime was driving up to Plano, Texas to buy a 2007 Nissan Maxima Hybrid he had his eye on. His brother Roberto was nice enough to ride co-pilot, so that he could drive back the car they were taking up there. It was around 9:30am in the morning and traffic was moderate. Jaime was driving behind an 18 Wheeler and maintaining his speed right under the speed limit, and the Trailer in front of him wouldn’t permit him to go any faster anyway.
His inspection sticker and registration were current, as well as his car insurance. The stakes are always higher for an illegal alien when driving. They can’t afford to draw attention to themselves or their vehicle. Obeying the speed limit and other rules of the road are paramount. With every traffic stop one runs the risk of being arrested. And with an arrest comes the dreaded notification to ICE (Immigration and Customs Enforcement), and ICE detainer which keeps the immigrant detained while his case is pending and then transferred to Immigration custody where he either can fight to avoid deportation and try and get a bond, or sign for Voluntary Departure. A series of events that once put into motion, all by a traffic stop, result in an immigrant usually losing his job, having to spend thousands of dollars on legal fees and bonds, not to mention time in custody and for the unlucky having to find a way back into the U.S. to get back to their family.
Jaime swears he wasn’t speeding, but that’s what he was stopped for. As soon as they passed the Officer’s Tahoe, he pulled right out on the freeway behind them and lit up his take-down lights. The choppy exchange that followed shortly thereafter could not have been very revealing since Jaime doesn’t speak English and the officer doesn’t speak Spanish. Jaime did understand enough to know that the officer wanted permission to search his truck. Permission which Jaime happily and naively gave. What did he have to hide ? Jaime has been in the U.S. for 10 years and never been in any trouble with the law, a distinction his brother Roberto shared as well. Neither he nor his brother Roberto use drugs or drink, so hopefully by consenting to a quick search he would gain favor with the officer and would quickly be back on his way once the officer realized these were two brothers on a trip to buy a car.
To Jaime’s surprise, the officer pulled out a drug dog from the back of his Tahoe. This didn’t concern Jaime, because he didn’t have any drugs in his car, but his suspicions began to rise. All of a sudden this didn’t seem to be a normal traffic stop. After watching the dog prance around his car, even surprisingly being led into the interior of the truck, Jaime felt that this inconvenience would soon pass. What happened next would forever change Jaime and Roberto’s opinion of the expression “truth, justice and the American way.”
Most banks require a driver’s license or Identification and a social security number in order to open account. Even if you are fortunate enough to have those documents, many immigrants forego opening bank accounts. Why ? Well, when you make $350 a week, a $10 or $15 monthly bank fee is significant. Uneducated men in third world countries are slow to trust banks anyway. Better to have the cash at hand, where it can be quickly accessed in a pinch.
When Jaime found the Hybrid car he wanted for the price he wanted, a 3 hour drive to Plano was worth it. He had just sold his old car, so he hadover $6,000 in cash from that sale, along with another $4,000 he had saved up. But the dealer was asking for $14,000 down so he needed a loan. A $4,000 loan his brother Roberto was willing to give. Roberto was also nice enough to agree to go up with Jaime on his day off, Thursday. Thursday March 31, 2011.
When the officer pulled out the $14,000 in cash stuffed in envelopes, he no doubt felt that this was the tip of the iceberg. Obviously he had stumbled upon 2 Narco Traffickers making a run, but where were the drugs ? Surely they were hidden somewhere in the car. With back up on the way, the officer made more inquiries, but the language barrier persisted. Jaime tried in his best broken English to give what he felt is a simple explanation: “car….buy”. He handed over the business card of the dealer with whom he had talked, hoping that would bridge the comprehension divide. No such luck.
Eventually after 30 minutes go by, a Spanish speaking officer finally shows up. However by this time, the search for the hidden drugs is well on its way. Officers are combing over the engine block, pulling the hard plastic covering off the doors and dashboard. The brothers are told they need to take a ride to the police station for more questioning. But the decision has apparently been made, the officers are convinced. They have a couple of drug traffickers. The lack of drugs doesn’t appear to bother them. They end up being booked on money laundering. But the money was theirs, hard earned in the kitchens of a Taqueria where both Jaime and Roberto have worked over the last 10 years. No, they aren’t guilty of laundering money for drug dealers. And no, no drugs were found in his truck, although that didn’t stop the government from seizing it. No, they were only guilty of one thing that day: Driving While Hispanic.
Everything about this story – the false pretense profiling arrest, the drug dog immediately searching the car, the 30 minute delay on side of the road while their car is dismantled in front of them, and the illegal seizing of a person’s hard earned money and his car by a government more interested in the ends of a big drug and drug money seizure, than the means of trampling all over the constitution – should offend your conscience and sense of justice. It is not illegal to have $14,000 in cash on you for purposes of going to buy a car. And the sad truth is if these men were white, I’m not writing this article.
POST SCRIPT 5/3/11 – After repeated calls to the Hill County District Attorney, we were finally able to talk to the elected D.A. Dan Dent who informed us that his office, some 30 days after the arrest, still had not received a copy of the police report or “file” from the investigating agency, which we were told was D.P.S.. We were also informed by the Hill County District Clerk that no file existed for these defendants. So there was no way to verify the probable cause affidavit signed by an arresting officer and Judge, verifying the probable cause of the arrest, even some 30 days after their arrest. They were being held on a $50,000 bond for charges that didn’t exist anywhere on paper, not with the clerk, the District Attorney. We had no choice but to file for an examining trial, which is an accused only protection against such illegal detention. It is not very commonly filed or used, as most District Attorneys only need to get an indictment in order to stave off the need for the examining trial, because after all the only use of the examining trial is to have a hearing to establish that there is some probable cause for arrest and to proceed forward on the alleged felony charge. In fact in 11 years practicing law I’ve never filed on or had to file one. Days after the D.A.’s office received our motion, the defendant’s were released. We don’t even think the case was dismissed because technically no charge (according to the clerk and D.A.) were ever filed. How is it possible that in the year 2011 someone can be held on a huge bond, without any paper trail or record of the proof of a crime, without any direct evidence, for over a month, and then they are just allowed to walk out the door with not even a “sorry for the inconvenience!” This is the kind of story one expects from third world countries, not the U.S.A. Ironic that the brothers Moreno had to travel all the way to the U.S. to experience the kind of unjust and unlawful arrest and detention, that their own country Mexico has become infamous for. At least in Mexico you can bribe a judge, prosecutor or jailer for your freedom. Here one has to rely on the law. But the law, the Constitution and its protections didn’t help in Hill County. At least not for 34 days. Oh, and just in case you were wondering, they returned his Truck and his $14,000 in cash back to him.
The real question remains unanswered: How many other Hispanics has passed through a similar experience ? How many other innocent people were arrested detained, some perhaps charged, other perhaps released, maybe others even had vehicles and money seized, just like the Moreno brothers ? How many others weren’t as lucky to have experienced caring legal representation fighting for them ?