USA Stretches The Facts In Objection To Motion For Summary Judgment


In followup to my March 9th and 10th posts, Tucson-based assistant U.S. attorney Gerald Frank has responded to our opposition to the USA’s Motion for Summary Judgment. As has become the norm, Mr. Frank distorts the facts in his motion along with associated case law in order to justify summary judgment.

Read on for further discussion regarding Mr. Frank’s motion.

It was 1976 when the U.S. Supreme Court first carved out a 4th Amendment loophole to the right of the people to be free from unreasonable searches and seizures related to traffic stops. The case in question is known as United States v. Martinez-Fuerte and dealt with the constitutionality of permanent suspicionless immigration checkpoints in the interior of the country for the sole purpose of checking the immigration status of travelers entering the checkpoint.

Even after opening Pandora’s Box however, SCOTUS attempted to limit the damage they had inflicted on individual rights as can be seen in Justice Powell’s closing remarks:

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. [A]ny further detention…must be based on consent or probable cause.

In Martinez-Fuerte, the sole interaction Border Patrol agents had with vehicle occupants was to ask them their nationality. Absent probable cause, the vehicle and its occupants were quickly allowed to go on their way. No vehicle searches were conducted, no additional questioning, no license or documentation checks, no wants & warrants checks, no drug dogs, etc.

Given these facts, it came as quite a surprise to me when assistant U.S. Attorney Gerald Frank referenced this case in his motion in support of summary judgment. Specifically, Frank wrote:

Finally, the checkpoint complied with Fourth Amendment principles. The Supreme Court has upheld the concept of suspicionless checkpoint stops at a fixed Border Patrol checkpoint. In Martinez-Fuerte, the Supreme Court held that the government’s legitimate interests advanced by the temporary seizure outweighed the minimal intrusion on a motorist’s privacy.

Having actually read Martinez-Fuerte, it occurred to me that Mr. Frank either lacked reading comprehension skills or he never actually read the case he referenced. If he had read the case, it would have been readily apparent that the defendants in my case were well outside the boundaries considered by SCOTUS in Martinez-Fuerte.

Specifically, the defendant police officers did NOT limit their initial interaction with drivers to inquiries regarding their sobriety status. Instead, the defendants:

  • Allowed U.S. Customs agents to inspect vehicles and interrogate drivers on the front line
  • Allowed Border Patrol agents to man a secondary inspection station within the boundaries of the ‘sobriety checkpoint’
  • Conducted vehicle searches for illegal contraband absent reasonable suspicion
  • Conducted full wants and warrant checks using state and federal criminal databases absent reasonable suspicion
  • Treated tribal members differently from non-tribal members by conducting seatbelt and insurance checks on non-tribal members only
  • Actively checked for stolen vehicles by comparing registrations against license plates absent reasonable suspicion
  • Allowed a police dog certified to detect people and bombs to operate along the front line

In other words, the roadblock was indistinguishable from a dragnet enforcement operation where tribal police and federal agents exercised unfettered field discretion.

Given these facts, it’s instructive to once again revisit Justice Powell’s closing remarks in Martinez-Fuerte:

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

The fact of the matter is there were no limitations on the scope of the stop in this case. The tribal police didn’t even have checkpoint guidelines in place until 2 1/2 years after the fact.

If this distortion wasn’t bad enough, Frank also selectively referenced state law to bolster his own position while ignoring a subsection of the same law that would seem to indicate the defendants illegally stopped me to begin with:

13-3883. Arrest by officer without warrant

B. A peace officer may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of any traffic law committed in the officer’s presence and may serve a copy of the traffic complaint for any alleged civil or criminal traffic violation.

Arizona law has no provision for suspicionless checkpoint stops. As 13-3883B makes amply clear, a peace officer needs reasonable suspicion BEFORE initiating a stop – not after.

In this case, the defendants admitted there was no reasonable suspicion prior to the stop. As such, they had no lawful authority to demand my papers or to do anything other than check for sobriety. This is, in fact, the way every other law enforcement agency that I’ve checked up on operates within the state related to sobriety checkpoints. That is – every other agency except the Tohono O’odham Police Department.

While there is more to be said regarding Mr. Franks motion, this post is already longer than I had intended. Additional commentary will have to wait for a future post…

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