Pima County Justice
Court
Pima County, Arizona
Civil
Traffic Citation No.: 684115
Case #: TR13-050961
Motion To Dismiss
Defendant, Terrence Bressi, representing himself, hereby moves this
Court to dismiss the single charge alleged against him of Stopping,
standing, or parking outside business or residence district in violation
of ARS 28-871(A). In the event a ruling is not made on this motion
prior to the currently scheduled hearing on July 1, 2013, oral argument
on the motion at the start of the hearing is requested.
The alleged violation of illegally stopping along the highway took
place near Milepost 146.6 along SR-86 in Southern Arizona within the
boundaries of a federal suspicionless CBP roadblock where Defendant was
compelled to stop by a traffic control device and armed federal agents
who detained Defendant against his will next to a temporary stop sign
erected in the middle of the two lane highway. The points justifying
dismissal are listed below and elaborated upon in separate sections of
this motion:
1.) The statutory language Defendant is alleged
with violating doesn't prohibit stopping, standing or parking where
Defendant was cited.
2.) The statute Defendant is alleged to have
violated has no legal effect within the boundaries of a federal
roadblock while being detained by federal agents for federal immigration
purposes.
3.) Defendant was being illegally detained by
federal agents in the lane of traffic at the time & place of the
alleged violation.
Background:
In early January of 2008, Customs & Border Protection (CBP) under
the Department of Homeland Security (DHS) erected an inland
non-permanent tactical roadblock along SR-86 in Southern Arizona near
Milepost 145. In 2010, CBP moved the roadblock to its current location
near Milepost 146.6. SR-86 is an East-West running highway over forty
miles North of the international border with Mexico that never
intersects the border at any point. As such, the roadblock is considered
an inland roadblock because it is neither located at the actual border
nor its functional equivalent. At inland roadblocks, CBP agents have far
less legal authority to detain & search then they do at the actual
border or its functional equivalent (see United States v.
Martinez-Fuerte - 428 U.S. 543, United States v. Ortiz - 422 U.S. 891).
Defendant has routinely traveled along the SR-86 corridor since 1993
while going to and from his work site no where near the border. Since
its inception in 2008, Defendant estimates he has been seized &
detained absent individualized suspicion by CBP agents at the roadblock
approximately 300 times while traveling from work (only East-bound
traffic is routinely forced to stop at the roadblock).
"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, Defendant routinely exercises his right to
not answer investigatory questions while being interrogated by CBP
agents manning the roadblock. Defendant also records his detentions and
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)
Defendant's exercise of his rights in this manner has resulted in
him becoming well known at this roadblock by CBP. It has also resulted
in him being the target of harassment by some CBP agents on a recurring
basis.
One such incident resulting in a similar citation (see case
#TR09-001179) as the one currently before this court, was adjudicated on
April 10, 2009. During that incident, Defendant 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
Defendant by requesting that local law enforcement find a reason to
cite Defendant. Shortly thereafter, Defendant was charged with a single
count of impeding the flow of traffic under 28-704(A) by TOPD Officer
Carrasco. During the hearing, the presiding judge dismissed the charge
on the basis that the statute Defendant was charged with violating was
improperly applied given the presence of the federal roadblock (see
attachment #1). The alleged violation currently before the court is
based on a similar set of circumstances.
Facts:
While traveling Eastbound on SR-86 in Southern Arizona at approximately
1550 on March 29, 2013, Defendant complied with a traffic control device
by stopping next to a stop sign and two armed U.S. CBP agents with
Customs and Border Protection in the Department of Homeland Security
(see attachment #2). The stop took place near Milepost 146.6 in the
Eastbound lane of traffic at a suspicionless internal DHS/CBP roadblock
where all Eastbound traffic was being stopped & seized. The two
armed CBP agents standing at the primary stop location & responsible
for Defendant's seizure were Agents J. Grayson and R. McKnight.
Defendant recognized Agent Grayson from several previous stops at the
roadblock over the course of the last few years. It also became quickly
apparent that Agent Grayson recognized Defendant after Grayson referred
to Defendant by name within seconds of Defendant coming to a stop. As
Defendant was coming to a stop at the stop sign, both agents pulled out
personal recording devices, pointed them at Defendant and began
recording him while Agent Grayson identified Defendant by name and
loudly stated:
“Hey it's Mr. Bressi. It never gets old does it?” - CBP Agent J. Grayson
At no time during the initial stop did Agent Grayson or McKnight
give Defendant any instructions, ask Defendant any immigration related
questions or attempt to look over Defendant's vehicle making it clear
that the agents were detaining Defendant for purposes having nothing to
do with the stated primary purpose of the roadblock – namely immigration
enforcement.
Having never experienced this type of unprofessional behavior at the
roadblock before, Defendant beeped the vehicle's horn in the hope's of
getting the attention of Agent Grayson and McKnight's supervisor
sitting underneath a nearby canopy as the agents continued recording
him. BP supervisor Brandon looked over momentarily and waved but
appeared to take no interest in the unprofessional and, quite possibly,
illegal actions of his subordinates at the primary stop location.
After Defendant turned back to the two agents who were still recording him, Agent Grayson once again stated:
“It never gets old huh.” - CBP Agent J. Grayson
Given that Agent Grayson & McKnight obviously knew who Defendant
was and were more interested in harassing him then visually inspecting
the exterior of Defendant's vehicle or asking him any
immigration-related questions, Defendant made it clear he wished to go
on his way by slowly moving his vehicle forward while Agent's Grayson
and McKnight continued recording him. As soon as Defendant's vehicle
began moving, Agent Grayson yelled for defendant to stop despite having
no legal basis to continue the detention given that Grayson knew
Defendant and his immigration status. Defendant quickly stopped his
vehicle & Grayson stormed up to Defendant while barking conflicting
orders in short succession.
First, Grayson ordered Defendant to back his vehicle up but
Grayson's supervisor had stood up and was starting to walk towards the
rear of Defendant's vehicle and Defendant didn't have a clear line of
sight to backup safely. Agent Grayson then pointed towards secondary
inspection off to the side of the road & slightly behind defendant's
vehicle on the passenger side while yelling, “pull it over” multiple
times.
Seeing his supervisor approaching the scene, Agent Grayson was also
hastily trying to obscure the recording device he had used to videotape
Defendant at primary by placing it back in his shirt pocket. Agent
Grayson then indicated that, 'he could do this all day long' while
pointing to the secondary inspection area despite the presence of
another CBP agent standing next to Defendant's vehicle making it unsafe
to move in that direction. Additionally, there was a CBP vehicle located
along the shoulder of the road slightly ahead of Defendant's vehicle
preventing Defendant from pulling off the road without moving forward
past the vehicle first.
All of this had transpired very quickly with only about one minute
having passed from the time of Defendant's initial stop until Agent
Grayson began radioing dispatch for assistance from the Pima County
Sheriff's Dept. (PCSD). About two minutes after Grayson radioed
dispatch, sheriff's deputy T. Audetat arrived onscene. After speaking to
the CBP agents, Deputy Audetat approached Defendant and asked why he
was stopped in the road. Defendant told him he was ordered to stop by
federal agents and that they were not allowing him to go on his way. A
brief discussion with Deputy Audetat followed in which the deputy asked
Defendant to pull his vehicle off to the side of the road. The Defendant
did so at which point Deputy Audetat walked back to the CBP agents for
further collaboration.
A few minutes after Defendant pulled off to the side of the road,
CBP Supervisor Brandon approached him and stated that CBP's inspection
of Defendant was complete despite the fact they had made no attempt to
look over Defendant's vehicle or ask Defendant any immigration-related
questions. This further highlighted the dubious nature of Defendant's
detention and Agent Grayson's actions. If Agent Grayson had a lawful
reason for extending Defendant's detention while directing him to
secondary inspection, that reason had not been satisfied merely because
Deputy Audetat had arrived onscene. The primary reason for the extended
detention and the presence of Deputy Audetat quickly became apparent
however when Supervisor Brandon told Defendant that even though CBP's
'inspection' was complete, he still wasn't free to leave because the
deputy was going to write Defendant a citation for impeding traffic.
Several minutes later, Deputy Vatterrodt, Badge #6111, approached
Defendant and requested his driver's license. Defendant is unsure when
Deputy Vatterrodt arrived onscene. Soon after, Deputy Audetat issued a
citation for allegedly violating ARS 28-871(A). Defendant asked the
deputy how such a citation could be valid considering Defendant had been
stopped next to a stop sign while being detained by federal agents at a
federal roadblock specifically designed to stop cars in the lane of
traffic. Deputy Audetat merely indicated Defendant would have to raise
the issue in court if he disagreed with the citation. Defendant then
requested the names & badge numbers of both deputies along with the
names of the CBP agents present at the roadblock. Deputy Audetat &
Vatterrodt provided their information and then had CBP Agent Grayson
come over to speak to Defendant.
While speaking to Defendant, Agent Grayson admitted he knew
Defendant along with Defendant's immigration status. He then told
Defendant that in past encounters he had just waved Defendant through
the roadblock because he knew who he was but this time around he decided
to detain Defendant at the roadblock to videotape him because Defendant
was videotaping Agent Grayson. After leaving the scene and checking his
records, Defendant did indeed identify four previous roadblock
encounters involving Agent Grayson. These previous encounters spanned a
three year time frame and took place on March 6, 2010, November 18,
2012, January 5, 2013 & March 3, 2013.
After Defendant finished speaking with Agent Grayson, he asked to
speak with his supervisor, Agent Brandon. During the ensuing
conversation, Brandon acknowledged the following:
CBP recognized Defendant and his vehicle as it was entering the roadblock
The immigration inspection with regards to Defendant was complete
before Defendant even came to a stop next to the roadblock's stop sign
since the agents already knew who he was
The recording devices used by Agent Grayson and McKnight to record Defendant were not agency-issued
No agency policy governed the actions that Agent Grayson and McKnight took against Defendant at the roadblock
The supervisor was not happy with the way Agent Grayson conducted
himself at primary & didn't understand Agent Grayson's rationale for
recording Defendant to begin with
The supervisor intended to address the issue with his subordinates at a later date
After Defendant finished talking with Agent Brandon, he left the scene.
1.) The statutory language Defendant is alleged with
violating doesn't prohibit stopping, standing or parking where Defendant
was cited:
Defendant is charged with violating ARS 28-871(A) for allegedly
stopping, standing or parking on a highway outside a business or
residential district. ARS 28-871(A) is a statute that prohibits
stopping, standing or parking in certain locations. The statute does not
address the amount of time an individual may stop in a location in
which stopping, standing or parking is otherwise permissible and it does
not apply to scenarios in which an individual has been compelled to
stop by a traffic control device or by government agents. Additionally,
given that ARS 28-871(A) doesn't explicitly prohibit stopping, standing
or parking in all places under all circumstances, if the statute stood
alone it would be void on its face due to vagueness. The statute does
not stand alone however. To find out where exactly an individual is
prohibited from stopping, standing or parking and under what
circumstances, one needs to look to ARS 28-873 where the specifics are
defined.
ARS 28-873 states any prohibitions don't include circumstances in
which an individual is in compliance with the law, the directions of a
police officer or complying with a traffic control device. Additionally,
ARS 28-873 only prohibits stopping, standing or parking along
sidewalks, in front of driveways, in intersections, near fire hydrants,
on or near crosswalks, near flashing safety beacons, near safety zones,
near railroad crossings, near fire stations, near road excavation sites,
on bridges, on controlled access highways, etc. Defendant was located
no where near any of the locations referenced in the statute however.
Indeed, Defendant was located at Milepost 146.6 along SR-86 in Southern
Arizona within the boundaries of a federal DHS/CBP roadblock where one
of the fundamental purposes of the roadblock is, in fact, to stop all
vehicular traffic on the highway.
Further, Defendant did not stop voluntarily and after stopping
Defendant did in fact want to go on his way. He was prevented from doing
so however by armed federal agents. In stopping, Defendant was
initially complying with a traffic control device (stop sign) erected in
the middle of the highway. Afterwords when Defendant wanted to leave,
federal agents prevented him from doing so by explicitly ordering him
not to. Given these facts, Defendant did not violate ARS 28-871(A)
because:
The location where Defendant was involuntarily stopped was not one
of those locations listed in ARS 28-873 where stopping is prohibited
In stopping, Defendant was complying with a traffic control device
along with federal agents who were stopping & seizing all Eastbound
traffic within the boundaries of a federal roadblock.
2.) The statute Defendant is alleged to have violated has no
legal effect within the boundaries of a federal roadblock while being
detained by federal agents for federal immigration purposes:
In United States v. Brignoni-Ponce - 422 U.S. 873, the U.S. Supreme Court ruled that:
“Border Patrol agents have no part in enforcing laws
that regulate highway use, and their activities have nothing to do with
an inquiry whether motorists and their vehicles are entitled, by virtue
of compliance with laws governing highway usage, to be upon the public
highways.”
ARS 28-871 is an Arizona statute that regulates highway use along
Arizona highways and therefore, by default, falls outside the lawful
enforcement scope of CBP/BP agents operating federal roadblocks along
state highways. ARS 28-871 and related statutes make no reference to
circumstances surrounding individuals being compelled to stop in the
lane of traffic by federal agents operating federal roadblocks along
Arizona highways. Indeed, there is no explicit statutory authority in
Arizona for conducting roadblocks along Arizona highways by any agency
for any reason – be it a local, state or federal agency.
Nonetheless ARS 28-873 does make reference to directions given by
'police officers'. To analyze this however, we must first determine
whether or not CBP agents operating federal roadblocks along Arizona
highways are 'police officers' for purposes of the statute.
ARS 28-601(17) defines 'police officer as follows:
“'Police officer' means an officer authorized to direct
or regulate traffic or make arrests for violations of traffic rules or
other offenses.”
In Arizona, only peace officers have the authority to direct or
regulate traffic or make arrests for violations of traffic rules along
Arizona highways. Under normal conditions, federal agents operating in
Arizona do not possess Arizona peace officer powers which means they
have no inherent authority to direct or regulate traffic or make arrests
for traffic-related violations. To lawfully possess such powers, they
must first be cross-certified by the sheriff in the county they're
operating in. See ARS 13-3875 regarding cross-certification of federal
peace officers.
To determine whether or not the agents at the roadblock had such
powers, Defendant submitted a public records request to Arizona's Peace
Officer Standards & Training Board (AZ POST) on April 4, 2013 (see
attachment #3). The documentation Defendant received in response to his
request revealed that none of the federal agents Defendant was forced to
interact with at the federal checkpoint on March 29, 2013 were
cross-certified by Sheriff Dupnik (see attachment #4). As such, none of
the interaction Defendant had at the roadblock in question has any
relevance regarding ARS 28-871(A). The only directions given to
Defendant by a peace officer with authority to direct or regulate
traffic in Arizona on March 29, 2013 came from Deputy Audetat and
Defendant complied with Audetat's directions.
Given that ARS 28-871(A) & 28-873 make no reference to federal
roadblock scenarios and create no special exceptions for them, it could
be construed that every time a federal agent instructs a person to stop
at a federal roadblock, the federal agent is in fact violating ARS
28-871(A). A more palatable interpretation for the court however is
that ARS 28-871(A) has no business being applied in circumstances where
an individual has been stopped and detained by federal agents for
federal purposes within the boundaries of a federal roadblock. Indeed, a
determination that the state may intercede on behalf of federal agents
who seize individuals in the lane of traffic by citing individuals
compelled to stop for, in fact, stopping would be counter-productive at
best.
3.) Defendant was being illegally detained by federal agents
in the lane of traffic at the time & place of the alleged
violation:
In the event the court is unpersuaded by Defendant's arguments that
ARS 28-871(A) and supporting statutes do not prohibit Defendant from
stopping where he was stopped and are not applicable within the
boundaries of a federal roadblock in which federal agents are detaining
individuals in the lane of traffic, then the court must consider whether
Defendant was being illegally detained by federal agents given that
Defendant was not stopped voluntarily in the lane of traffic.
A.) CBP Checkpoints Must Be Limited In Scope and Intrusiveness:
While the U.S. Supreme Court has upheld permanent immigration
checkpoints setup along nexus points for border traffic within a
reasonable distance of the border, the court acknowledged that all
checkpoint stops represent seizures within the meaning of the 4th
amendment and as such, the stop must be limited in scope, minimally
intrusive and after the initial immigration questions, individuals
stopped must be free to go in the absence of consent or probable cause:
"The principal protection of Fourth Amendment rights at
checkpoints lies in appropriate limitations on the scope of the stop" -
United States v. Martinez-Fuerte - 428 U.S. 543
"Our prior cases have limited significantly the reach of this
congressional authorization, requiring probable cause for any vehicle
search in the interior & 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" - United
States v. Martinez-Fuerte - 428 U.S. 543
"...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.' United States v. Brignoni-Ponce, supra,
at 882. None of the defendants in these cases argues that the stopping
officers exceeded these limitations.”
- United States v. Martinez-Fuerte - 428 U.S. 543
In this case, agents knew who Defendant was, knew his immigration
status and had no consent or probable cause to extend the detention for
any other purpose.
B.) Agent Grayson's Detention of Defendant Exceeded Checkpoint's Lawful Scope:
In authorizing certain types of roadblock operations, SCOTUS
indicated any stops at such roadblocks had to be limited to brief
immigration queries with any further detention based on consent or
probable cause. In the case before this court, Agent Grayson knew
exactly who Defendant was before he even came to a stop and referred to
Defendant by name within seconds of him stopping.
“Hey it's Mr. Bressi. It never gets old does it?” - CBP Agent J. Grayson
Even though Agent Grayson knew who Defendant was along with his
immigration status, he continued detaining Defendant in the lane of
traffic against his will. When Defendant later asked Grayson why he
didn't ask Defendant any immigration related questions, Grayson stated:
“Because I know you...you come through here....yeah...I decided since
you like to videotape me I decided to videotape you and you don't
personally seem to like that very much” - CBP Agent J. Grayson
When talking with Agent Grayson's supervisor, the supervisor also made it clear CBP recognized Defendant by stating:
“I saw you come up and I waved at you because most of us recognize you” - CBP Supervisory Agent Brandon
When Defendant asked Supervisor Brandon what the lawful scope of the checkpoint is, he stated:
“Any further detention after we already know your
status, the agent would have to explain...I don't know what he was
looking for....” - CBP Supervisory Agent Brandon
When Defendant asked Supervisor Brandon what is was Agent Grayson
saw that allegedly prompted him to continue detaining Defendant despite
knowing his immigration status, Supervisor Brandon asked Agent Grayson
and then stated the following to Defendant:
“This is what I've surmised from Agent Grayson. He's
waved you through on several occasions. He's familiar with your vehicle
and you. More or less this time he was basically trying to get a better
look at you. He says the window sort of obscures that. I think he was
more or less trying to initiate a conversation” - CBP Supervisory Agent
Brandon
When Defendant asked Supervisor Brandon about CBP policy regarding filming individuals seized at primary, he stated:
“I'm not sure the mentality of filming you. I don't know
operationally why we would need to do that” - CBP Supervisory Agent
Brandon
When Defendant asked Supervisor Brandon if the recording equipment
used at primary by Agent's Grayson and McKnight were agency issued,
Supervisor Brandon stated:
“I think that was just their own cell phone....” - CBP Supervisory Agent Brandon
When Defendant asked Supervisor Brandon whether he approved of Agent Grayson's actions at primary, he stated:
“From the information I have at this time, I would...not agree with the
personal cell phones being used to film. I'm not sure the rationale
behind that” - CBP Supervisory Agent Brandon
Given these exchanges between Defendant and Agent Grayson along with
his supervisor, it's clear Agent Grayson had no legal basis for
continuing to hold Defendant at primary after he recognized Defendant.
It's also clear that Agent Grayson's actions were not based on any
existing CBP policy or guidelines and that his supervisor did not
approve of Agent Grayson's or McKnight's actions. As such, it's also
clear Defendant was being illegally seized by Agent Grayson in the lane
of traffic so that Agent Grayson could use his authority to act out his
personal animosity towards Defendant under color of law. If Agent
Grayson had not engaged in this illegal behavior, Defendant would not
have been stopped in the lane of traffic when deputy Audetat arrived.
Indeed, deputy Audetat would never have been called to the roadblock to
begin with.
C.) CBP is in violation of their Arizona Department of Transportation (AZ DOT) Encroachment Permit:
Under AZ law at ARS 28-332 & 28-363, AZ DOT has exclusive
control and jurisdiction over state highways. Based upon these statutes
along with rules and regulations promulgated by AZ DOT, CBP is required
to apply for an encroachment permit before operating a federal roadblock
along a state highway. Additionally, the agency is required to keep a
copy of that permit at the roadblock at all times, abide by all
conditions attached to the permit and renew the permit annually.
To determine whether CBP is in compliance with their obligations
under AZ law and AZ DOT requirements, Defendant submitted a public
records request to AZ DOT for copies of all documentation associated
with CBP encroachment permits from the last year and a half (see
attachment #5). In response, Defendant received over 600 pages of
documents. The current documentation associated with the roadblock
defendant was cited at is included with this motion (see attachment #6).
As part of the specifications associated with the encroachment permit
issued to CBP for a tactical roadblock located at Milepost 146.5 along
SR-86 on March 5, 2013, AZ DOT noted the following on page 2 of the
permit's attachment:
“This permit is issued to allow establishment of a
temporary immigration checkpoint on irregular dates and for irregular
periods of time and is valid for a period of one year as dated on the
application.”
Defendant has been traveling through this roadblock since its
inception in January of 2008 on a regular basis at all manner of dates
and times. Defendant is also aware of several other individuals who
travel through the roadblock on a regular basis to get to and from their
work site. In violation of the restrictions imposed on CBP roadblock
operations by AZ DOT, the roadblock has been in operation continuously
twenty four hours a day, seven days a week since it's inception. The
encroachment permit only allows operation on irregular dates and for
irregular periods of time however. Given that CBP is in violation of the
terms of the encroachment permit issued to it covering the date
Defendant was cited, the detention of Defendant at the roadblock by
Agent Grayson for any amount of time or for any reason on March 29, 2013
was illegal for purposes of Title 28 of Arizona's Revised Statutes.
D. ) Pima County Sheriff's Department Conducting Joint Operations with CBP At Roadblock:
On May 16, 2013 after Defendant passed through this same roadblock,
Defendant pulled over on the outskirts of the roadblock to talk with a
PCSD Deputy who appeared to be stationed on the North side of the
roadblock. During the ensuing conversation where Defendant inquired as
to what the PCSD was doing at the roadblock, Deputy Wren (Badge #6315)
indicated that it was a joint operation, that the PCSD was being paid
from a federal grant to assist CBP with their operations in Pima County
and that she was specifically being paid from that grant on that day to
be there for an eight hour shift. Deputy Wren also indicated that she
was there for general law enforcement concerns that fell under her
jurisdiction such as speeding and other traffic violations along with
writing citations for things like marijuana possession if discovered by
agents at the roadblock.
When Defendant submitted a Public Records request to the PCSD for a
copy of the federal grant referred to by Deputy Wren amongst other
documentation (see attachment #7), Defendant was told there were no
records responsive to his request (see attachment #8) even though the
records personnel Defendant talked with admitted there was a federal
grant currently in effect between DHS and the PCSD. Defendant has since
made additional Public Records requests to the PCSD for copies of the
records improperly withheld but is still waiting for the PCSD's response
to those requests (see attachment #9).
Given what Defendant knows now however, there is obviously a formal
agreement in place between DHS and the PCSD that involves PCSD deputies
having a presence at and providing some level of assistance at the
federal immigration roadblock where Defendant was cited. Given that the
PCSD Dept. is not empowered to assist CBP agents with enforcing federal
immigration law, it's clear that when PCSD deputies are engaging in
joint operations with CBP they are doing so for general law enforcement
and drug interdiction purposes as indicated by Deputy Wren. The U.S.
Supreme Court however has struck down roadblocks where one of the
purposes is general law enforcement or drug interdiction:
"We have also upheld brief, suspicionless seizures of
motorists at a fixed Border Patrol checkpoint designed to intercept
illegal aliens, Martinez-Fuerte, supra, & at a sobriety checkpoint
aimed at removing drunk drivers from the road, Michigan Dept. of State
Police v. Sitz...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, 531 U.S. 32 (2000)
“Petitioner city operates vehicle checkpoints on its
roads in an effort to interdict unlawful drugs.... Because the
checkpoint program’s primary purpose is indistinguishable from the
general interest in crime control, the checkpoints violate the Fourth
Amendment” - City of Indianapolis v. Edmond, 531 U.S. 32 (2000)
As such, whenever a PCSD deputy is either dispatched to the
roadblock to render assistance or stations him/herself there for a
period of time under the terms of this grant, they are illegally
expanding the scope of roadblock operations for general law enforcement
purposes:
"The principal protection of Fourth Amendment rights at checkpoints lies
in appropriate limitations on the scope of the stop" - United States v.
Martinez-Fuerte - 428 U.S. 543
The existence of this federal grant between DHS/CBP and the PCSD
provides a plausible explanation of why deputy Audetat was so quick to
respond to Agent Grayson's call and ready and willing to cite Defendant
at the beheadst of Agent Grayson for allegedly stopping illegally in the
lane of traffic despite the fact all East-bound traffic was being
compelled to stop in the first place.
Conclusion:
On March 29, 2013, Defendant was cited by PCSD Deputy Audetat with
allegedly, “stopping unnecessarily on hwy” in violation of ARS 28-871(A)
(see attachment #10). A cursory review of the facts surrounding the
alleged violation however show that no such violation of ARS 28-871(A)
took place or could have taken place given the location of the alleged
violation and the wording of the statute. Specifically, the location
Defendant was alleged to have illegally stopped was within the
boundaries of a federal roadblock in which Defendant stopped while
complying with a traffic control device placed in the lane of traffic
and was subsequently detained by federal agents.
These facts in and of themselves invalidate the application of ARS
28-871(A) against Defendant since Defendant was not stopped voluntarily
and the State of Arizona has obviously seen fit to allow federal agents
to setup a federal roadblock and stop traffic at the location where
Defendant was cited.
Further, the specific exceptions and prohibitions defined in ARS
28-873 for stopping, standing or parking along AZ roads do not support a
charge under ARS 28-871(A), no CBP agent at the roadblock was
cross-certified to enforce state law and CBP is currently in violation
of the encroachment permit issued to it for the roadblock in question.
Finally, Defendant's detention at the roadblock by Agent Grayson was
illegal to begin with given the fact that roadblock seizures must be
limited in scope and intrusiveness. Agent Grayson failed to limit the
stop's scope & intrusiveness when he continued to detain Defendant
to record him with a personal cell phone despite having no legitimate
suspicions regarding Defendant's immigration status. Further, by
entering into a formal agreement with the PCSD via a federal grant that
pays sheriff deputies to provide assistance at the roadblock for general
law enforcement duties, the scope of the roadblock has been expanded
outside lawful parameters.
Given these facts, Defendant requests that this court grant
Defendant's Motion to Dismiss, or failing that, allow oral argument
regarding the motion during the hearing scheduled for July 1, 2013.
Respectfully submitted this __ day of June, 2013.
BY: ______
Terrence Bressi
Defendant
Copy of foregoing mailed certified #
mailed/served June 21, 2013 to:
Pima County Justice Court
115 N. Church Ave.
Tucson, AZ 85701-1130
Copy of foregoing mailed certified #
mailed/served June 21, 2013 to:
Deputy Thomas Audetat, Badge #6312
Pima County Sheriff Department
1750 E. Benson Highway
Tucson, AZ 85714
Plaintiff
BY: _____
Attachments:
1.) Case #TR09-001179 Disposition
2.) March 29, 2013 Roadblock Photos
3.) AZ POST Public Records Request
4.) AZ POST Public Records Response
5.) AZ DOT Public Records Request
6.) AZ DOT Public Records Response
7.) PCSD Public Records Request (first)
8.) PCSD Public Records Response (first)
9.) PCSD Public Records Request (second)
10.) Citation #684115
8 Comments in Response to Checkpoint USA Back In Court On Monday
BTW, did you ask for and receive Deputy Audetat's business card?
Hummm. I would have requested a bench warrant be issued for his arrest by the judge and have him dragged before the court. That happened when a friend of mine chose to fight a ticket issued to him for his kids throwing rocks at cactus in a park. Cop didn't show. Judge called cop. Cop said it was his day off which angered the judge. Judge had him arrested and dragged before the court. My friend said he was there all day but it was worth it. When the trial was finally conducted in the end the judge told the cop he didn't believe him and found my friend not guilty. File a complaint with the Sheriff's office and the Professional Conduct Board (Peace Officer's Certification...whatever it is called) for malfeasance of office in not appearing before the judge....
So how did it go?
I've updated the article with the text of the motion to dismiss for those having trouble downloading the pdf version.
MTD PDF keeps timing out.
Educate them Terry.
Marc should be able to figure out how to counter-suit with domestic terrorism charges against the officers.
Failure to genuflect sufficiently quick = domestic terrorist. It's the law! ;-)