Thursday, December 02, 2010

DeGuerin: Willie Nelson pot bust an improper use of Border Patrol checkpoint

The other day I mentioned Willie Nelson was arrested for marijuana possession at a Border Patrol checkpoint in Hudspeth County. Now Jordan Smith at the Austin Chronicle reports that:
famed Texas defense attorney Dick DeGuerin – who just lost a bid to have former U.S. Rep. Tom DeLay acquitted of money laundering – told Rolling Stone that he believes Nelson should challenge the propriety of the stop: The Sierra Blanca stop is meant to check for illegal immigrants, not just as a random check of everyone: "It's supposed to be a checkpoint only for aliens, and [agents] overstep their authority all the time," he told the magazine. "I've had several cases from that checkpoint and they just use the opportunity to check out anybody they want to. If you have long hair, if you're driving a van or it looks like you're from California or you look like a hippie, they do profiling." And that, as we all know, isn't exactly legal.
DeGuerin's got a great point. In City of Indianapolis v. Edmond, SCOTUS held that checkpoints near the border for immigration enforcement are allowable but not if their "primary purpose was to detect evidence of ordinary criminal wrongdoing." Nelson's bus was driving east from California, not north from Mexico. And it's pretty certain nobody confused the Red Headed Stranger or his entourage for Mexican immigrants. Perhaps DeGuerin's right the propriety of the search deserves to be challenged. Notes Smith: "The question, of course, is why did they search the bus in the first place – because Nelson had done something wrong? At this point that isn't entirely clear."

RELATED: The Texas Tribune has a telling story on the Hudspeth County Sheriff's Office, which employs 17 deputies in a county that reported just 24 total crimes in 2009.

24 comments:

Anonymous said...

This may be a wild guess, but I'm thinking the phrase "odor of burnt marijuana' may figure into the probable cause affidavit.

Anonymous said...

Willie Nelson is walking probable cause, unfortunately.

Anonymous said...

Why the bus get searched? My guess is either they gave the officers permission, the officers smelled pot order coming from the bus or the officers will lie and say they smelled pot. Happens everyday.

Alex S. said...

Every checkpoint has drug sniffing dogs now. I will put up $100 that the probable cause to search was that the dogs alerted to the presence of narcotics on the base. Once the dog alerted, the police have legal authority (a la probable cause) to search.

Old Cop said...

Willie had pot....NO! Who cares...?

There's too damn many kids (and old hippies like Willie) arrested and incarcerated by zealous officers (some of whom puff on the evil plant themselves) all over this state every day for misdemeanor amounts of weed rather than utilize the money saving tool of citation/summons given to them by the Lege several years ago.

What an absolute waste of resources.

Hook Em Horns said...

I had DPS lie about searching my car several years ago. I sat by while they took everything out of it and FOUND NOTHING. LIARS WITHOUT QUESTION!

ALEX S. JUST FOR CONVERSATION, WHAT SHOULD HAPPEN WHEN AND IF THE DOG ALERTS AND NO DRUGS ARE FOUND?

Gonzalo said...

Kill the lying dog! Or send it to El Campo. Deputy Pikett will find some use for it.

Anonymous said...

I've been to that check point several times on my way home from El Paso. It's on the eastbound side of I-10, a couple of hours out of El Paso. I imagine that that's a good location for it, considering how many illegals try to cross the border in EP, then head east into Texas.

They almost never pull anyone over for a random inspection. Every time I ever went through, they just asked for my ID, where I was coming from, and where I was going, and if I was an American citizen. I am a white female though, so I don't get a lot of scrutiny, honestly. They do also have drug sniffing dogs, and they walk the dogs the length of the car. So Ol' Willie didn't even have to be lit up for them to pick it up. Hell, the line to get checked is so long, he could have seen that check point a mile back, and chucked his weed out the window. *shrugs*

doran said...

HookEm:

Either dog was lying or the DPS trooper was lying. Yeah, shoot the dog and fire the trooper.

17 deputies for 24 reported crimes? Maybe the Sheriff is trying to match the Texas Rangers' "one riot, one Ranger." Except that in Hudspeth County it would be "one crime, one deputy." They are better than half-way there. The Sheriff needs to hire a few more deputies to make it.

Michael said...

While I am as disgusted as anyone regarding the bust of Willie Nelson, or anyone else, on small-time marijuana charges, I don't know about Deguerin's contentions regarding the legality of the bust itself according to current law; that is, so long as they had a legitimate reason to pull the vehicle over to begin with.

From what I read, after pulling the bus over, the officers smelled marijuana. Thus, the further search of the vehicle was warranted under the plain-smell doctrine. What are the cops supposed to do, turn a deaf ear (or nose) to criminal offenses being committed?

The solution to this ridiculousness is to change our marijuana laws. Texas, Louisiana, Mississippi, Alabama, and Georgia, will probably be the last states in the country to do that, probably 50 years after everyone else has reaped the benefits of tax revenue generated and huge savings from less law enforcement. But wait, then cops would actually have to go out and get the real criminals!!! Wouldn't want them doing that (lol).

Charlie O said...

I think most of you here are missing the point of Grits post. It's a checkpoint to locate and identify illegal immigrants. What are drug dogs even doing at BORDER PATROL checkpoint? That is the point of Indianapolis v. Edmond. It seems to me that the checkpoint is really a ruse to find non immigration criminal behavior. Which SCOTUS has said is illegal.

Anonymous said...

DPS can enforce only one law at a time?

Also, Willie looks white so he gets a pass? Do you want DPS to be involved in racial profiling and stop only Hispanic looking people?

Hook Em Horns said...

I denied there request to search my car per the 4th amendment. Those were my exact words. They made me stand on the shoulder of the road while they called for a dog.

The dog walked around the vehicle twice and did not stop. The constable (the one who brought the dog) had it jump up on the rear bumper. When it did, he took a red ball out of his pocket and the dog began to play.

He announced that the dog had alerted and I was put in handcuffs for the transport to a parking lot (of the constables office) so they could all thoroughly search my vehicle.

The trooper lied, DPS lied, the dog never really alerted. These people will say and do anything. I just thank God they did not try to frame me in some way but they didn't.

Trampling my rights was bad enough. Something really needs to be done to stop this. I have no idea how many people are subjected to these tactics on 59 (The EastTex) but I expect it's a considerable number.

Anonymous said...

I suspect, Hook em, that those dogs may often be used that way. I'm not sure (someone please correct me if I'm wrong) but I think I read somewhere they have something like a 50% error rate. I think it was one of the SCOTUS justices that said something about the myth of the infallible dog. Someone really needs to press the case and see if it can be declared that these dogs aren't reliable enough to meet the probable cause standard.

I once watched an accelerant sniffing dog sniff where his handler pointed and sit to get a treat. Was there accelerant there? I'm sure there was but it looked to me like all the dog did was sniff where his handler pointed and sit to get a treat. Call me skeptical.

Anonymous said...

It also occurs to me that even if these dogs are trained well, a handler could easily mess up their training. I don't know about the training these officers get but it needs to be pretty thorough. Think about it. If the officer rewarded the dog (a treat, ball, whatever) only when he "alerts." The dog is going to learn that he has to "alert" to get the reward. The dog doesn't care about whether drugs are there or not, he just wants his treat, toy, or whatever.

Anonymous said...

It wouldn't take a dog to sniff out what Willie do.

Anonymous said...

Everyone in Texas knows Willie doesn't smoke pot. It's a publicity stunt. Willie is just stand up guy covering for one of his roadies by telling barney fife Border patrol dude it was his.

Charlie O said...

Anon: 2:03. Obviously you have no ability to read and cognitively understand what is in front of you. The DPS DOES NOT run those checkpoints. They are run by the US Border Patrol, a part of ICE, Immigration and Custom enforcement. Checking US citizens traveling within the United States for drugs is not within their purview or mission.

john said...

EASY TARGET----ancient old man creaking around, KNOWN for dope and tax avoidance (and rightly so, as if a domestic citizen OWED federal income tax, ha ha h a).
Blue Eyes fryin' in the pain.
Border guard or check point wants to be famous or work at airports for TSA?
Another diversion wasting our time when we should be slapping State Reps until they NULLIFY the Feds. YOU HAVE TO READ TOM WOODS, Jr.'s new BOOK, "NULLIFICATION" --like a Cliff Notes for dummies (even I could understand it) and has a couple hundred research footnotes.

Aaron said...

Just to clarify: City of Indianapolis was not a border case. It dealt with check points to combat drugs in Indianapolis, along with other things.

UNITED STATES v. MARTINEZ-FUERTE, 428 U.S. 543, is the border check point case, and it does not make a reference to "ordinary criminal wrong doing"

And this is less fact based, and more memory/opinion:

It also likely the SC will not find combating drug smuggling at the border to be ordinary criminal wrong doing, if they havn't done so explicitly already.

When people come over on international flights from airports you can stop and search their person and all of their belongings, including a laptop. And the purpose does not need to be to check whether your immigration status is legal.

It is likely check points on the border will be treated the same way; however, one can point out the difference btw airport check points, where you have to be coming from overseas, and road checkpoints, where you could also just be crossing from one state to another.

If anyone happens to know which cases, if any, the SC discusses this I'd be interested.

Gritsforbreakfast said...

Thanks Aaron, you're right I misstated that. I'm not a lawyer so I appreciate those with legal background cleaning up my legal analysis as you have here. The Indianapolis case disallowed the drug checkpoints but had approving language about border checkpoints, which is why I mentioned it, but you're absolutely right. Sorry I worded that so clumsily.

That said, I don't agree with your airport analogy. The case law surrounding what's permissible at airports is a lot more lenient than on immigration checkpoints that aren't on the border. They stop not just border crossers and those "crossing from one state to another," but also people in-state who just happen to be using I-10. The analogy is so far off IMHO as to be utterly inapplicable. Don't know all the caselaw, though. I bet DeGuerin does.

Aaron said...

Heh, I lived in Texas for 13 years, but I never made it down to the border. I have driven on I-10 though, and I would think your right that the standard is going to be completely different than "border" crossings at the airport.

I still have an image of border crossing from movies where there is a line demarcating each side of the state and cars going through check points. But obviously any significantly sized border is going to involve more complex check points.

R. Shackleford said...

Willie ought to move to Colorado. There, he can red headed stranger around with a doob in his mouth 24/7. Cops treat you like a human being there (mostly), on account of having real things happen that need attention, like blizzards, bears, avalanches, etc. No county mountie in CO is going to take the time to hassle Lord Willie over a couple ounces of herb.

R. Shackleford said...

...maybe.