Pubdate: Sun, 21 Mar 2004
Source: Roanoke Times (VA)
Copyright: 2004 Roanoke Times
Contact:  http://www.roanoke.com/roatimes/
Details: http://www.mapinc.org/media/368
Author: Jen McCaffery
Note: News researcher Belinda Harris contributed to this report.

I-81 STOP RAISES ISSUE OF RIGHTS VIOLATION

One Roanoke Valley Defense Attorney Argues That the Drug Case Is Part of a 
Pattern of Questionable Detentions, but State Police Say Their Methods Are 
Legal.

Gabino Barrera probably thought he was getting off easy when a law 
enforcement officer told him he was going to let him off with a warning. 
But the roughly two minutes that Gary Meredith, a special agent with the 
Virginia State Police criminal interdiction unit, continued to talk to 
Barrera alongside Interstate 81 has raised the issue of whether the Mexican 
man's constitutional right under the Fourth Amendment to be free from 
unreasonable searches and seizures was violated.

After the conversation, Barrera consented to a search of his Ford 
Thunderbird, which resulted in law enforcement officers' discovery of 
packages hidden in a stereo speaker in the back seat, according to court 
documents. Now he is charged with possession with intent to distribute more 
than 500 grams of methamphetamine in connection with packages officers 
found in his car on Jan. 1 .

The case has raised the issue of whether it was a legal search - and 
whether state police violated Barrera's rights. One Roanoke Valley defense 
attorney who has worked on similar cases argues it's part of a pattern of 
questionable detentions after traffic stops on I-81. But state police 
insist their methods are legal.

The question of effective law enforcement versus the alleged violation of 
constitutional rights was debated at a hearing in Barrera's case in federal 
court in Roanoke last week.

Barrera, who faces a minimum mandatory sentence of 10 years in prison, 
according to Assistant U.S. Attorney Craig Jacobsen, has been caught twice 
before with drugs hidden in his car, according to court testimony.

But Barrera's attorney, Phillip Lingafelt of Roanoke, has argued that the 
evidence seized from Barrera's car shouldn't be admitted in court against 
Barrera because he was illegally detained after the traffic stop and 
coerced into letting law enforcement officers search his car.

Courts have ruled that a person's consent to give permission to search has 
to be "free and voluntary."

Lingafelt also argued that as an experienced drug investigator, Meredith 
should have known that Barrera would not think he could refuse a request 
from a law enforcement officer to search his car. Barrera comes from a 
country where the police can detain and search people for no reason, even 
if the person refuses consent, Lingafelt argued.

Roanoke attorney Randy Cargill, who has worked on other cases where drugs 
were found in someone's car after a traffic stop, said he saw the decision 
to let people go briefly as an effective - if questionable - law 
enforcement tactic.

"The pattern of stopping someone for speeding, taking their licenses, 
checking their record and then advising the driver that he's going to be 
released without a warning is a method of making the driver feel 
comfortable with giving consent to a search of the car," Cargill said.

"And at the very least, it keeps the driver of the car there long enough so 
the police can summon the dog to at least sniff the outside of the car, 
which they're allowed to do," Cargill added.

In a similar traffic stop case, Cargill has asked federal prosecutors to 
provide him information from the interdiction unit about their procedures 
in identifying whom they stop, why, and how they deal with them. He has 
also asked for the performance history of the K-9 drug dog in the case, 
Cargill said.

But Virginia State Police spokesman Sgt. Tom Foster, who did not comment 
specifically on the Barrera case, dismissed the argument that troopers 
would choose not to issue someone a ticket as a psychological tactic.

"As far as a delay tactic, it would make no sense at all," Foster said, 
pointing out that it would take longer for a trooper to issue a ticket.

And Virginia State Police Sgt. Andy Metro, who heads up the interdiction 
unit, agrees that his officers don't often issue tickets - because that's 
not their job.

"Normally, we do give warnings," Metro said. "Our main focus is criminal 
interdiction, it's not writing tickets."

After Metro's officers pull someone over, they are constantly assessing 
whether there are indicators that they should ask the driver for permission 
to search the car, he said. That could include calling in a K-9 unit while 
the officer is checking a driver's license, registration and criminal 
history without the driver's knowledge, Metro said.

At the federal court hearing, Meredith testified that he stopped Barrera 
for speeding, an erratic lane change and an object dangling from his 
rearview mirror.

The U.S. Supreme Court has ruled that it is permissible for police officers 
to stop someone they may suspect of criminal activity on other grounds, 
such as speeding, or for having something hanging from their rearview 
mirror, Cargill said.

In a handful of cases in Virginia, however, judges have questioned the 
stops, particularly in "dangling objects" situations, Virginia Lawyers 
Weekly reported in 2002. And that same year, the Virginia Supreme Court 
threw out a marijuana possession conviction against Christopher Reittinger, 
after the court determined that a deputy sheriff illegally detained him 
after a Rockbridge County traffic stop was completed.

Richmond lawyer Steven Benjamin, who is on the board of the National 
Association of Criminal Defense Attorneys, said that it is legal to stop 
people for a traffic stop and detain them for as long as it takes to 
resolve that situation. And if a K-9 unit shows up during the stop, it's 
legal for the dog to sniff outside the car without a driver granting 
consent to search inside the car, Benjamin said.

But once the traffic stop is completed, it's illegal to keep a motorist at 
the scene, Benjamin said.

"Once you're done with that traffic ticket, the motorist has got to be 
allowed to leave," he said. Otherwise, the driver's consent to a search 
"would be considered the coerced product of an unlawful detention," he said.

At Barrera's hearing, Lingafelt questioned whether he was stopped because 
he was Hispanic. But Meredith said he thought the fact that Barrera had 
luggage, air freshener and maps in the car aroused suspicion, according to 
court documents.

Foster and Metro both said officers look for irregularities in traffic 
stops, for example, whether a person's story makes sense, or if the person 
seems nervous.

But Foster said the fact that a person might be from another country would 
not in itself tip officers off.

"Many more people who are couriers for narcotics legally live within the 
United States," Foster said.

After Meredith stopped Barrera and checked his identification, he returned 
Barrera's international driver's license and registration to him, according 
to court documents. Meredith never told Barrera he was free to leave after 
he returned Barrera's documents, according to his court testimony.

Then he asked Barrera where he was going and if there were any drugs in the 
car, according to court documents. This is when Lingafelt argued the 
illegal detention began.

But Metro, who did not comment specifically on the Barrera case, said the 
law does not require that law enforcement officers explicitly tell people 
they are free to go after a traffic stop.

Meredith then asked Barrera if he minded if he searched Barrera's car, 
according to court documents. Barrera said no, according to court 
documents. But Lingafelt maintained that Meredith coerced Barrera because 
he did not think he was free to leave the scene or free to refuse to answer 
questions and because Meredith kept him there until the drug dog arrived.

After the K-9 unit arrived and the officers searched Barrera's car, they 
found the packages hidden in speakers in the back seat of the driver's side 
of the car, according to court documents. Barrera was arrested soon after.

Lingafelt also raised the question of whether Barrera understood English 
well enough to understand what he was being asked.

Despite the fact that Barrera used a translator during the hearing, Chief 
U.S. District Judge Samuel Wilson said he found that Barrera had been able 
to communicate with law enforcement officers in English. He is expected to 
rule soon on the suppression motion in the case.
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