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PECOS, January 24, 1997 - A Border Patrol agent's "hunch" is not enough
to stop a vehicle legally traveling down the highway, U.S. District
Judge Royal Furgeson ruled Thursday in a marijuana possession case.
Judge Furgeson granted Oscar Gerardo Alvarado's motion to suppress
evidence found after Border Patrol Agent Rodney D. Hall stopped his
pickup south of Marfa Sept. 12, 1996.
Hall said he parked his patrol unit under the canopy of the closed
Border Patrol checkpoint four miles south of Marfa on U.S. Highway 67 to
watch traffic.
When Alvarado's Chevrolet pickup with Mexican plates passed the
checkpoint, the driver did not reduce speed nor make eye contact with
Hall, which made the agent doubly suspicious.
Most travelers with Mexican plates stop to show their immigration
documents when they see an agent at the station, even when it is closed,
Hall testified. So he decided to follow the pickup and attempted to
verify the time it crossed the border at Presidio.
Learning that information was not immediately available, Hall decided to
stop the pickup, which he thought may have been speeding.
When he had stopped the pickup, Alvarado got out and walked toward
Hall's unit, as he said is customary in Mexico. Hall told him to get
back in his vehicle.
Alvarado produced documents to show he was in the U.S. legally. Hall
then asked for permission to search the vehicle, which Alvarado gave
although he was not under arrest and was not required to do so.
Hall noticed a new screw and clamp on the hose to a gas tank. Thumping
the tank, he heard a dull thud, which he said indicated something solid
inside. Alvarado gave permission for a drug-sniffing dog to inspect the
truck and waited 25 minutes while one was brought from Alpine.
Although the dog's failure to alert to the vehicle indicted no drugs
were present, Hall asked Alvarado to follow him back to the checkpoint
where the pickup could be put on a lift for closer inspection.
Alvarado was not still not under arrest, but was placed in a holding
cell for his safety as well as the safety of Hall and the dog handler,
who helped with the search.
Finding missing bolts on the tank, the agents again brought the dog, and
this time he alerted to the tank. They found 60.16 pounds of marijuana
inside.
Mike Barclay, attorney for Alvarado, said the search violated the
defendant's Fourth Amendment rights against unreasonable search and
seizure.
Government prosecutors argued the search was legal because Alvarado gave
consent; the stop was supported by probable cause or a reasonable
suspicion of criminal activity; the checkpoint is the functional
equivalent of the border, and the agent acted in good faith.
"For the most part, courts look askance at searches conducted without a
warrant," Judge Furgeson said.
Stopping a vehicle is a seizure, he said, and may be done only on
reasonable suspicion supported by articulated facts that criminal
activity "may be afoot."
Hall had neither probable cause nor reasonable suspicion, he said.
Alvarado had no legal obligation to make eye contact, slow down or wave,
nor to show his papers to an agent when the checkpoint was closed.
"No basis existed for Hall to make the stop," Furgeson said. But he said
that Fourth Amendment issues are difficult and intricate for courts to
resolve.
"If the courts struggle, even after spending weeks analyzing fact
situations and researching the law, it is clear that the struggles of
law enforcement are even greater, since they are on the front lines
trying to make instantaneous judgments, often under ambiguous
circumstance," Furgeson said in his order and opinion.
"By and large, most law enforcement officers do a remarkable job
carrying out their work and obeying the Fourth Amendment," he said.
"Agent Hall certainly seems to be worthy of inclusion into this group.
Indeed, the court was impressed with him and with his good intentions.
He acted courteously toward Ramirez at all times and exhibited a
conscientiousness toward his duties that is praiseworthy.
"Although the court believes that he made a mistake in this case and
that he should re-examine some procedures he follows as standard
approaches to stopping non-residents, nothing in this opinion should be
read as a judgment that he is seeking to circumvent the Fourth Amendment
as he performs his responsibilities. There is no evidence of such
dereliction at all," Furgeson said.
"Agent Hall did his duty to the best of his ability. He was vindicated
in his belief that Ramirez was carrying illegal drugs. There are
occasions, though, that a seizure cannot be allowed to stand because of
the dictates of the Fourth Amendment. This is one of those very limited
occasions."
"I am just grateful the laws of search and seizure are still being
upheld," Barclay said when his client was released.
PECOS, January 24, 1997 - Refusing an excuse explaining why the Border
Patrol failed to respond to a Freedom of Information Act request, U.S.
District Judge Royal Furgeson has entered a second order for a records
search and canceled a hearing set for Monday.
Judge Furgeson in December ordered the Immigration and Naturalization
Service (Border Patrol) to explain how a FOIA request from Alpine
publisher Jack McNamara got lost twice and why the records he wanted
were destroyed.
McNamara seeks documents related to the 1989 arrest and conviction of
Robert Chambers and former Presidio County Sheriff Rick Thompson for
conspiracy to import cocaine.
Agencies involved in the arrest and subsequent investigation either
denied the request or supplied only a few documents.
Following a hearing in December, Judge Furgeson ordered the agencies to
compile an index of all relevant documents so he can determine whether
they must be released under FOIA.
DEA responded that they have hundreds of records, but that most are
confidential.
INS blamed their failure to respond to the original request on a
possible mailroom foul-up and a policy to destroy records after three
years. The records do not exist at INS headquarters in Washington, D.C.,
they said.
"INS's response did not comply with the letter and spirit of the court's
December order," Judge Furgeson said. "If records do not exist at
headquarters, but do exist at the Marfa sector, for instance, why was a
search of plaintiff's request not undertaken there?
"This intransigence now requires the court to enter this order, ordering
the INS to conduct a search of the Marfa Sector of the Border Patrol and
of the Border Patrol Special Coordination Center to see if any documents
responsive to plaintiff's original FOIA request...can be found.
"If any such records do exist, the INS shall provide a
Vaughn Index of those records...no later than Feb. 10, 1997."
At docket call Thursday, Judge Furgeson set several criminal cases for
Monday, continued others and dismissed one - Maribel Ramirez-Tarango -
on a motion by government prosecutors.
Jaime Alejandro Adame pleaded guilty to possession with intent to
distribute 35 pounds of cocaine on Oct. 3. He will be sentenced April 2.
Eloy Talavera Tarin was sentenced to 10 months in prison after Judge
Furgeson revoked his supervised release.
Area's rep vice chairman of group designing House water reform plan
PECOS, January 24, 1997 - State Representative Gary L. Walker
(R-Plains), was appointed to serve on the powerful State Appropriations
Committee and as Vice-Chairman of the House Natural Resource Committee
by Speaker Pete Laney.
"I am honored and surprised by this appointment," said Walker, who
represents District 80 which includes Reeves and Loving counties. "I
appreciate the Speaker having enough confidence to place me on these key
committees, especially with the pressing issues both committees will
face this session," he added.
Walker was one of three sophomore members to be placed on the
Appropriations Committee.
"I look at these appointments as an exciting opportunity to impact
change and voice the concerns of West Texans," he said.
Walker explained, "I would like to encourage each and every constituent
to continue to keep me abreast of their issues, concerns and ideas."
The Appropriations Committee is the steering membership with
jurisdiction on all state matters relating to budget and allocations.
The committee is served by 27 members who are appointed by seniority and
the Speaker of the House.
The House Natural Resource Committee will have the task of working on
the State's water plan initiated by Lt. Governor Bob Bullock.
The nine-member board also has oversight of: land and water
conservation, water usage, irrigation, reclamation and water supply
districts in addition to several state agencies with concerns in these
areas.
Walker, who was on a flight bound for his district this morning, said he
is very interested in discussing his position on legislation filed
Wednesday by Senator J.E. "Buster" Brown and designated by Bullock as
Senate Bill 1. A House version of the bill will be filed soon.
The proposal was not designed to alter the "right to capture law", which
says property owners can pump as much water from under their land,
without note of its effect to adjoining proprietors. It would implement
fines of between $1,000 and $10,000 a day for pumping water belonging to
someone else, and would encourage local governments to recognize Texas'
water shortage and rule on remedies for their area.
One question to be dealt with by the legislature is the issue of
interbasin transfers, in which urban areas use underground water
supplies from rural areas of the state.
In the Davis Mountains, the city of El Paso has purchased land five
years ago between Marfa and Van Horn, with the goal of tapping its
underground aquifer in the future for that city's water needs. The move
drew protests from farmers and ranchers, who are concerned excess
pumping could cause mountain springs to dry up, including those as far
away as the Balmorhea area.
Walker's legislative aide, Warren Mayberry, said the state
representative, after having received the 160-page document two days
ago, is still in the process of reviewing it.
Before being elected to the legislature in 1994, Walker was a consultant
for an underground water district in the Plains area.
Mayberry said Walker will be releasing his stance on Senate Bill 1
sometime next week.
Walker is an eight year resident of Plains in Yoakum County. During his
first term he served on the Natural Resource and Agriculture and
Livestock Committees.
Manuel Quiroz was first arrested by an officer in Jeff Davis County,
after more than 40 pounds of marijuana were discovered in the trunk of
his vehicle in early December.
The discovery was made by Permian Basin Drug Task Force Interdiction
Officer Ernie Vanderleest in Jeff Davis County. He was charged with a
felony possession of marijuana.
At that time, local officials received information that Quiroz was
storing drugs at his Balmorhea home, at 113 Houston St.
Upon entering the home, a local narcotics team said they found about one
gram of cocaine in the master bedroom, along with a marijuana plant and
weapons. A warrant for possession of a controlled substance, cocaine,
was issued.
County Narcotics Investigator Clay McKinney said a written consent was
handed over by his wife for authorities to search his home during the
Dec. 3 raid.
In the latest incident, Reeves County Deputies Larry Humphries and Tony
Aguilar said they spotted Quiroz at the Circle M Bar in the 800 block of
East Second St. early Thursday morning.
Quiroz was served his outstanding Reeves County warrant and after
conducting a body search, deputies said they found about five grams of
cocaine in coat pocket and cap.
Quiroz was then taken to Reeves County Jail and charged with a second
felony possession of a controlled substance, cocaine. A jail
spokesperson said he bonded out Thursday on a $5,000 bond for the first
charge and $10,000 for the latter.
PECOS, January 24, 1997 - Local Catholics will be seeing a new face
standing at the altars of area churches.
Rev. Juan Narez will be offering his renditions of weekly mass
scriptures, along with special lectures for various ceremonies,
following his assignment to the Pecos area from El Paso's St. Stephen's
Catholic Church.
Narez recently celebrated his third anniversary in the priesthood. He
is replacing Rev. Ed Carpenter, who was transferred to Rev. Narez's
former parish.
A sports enthusiast and track star, the young Narez was raised in
Tornillo, after moving there from Chihuahua, Mex. He recalled his
sister's suggestion about his becoming a priest soon after he arrived
home from football practice while in junior high.
"She asked me if I'd thought about becoming a priest," said the now
ordained priest from behind his wire rimmed glasses, "and I started
laughing."
"She asked me because I was always helping out at the church," he
commented.
Rev. Narez admitted that he didn't give his sister's proposal much
thought, as he remained active in sports, until, "my senior year when
they asked what we wanted to do."
His long-distance running ability took him to the state level three
times and opened collegiate doors for him, having received several
scholarships to area schools.
The 30-year-old priest said he never pursued a college career and did
consider joining the military, going so far as to take the U.S. Army
entry exam.
But in 1984, just out of high school, Narez enrolled in El Paso's St.
Charles Seminary, where he studied theology and philosophy. He completed
his residency at St. Vincent De Paul Seminary in Boyton Beach, Fla.,
where he received his Masters in Divinity and was ordained on Dec. 27,
1993.
His office is decorated with an array of fish-related fixtures. Narez
said he started collecting fish after having won a fish bowl door prize
at a class reunion.
"I don't have room for anymore," he said, after having received many
fish trinkets from parishioners and couples he married.
Rev. Narez said that one of his most favorite affiliations is, "being
open to God and people. This is what has kept me in this vocation."
He said he contends that this ideology, "helps people deal with their
own struggles."
The priest and counselor said he uses the fishy knicknacks during
consultations and added, "If you're superstitious," Chinese myth
declares the fish are good luck.
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_
Copyright 1997 by Pecos Enterprise
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