Path to Justice

by Jim Dutton

  “I thank both counsel. The rapid increase in technology is a concern as to how it interfaces with some of our basic rights, including the Fourth Amendment right against unreasonable government searches. There are many things the courts and the legislatures will have to come to grips with. However, this isn’t the time or place for this court to extend the penumbras of Fourth Amendment rights to include aerial photos of a property where no special devices were used to seek out information from within the buildings. The fact the photos were the product of a billion dollar satellite program is irrelevant. Motion denied. The evidence seized at the Otay Ranch property can be presented by the prosecution at trial. Next on the agenda is motion number 20. We’re going from satellites to drug-sniffing dogs. Defense?”

  “I’m up again Your Honor,” replied Mr. Flanigan. “The stop of the truck driven by a University of Montana college student, outside of Missoula, was an orchestrated attack on the Fourth Amendment by the government. It was a pretense stop. Find some minor traffic violation, pull the truck over, and bring in the canine unit that is waiting for the stop so it can arrive at the scene for an invasive sniff. The Montana Highway Patrol Officers were just going through the motions of getting the student’s driver’s license and car registration to stall for time for the canine unit to pull up. Without the positive alert by the dog for drugs, there was no probable cause to search the truck. Bringing in the drug sniffing dog delayed the traffic stop. Without the dog, a normal traffic stop for a rear brake light violation would have taken a few minutes. Here, they were roadside for thirty minutes while the dog sniffed its way around the truck and the drugs were seized and inventoried. This constitutes an unreasonable delay in the detention of the driver of the vehicle. The drugs later found in the truck must be excluded under the Fourth Amendment.”

  Josh stood up again. “If I may respond Your Honor?”

  “Go ahead.”

  “As set forth in the multiple declarations attached to the People’s response, there was no unreasonable delay at all from the time the truck was initially pulled over, to the time Klink, the highly qualified, drug-sniffing German Shepard, commenced the sniff.”

  Judge Orsini interjected, “I don’t believe that the defense is contesting the qualifications of the dog. Is that right Mr. Flanigan?

  “Correct, Your Honor. We don’t question the qualifications of man’s best friend.”

  “Okay. Mr. Sterling, you may proceed.”

  “As the declarations indicate, it took only two minutes from the time of the stop for Klink to commence the exterior vehicle sniff. Mr. Flanigan, in his argument has already acknowledged that a normal traffic stop for a brake light infraction takes a few minutes. So, while the Montana Highway Patrolmen were dutifully adhering to the protocol for the traffic stop, the canine unit had already commenced the exterior sniff. The commencement of the sniff terminates any further unreasonable detention delay analysis. In any event, the declarations indicate that Klink made a positive alert for drugs within one minute of commencing the sniff. Thus, no more than three minutes transpired between the initial stop and the positive alert. Three minutes is well within the acceptable time parameters under the Fourth Amendment for a traffic stop. The fact that it took another 25 minutes for the canine unit to seize the drugs from the truck and inventory them isn’t attributable to the initial traffic infraction, but to the positive alert for drugs. The positive alert gave the officers cause to search the truck for drugs and inventory what was seized. The cases that disallow a canine search of a vehicle stopped for a traffic violation on the basis of an unreasonably long detention of the driver occur when there’s a significant time span between the initial traffic stop and the arrival of the canine unit to commence the sniff, like 30 minutes. That’s not the case here.”

  “Further, Mr. Flanigan’s conjecture that it was an ‘orchestrated pretense stop’ by law enforcement has no bearing. As this Court is well aware, the United States Supreme Court, in Whren v. United States, held that as long as a traffic stop is objectively reasonable, it doesn’t violate the Fourth Amendment, irrespective of the subjective intent of the officer making the stop. Here, it’s not in dispute that the rear right brake light on the truck wasn’t working, a violation of Montana’s Vehicle Code. This stop and positive alert are controlled by the 2005 United States Supreme Court case, Illinois v. Caballos, which upheld a vehicle search based on a positive canine drug alert that occurred almost simultaneously with the traffic stop. The defense motion must be denied.”

  “Thank you again counsel for your concise arguments. The cases in the various circuit courts are whittling down the time between the initial traffic stop and the commencement of the exterior canine sniff for drugs. There has never been a bright line as to how much time is allowed under the Fourth Amendment to commence the sniff once the traffic violation protocol is completed. Here, we don’t have an unreasonable detention delay between writing a traffic ticket and the commencement of the canine sniff. The sniff began before a reasonable time for the traffic ticket protocol was completed. The motion is denied and the evidence remains in the case.”

  “Marc Lipman for the defense on motion number 21. My client’s former girlfriend, Felicia Salas, told police when she was stopped at the border that my client beat her up the evening before and had knocked her around previously. The prosecution wants to use this unverified claim to prejudice the jury against my client as to extremely serious charges. Domestic violence is a hot button issue. It’s in the public eye and alleged abusers are portrayed as monsters by the press. The allegations of abuse have nothing to do with the charges in the indictment—drug trafficking, money laundering and conspiracy to murder. The jury could very well convict Mr. Lopez on these unrelated, serious crimes because of these trumped up domestic violence allegations. The extreme prejudice of the flimsy evidence greatly outweighs any potential relevancy and should be excluded under rule 403 of the Federal Rules of Evidence. In addition, the admission of the abuse evidence would lead to a mini-trial within a trial, proving or disproving the domestic violence allegations; thereby distracting the jury from the true issues in this case. It’d constitute an undue consumption of time. Finally, it’s improper character evidence. All evidence of domestic violence must be excluded at trial.”

  “Thank you counsel. Prosecution?”

  Nick’s knees creaked as he stood up—loud enough for the Court and defense counsel to hear. “I apologize for the creaky knees. The miles on my knees are well over warranty.”

  “That’s quite all right counsel. This courtroom doesn’t depend on finely tuned knees, hips, or shoulders. Go ahead.”

  “Thank you, Your Honor. Defendant Lopez’s various acts of physical abuse towards Felicia are highly relevant to establish a scheme of violence against Felicia that culminated in the motorcycle drive-by shooting directed at Felicia as she was walking up to her aunt’s house. This is the same shooting where Agent Schwartz took two bullets protecting Felicia. It also shows defendant’s continued intent to harm and control Felicia. He demanded complete obedience, even forcing her to tattoo his name on her breast. While this conduct may be reflective of Defendant Lopez’ character, it’s not improper character evidence because of its relevance to a common scheme or plan, and intent. Further, the beatings go to Felicia’s credibility as a witness. Defense has attacked her credibility extensively in their various moving papers. The beatings, and in particular, the last beating, gives the jury an accurate picture of what Felicia was going through. How difficult it was for her to tell law enforcement about Mr. Lopez at the border and how difficult it will be for her to testify about her former boyfriend and the cartel at trial. She has been living under utter fear of Mr. Lopez and the cartel. This evidence is absolutely necessary to give the jury the true picture of a key prosecution witness.”

  Judge Orsini reflected a few moments before saying, “These acts do raise competing interests under the law. The idea that the j
ury should hear all relevant evidence versus the need to protect a defendant’s right to a fair trial and not have a jury unduly influenced by overly inflammatory evidence. In listening to all the arguments, and weighing all the considerations, I rule that the beating the night before Felicia was stopped at the border, comes in, while the earlier beatings do not. And, Mr. Lopez’ name tattooed on her breast is also excluded. However, because some of the issues can be influenced by the course of evidence presented at trial, the ruling is without prejudice. Both sides are free to bring up the issue upon a change of circumstances at trial. That leaves us with the defense motion as to sufficiency of the evidence to support the conspiracy to murder and aggravated assault counts of the indictment.”

  Mr. Lipman immediately stood. “I’ve been waiting for this argument Your Honor. Your tentative ruling found insufficient evidence to support the conspiracy to murder and assault charges against Mr. Encinas, but sufficient evidence as to Mr. Lopez and Mr. Sanchez. This court was absolutely correct in ruling insufficient evidence as to Mr. Encinas, but there’s also clearly insufficient evidence tying Mr. Sanchez and Mr. Lopez to the motorcycle shooting. Unfortunately, there’s widespread violence in Chula Vista. Drive-by shootings aren’t uncommon. Many are without apparent rhyme or reason. Some gang-banger shootings are motivated by revenge over perceived slights. Innocent family members of a person targeted by a gang can also be the victims of this crazed street culture. The three defendants were all in Mexico at the time, attending to legitimate concerns. The prosecution certainly isn’t contesting that any of the three were either the driver of the motorcycle or the shooter. There’s no direct evidence that any of the three were involved, or in any way conspired to have the shooting occur. The murder conspiracy taints the entire case. Having this count puts the defendants in a different, highly negative light before the jury. It’s one thing to be an alleged drug dealer or money launderer, but a murder conspirator? It will irrevocably prejudice these three defendants in the eyes of the jury.”

  “Thank you Mr. Lipman. Prosecution?”

  Nick believed his best approach was to first attack the defense argument that there was no evidence to support the conspiracy and assault charges and to end with a reminder to the judge of how little evidence it takes to support a count in an indictment.

  “There was more than sufficient evidence presented to the grand jury to support the conspiracy to murder and assault charges against the three lead co-defendants. Alan, Felicia’s cousin, told a couple of older gang-bangers, who have ties with the Familia, that Felicia was coming home the next day. It just so happens, the next afternoon, when Felicia was walking up to her aunt’s house, two young Hispanics, on a red Ducati Streetfighter, opened fire with an automatic rifle. Felicia was saved from being shot by Agent Schwartz’ and Agent Cantana’s heroic actions. The grand jury heard that defendant Lopez owns a red Ducati Streetfighter, an expensive motorcycle, way out of the financial reach of a couple of local thugs. Defendant Lopez wanted absolute control over Felicia, not allowing her to leave the compound without a bodyguard escort. He beat her just before she managed to escape his clutches. Mr. Lopez can’t stand for anyone to leave him. Also, the cartel has only one solution for members or associates who turn on them and go to the police. A cartel expert explained to the grand jury that the consequence for snitching is death. There is a strong inference from the evidence that when Felicia dropped completely out of sight, the cartel believed she went to the police and was in witness protection. That same cartel expert told the grand jury that before a hit on a snitch is approved, the hierarchy of the cartel must approve—the approval must come from as high up as the lieutenant in charge of enforcement. In this case that is defendant Rael Trujillo-Sanchez.”

  “Additionally, defendant Lopez all but admitted to accountant Lester Sendow that the cartel had taken out a hit on Felicia. A few weeks after the shooting, Sendow visited Lopez at his compound in Mexico. He asked Defendant Lopez where Felicia was. He replied, ‘We won’t be seeing that bitch anymore. She’s being taken care of.’ Finally, Felicia’s cousin, Alan, saw the two Familia wannabes a couple of weeks after he told them that Felicia was coming home. They threatened him and told him that the Familia never misses twice. Your Honor, when you look at all of this evidence, together with the reasonable inferences derived from the evidence, there is sufficient evidence to support the murder conspiracy charge in the indictment against all three lead defendants. At the very least, there was an implicit agreement to terminate Felicia for snitching on the cartel. Plus, the case law is clear. There doesn’t need to be substantial evidence to support each count of the indictment, just some evidence in support of each count. The People have met that burden as to Encinas, Sanchez and Lopez on the conspiracy to murder and the aggravated assault counts.”

  “Anything more gentlemen? Seeing no response, I’ll proceed with my ruling on motion number 22. My tentative holds. There’s clearly enough evidence as to Felicia’s ex-boyfriend, Mr. Lopez. It’s a closer question as to the other two defendants. The cartel expert, a highly qualified law enforcement agent from the Drug Enforcement Agency, testified at the grand jury, ‘That the head of enforcement for the cartel had to approve a hit on a snitch.’ That is enough to keep Rael Trujillo-Sanchez in as a defendant on the murder conspiracy and assault. However, the expert didn’t testify that the head of the cartel had to know or to approve. I’m dismissing the conspiracy to murder and assault counts against Defendant Mateo Gomez-Encinas.”

  “Remember, we’re scheduled to start the trial on January six. I won’t look favorably upon any last minute continuances. Happy Holidays. This court is adjourned.”

  The attorneys said in unison, “Thank you, Your Honor.”

  Nick whispered to Josh on the way out, “I wish he had kept Encinas in on the murder conspiracy. But it was real thin. I thought Orsini showed some smarts in his ruling about what to keep in and what to keep out on the domestic violence and the titty tat. He was very general in his reasoning. No appellate court can attack his ruling for relying on something specific. Just a legitimate exercise of broad judicial discretion. He’s a cunning old man.”

  CHAPTER TWENTY-EIGHT

  Pato sat in Luis’ office and thought about his next step in tracking down Felicia. He had various Familia distributors check out the main dental hygienist schools in the Midwest. They all had a recent photo of her and were told not to make any contact. It helped that Felicia was Hispanic because mainly Caucasian females attend hygienist schools in the Midwest. There were two promising leads. A woman who looked like Felicia, but with a different hair color, was attending a school in St. Louis, and another woman with shorter hair than Felicia, who wore dark glasses, was attending a school in Topeka. Pato figured if he wanted to be sure, he would have to fly out to these America’s garden spots in the winter and see for himself. He booked a flight to St. Louis under his attorney persona, Lorenzo. He hated commercial flights, the crowds, the security checks. It’d only be worse during the holiday season. He would arrive the week before Christmas.

  On arrival, Pato carried his small valise to the car rental office near the airport. He was tempted to rent a Range Rover, but this trip called for him to be discreet. He got unlimited mileage on a white Ford Taurus and drove over to the St. Louis school. Online research indicated there were only 40 students. He parked under a tree across from the school and spent the early afternoon alternately glancing down at a newspaper and over to the school’s entrance. It wasn’t until just after 3:00 that he saw the young lady who’d been identified as possibly being Felicia. Her facial features and skin coloring closely resembled Felicia’s. Her hair was quite a bit darker than Felicia’s. This could easily be explained by an attempt to dye her hair to help conceal her identity. Pato studied her closely as she walked across the street in front of his car. She was talking to another student and not paying any attention to her surroundings. She had Pato’s undivided attention when she walked away
from him down the sidewalk. Pato was a connoisseur of the way women walked. He loved the nuances when shapely women swayed side to side. This woman wasn’t Felicia.

  Pato set the GPS and headed towards Interstate 70. He figured the 300 miles across Missouri to Topeka would have him arriving around nine o’clock.

  The next morning, Pato was camped outside the Topeka dental hygienist school by 8:30. He wasn’t disappointed. He knew Felicia immediately from her walk. He saw her get out of her Tercel in the adjacent parking lot and walk into the building. She had this sexy, athletic walk that was hard to duplicate. He had seen it many times at Luis’ compound. Pato flashed back to the times he saw her walk around the pool. Above her shoulders, her hair was quite a bit shorter now. She looked more sophisticated and business-like with the shorter hair. Pato liked it. Too bad she wouldn’t be around for long. Pato knew from the class schedule that Felicia would get out at two. He had time to kill. He had read about the Combat Air Museum which was located at Forbes Field.