State Route 86 milepost 143
21 December 2002 at 1700: I came upon a police checkpoint on Arizona Route 86 at mile marker 143 in the Tohono O’odham reservation, Pima County, Arizona. I called a coworker on a cell phone while waiting in backed up traffic & informed him of the circumstances. He stayed on the line the entire time I interacted with the enforcement officers up to the time I was forcibly removed from the vehicle. My co-worker heard most of the conversation.
The road block was setup in such a place as to provide no prior warning as to its presence and no ability to bypass it. Route 86 is the only viable route back to Tucson from the Kitt Peak area & there is no shoulder along large sections of the route which would allow an individual the opportunity to turn around prior to entering the checkpoint.
Spotters were present along the side of the road some distance before the checkpoint. Their purpose was not obvious until after coming upon the roadblock. A dozen or so enforcement vehicles were present along the side of the road at the checkpoint. Tohono O’odham police, U.S. Customs, and INS/Border Patrol Vehicles were present along with several unmarked enforcement vehicles. I was stopped by the officer in charge who worked for the Tohono O’odham Police.
Upon request, the officer indicated the purpose of the checkpoint was sobriety & license checks which seemed inconsistent with the presence of U.S. Customs & INS law enforcement personnel. Upon request, the officer provided his name but failed to provide photo identification.
The officer then requested my license. I requested to know why he wanted it. The officer indicated everyone was being asked for their license for identification purposes and to check for compliance with traffic laws. I requested to know if the stops being made were based upon individualized probable cause of wrongdoing. He indicated there was no probable cause & everyone was being treated the same.
Others officers were beginning to gather around my vehicle at this time – including the U.S. Customs Agent. The officer in charge asked me for my drivers license again. I asked him if he had any reason to believe my drivers license wasn’t in order or whether or not he had probable cause to believe I was in violation of any statute of the State. He indicated he had no such belief but that I needed to provide my license to him. I indicated that I was uncomfortable providing my license given the current set of circumstances.
He then asked for my name which I provided along with a contact name and number for my boss who could verify my identity and purpose for being in the vehicle. I then reiterated my request to know what law authorized him to stop me without probable cause of wrongdoing and demand my identification papers. No answer was forthcoming. At some point during this conversation, a Tohono O’odham detective spoke up and indicated that he could tell I hadn’t been drinking because my eyes were not bloodshot, I was communicating effectively, and exhibited no signs of being impaired but that I still needed to provide a license.
He indicated this was an area known for drug smuggling and illegal immigrants and consequently folks needed to be identified before they could go on. Although having no jurisdiction over the subject matter at hand, the U.S. Customs Agent forcefully entered the conversation and demanded that I comply with the request along with some other commentary. I asked the U.S. Customs Agent who had jurisdictional & operational control over the check point. The fficer in charge indicated at this time that it was a joint task force consisting of the Tohono O’odham, U.S. Customs, & INS.
I indicated the Supreme Court had made a distinction between check points set up for public safety, i.e. sobriety check points, Vs law enforcement checkpoints and that only the former met Constitutional muster when no individualized probable cause is present. I then indicated the following: Due to the presence of U.S. Customs and INS/Border Patrol Agents – law enforcement as opposed to public safety was obviously a fundamental aspect of the checkpoint. The detective indicated he was satisfied I had not been drinking & hence any public safety aspect of the check point with regards to me personally had been satisfied. A license check primarily serves a law enforcement function – not a public safety issue – thus a mandatory license check relating to a ‘public safety’ stop with no actual or perceived wrongdoing is onerous on my right to travel unmolested on the public highways.
The officers present were clearly getting agitated at this point. The officer in charge asked me to pull the vehicle over to the side of the road. I asked him why and he replied they needed to ask me further questions. I asked if I was being detained. He clearly indicated I was NOT being detained. I indicated that if I was not being detained then it follows that I must be free to leave.
At this point a different officer (Tohono O’odham K-9 unit) indicated he had had enough of this and that I was to turn off the vehicle and exit the car. A few of the officers present put their hands on their guns. I slowly turned off the vehicle as commanded, removed the keys from the ignition and placed the keys in full view on the dashboard. I then sat very still in the front seat with my hands in full view for all to see. The driver side door was opened, my seatbelt was unclipped by one of the enforcement agents, and I was forcibly removed from the vehicle and laid down on the pavement . My hands were placed behind my back and I was handcuffed.
I was then picked up under the armpits and dragged off the road over to one of the police vehicles. At no point was I informed whether or not I was under arrest, nor was I read my miranda rights. I was left on the ground for the next 30-40 minutes (time not exact). A few times, the K-9 officer came over acting hostile & belligerent & made several less than exemplary comments regarding myself. I heard the U.S. Customs enforcer refer to me as a ‘Peace Protester’ & the K-9 officer refer to me as a ‘Green Freak’. While I like the color green – neither reference was accurate or justified.
Early on, my wallet was taken from me and my drivers license removed from the wallet presumably to run a check. At my request, the detective counted the money in my wallet before walking off with it. It was returned with my driver’s license presumably after the check was complete and no further reason to hold on to it was found.
During my time on the ground, I observed checkpoint operations. For the first 40 minutes – vehicles were NOT stopped in any particular order or pattern. Officers were clearly using their own judgment to determine which vehicles were stopped and which were waved through. At times, several vehicles in a row would be stopped followed by 10 or so vehicles allowed to pass unmolested. This would be followed by stopping every second or third vehicle and so on. After an hour or so, the procedure appeared to become more repetitive with nearly every vehicle being stopped but the first half of the operation was clearly arbitrary in nature.
Everyone was NOT treated the same from the inception of the operation. While watching the vehicles being stopped, I also noticed enforcement officers checking license plates against registrations along with demanding that car drivers pop their trunks so they could be searched. The purpose of such an action didn’t appear related to sobriety checks but rather the search for contraband material. Sometime during this time frame, I observed one of the Tohono O’odham officers approach the Customs enforcer and gesture at a vehicle that had just passed. The Customs enforcer started running toward his vehicle. This made it clear that information gathered by Tohono O’odham officers druing the ‘sobriety checks’ was openly being shared directly with federal enforcement agents for law enforcement purposes.
As time went on, what appeared to be illegal immigrants were loaded into an INS bus. These individuals were most likely identified by their failure to have a drivers license – indicating the license check, for which I was being detained, was being used to share information with the INS for federal law enforcement purposes. Additionally I was informed later that several hundred pounds of pot had been seized (probably through the trunk searches being conducted by the enforcement officers at the check point.)
After some time had passed, the detective came over and informed me that a citation was being drawn up & I would have the option of either signing it and being released on scene or not signing it and being brought down to the Pima County Jail in Ajo for processing. Upon his return, I opted not to sign and was lead over to one of the Tohono O’odham vehicles to await transport. While waiting, I was informed my boss had been reached and that he was heading down to the scene to recover the vehicle and I would be allowed to talk with him at that time. Another hour passed before my boss and a co-worker arrived from the University. I talked with them at length regarding the situation and decided to sign the Arizona Traffic Ticket & Complaint so I could leave and start preparing my defense.
After signing the complaint, we conversed with the detective and the officer in charge. They indicated that while they have jurisdiction to enforce State laws on the section of the highway nearest their reservation, because I was not a citizen of the reservation my case would be transferred to the jurisdiction of Pima County.
Tow vehicles were on site a ways off as well as many vehicles that had been forced to pull over for further questioning. There was a pile of unopened containers of alcohol off to the side as well. At this point we departed the scene. I was cited with two class 2 misdemeanors – each of which carries a maximum jail time of 4 months and a maximum monetary fine of $750.00: * ARS 28-1595B – Operator fails/refuses to exhibit drivers’ license * ARS 28-622A – Failure to obey officer while directing traffic It would appear that it is now unlawful to drive home from work these days without getting proper clearance from the local police. My first court date has been set for early January.