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.