Monday, January 26, 2015

Games Road Pirates Play





David Conner, a 43-year-old resident of Redding, California, will spend at least three years in a government cage in Idaho because a State Trooper in Oregon spied an open can of Monster energy drink in Conner’s rental car. 

The presence of that foul but perfectly legal concoction, Trooper Ryan Mills insisted, is an “indicator” of criminal activity. The trooper also considered it suspicious that Conner was making a long trip in a rented car during the middle of the week. Owing to his “experience and training,” Mills insisted during his January 22nd testimony in Conner’s trial, he simply knew that Conner “wasn’t just driving to grandma’s house.” 

When Conner didn’t consent to a search, Mills said that he would call a K-9 handler to conduct a drug sweep of the car. Ten minutes later the officer told Conner that “there’s no local dog available” and wrote him a citation for driving on a suspended license. 

Rather than either impounding the car or having Conner contact a friend to drive it away – as Oregon law requires – Mills let him continue eastward on I-84. About fifteen minutes later Conner was ambushed just inside the state line by Idaho State Troopers Jason Cagle and Scott Tulleners, who acted on an “Attempt to Locate” call informing them that Conner was operating a vehicle without a valid driver’s license. 

Neither Cagle nor Tulleners actually observed any suspected criminal activity on Conner’s part. The only “evidence” in their possession consisted of double hearsay – Mills’ original report relayed to them second-hand through ISP Trooper Justin Klitch, whom Mills had contacted via cellphone. 


Mills conducted that back-channel conversation with an officer outside his jurisdiction while ignoring repeated radio calls from his own dispatcher. In doing so he altered the purpose of the stop – without probable cause – from traffic enforcement to drug interdiction. He artificially prolonged Conner’s detention while making arrangements for him to be stopped in a state with more draconian drug laws and a more permissive official attitude toward police misconduct.

The initial traffic stop occurred in the early morning hours of March 5, 2014 on the freeway just outside of Ontario, Oregon. While lurking in the freeway median, Mills saw a Red Nissan Ultima pass a large Semi trailer. In his trial testimony, Mills claimed to have “visually” confirmed that the Nissan was traveling at 70 miles an hour in a 65 MPH zone.

After noticing the unwelcome visual signature of a tax feeder in his rearview mirror, Conner pulled onto an off-ramp, leaving a buffer zone of about four feet on the driver’s side of the car. Rather than following standard procedure, Mills approached the vehicle from the passenger side, which allowed him an unimpeded view of the car’s interior. That choice may be unusual for a routine traffic stop, but makes perfect sense if the objective is to contrive “reasonable suspicion” to justify a search of the vehicle.

The trooper’s performance during the encounter was a masterpiece of sociopathic manipulation, coaxing information from his detainee through an interrogation disguised as a casual conversation. 

Within seconds of approaching the car, Mills spotted a beverage cooler in the seat next to Conner.

“Is it just water in that cooler?” asked Mills asked. “No alcohol, or anything like that?”
This question – like all of the others posed by the trooper in a voice oozing affected geniality -- was seen by the detainee as an opportunity to cooperate, rather than an invitation to self-incrimination. Like too many others in similar situations, Conner didn’t appreciate the trouble he made for himself by acting on that invitation.  

“There’s some Monster energy drink in there,” Conner volunteered, unaware of the fact that Mills and others in his disreputable occupation had been trained to pretend that consumption of an energy drink by a motorist is an “indicator” of drug smuggling.

All Conner was legally required to provide were his driver’s license, registration, and proof of insurance. He was under no obligation to answer any of the questions posed by Mills or consent to a search of his person or vehicle. Yet within minutes Mills extracted detailed information about the starting point of Conner’s trip, his destination (both the city and specific neighborhood), his occupation, his friends and associates, and his family background. 

Everything Mills said or did was intended to “build the stop” by devising an excuse to search the vehicle. Every supposedly innocuous detail wrung from Conner was presented by Mills during his January 22 testimony as justification the subsequent warrantless search of the car by his comrades in Idaho.

After briefly questioning Conner, Mills returned to his cruiser, ostensibly to run Conner’s license and registration. His actual purpose was to arrange a drug sweep of Conner’s vehicle. This probably explains why the trooper ignored two replies from his dispatcher while after turning up the radio in his cruiser so as to mask his back-channel cellphone conversation with ISP Trooper Klitch.

Two minutes later, Mills asked Conner to step out of the vehicle, which is never a good thing. He also continued the interrogation, which was even worse.

“Do you have any luggage?” Mills began. “Are you carrying any illegal drugs or large sums of cash?”

When Conner – who, once again, did himself no favors by talking to the officer– replied in the negative, Mills made the inevitable demand for a “consent” search of the vehicle. 

David Conner during a break from his trial.
“How come you don’t give me the ticket and let me go?” a plaintive Conner asked after denying permission. “Is it because I’m from California?”

Replying that“I’m not going to sit and debate” the matter, Mills declared: “At this point I’m going to get ahold of a drug dog” – which was what he had planned to do from the moment he decided to stop the vehicle.

For about ten minutes Conner was left seething in his car. Roughly seventeen minutes into the stop, Mills’ dispatcher finally succeeded in getting his attention, informing him that Conner’s license had been suspended over a five-year-old unpaid traffic ticket.

A few minutes later, Mills – this time in the company of a second officer who has never been identified – approached the car again to inform Conner that he was receiving a “warning” for speeding, and a citation for driving without a valid license.

Under Oregon state law, Mills was required to act in a “community caretaking function” by preventing an unlicensed driver from operating a vehicle on public roads.  A 2005 Ninth Circuit Court of Appeals ruling in a case out of Oregon decrees that “The state has the right to allow the driver to drive away with the vehicle only if he or she is able to do so in compliance with all regulations intended to ensure the vehicle’s safe operation.” (Emphasis added.)

Conner was less than a half-hour from his destination. It wouldn’t have been difficult to arrange for a friend to take over driving duties. If this didn’t work, Mills would have the option of calling for a tow operator to impound the vehicle. A subsequent custodial inventory would have found Conner’s luggage, which included a mummy-style sleeping bag in which he had concealed a 13-gallon kitchen trash bag containing a substantial quantity of marijuana.  


A custodial inventory is not a search for criminal evidence. Opening either the suitcase or the sleeping bag, or subjecting them to a drug sweep, would have required a search warrant. In the event his car had been impounded, Conner would most likely have taken his luggage with him. Under an Oregon Court of Appeals ruling handed down two years earlier, Mills would have had no authority to prevent Conner from taking his possessions with him, or to search it without a warrant once it had been removed from the impounded vehicle.

In 2009, an Oregon man named Christopher Ray Dimmick was stopped by a police officer who impounded his car after the driver produced an invalid insurance card. When Dimmick tried to retrieve a backpack from the rear of the vehicle, the officer refused to let him take it. A search of the backpack discovered a digital scale, paraphernalia, and several bags containing drug residue.

Dimmick filed a motion to suppress the drug evidence as the product of an illegal search. The Oregon Court of Appeals agreed that “the backpack and the evidence found therein should have been suppressed” and reversed the conviction arising from that discovery.

Conner admits that he was transporting marijuana. In California, he has a medical marijuana prescription issued by Dr. Howard Kerr Ragland allowing him to possess up to ten pounds of processed cannabis. That fact would avail him nothing in Oregon – where possession of several pounds of pot is still treated as a felony – or in Idaho, where marijuana use is seen as a practice akin to communing with the Devil.

If Trooper Ryan Mills had followed Oregon law, however, Conner would have escaped that encounter with little more than a fortified commitment to avoid answering a police officer’s questions.

Mills, however, made the cynical calculation that his diligent service of the lucrative prohibition racket would extenuate his violation of a law supposedly intended to protect public safety.

“I’m giving you a warning on your speed and giving you a citation for no operator’s license or suspended in California,” Mills told Conner, who was both relieved and puzzled. The driver was informed he had “an optional court appearance on April 9th at 10:00 a.m. at the Malheur County Justice Court. You’re not required to show up.”

After explaining how Conner could pay the extortion note without the hassle of a hearing, Mills handed the driver the paperwork.

“Take care,” the trooper said by way of a farewell, pivoting on his heel and striding back to his cruiser.

“I just wasn’t really sure of what was going on,” Conner recalled to me shortly after his trial. “I had no knowledge of the suspension [and] thought he would have warned me not to drive if I was not supposed to.”


After Conner drove away, Mills – once again using his personal cellphone – contacted Klitch to spring the trap.


With the lawsuit pending against him -- and at least one other being prepared -- Klitch was reassigned to desk duty at the time of Conner’s arrest. He has since been transferred from patrol duty and is now employed as an ISP detective.

Klitch relayed the information from Mills to his colleagues Jason Cagle and Scott Tulleners, who were lounging in their respective patrol cars by the side of I-84 near the Middleton exit. Upon spotting the Red Nissan the two predators assumed pursuit vectors, tailgating Conner until he pulled into a service station. 
 
Officer Cullen and "K-9 Officer."
Officer Chris Cullen from the Parma Police Department, who had also been contacted by Klitch, quickly arrived with a drug-detecting dog named Bosco. The canine “immediately alerted to the trunk of Conner’s vehicle,” Tulleners wrote in his incident report.

Six Ziploc bags containing suspected marijuana were confiscated from the rental car. Conner was arrested and offered an invitation to become a snitch.

 “They went right after me, promising that they could make the whole thing disappear if I were willing to cooperate with the DEA, informing on people and setting up buys,” Conner told me. “I wasn’t interested, and told them I would only be speaking with an attorney.”
The effort to browbeat Conner into becoming an informant continued once he was taken to jail.

“The intake deputy at the jail said to me, `How much were you caught with?’” Conner related to me. “I knew that I was being video-recorded, and I said I would only talk to a lawyer. So that officer and a couple of others tried to intimidate me, telling me that I would get `special treatment’ if I didn’t cooperate.”

Conner was able to raise bail the following day and leave the jail without enduring any further abuse. The “special treatment” was inflicted by Canyon County Prosecutor Bryan Taylor.

The DA initially offered Conner a deal in which he would serve a fixed sentence of one year in exchange for a guilty plea. That offer was revoked when Conner filed a motion to suppress the results of the search after his “driving without privileges” citation was thrown out by Justice of the Peace Margie Mahony after she watched the dashcam video.

Since the initial traffic stop was invalid, the evidence eventually obtained was the proverbial fruit of the poisoned tree. Furthermore, even if Mills’ traffic stop had been legitimate, there was no probable cause to justify the one Mills had arranged on the Idaho side of the border.
In his affidavit, ISP Trooper Scott Tulleners claimed that he had personally “observed” Conner break the law. This was a lie: As Tulleners admitted in his narrative, “Prior to stopping the vehicle, Oregon State Police informed us that the driver and sole occupant of the vehicle was suspended in California and also that the drive exhibited several indicators of trafficking controlled substances.”
 
Trooper Cagle poses with the loot.
Third-hand “knowledge” isn’t the product of direct observation; it’s actually more akin to rumor. When cross-examined in Conner’s trial, neither Trooper Tulleners nor Trooper Cagle could state specifically which of them had “observed” Conner breaking the law, or which of them first heard about his suspended license.

When Conner’s attorney pointed out that the officers were retailing hearsay, Judge Bradly Ford parried that objection with a meandering and unfocused ruling that meant, in substance, “It’s good enough for Canyon County.”

By that time, Ford had already ruled against Conner’s motion to suppress the drug evidence for the same reason. Conner’s trial was little more than an exercise in validating a pre-determined outcome: If he wouldn’t cooperate with the DA’s office, Conner was going to be convicted of possessing five pounds of marijuana – and the state would not be required to prove every element of that offense.

Under Idaho law, possession of more than five pounds of marijuana carries a sentence of up to fifteen years in prison with a three-year mandatory minimum. If Conner had cooperated with the DA, Taylor was willing to stipulate that he had been caught with just under five pounds of pot. When Conner insisted on asserting his rights, that amount suddenly increased to just over five pounds. 

The amount of marijuana used in the prosecution depends entirely on the interests of the prosecutor. 

The variable weight of the evidence used against Conner reflects a cunningly wrought ambiguity in Idaho law: The prosecutor wasn’t required to prove that Conner was actually in possession of five pounds of marijuana, but only that the tested portion extracted from the five pounds of “leafy substance” contained THC.

In her January 23 testimony, forensic investigator Keri Hogan recalled that the test sample she extracted weighed one-tenth of a gram. This minuscule amount was sufficient for a “qualitative analysis” of the material, she insisted. When asked during cross-examination why she didn’t conduct a quantitative analysis – that is, try to determine how much of that five-pound haul contained THC – Hogan replied that the Idaho crime lab doesn’t have a procedure for quantitative testing anywhere in the state.”

This systemic imprecision confers a significant advantage on the prosecutor: A cooperative defendant caught with fifty pounds of suspected marijuana can be offered a deal below the five-pound threshold, and one who intransigently defends his rights can be threatened with the theft of fifteen years of his life.  

It should also be acknowledged that the state crime lab that produces those conveniently imprecise test results employed technicians whoroutinely violated “policies and protocols” dealing with drug evidence over aperiod of several years, according to an internal audit conducted by the StatePolice in 2011. In some instances, lad technicians concealed drugs from auditors; in one particularly horrifying episode, an ISP scientistordered a large supply of GHB – the so-called “date rape drug” – and concealedat least some of it from inspectors

The Appellate Public Defender’s Office estimated that more than 1,000 drug cases – including many that had resulted in conviction and imprisonment – were affected by the scandal. Yet during Conner’s trial the prosecution insisted that the crime lab was irreproachable and its findings incontestable. 


During Conner’s trial, the assistant DA and prosecution witnesses repeatedly recited the familiar mantra about the “training and experience” of the investigating officers to justify the intuitive leaps and procedural shortcuts that resulted in Conner’s arrest. 

Troopers Cagle and Tulleners both testified that they had undergone extensive training through anarcotics enforcement consulting firm called Desert Snow.  Although both Mills and Klitch also testified about their extensive training and experience, neither specifically mentioned Desert Snow – but the routines they employed in their videotaped encounters make it clear that they were taught the same catechism. 

  
Desert Snow was founded in 1989 by former California Highway Patrol Officer Joe David. Thanks in no small part to a steady stream of federal subsidies and consulting fees paid by police agencies, Snow now enjoys a seigneurial lifestyle any drug lord would envy, including a yacht and a vacation condo in Cabo San Lucas.

In 2004, with the help of grants provided by the Department of Homeland Security, Desert Snow established an unofficial police intelligence system called the Black Asphalt Electronic Networking and Notification System, which is accessible only to “registered law enforcement personnel.”

“Black Asphalt [serves] as a social hub for a new brand of highway interdictors, a group that one Desert Snow official has called `a brotherhood,’” reported the Washington Post. “Among other things, the site hosts an annual competition to honor police who seize the most contraband and cash on the highways. As part of the contest, Desert Snow encouraged state and local patrol officers to post seizure data along with photos of themselves with stacks of currency and drugs.”

This helps explain why Idaho State Troopers Cagle and Tulleners made a point of posing with the marijuana they had seized from Conner's rental car.

Winners of that annual Road Pirate competition “receive Desert Snow’s top honorific: Royal Knight,” continued the Post. “The next Royal Knight will be named at a national conference hosted in Virginia Beach” in March. 
  
The whole point of drug interdiction, explains Desert Snow marketing director Roy Hain (a former Kane County, Illinois Sheriff’s deputy) is to “pull in expendable cash hand over fist.”

“The drug trade has proven to be recession proof,” Hain exulted in his pseudonymously published book In Roads: A Working Solution to America’sWar on Drugs. “Americans have the assets to capitalize on this industry and handsomely support public services during times of strife.” Money confiscated through the government-licensed larceny called “asset forfeiture” can be spent on “just about anything under a law enforcement agency’s roof.”

America’s freeways are arties through which flow unimaginable amounts of money that can be diverted into law enforcement agencies, writes Hain. 

“The same techniques used by those very few drug trafficking interceptors for detecting bulk drug distribution can be used to interdict the laundering of drug cash,” he insists. All that is necessary is for police departments to pay Desert Snow to tutor their officers regarding the “identifiable and predictable profiles” of people who are carrying contraband or large amounts of cash – and to convince judges and juries that drug interdiction officers possess a Jedi-level facility for assessing the hidden thoughts and motivations of the people they encounter. 
 
Wouldn't a Skull and Crossbones be more appropriate?
“Desert Snow urges police to work toward what are known as `consensual encounters’ – beginning with asking drivers whether they mind chatting after a warning ticket has been issued,” observes the Post account. “The consensual chat gives police more time to look for indicators and mitigates later questions in court about unreasonably long traffic stops. They’re also instructed in how to make their stops and seizures more defensible to judges.

Desert Snow training sessions include units on “roadside conversational skills” and “when and how to seize currency.” The use of catch-and-release tactics involving officers in multiple jurisdictions also appears to be part of the Desert Snow curriculum.

In April of last year, reported the Post, a California Highway Patrol officer stopped a woman from Kentucky whose car was “littered with food wrappers and energy drinks.” Using the same grooming tactics Ryan Mills employed to draw David Conner into a self-incriminating conversation, the California officer learned that the woman had visited California to attend a funeral. Skeptical of that story, the officer asked the woman why she didn’t fly. Not satisfied with her answer, the trooper let her go – but used the Black Asphalt system to post her driver’s license number and a BOLO report (“be on the lookout”) to officers nation-wide. 

David Conner’s arrest was a textbook application of the Desert Snow model: A “highway interdictor” conducts a pretext stop, uses his practiced patter to engage in a “consensual encounter,” collects a few “indicators” to expand the stop into a drug search, and then sends out an intuition-based alert about the driver to fellow predators in another state. 

Once the case winds up in court, the Desert Snow alumni invoke their “training and experience” to trump objections about misconduct or violations of due process.

This routine will occasionally encounter difficulty when it is performed in front of a judge burdened with a modest respect for the Bill of Rights. The prosecutor in David Conner’s case had the tremendous advantage of presenting it before a judge in Canyon County, where the Fourth Amendment appears to be extinct.

Shortly before the trial ended, the prosecutor requested a jury instruction forbidding the panel to consider the legality of the traffic stop in Idaho. Judge Ford dutifully recited that instruction to the jury, which delivered the foreordained verdict.

“After the verdict was announced, two of the jurors apologized to my attorney,” Conner recalled to me. “They said that they really wanted to vote for acquittal because of the conduct of the police officers, but that they had to follow the judge’s instructions.”
That claim is untrue, of course – but it was good enough for Canyon County.

In an interview prior to the trial, Conner made it clear that he considered the trial a mere formality -- a prelude to at least three years behind bars waiting for his appeal to run its course. By the time he is up for parole, it's possible that Idaho will have joined several neighboring states in relaxing its Sharia-grade anti-marijuana laws.

Until then, Klitch, Cagle, Tulleners and their comrades will continue to prey upon Gem State motorists in search of cash and other valuables that can be plundered -- or contraband that can be seized in pursuit of a Desert Snow "Royal Knight" award, or some similarly trite bauble. 

Anybody driving a car bearing a license plate issued by a state with a less draconian marijuana law is fair game for a pretext stop; anybody found in possession of energy drinks can expect to be subjected to a "drug sweep." Every traffic stop will follow the "consensual encounter" script provided by Desert Snow, with the officer seeking to seduce the unwitting driver into a compromising conversation.

People who find themselves on the receiving end of such treatment should understand that they cannot win at the games road pirates play -- and shut up. If they choose to offer any reply to an officer's questions, one perfectly suitable response would be: "You should know better than to ask, and I certainly know better than to answer."

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