Tony Serra is a renown criminal defense attorney and a San Francisco counter-culture icon. But aside from his legendary prowess as a lawyer and his ability to win “unwinable cases,” Serra is a man of deep conviction -- a man who’s dedicated his life not to the pursuit of money, but instead to defending Americans against government oppression.

Tony Serra’s client list over the past 40 years has included Hell’s Angels, SLA members, Black Panther radicals and impoverished American Indians facing death penalty charges for killing cops in self defense. Even though the alleged crimes and the clients have been different, Serra has remained the same. He is an anachronism in the strictest sense of the word: A lawyer with true social consciousness, Serra doesn’t care so much about his retainer agreements as he does the erosion of our personal and civic rights, fighting in the name of the collective spirit.

And after four decades practicing law, Tony Serra has been in enough courtrooms to know that the government is becoming too powerful. Too many of our constitutional rights are being stripped from us. Yet, no one mentions it. Our newspapers and television analysts faithfully report the news, but seldom comment on it (while the devastating affects these conditions have had on the poor and the under-privileged are enshrined in silence).

Make no mistake -- with every passing day the very idea of this Democracy crumbles just a little bit more. Serra sees it firsthand in the cold courthouses of America, and he’s contributed the following column to Rat’s Notebook, now making public his concerns and fears and uncensored realizations (much like the poet Allen Ginsberg did in 1955, howling out against the stark machine mind and the faceless corporations that shackle our lives).

In the end, the equation is simple: give away too much of the heart and you’ll mourn the holy flowers of your soul forever.

--John Aiello

II.

THE PEOPLE’S LAWYER

By J. Tony Serra

“Oh, what can ail thee,/ knight-at-arms/Alone and palely loitering?”
-- John Keats (From “La Belle Dame Sans Merci”)

The Constitution burns and we, the radical lawyer, the civil rights lawyer, the People's lawyer, the nation's guardians of our precious precepts of liberty, we sit on our hands in mute astonishment. Everything that we have worked for over a lifetime in the judicial sphere crumbles around us. The Bush administration advances like Goths pillaging Rome and we are frozen in disbelief.

Surreptitious investigations, warrantless searches, coerced confessions, electronic eavesdropping without probable cause, detention without bail or charges, racial and religious profiling, abandonment of jury trials, incarcerations without benefit of legal counsel, and yes, even torture. Who can believe it!

Bush has squandered the country's wealth on endless war and unlimited gifts to his corporate cronies; he has made the United States the bane of the civilized world, and he takes from us, the United States citizenry, one by one, our basic freedoms, and the lawyers say nothing.

Stunned or emotionally or financially conflicted, we huddle like sheep before the slaughter. Is this what happened in 1939 when Hitler first ascended to power? Where are the Thomas Jeffersons and Thomas Paines? Why don't courtroom lawyers boycott the system, 'rage against the dying of the light', denounce, defy -- where is our voice of resistance?

Our children in the halls of academia protest our loss of civil liberties, protest the governmental rape of our resources, protest our unconscionable military destructions. We must find this path of our children and our students. We are the antithesis. Soon it will be too late.

J. Tony Serra is a defense attorney who practices in San Francisco, California.
“The People’s Lawyer” © J. Tony Serra. 2003. All rights reserved.

To contact Mr. Serra about this article, please email The Electric Review.

III.

THE ROAD TO JAIL IS PAVED WITH GOOD INTENTIONS

Knowing The Law & Asking Questions To Protect Your Rights

By Paul. J. Aiello

“Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.” ---Daniel Webster

The passage of the United States Patriot Act, and related legislation, has created a prevailing atmosphere in this country in which we are witnessing a wholescale and unabashed direct assault on individual rights and protections. It is primarily through legislation that the federal and state governments “officially” expand their authority over its citizens. “Officially”, however, does not necessarily translate into “legitimacy.”

As this expansion of authority continues, it becomes more and more necessary for individual citizens to gain both a knowledge and understanding of what laws say and mean, and also what they mean to their rights and liberty.

The following is the first in a series of articles premised upon the belief that it is through this knowledge and understanding that each of us comes to develop a vested self-interest in our personal rights and those of others, and thereby become more willing to invest our time, effort, and passion in securing their protection. The first steps begin simply enough. Don’t just accept at face value. If you have concerns about how law enforcement authority was handled in a particular situation, check it out. Find a copy of the law. Read it. Go to a lawyer. Ask questions. Keep asking questions!! If you are not convinced as to the propriety of action taken against you, then you must test it in court. If you don’t ask these kinds of questions for yourself, or on behalf of others, chances are they will never get asked. Without asking the questions, illegalities become condoned and the offending actors within the system inspired to repeat their transgressions.

The reality of our current criminal justice system, however, is that it is often difficult to get people to pay attention to the questions. Police get defensive. Prosecutors take on self-righteous postures. Judges, fearful of scrutiny, trade courage and independence for job security. Yet, it is because of this very reality that we must be relentless in continuing to ask the questions. Because the questions were asked, 130 innocent persons have been freed from prisons in the last 15 years, 12 from death row, because of DNA evidence. Such a sobering fact as this should be reason enough to, at least, listen to the questions, yet, curiously enough, the response of many prosecutors now is to push for time limits on the ability of inmates to present such evidence. The State of Florida, for example, is seeking to have a two year time limit imposed, after the appeals period has run its course, within which to present DNA evidence. When one considers that it takes a minimum of about four years just to track down and study transcripts, interview witnesses, and gather the evidence, the wisdom and propriety of, and motivation for, such brief time limits becomes highly suspect, especially when such evidence may well reveal the illegality of the state’s continuing restraint on a person’s liberty. Part of the reality of the system now is that as more questions get asked, so are more obstacles being raised to answering them.

Despite the obstacles, it is through the questioning - through the probing - through an examination and testing of the law - that truth and, with it, justice finally have a chance to be claimed in individual situations. It is through the questioning that there is a much better chance of stopping mistakes from occurring, or if they have, to remedy them.

Police, prosecutors, and judges will start taking notice and paying attention when defenses are mounted aggressively, when well thought out motions are filed and argued, when a defense attorney enters a case with the unwavering determination to go to trial and not plea bargain, when the state’s case and the police officer’s actions are minutely tested, when rulings and verdicts are appealed and reversals obtained, when post-conviction remedies are pursued, e.g., when the questions continue to be asked. Those in authority may not like determination, but will come to respect it.

Now that the reader understands what he’s up against and what is required if one intends to scrutinize closely the laws with which the state seeks to regulate one’s life, it’s time to take a closer look at specific areas of law enforcement authority and what each means to you as a citizen. With such knowledge and understanding, if you are arrested and charged with a crime, you will be in a much better position to defend the charges, assist in your defense, and test the legality of a stop or search.

A citizen’s contact with authority, and with the laws that affect his activities, usually will happen in a commonplace, everyday situation that we all take for granted, such as a traffic stop or, perhaps more commonly now, airport security. Precisely because these events are so ordinary, individuals tend to let their guard down and not be overly concerned about their rights. One typical encounter with law enforcement authority that occurs everyday on state highways is a stop or detention at or near the border. Unsuspecting motorists normally regard border stops as a minor inconvenience, until the unexpected happens and a search of the occupants and/or vehicle takes place, which produces seizure of an item that leads to arrest. It is these frequently-encountered “common” situations that one should treat as seriously as any other contact with law enforcement, where one should have a grasp of the laws and principles at work so that they will understand what exactly is occurring and being asked of them. Accordingly, this article will examine the law of border searches.

I was returning recently from a business trip to El Centro, California, which lies right above the border with Mexico. I was traveling with my bother in a 2002 Mazda Protoge rental car. He was driving. Several pieces of our luggage and clothing occupied the back seat. We were proceeding north to Los Angeles on Highway 86. Approximately 30-50 miles away from the border, there is a border patrol fixed checkpoint. Signs announced the checkpoint and advised all vehicles to stop.

We did so. A border patrol agent approached the driver’s side. This colloquy took place between the officer and my brother:

“Where you fellas coming from?”

“El Centro.”

“Where are you going?”

“Actually up to Mt. Shasta. But we’re going as far as Sacramento tonight.”

“This your car?”

“No, it’s a rental.”

“What do you have in the trunk?”

“Nothing. Luggage.”

“What do you do for a living?”

“He’s a retired judge. I’m a journalist.”

“Okay, you can go. Have a nice day.”

It occurred to me as we drove away that our respective professions probably caused the agent some unease. If another motorist in the same situation did not have such a problematic profession, would he or she have had to undergo more scrutiny and would it have been justified under the law?

The entire stop only took a few minutes and, in that respect, was certainly not intrusive. The officer’s demeanor, however, was intimidating and his tone of voice brusque. I noticed that his visual examination of the car’s interior was concentrated intensely on the rear seat. Perhaps he felt that, with the amount of luggage in the back, our vehicle was too heavily loaded and might contain contraband. Perhaps he felt that a rental car was a common way to transport narcotics. His attitude suggested that he was not satisfied with the response to his question about whether there was anything in the trunk. His further questioning appeared designed to try to develop additional information that would assist him in “getting into” the car and trunk and perhaps search us as well.

The problem with this stop, from my perspective as a retired jurist, occurs with the question, “What do you do for a living?” Up until that point, the stop’s duration and the questioning that accompanied it was routine and constitutionally permissible. However, without relation to some specific, articulable factor to which the officer could point to justify any suspicion or probable cause, this particular question about what we did for a living appears very much out of place. For example, my brother’s and my appearance is dark complected. We do not, however, look Hispanic, which appearance, in a border search context, probably would have justified such a question. Nor would our apparel provide cause for concern. It consisted of casual summer sports wear, clean and ironed, and not inconsistent for our physical appearance or for travelers in the type of a car in which we were riding. We did not display any nervousness. My brother maintained direct eye contact with the officer throughout the questioning.

In short, with this question, the border agent was reaching, looking for something, hoping to get a response that he could use to say, “I’d like you to get out of the car and open the trunk.” What response would have fueled the officer’s suspicions? What profession would not have been to his liking or would have generated distrust? Stockbroker? Mechanic.? Student? Actor? Accountant? Physician? Teacher? If either of us has answered that we were unemployed, would that have provided the catalyst to justify a search? If an Hispanic male with tousled hair and an unkempt appearance had said that he was unemployed, would there be more of a justification for increased suspicion?

These facts and these questions are set forth to demonstrate just how easily a seemingly ordinary encounter with the police has the potential to change, momentarily, into something far more sinister and with significant implications for one’s rights and liberty. And why it’s important to keep asking questions when examining the power which has been wielded by those in authority.

In order to be able to ask the right questions, we look now to the underlying principles of border searches. Contrary to popular belief held by many in law enforcement, a border search is not carte blanche authorization for conducting a search without any limitation whatsoever and the limitations on such a search are not those determined by an officer’s own personal sense of restraint.

SEARCHES AT THE BORDER ITSELF are unlike ordinary searches. They are one of the long-established exceptions to the necessity of warrants and probable cause to conduct a search. In fact, they are not even subject to the lesser standard of reasonable suspicion. Such searches are considered reasonable because the government’s authority at the border is based upon “national self-protection” in requiring one entering the country to identify himself and his belongings and effects as entitled to come in. In addition, a person’s reasonable expectation of privacy is reduced at the border.

But border searches are not exempt from the constitutional standard of reasonableness. Only routine searches are authorized. The Border Patrol is not authorized to conduct any kind of a search in any manner whatsoever.

To conduct a search that goes beyond the routine, a border inspector must have a reasonable suspicion that the person or vehicle to be searched may be carrying contraband. 1 US vs. Molina-Tarazon (2002) 2002 DJDAR 1081

What is considered A ROUTINE SEARCH? A stop involving a brief detention, a response to a brief question or two, possibly production of a document evidencing the right to be in the country, and visual inspection limited to what can be seen without a search are all components of a routine stop that has been held to be consistent with the Fourth Amendment’s prohibition against unreasonable searches and seizures. 2 US vs. Martinez-Fuerte (1976) 428 US 543

FACTORS JUSTIFYING FURTHER DETENTION AND INSPECTION

Some of the factors which the courts have held to justify further inspection of the vehicle and its contents and detention of the occupants following initial questioning have included:

Detection of a strong odor of gasoline coming from the vehicle (with gas tanks having been used to smuggle contraband) US vs. Carranza 2002 DJDAR 4858;

A sole occupant having no registration papers for the vehicle being driven, being “overfriendly” in answering the inspector’s questions, a detector dog “alerting” to a toolbox in the bed of the truck, banging the toolbox on its side without hearing a solid sound US vs. Bravo 2002 DJDAR 7635

A passenger sitting in the rear seat f a Ford Windstar minivan - a vehicle known to be commonly used for drug trafficking; questioning of the driver revealed that the passenger was not a hitchhiker but a relative; while the questioning was taking place , the passenger appeared very nervous, “very stiff and no eye contact”; a density meter scan revealed a very high reading on the driver’s side of the van US vs. Hernandez 2002 DJDAR 14703

In these and other similar factual situations, the degree of intrusiveness was still considered reasonable and the search thus found to be “routine.”

NONROUTINE SEARCHES It has been said that when the degree of intrusiveness reaches that permitted in a strip search, the search has gone beyond the merely routine. Strip searches can only be conducted upon “real suspicion” that illegality is taking place. For a more intrusive cavity search to take place, a border agent must have a “clear indication” to believe criminal activity is occurring. In such searches, the officer must also take the person to be detained not only to a private location, but also one that is medically safe.

In USA vs. Butler 2001 DJDAR 4885, while the border agents conducted an intensive inspection of the Defendant’s car, he was taken to a security office where he was patted down and placed in a holding cell, where his shoes and belt were confiscated. The court held that upon being placed in a holding cell, the Defendant was in custody and Miranda should have been given prior to any additional questioning, whether or not probable cause to arrest had yet developed.

In USA vs. Molina-Tarazon, cited above, the Ninth Circuit Court of Appeals held that dismantling and removal of a gas tank was not a routine search and was illegal without a showing of suspicion of smuggling. The court rejected the premise that a search is routine as long as a search of the person is not involved. The court noted three aspects of the search which rendered it non-routine:

Use of Force - The search required not only the use of tools, but detaching the electrical connections and using a hoist;

Danger - An error in removing, dismantling and reassembling a portion of the fuel tank containing flammable material created a risk of harm to the vehicle’s occupants;

Fear - This type of search creates a psychological intrusiveness where a reasonable driver would become apprehensive about getting back into the car

The holding of the case suggests that where these factors are present, a search may be more closely scrutinized in terms of reasonableness.

CHECKPOINTS REMOVED FROM THE ACTUAL BORDER

Stops which occur close to, but miles away, from the actual border have been upheld as constitutionally permissible, but with a greater degree of limitation placed upon an officer’s authority to conduct a search.

In these situations, an officer may not search either a vehicle or its occupants without either consent or probable cause. United States vs. Ortiz (1975) 422 US 891

Some of the factors which have been relied upon in deciding whether probable cause exists to search include the number of persons in a vehicle; the appearance and behavior of the driver and passengers; their ability to speak English; the responses given to the officer’s questions; the nature of the vehicle and any indications that it may be heavily loaded. In addition, officers are entitled to draw reasonable inferences from these facts in light of their knowledge about the area and their prior experience with aliens and smugglers.

Thus, stops occurring near but not at the border, are treated under a more traditional analysis, borrowing from such principles as the automobile exception to the warrant and the “stop and frisk” doctrine, meaning that the officer must be prepared to make a Fourth Amendment showing detailing specific, articulable facts to support probable cause.

NEW ISSUES AND OPEN QUESTIONS

In Indianapolis vs. Edmond (2000) 531 US 32, the United States Supreme Court put a general curb on police roadblocks by stating that more than a “general interest in crime control,” is required under the Fourth Amendment to justify a stop of a motorist, e.g., some quantum of “individualized suspicion.” However, detection of criminal activity during a stop should pose no problem if there is an otherwise Constitutional basis supporting the roadblock, such as a sobriety checkpoint or intercepting illegal aliens.

The United States Supreme Court will be taking up the question of whether a roadblock can be used for the purposes of looking for possible witnesses to crimes. Illinois vs. Lidster, # 02-1060. It will be interesting to see if the court adopts reasoning similar to Edmond and finds that such investigation efforts comprise general crime control, and that without individualized suspicion, such stops will not pass the requirements of the Fourth Amendment. One of the concerns that has been voiced is that if such stops are upheld, roadblocks “will become a routine part of American life.” Illinois vs. Lidster (2002) 779 NE2d 855

Once again, though, under clearly established principles, it is very likely that, in a border-search context, extending a valid, brief detention for purposes of determining whether the vehicle’s occupants include witnesses to a crime or if they have knowledge of such witnesses, will be found to be constitutionally proper

CONCLUSION

Looking back at the border search in which I was involved, which occurred many miles from the actual border, it’s clear that the officer was unable to advance any special reason for believing that our vehicle contained illegal aliens or contraband and, short of obtaining our consent, would not have been able to legally get into the car or search us. The question, “what do you do for a living?’ was not justified by any set of facts or circumstances available to the officer’s senses. Yet it was asked just the same. In the absence of facts, what prompted the inquiry? A hunch? A hunch about what? Had the questioning ultimately resulted in a search, these questions would have to be asked. Although no search occurred, I continue to ask them. I ask them on your behalf because, next time, it may be you seated behind the wheel.

This article is intended as a general discussion of relevant principles of law and is not to be considered as legal advice. If the reader has questions about specific situations, he is encouraged to consult legal counsel.

Paul J. Aiello is a retired judge of the Siskiyou Municipal Court. In addition to serving as a mediator, arbitrator and private judge, he also serves as a sentencing consultant and assists individuals with clearing and expunging their criminal convictions.

“The Road To Jail Is Paved With Good Intentions” © Paul J. Aiello. 2003. All rights reserved. Paul J. Aiello & The Electric Review.