June 17, 2007 - Spokesman-Review (WA) Appeals Court Upholds DEA Ruse By Karen Dorn Steele and Kevin Graman, Staff writers

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When does a drug search go too far?

When federal agents stage a car crash, steal a vehicle and lie about who they really are, a federal judge ruled last year in a case that was recently overruled on appeal, even though appeals court judges also criticized the tactics used.

In a strongly worded order last year, U.S. District Court Judge Robert Whaley tossed out evidence seized from a car driven by Ascencion Alverez-Tejeda, charged with three felony counts of distributing cocaine and methamphetamine in Eastern Washington for a Mexican drug ring.

On June 8, a three-judge panel of the 9th U.S. Circuit Court of Appeals overruled Whaley, ruling that the search was legal but expressing reservations about the ruse used by the region's Drug Enforcement Agency.

The case includes grand jury testimony that DEA agents have used similar tactics on other occasions -- raising questions by judges and defense lawyers about how far law enforcement officers can go to mislead suspects and act without a warrant. The DEA, which waited three days after the seizure to get a search warrant, is defending the conduct of its agents.

In his April 2006 order, Whaley said the DEA engaged in "shocking and outrageous conduct" and committed "criminal acts" against Alverez-Tejeda, 35, who was living in Irrigon, Ore., and Diana Maria Volerio-Perez, his 30-year old girlfriend, when they were detained and searched without a warrant on Dec. 18, 2004.

In that incident, DEA agents staged a car accident near Redmond, Ore., ran a truck into the car Alverez-Tejeda was driving, pretended to be Deschutes County Sheriff's deputies and drove off at high speed in Alverez-Tejeda's car while falsely telling him it had just been randomly stolen.

As a result of the bogus "theft" of their car, the couple "became victims of a crime," Whaley said.

The agents' actions violated the Fourth Amendment and so tainted the case that drug evidence -- two kilograms of cocaine and three pounds of methamphetamine -- later found in the car should be suppressed, Whaley said.

U.S. Attorney James McDevitt filed an appeal on May 5, 2006, which stayed the case until the ruling earlier this month.

Now that the 9th Circuit has overturned Whaley's order, a trial for Alverez-Tejeda will be scheduled.

He remains incarcerated on an immigration hold in Benton County. His attorney declined to say what country Alverez-Tejeda is from or why he is on an immigration hold. Alverez-Tejeda has two prior convictions in Oregon for cocaine possession and delivery. He faces up to 14 years in prison and up to $4.25 million in fines for conspiracy to distribute drugs and use of a phone to commit a drug felony. Volerio-Perez was not charged.

In oral arguments in Seattle in April, a three-judge panel of 9th Circuit judges peppered U.S. Attorney Russell Smoot of Spokane with questions as he argued that the agents' tactics were reasonable.

"This is the 'Keystone Cops' case," said 9th District Circuit Judge Alex Kozinski, calling the agents' ruse a "hairbrained scheme."

But Kozinski, writing for the panel, said the ruse was not unconstitutional.

The agents' actions "were reasonable in light of their vital interest in seizing the drugs and not exposing their investigation," Kozinski wrote.

Ninth District Judge Raymond Fisher concurred but wrote a separate opinion expressing concerns about the "unorthodox manner" in which the search and seizure was carried out.

The search "had the potential to spin out of control and exceed reasonable bounds. ¡K Although we do not sustain the district court's thoughtful analysis, I do not thereby mean to endorse this police action as a model for future creative seizures," Fisher wrote.

Federal agents did not respect the law in Alverez-Tejeda's case, said his lawyer, James Egan of Kennewick, who said he was disappointed by the 9th Circuit ruling.

"I did not expect it to go that way. If this doesn't set the standard for what is unreasonable, I'm concerned about what the government can do that would be," Egan said. He is considering whether to ask the entire 9th Circuit bench to review the case.

In grand jury testimony before Alverez-Tejeda was indicted, Task Force Officer Detective Bryan Miller of the Spokane County Sheriff's Office said the DEA had used such ruses on other occasions.

Defense lawyers are allowed to cite some otherwise-confidential grand jury testimony that could be considered favorable to the accused.

Miller told the grand jury the DEA "has used improper stops and seizures without warrants ¡K that were designed for the sole purpose of identifying the driver of the automobile," according to the court documents.

Those "pretext" stops are illegal, said Bob Caruso, a previous attorney for Alverez-Tejeda.

According to a memo Caruso wrote in support of suppressing the drug evidence, Miller also told the grand jury that on other occasions, "the DEA would steal ("seize") automobiles, convert them to their own use, take them across state lines and use those vehicles several days or longer to pick up, deliver and purchase drugs before they would apply for a search warrant."

After using the vehicles for several days without a search warrant, "the DEA then found illegal narcotics in the vehicles when the DEA would apply for and execute a search warrant," the memo says.

"What do you think they will find after they've been using the car to pick up or buy drugs?" Caruso asked in an interview with The Spokesman-Review.

The DEA's goal in staging the ruse in Alverez-Tejeda's case was to prevent the drugs from being distributed in the Spokane area without alerting the drug ring under investigation that their car had been seized, said Deke Gassett, the assistant special agent in charge of the regional DEA office in Seattle, who personally approved the unorthodox seizure of the car Alverez-Tejeda was driving.

"We knew these drugs would be getting to the public. The courts have now said we did this correctly, and we're happy to have that ruling," Gassett said.

The DEA often uses ruses in combating drug traffickers, Gassett said. If someone transporting drugs stops and checks into a motel, for example, agents often will tow the car away, leaving the person thinking it's been stolen.

In the case of Alverez-Tejeda, the couple didn't stop -- necessitating the more unusual ruse, Gassett said.

Agent Posed As Sheriff's Deputy

U.S. District Court documents and Volerio-Perez describe what happened on the night of the DEA sting in eastern Oregon.

Alverez-Tejeda was headed north in a black Ford Focus on Highway 97 with Volerio-Perez in the passenger's seat. As he pulled into an intersection on Redmond's main street, he saw a disabled car blocking the street and stopped.

Suddenly, a truck with Minnesota license plates struck the back of the Ford.

Quickly arriving on the scene, Deschutes County Sheriff's Deputy Robert Short said the driver of the truck was likely drunk and told the couple to move their car to a nearby parking lot.

There, a second deputy, Jeff Pullig, ordered the couple out of their car but told them to leave it running. He prevented Valerio-Perez from going back to the car to retrieve her purse.

As Pullig searched Alverez-Tejeda, Short searched Volerio-Perez. The couple was ordered into the back seat of the patrol car.

"I was afraid and embarrassed." Volerio-Perez said in an interview with The Spokesman-Review. "I was thinking, "Why are they making us get in the cop car when we didn't do anything?"

Minutes later, Pullig opened the patrol car door to point out that someone was driving the Ford out of the parking lot at high speed. He ordered the couple out of his car, jumped in, turned on his flashing lights and siren and took off in pursuit.

While they were waiting, Short told the couple their car was stolen by "a Mexican," and said that it was the third similar auto theft in Deschutes County in the last month, Valerio-Perez said.

As they waited with Short, the couple saw their vehicle one last time, racing back down the street in the opposite direction with Pullig still in pursuit.

About 20 minutes later, Pullig returned, saying he couldn't catch the stolen car. He returned Volerio-Perez's purse, Alverez-Tejeda's cell phone and a small quilted blanket, explaining that the "thief" had tossed the items out the window.

All the items were undamaged and unsoiled, Volerio-Perez said.

Eventually, Sgt. Short drove the couple to a motel, where they spent the night and were picked up by friends the next day. Volerio-Perez's CDs, camera and the couple's checkbook were never returned.

The entire event was a ruse by the DEA, Whaley's order says.

"The someone who 'hit' Defendant's car from behind was DEA Special Agent Tom Sullivan. The someone who 'stole' the black Ford Focus was DEA Agent Sean Cummings. Officer Pullig was really DEA Special Agent Jeff Pullig. The staged accident and the theft of the car were all part of the administrative seizure of the black Ford Focus," he noted.

The DEA agents believed they had legal authority to seize the car because it had been used months earlier to transport drugs in one of their own drug stings but wasn't impounded at that time. The agents believed it was again being used by people they had under wiretap surveillance to transport meth and cocaine, Gassett said.

Stephen Gunnels, a Deschutes County prosecutor cross-deputized as a special assistant U.S. attorney, told Short before the ruse was carried out that the agents had legal authority to seize the vehicle, the documents note.

But no judge was asked to rule on the reasonableness of the seizure of the car, which could have been done publicly "with flashing lights and sirens," Whaley said.

While the USA-PATRIOT Act allows some delays in notifying suspects of covert searches, the act "suggests that a covert search is something that requires judicial oversight," he added.

The 9th Circuit, however, ruled it was reasonable for the DEA agents to stop the car before it reached Kennewick and seize it because they knew from authorized wiretaps that drugs were inside. Gassett said it would have been far more dangerous to try to seize the car at a drug "safe house."

The Supreme Court has allowed some "artifice and stratagem" to catch those engaged in criminal enterprises, and the search was not unreasonable because the agents used minimal force, treating Alvarez-Tejada as "the victim of a crime" rather than as a suspect, the 9th Circuit judges said.

Car Used In Drug Buys

The context for the sting was an investigation that unfolded in late 2004 when DEA agents were investigating a large Mexican drug distribution ring in Eastern Washington known as the Robert Lopez organization.

Nineteen members of the drug ring, responsible for distributing substantial quantities of methamphetamine and cocaine in the Spokane area in 2004 and 2005, were recently sentenced to long prison terms.

As part of that investigation, DEA agents conducted two controlled buys of drugs, using a confidential informant. In each, the same black Ford Focus, registered to Jose Luis Carrillo-Mendez, was used to transport the drugs or conduct the drug transactions.

Carillo-Mendez was one of the 19 drug ring members sentenced to prison this year.

As the investigation continued, DEA agents obtained wiretap authorization in November and December 2004, picking up information that the black Ford would be transporting meth and cocaine from Los Angeles to Eastern Washington.

Carillo-Mendez was overheard on the wiretap talking to Alverez-Tejeda (also known as "Chombi"), on Dec. 14, 2004, according to a memorandum from the U.S. attorney's office. They discussed using Carillo-Mendez' Ford Focus because Alverez-Tejeda's car was prone to overheating.

In a second conversation, the agents heard Carrillo-Mendez and an "unknown male" say that "Chombi" would be returning from Los Angeles on December 18th.

The agents set up surveillance near LaPine, Ore., about 6 that night. The black Ford was spotted soon afterward.

Because of the wiretapped conversations, the government argues in its briefs that there was probable cause to take the car.

After DEA Agent Cummings seized the car, he drove it to the Deschutes County Sheriff's Office impound lot where it was stored for the night. The next day, Cummings drove it to Spokane, where agents on Dec. 21 obtained a search warrant based on the intercepted phone calls. U.S. Magistrate Judge Cynthia Imbrogno signed it.

But the warrant affidavit was "silent" regarding the use of the same car for the agents' previous controlled buys and also did not disclose the manner in which the Ford Focus was seized, Whaley's order says.

"If the DEA agents had included the details of how the search was executed, a magistrate would not have approved the search warrant," Whaley said.

Karen Dorn Steele can be reached at (509) 459-5462 or at karend@spokesman.com. Kevin Graman can be reached at (509) 459-5433 or keving@spokesman.com.

The Full 9th Circuit Court Ruling is Avalable Here (pdf).

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