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Hearing Transcript, 5 July '07
Court Reporter's Transcript of 'Motion to Suppress' Hearing, held on 7/5/07 at the "Remote Site" Magistrate Court ['Rainbow Tribunal'] in Deer, AR. (NOTE: The accuracy of this official transcript is under review, yet to be determined.)
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1 IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
2 HARRISON DIVISION
3 UNITED STATES OF AMERICA, )
)
4 Plaintiff, )
)
5 vs. ) Case No. F3684902 WA11
)
6 DONALD E. WIRTSHAFTER, ) at Deer, AR Remote Site
)
7 Defendant. )
8 TRANSCRIPT OF MOTION TO SUPPRESS HEARING
9 BEFORE THE HONORABLE JAMES R. MARSCHEWSKI,
10 UNITED STATES DISTRICT COURT MAGISTRATE
11 JULY 5, 2007
12
13 A P P E A R A N C E S
14
15 For the Plaintiff: MR. DAVID FERGUSON
Assistant United States Attorney
16 P. O. Box 1524
Fort Smith, Arkansas 72902
17
18
19 For the Defendant: PRO SE
20
21
22
23 TRANSCRIBED BY:
24 RICK L. CONGDON, RMR, FCRR
P. O. Box 8493
25 Ft. Smith, Arkansas 72902
2
1 I N D E X
2 GOVERNMENT'S EVIDENCE Page
3 DWAYNE CRIMS
Direct Examination....................................5
4 Cross Examination.....................................8
5 GENE SMITHSON
Direct Examination...................................10
6 Cross Examination....................................16
Redirect Examination.................................26
7
WILLIAM BRETT WELDEN
8 Direct Examination...................................28
Cross Examination....................................32
9 Redirect Examination.................................40
Recross Examination..................................42
10
SEAN HYRONS
11 Direct Examination...................................45
Cross Examination....................................54
12 Redirect Examination.................................59
Recross Examination..................................64
13
JAMES ALFORD
14 Direct Examination...................................66
Cross Examination....................................73
15
DEFENDANT'S EVIDENCE
16
DONALD E. WIRTSHAFTER
17 Direct Testimony.....................................80
Cross Examination....................................90
18
COURT REPORTER CERTIFICATE................................116
19
20 E X H I B I T S
21 Number Description Admitted
22 GOVERNMENT'S EXHIBIT NO. 1 - Closure Orders................8
23 GOVERNMENT'S EXHIBIT NO. 2 - Checkpoint Request Plan......15
24 GOVERNMENT'S EXHIBIT NO. 3 - Ashtry with residue..........72
25 GOVERNMENT'S EXHIBIT NO. 4 - Marijuana....................72
1
1 ---o0o---
2 MOTION TO SUPPRESS PROCEEDINGS OF 7/5/2007
3 ---o0o---
4 THE COURT: All right. This is the case of the United
5 States of America versus Donald Wirtshafter. Show Mr.
6 Wirtshafter is present and Mr. Ferguson is present and
7 represents United States of America. It was set for a hearing
8 on a Motion to Suppress. Mr. Wirtshafter is charged with
9 possession of marijuana and failure to produce proof of vehicle
10 insurance. Is the Government ready to proceed, Mr. Ferguson?
11 MR. FERGUSON: Yes, Your Honor. I talked to
12 Mr. Wirtshafter the other day when we were in court and it was
13 concerning the no proof of insurance. We'll move to dismiss on
14 that.
15 THE COURT: That motion will be granted.
16 MR. WIRTSHAFTER: Thank you, Your Honor.
17 THE COURT: All right. All of those that know
18 themselves to be witnesses in the case of United States of
19 America versus Donald Wirtshafter, if you would stand and raise
20 your right hands, please.
21 (Witnesses sworn.)
22 THE COURT: Mr. Wirtshafter has requested the Rule.
23 That means if you are a witness, you'll have to remain outside
24 during the hearing.
25 MR. FERGUSON: Your Honor, Agent Alford is my case
2
1 agent.
2 THE COURT: That's fine.
3 MR. FERGUSON: Can he stay?
4 THE COURT: That's fine.
5 MR. FERGUSON: And also we might instruct them not to
6 talk after.
7 THE COURT: All right, if -- Yeah, if you'll -- I'll
8 ask the Marshal Service to instruct the witnesses not to discuss
9 the case. Thank you. All right, Mr. Ferguson, if you would
10 call your first.
11 MR. FERGUSON: We don't have a chair for the witness.
12 THE COURT: Okay. We'll need -- and we don't have --
13 why don't we -- if we can take this microphone and put it down
14 in front of the chair here...
15 MR. WIRTSHAFTER: Your Honor, may I state one thing
16 for the record?
17 THE COURT: I beg your pardon?
18 MR. WIRTSHAFTER: May I have one preliminary statement
19 for the record?
20 THE COURT: All right. Just a second. Let us get
21 organized here. That's -- that's good. Thank you. Well, let's
22 let the Government go first, then, if we are going to make
23 opening remarks. Government have any remarks?
24 MR. WIRTSHAFTER: This wasn't -- this is more
25 procedural.
3
1 THE COURT: All right. Government have any remarks?
2 MR. FERGUSON: No, Your Honor.
3 THE COURT: All right, Mr. Wirtshafter.
4 MR. WIRTSHAFTER: We're proceeding today on my oral
5 Motion to Suppress the evidence based on the constitutionality
6 of my stop. I have had little time since that to -- and have
7 been in the woods and to consult with attorneys, prepare
8 memoranda. Normally with a Motion to Suppress I would be giving
9 you case law ahead of time.
10 THE COURT: Hold on, Mr. Wirtshafter.
11 MR. WIRTSHAFTER: So I want to reserve my --
12 THE COURT: Just a second, Mr. Wirtshafter. I
13 understand. This case was not on my docket. This case was
14 issued --
15 MR. WIRTSHAFTER: Yes.
16 THE COURT: -- by a citation. It's scheduled for a
17 month or more from now in Fort Smith, Arkansas. This was set at
18 your request.
19 MR. WIRTSHAFTER: I totally understand.
20 THE COURT: I'll be glad to -- I'll be glad to
21 continue this case and let it take care in its normal course.
22 MR. WIRTSHAFTER: Thank you, Your Honor. I do proceed
23 voluntarily under these circumstances. I'm just trying to
24 reserve the right to brief the Court on any issues that aren't
25 covered today, so if the law -- if you're not convinced by what
4
1 you hear --
2 THE COURT: Just so I understand now, it sounds to me
3 like you're raising an objection to the fact that you're being
4 forced to trial --
5 MR. WIRTSHAFTER: No.
6 THE COURT: -- without proper preparation.
7 A No, certainly not, Your Honor.
8 THE COURT: All right.
9 MR. WIRTSHAFTER: I'm trying to waive those objections
10 but simply reserve the right to brief the Court on issues of
11 law, if you're not convinced by the oral testimony today that my
12 case should be dismissed.
13 THE COURT: All right. You want to file written
14 briefs after the hearing?
15 MR. WIRTSHAFTER: Yes, unless you're ready to rule in
16 my favor based on what you hear today.
17 THE COURT: Well, I don't, I don't think we normally
18 would do that, Mr. Wirtshafter. If you want to -- I'll be glad
19 to take something other advisement and receive written briefs
20 after we take the evidence, but, obviously, I'm not going to
21 tell you what my ruling is and then let you submit a written
22 brief to try and change the Court's mind. But I would be glad
23 to take the evidence that is submitted here today under
24 advisement and allow both the Government and yourself to submit
25 blind briefs to me within a reasonable period of time. And then
5
1 the Court will rule after it receives and reviews both briefs.
2 MR. WIRTSHAFTER: And is there another position where
3 we could close evidence and the Court could ask us to brief any
4 particular areas of law that it's not clear on?
5 THE COURT: What I said is I will, I will be glad to
6 hear all of the evidence in the case, this is the way I normally
7 do it --
8 MR. WIRTSHAFTER: Uh-huh.
9 THE COURT: -- hear all of the evidence and then allow
10 both sides to present briefs to the Court.
11 MR. WIRTSHAFTER: Okay. Well, let's cross that bridge
12 when we come to it.
13 THE COURT: Okay.
14 MR. WIRTSHAFTER: Thank you, Your Honor.
15 THE COURT: All right. All right. Anything else?
16 MR. WIRTSHAFTER: No, Your Honor.
17 THE COURT: All right. Mr. Ferguson, call your first.
18 MR. FERGUSON: Call Dwayne Crims.
19 THE COURT: Crims, I think. Come up, have a seat.
20 ---o0o---
21 GOVERNMENT'S EVIDENCE
22 DWAYNE CRIMS, DULY SWORN, DIRECT EXAMINATION
23 BY MR. FERGUSON:
24 Q Will you state your name for the record?
25 A Dwayne Crims.
6
1 Q And spell your last name, please?
2 A C R I M S.
3 Q How are you employed?
4 A As a law enforcement officer with the United States Forest
5 Service in the Ozark/St. Francis National Forest.
6 Q So you are assigned to this area full-time, is that
7 correct?
8 A This forest; yes.
9 Q Okay. And how long have you worked in the Ozark/St.
10 Francis Forest?
11 A For approximately one year.
12 Q Is there a particular area of the Ozark/St. Francis that
13 you work?
14 A Yes, the Boston Mountain Ranger District.
15 Q Let me show you what has been marked as Government's
16 Exhibit No. 1, and ask if you can identify that?
17 A These are the closure orders by the Forest Supervisor for
18 the Ozark/St. Francis National Forest.
19 Q Okay. Is that signed by the supervisor?
20 A Not the current supervisor, but the previous one.
21 Q Well, whose signature is on there?
22 A Gary Knutsen.
23 Q Was he the supervisor at that time when that order was
24 entered?
25 A Yes, he was.
7
1 Q And --
2 MR. WIRTSHAFTER: Excuse me, Your Honor. Do you have
3 a copy of the exhibit for me to see?
4 MR. FERGUSON: No, but I'll have you look at it before
5 it's introduced.
6 THE COURT: Yeah. We're going to let you see it. I
7 haven't seen it either. I'll let you see it first.
8 MR. WIRTSHAFTER: Thank you, Your Honor.
9 Q So that gentleman whose signature is on there was the
10 supervisor at the time that order was entered, is that correct?
11 A He's the acting supervisor; yes, sir.
12 Q And what's the date on that?
13 A January 5th, 2005.
14 Q And is there a time frame that that -- on that that it's
15 valid?
16 A Yes, sir, there is. It expires five years from the date
17 it's signed.
18 Q Okay. And do you know if that particular order is posted
19 anywhere?
20 A Yes, sir.
21 Q Where would it be posted?
22 A Well, it's posted at all the local ranger districts
23 including mine at the Boston Mountain and the Forest at
24 Russellville at the supervisor's office.
25 Q So do you know about how many places that would be?
8
1 A Well, the Boston Mountain Ranger District, Pleasant Hill,
2 Bayou, and Mount Magazine, and the forest supervisor's office.
3 Q Approximately four to five locations?
4 A Approximately four to five; yes.
5 MR. FERGUSON: I would tender it to the --
6 THE COURT: If you would, hand it Mr. Wirtshafter.
7 MR. FERGUSON: Your Honor, I would move to introduce
8 this as Government's Exhibit No. 1.
9 THE COURT: All right.
10 MR. WIRTSHAFTER: I don't object, Your Honor, but I
11 haven't seen this before. I have had no time to study it.
12 THE COURT: As I said, Mr. Wirtshafter, I haven't seen
13 it either, but it will be for the...
14 (Long pause.)
15 MR. WIRTSHAFTER: Okay.
16 THE COURT: Be admitted.
17 MR. WIRTSHAFTER: I have no objection, Your Honor.
18 THE COURT: It's -- all right. Go ahead.
19 MR. FERGUSON: Pass the witness.
20 THE COURT: Mr. Wirtshafter, and you can just question
21 him from the table there, will be fine, so that my microphones
22 will pick up okay.
23 CROSS EXAMINATION
24 BY MR. WIRTSHAFTER:
25 Q Do you know if the closure order was posted anywhere near
9
1 the location where I was stopped?
2 A I don't know where you were stopped.
3 MR. WIRTSHAFTER: No further questions.
4 THE COURT: All right. Officer, for my own
5 edification, we've got this order. It appears as entered
6 pursuant to 36 CFR 261-50. And do you know what that provides?
7 A No, sir, not that one.
8 THE COURT: All right. Me either.
9 MR. FERGUSON: Your Honor, I think it's 261-58T. Oh,
10 I'm sorry. I'm sorry.
11 THE COURT: That's all right. It looks like it's
12 261-50. And it appears that that vests the Chief of each
13 Regional Forester -- may issue orders which close or restrict
14 the use of the described areas within the area over which he has
15 jurisdiction. An order may close an area to entry or may
16 restrict the use of an area by applying any or all of the
17 prohibitions authorized in this subpart. Has this Government's
18 Exhibit No. 1, has this been altered, amended, changed, revoked
19 or anything since it was established in January of 2005?
20 A Not to my knowledge.
21 THE COURT: All right. Anything else from the
22 Government?
23 MR. FERGUSON: No, Your Honor.
24 THE COURT: Anything else from the defense?
25 MR. WIRTSHAFTER: Not of this witness; no.
10
1 THE COURT: All right. You can step down, Officer.
2 Thank you. Is this all? Can this officer be excused?
3 MR. FERGUSON: Yes, please.
4 THE COURT: All right. You're free to go, Officer.
5 A Thank you, sir.
6 (TRANSCRIBER NOTE: Undecipherable mumbling heard.)
7 THE COURT: Call your next witness.
8 MR. FERGUSON: Calm Gene Smithson.
9 THE COURT: Gene Smithson.
10 THE CLERK: Gene Smithson.
11 THE COURT: Come up, Officer. Were you previously
12 sworn?
13 A Yes, sir.
14 THE COURT: If you would, have a seat, please.
15 GENE SMITHSON, DULY SWORN, DIRECT EXAMINATION
16 BY MR. FERGUSON:
17 Q Would you state your name, please?
18 A It's Gene Smithson.
19 Q And spell your last name for the record, please.
20 A S M I T H S O N.
21 Q And how are you employed?
22 A I'm a Special Agent with the U.S. Forest Service currently
23 assigned as an Incident Commander.
24 Q Incident Commander for what?
25 A For the National Incident Management Team.
11
1 Q All right. And does that concern the Western District of
2 Arkansas?
3 A Yes, it does.
4 Q All right. And does this concern an event held in July
5 involving a specific group of people?
6 A Yes.
7 Q And who is that group?
8 A The Rainbow Family of Living Light.
9 Q How long have you been assigned as the Incident Commander
10 for this special project?
11 A Since about April of this year.
12 Q Okay. As part of your job as Incident Commander, have you
13 been involved in check point requests by the Forest Service?
14 A Yes, I have.
15 Q In what capacity?
16 A I approve and authorize all check points that take place in
17 this area.
18 Q And what authority do you have to approve those?
19 A The fact that I'm the Incident Commander and the
20 Supervisory Special Agent on this event.
21 Q Okay. Let me direct your attention to June the 20th of
22 this year and ask if you were working on that day?
23 A Yes.
24 Q And tell the Court, if you will, well, let's back up just a
25 little bit and tell the Court, if you will, in June did the
12
1 Forest Service know where the Rainbow Family was going to hold
2 their yearly gathering?
3 A We weren't certain. At that time, in early June we
4 believed that it was going to be Arkansas, but there was some
5 talk about different states. A little later in June there was
6 talk of two different areas in Arkansas.
7 Q And where were those areas?
8 A One area is where we are currently at near Fallsville and
9 the other is a recreation area known as Shores Lake.
10 Q And where is Shores Lake?
11 A Shores Lake is in -- it's near Mulberry, near the community
12 of Mulberry.
13 Q Is that in Franklin County?
14 A I believe it's Franklin County.
15 Q Okay. And on June the 20th were you near the Shores Lake
16 area?
17 A No, I was not at the scene.
18 Q You were not? Okay. Did you approve a check point request
19 plan for that date?
20 A Yes, I did.
21 Q Let me show you what has been marked as Government's
22 Exhibit No. 2, and ask if you can identify that?
23 A Yeah. This is the check point request plan for June, June
24 the 20th, 2007, and this deal was to be conducted at Highway
25 215, off 215 and Forest Service Road 1505-1 which is commonly
13
1 referred to as Bliss Ridge.
2 Q Okay. And who submitted this to you?
3 A Our Operations Section Chief, Brian Southard.
4 Q Tell the Court, if you will, how this comes about that this
5 request is made.
6 A What we do is we determine the areas that are going to have
7 a high volume of traffic or likely to have a high volume of
8 traffic, find a location that's safe to conduct a check point.
9 We check for compliance with state motor vehicle law, license,
10 registration, proof of insurance, as we determine the area in --
11 that we believe may have a high volume of traffic and set up a
12 check point just to ensure that motor vehicle laws are being
13 followed.
14 Q And did you and other officers believe there might be a
15 high volume of traffic in that area on that date?
16 A Yes. All indications were that that might possibly be a
17 site that folks were looking at to come to this gathering, and
18 as such it typically draws a lot of people, people that are
19 going to attend the event or people that are just looking to see
20 where it may be, so, yeah.
21 Q And where do these people normally come from?
22 A All over, all over the country.
23 Q Okay. Have you worked on any of these special assignments
24 in the past concerning the Rainbow Family's annual gathering?
25 A Yes, yes.
14
1 Q And from past experience, have you seen traffic violations
2 and different, different misdemeanor-type violations?
3 A Yes, I have.
4 Q Would that be a higher number than normal for that area?
5 A In the past my experience has been, yes, it is. There's a
6 large influx of folks from all over the country. Some of the
7 vehicles obviously -- when you get large numbers of people, some
8 of the vehicles are not in compliance with whatever state law is
9 in the particular state you are in so we have a lot of issues
10 that we deal with on that.
11 Q Is this area, Shores Lake, is this considered a remote area
12 or is it near a city or how would you describe that area?
13 A It's a fairly remote area. It's north of the community of
14 Mulberry. It's a pretty rural area, but Shores Lake is a
15 popular recreation area.
16 Q But in the normal situation there wouldn't be thousands of
17 people up there, would there?
18 A No. There wouldn't be thousands of people; no.
19 Q So you said that, I believe Officer Brian Southard, did you
20 say, submitted this request to you?
21 A That's correct, our Operations Chief.
22 Q And how specific is this? I mean, what --
23 A Well, it's very specific. It names specifically what the
24 reason and the purpose for the check point is as well as the
25 exact location of the check point and it even includes a
15
1 lat/long, a GPS of the site where it's going to be, attaches
2 including the map specifically marking the areas, the time frame
3 that it's to be conducted and that's pretty much it and the
4 personnel that's going to be on the scene.
5 Q And did you request or did you authorize that request?
6 A Yes, I did.
7 Q Is your signature on that?
8 A Yes, it is.
9 Q Has this been altered in any way since you authorized it?
10 A No, it has not.
11 Q When did you authorize this?
12 A I authorized it on the 19th, June the 19th of 2007.
13 Q And you signed, is that correct?
14 A That's correct.
15 Q And who -- any other signatures on that?
16 A Brian Southard.
17 Q As the requesting officer?
18 A As the requesting, yes.
19 MR. FERGUSON: Your Honor, I move to introduce
20 Government's Exhibit No. 2 into evidence.
21 THE COURT: Show it to Mr. Wirtshafter. (Pause)
22 MR. WIRTSHAFTER: I have no objections to the
23 introduction of this Exhibit, Your Honor.
24 THE COURT: Be admitted as Government's No. 2.
25 MR. FERGUSON: Pass the witness.
16
1 THE COURT: Mr. Wirtshafter, questions of this
2 witness?
3 CROSS EXAMINATION
4 BY MR. WIRTSHAFTER:
5 Q Officer, did you authorize any other check point requests
6 for that day?
7 A I believe; yes.
8 Q Do you have that paperwork with you?
9 A Yes, I do.
10 Q Can you please produce it for the Court?
11 A I believe we can make that happen; yes.
12 Q While we're getting that, let me ask you how long have you
13 worked with the National Incident Management Team that is
14 managing the Rainbow gatherings?
15 A I have been on the Incident Management Team for the last
16 three years.
17 Q And what enables this National Incident Management team to
18 start?
19 A I'm not real sure I follow you.
20 Q How does it start that you have a team like this?
21 A How does it start?
22 Q Yeah, how does it start?
23 THE COURT: How is the team organized, I guess?
24 A How is it organized?
25 Q Yeah. I'm more worried about, you know, what order begins
17
1 it, what, who authorizes it?
2 A Well, it's authorized in Washington, DC. The team was
3 formed to deal specifically with large group events that take
4 place on the Forest Service. An incident commander is appointed
5 which is myself, then I begin to fill the slots on the team for
6 all the other positions.
7 Q And are you aware of any issues that were happening in
8 April of this year when you were appointed that would make the
9 2007 Rainbow gathering a national emergency?
10 A Any large group of people that come to the Forest Service
11 in a small rural area is going to impact the resource like that
12 the Forest Service considers an incident, not necessarily an
13 emergency but an incident.
14 Q Who says we're having an incident?
15 A Washington, DC.
16 Q So you're operating on orders from DC?
17 A Sure.
18 Q You said that you were the Incident Commander. You're a
19 supervisor, and a Special Agent. What does it mean that you're
20 a Special Agent?
21 A It means I'm a criminal investigator.
22 Q And what special training have you had in criminal
23 investigations?
24 A I have attended the Federal Law Enforcement Training Center
25 and, well, in two separate occasions, once in 1998 for a period
18
1 of about three months, and then another in 2003, I believe, for
2 a period of about a month and a half. Specialized training in a
3 special investigator's training program at a Federal Law
4 Enforcement Training Center.
5 Q And have you had any other training specific to your
6 supervision of this incident and management team?
7 A Yes. I've completed numerous courses in inter-agency
8 business management handbook and with fire organization. Our
9 organizational structure mirrors that of a type two fire team,
10 incident team, and there are several incident courses that we
11 are required to take. I'm certified as a security manager in
12 the fire organization.
13 Q Do you have any special training in crowd control?
14 A Yes, I do.
15 Q And could you go into the details of that training a little
16 bit for me?
17 A We are trained by the United States park police. They deal
18 with large group events and crowd control commonly in
19 Washington, DC.
20 Q Uh-huh.
21 A So they have been so kind as to give us specialized
22 training. We also receive some of that training in our
23 introductory courses at the Federal law Enforcement Training
24 Center.
25 Q Is there any ongoing training that officers receive in
19
1 crowd control?
2 A Every year we are -- we are going to be recertified in it.
3 Q Uh-huh.
4 A Yeah.
5 Q And what do you have to do to get recertified in crowd
6 control?
7 A You have to complete the course that the park police
8 requires you to complete. That's as per our agency's direction
9 we follow in accordance with their policies.
10 Q Is there anyone receiving training as part of their
11 participation in the National Incident Management Team?
12 A Every officer on the team.
13 Q They are receiving training credits for being out here this
14 week?
15 A Every officer on the team.
16 Q Can you describe a little bit about the training that
17 officers are receiving while they are here at the Rainbow
18 gathering?
19 A Basically they have received training in formations and how
20 to protect themselves, how to dissipate crowds, how to deal with
21 crowds.
22 Q And so there are trainers present here?
23 A Not today.
24 Q But present trainers at the national incident here at the
25 Rainbow gathering?
20
1 A Well, they have been here; yes.
2 Q And so the officer that stopped me, he would have also been
3 receiving training in these matters at the same time that he was
4 doing this traffic check point?
5 A If it was one of the officers assigned to my team, yes.
6 Q Thank you. Have we got those other stop check points yet?
7 THE COURT: All right. Let's show it to this Officer.
8 Let's make sure we've got what it is. Is that what you were
9 referring to, officer?
10 A Yes, sir.
11 THE COURT: All right, now, you...
12 (TRANSCRIBER NOTE: Undecipherable mumbling heard.)
13 Q And are there any other check points that you approved that
14 day?
15 A I don't recall approving any others for that day.
16 Q Okay. Did you have a check point running at the entrance
17 to where most of the people -- to the site that is, you know,
18 actually turned out to be the Rainbow gathering, you had
19 officers to the entrance to that road, too, is that not correct?
20 A I'm not sure about that specific date, but, yes, I did have
21 check points at that location.
22 Q And if I were to tell you that I was stopped at a check
23 point coming down that road that day, you would tell me that you
24 agree it might have happened?
25 A Yes, I would.
21
1 Q Okay. And if I were to tell you I was stopped at another
2 check point halfway between and on the road between the Shores
3 Lake location and the location we'll call Fallsville location
4 where the Rainbow gathering happened, that you had another check
5 point on the road in between those two locations, did you not?
6 A I don't recall exactly where you are talking about, but,
7 yes, there were two check points --
8 Q If I were to tell you that I was stopped by a check point,
9 sobriety check point by your officers at this location in
10 between the two locations, you would tell me that might be true?
11 A I would say that would not be true. You would not be
12 stopped at a sobriety check point.
13 Q I'm sorry. We call it --
14 A Compliance check point.
15 Q -- compliant check point. So this had to do with driver's
16 licenses, registration, insurance papers?
17 A Correct.
18 Q And is it illegal for people to drive -- is it legal under
19 Federal law for people to drive without insurance?
20 A No.
21 Q You weren't present when I was stopped, so you don't know
22 any of those circumstances?
23 A No, I was not.
24 Q One more minute. Were your officers responding to any
25 complaint from any individual that put you out on that road that
22
1 day?
2 A No.
3 Q And, in fact, there are very few if any complaints from
4 individuals about things that happened in the Rainbow gathering
5 this year, is that true?
6 A That's not true.
7 Q You're getting police calls from neighbors or?
8 A We do, we do receive numerous complaints daily.
9 Q And have you investigated these complaints?
10 A Yes, we do.
11 Q And how would I get a copy of the complaints?
12 A Complaints are made via telephone for the most part.
13 Q Is there a log made of these complaints?
14 A No.
15 Q There's no log made of the telephone calls that the Forest
16 Service receives?
17 A No. Most of the calls are directed individually to me on
18 my personal cell phone.
19 Q And you don't keep a log of these complaints?
20 A No.
21 Q I find that very hard to believe, Officer.
22 A Lots of calls.
23 Q So you have no logged calls of any complaints?
24 A I don't.
25 Q Okay. Now, as the incident commander when you're appointed
23
1 by Washington to come here and be the incident commander, you
2 control lots of different forces, is that not true?
3 A I guess that's one way of saying it.
4 Q You have lots of special Federal money and resources
5 available to you because of the emergency nature of the
6 incident?
7 A That's correct.
8 Q Okay. And how is it that -- how is it that an incident is
9 declared over? When is it that an incident stops; when you
10 stand down; we don't need the incident command anymore?
11 A When the event dissipates; when the crowd clears.
12 Q So when a large group gathers on the National Forest, does
13 the Forest Service always appoint -- always consider that an
14 incident?
15 A No.
16 Q If you are having a Boy Scout Jamboree, do you call that a
17 national incident?
18 A We usually don't have that many people at a Boy Scout
19 Jamboree and a special use authorization permit, a non-
20 commercial use permit is obtained by Boy Scouts.
21 Q It's a large group gathering on the forest, right?
22 A That's correct.
23 Q Do they have the same issues of compliance with driver's
24 licenses and safety checks as any other group, is that not
25 right?
24
1 A Certainly, certainly.
2 Q Can you tell a Rainbow by looking at them?
3 A No, not always.
4 Q Can you tell a Rainbow vehicle by looking at it?
5 A Not always.
6 Q And so as incident commander you have special powers under
7 Federal law that supersede the powers granted by even the
8 sheriff of the county that your incident is taking place in?
9 A I wouldn't say that. No. We operate under concurrent
10 jurisdiction where we essentially share the authorities, share
11 our own responsibilities, but in no way would we have anything
12 to do with, you know, lessening the authority of a sheriff or
13 any state and local persons. We are here to supplement them, to
14 help them.
15 Q Okay. So in a question of law dealing with state law, does
16 the sheriff have primacy or does the incident command have
17 primacy when an incident is ongoing?
18 A It depends on where it's occurring at. If it's occurring
19 on national forest lands, it's our concern, we typically take
20 the lead in that, but this is something that we talk about --
21 Q Okay.
22 A -- and decide what's going to be the best strategy for
23 everyone involved.
24 Q You said that there was talk, talk of two sites within
25 Arkansas. That's be -- the talk was actually internet
25
1 communications that you monitor, is that not right?
2 A That's part of it. The rest of it was coming from members
3 that have identified themselves as members of the Rainbow family
4 that were speaking to the --
5 Q That identified themselves as members of the Rainbow
6 family? Did they show you membership cards?
7 A No, not that I am aware of --
8 Q Okay.
9 A -- there are no membership cards, but they did identify
10 themselves as members.
11 Q They identified you as people working on the Rainbow
12 gathering. Did they ever use the word "member"?
13 A I don't know that they used "member," but they certainly,
14 they certainly have been participants, and I myself have seen
15 them the last three years, and they have been in negotiations
16 with Washington, DC, during the course of this event this year.
17 Q But you're not familiar with any membership lists or
18 membership rules or membership anything with the Rainbow family,
19 are you?
20 A No, not that I'm aware of.
21 Q So you have someone in your incident command whose job it
22 is to monitor Rainbow communications?
23 A It's not anyone's in particular's job, but everyone sort of
24 takes it on themselves to try to keep us in the loop of as to
25 what's going on.
26
1 Q Including subscribing to Rainbow family mailing lists?
2 A No. No. None of us subscribe to it. We just simply
3 looked on the website.
4 Q Okay. So somebody in your command look on the website on
5 this day of June 20th, saw that the Rainbow family was going to
6 gather in one of two locations, correct, you knew that on the
7 20th?
8 A I can't say that someone looked on the website and got that
9 information because I don't know that that's how it was
10 obtained. I do know that the two sites were named to me by the
11 individuals meeting with Washington, DC.
12 Q Okay. And on the 20th of June you had your check points
13 set up on the road leading into both locations, is that not
14 true?
15 A I believe that's correct.
16 MR. WIRTSHAFTER: I have no further questions.
17 THE COURT: Anything else?
18 MR. FERGUSON: Yes, Your Honor.
19 REDIRECT EXAMINATION
20 BY MR. FERGUSON:
21 Q Officer Smithson, Mr. Wirtshafter asked you if there is a
22 Federal law that I believe requires vehicles to have insurance.
23 And you said -- you testified no.
24 A No. I said, yes, there is a law.
25 Q Pardon me?
27
1 A There is, there is a regulation of it.
2 Q All right. Let me ask you this: Is it -- are you familiar
3 with supervisor's orders?
4 A I am.
5 Q And is it common for national forests, and I don't know if
6 you know this or not, throughout the United States to have
7 supervisor's orders that state that state law shall apply?
8 A Yes; that's correct.
9 Q Okay. And, in fact, do you know if there's one for the
10 Ozark/St. Francis National Forest?
11 A Yes, there is.
12 Q Now, the check points that Mr. Wirtshafter asked you about
13 on the 20th, I believe he testified or he stated in his
14 questions to you that there were at least two separate ones or
15 maybe three, but there was more than one on the 20th, is that
16 correct?
17 A That is correct.
18 Q And were they in close proximity to one another?
19 A I believe they were both in the Shores Lake area.
20 Q Okay. Would they be where you'd have to go through one and
21 then go through the second one?
22 A No, I don't believe so.
23 Q Were those two check points going on at the same time?
24 A I'd have to look at the paper. I can't recall.
25 Q That's all I have, Your Honor.
28
1 THE COURT: Any recross?
2 MR. WIRTSHAFTER: No, Your Honor.
3 THE COURT: All right. You can step down. Thank you,
4 Officer.
5 A Thank you.
6 THE COURT: Call your next.
7 MR. FERGUSON: Call Bill Welden.
8 THE COURT: Bill Welden?
9 MR. FERGUSON: Yes, sir.
10 THE COURT: Thank you. (Pause.) Officer Welden, were
11 you previously sworn?
12 A Yes, sir.
13 THE COURT: All right. Just have a seat right up
14 here. Go ahead.
15 WILLIAM BRETT WELDEN, DULY SWORN, DIRECT EXAMINATION
16 BY MR. FERGUSON:
17 Q Would you state your name, please?
18 A William Brett Welden.
19 Q And how are you employed?
20 A I'm employed as a law enforcement officer with the U.S.
21 Forest Service.
22 Q Okay. You may need to speak a little closer to that
23 microphone. I don't know if it can pick you up or not.
24 A Law enforcement officer with the U.S. Forest Service.
25 Q And are you currently on a special assignment?
29
1 A Yes, I am.
2 Q Is that for the Western District of Arkansas?
3 A Yes, it is.
4 Q When did you first become active in this special
5 assignment?
6 A June 10th.
7 Q All right. Let me direct your attention to June the 20th
8 of this year and ask if you were working on that day?
9 A Yes, I was.
10 Q And were you at a check point that was set up on a
11 particular road in the national forest?
12 A Yes.
13 Q Do you know where that was?
14 A The intersection of 215 and 1505.
15 Q Is that Forest Service Road 1505?
16 A Yes, it is.
17 Q And do you know what that area -- is that in the Shores
18 Lake area or do you know?
19 A Yes, it's recreation area, national forest.
20 Q And why were you at that particular site?
21 A We were conducting a compliance check point. We were
22 checking to make sure that the roads were safe. We were
23 checking driver's license, vehicle registration, proof of
24 insurance.
25 Q Do you know if a plan was approved for that?
30
1 A Yes, sir, that's our standard policy.
2 Q And did you come in contact with Don Wirtshafter, the
3 gentleman seated over at the other table, on that date?
4 A Yes, I did.
5 Q What time of day did you come in contact with
6 Mr. Wirtshafter?
7 A 1600 hours.
8 Q What would that be?
9 A Four o'clock.
10 Q Four o'clock in the afternoon?
11 A Yes, sir.
12 Q Was that within the time frame that this check point plan
13 was authorized?
14 A Yes, sir.
15 Q Do you recall coming in contact with Mr. Wirtshafter?
16 A Yes. I do.
17 Q And tell the Court, if you will, what took place, how you
18 came about to come in contact with Mr. Wirtshafter.
19 A Mr. Wirtshafter was operating a motor vehicle. I believe
20 it was a pickup truck, and it's standard when they come through
21 our check points, we contact the motorist and we ask them for
22 the standard driver's license, proof of insurance, and vehicle
23 registration.
24 Q And are you the officer that asked him for those --
25 A Yes, sir, I am.
31
1 Q -- items? Is there anything set up establishing for
2 motorists that there's a check point?
3 A We don't, we don't put it in the paper or anything like
4 that. We just, we follow our procedure. We explain to the
5 operator, vehicle operator what we're doing.
6 Q Okay. How many officers were out there? Do you recall?
7 A About 10 to 15.
8 Q And I assume there were law enforcement vehicles --
9 A Yes, sir --
10 Q -- there?
11 A -- there was.
12 Q And tell the Court about your encounter with Mr.
13 Wirtshafter, when you approached his vehicle.
14 A Mr. Wirtshafter pulled up to our check point. And I
15 explained to him that I'm a law enforcement officer and we are
16 conducting a lines check point on the national forest; that we
17 are checking all motorists for driver's license, proof of
18 insurance, and vehicle registration.
19 Q And that's what you did with Mr. Wirtshafter?
20 A Yes, sir, we did. Yes, I did.
21 Q And what happened?
22 A He produced a driver's license and his registration, but he
23 was unable to produce current proof of insurance.
24 Q Did you give him an opportunity to look for it?
25 A Yes, I did.
32
1 Q And what happened then?
2 A During this contact I requested Officer Hyrons, he's a
3 canine unit, to walk his canine around Mr. Wirtshafter's
4 vehicle, and his canine alerted.
5 Q Well, did the officer do that?
6 A Yes, he did.
7 Q Pass the witness.
8 THE COURT: Mr. Wirtshafter?
9 CROSS EXAMINATION
10 BY MR. WIRTSHAFTER:
11 Q These 10 to 15 officers, were they all part of the national
12 incident management team?
13 A We had various agencies that were cooperating with us on
14 this incident.
15 Q And can you now list some of the agencies that would have
16 been present at this traffic check point on that day?
17 A I -- the county, county deputies and a wildlife
18 officer -- the U.S. Forest Service is pretty much the lead
19 agency on this. We are the ones that set up a check point and
20 contact the motorist.
21 Q Uh-huh. Now, let's see. 215 is a state highway, correct?
22 A Yes, I believe so.
23 Q And Road 1505 is a county-maintained highway?
24 A I am not sure.
25 Q Did you have any stop signs set up before your traffic
33
1 check point?
2 A It's our standard policy to set up stop signs at our check
3 point.
4 Q Did you have stop signs on that day telling people that
5 there was a traffic check point; were there any special signage
6 that you had on that day?
7 A Sir, I don't recall. I don't recall.
8 Q Now, when I was put on the trunk of your car, would you
9 agree that there was a large box of traffic tickets on the trunk
10 of the car, too?
11 A Sir, I don't recall.
12 Q You don't recall that box of traffic tickets?
13 A No.
14 Q A box this big full of traffic tickets, you never saw it
15 that day?
16 A I don't recall the traffic tickets.
17 Q Or not traffic tickets but U.S. Forest Violation Notice --
18 I don't want to -- these yellow tickets like I received. You
19 don't recall the big box full of those tickets, huh?
20 A There were I think a box of citations, unwritten tickets
21 there.
22 Q That's what I'm talking about --
23 A Okay, yes.
24 Q -- a box of unwritten tickets, yes. Now, how did that box
25 happen to come there that day, be there at my stop?
34
1 A Sir, I cannot say.
2 Q Was it your practice to stop every vehicle coming past the
3 check point?
4 A Yes, sir.
5 Q Are you aware that not all states require drivers to carry
6 insurance?
7 A My understanding is within the State of Arkansas, even
8 though a driver is from another state, is required to produce
9 proof of insurance.
10 THE COURT: It's required in the State of Arkansas,
11 Mr. Wirtshafter.
12 MR. WIRTSHAFTER: It's required of Arkansas drivers,
13 Your Honor, but I'm an Ohio driver --
14 THE COURT: I understand.
15 MR. WIRTSHAFTER -- operating under an Ohio license.
16 Ohio law does not require that I carry proof of insurance. It
17 requires that I carry insurance and I did have insurance.
18 THE COURT: I thought your question to him was whether
19 Arkansas required it.
20 MR. WIRTSHAFTER: Arkansas requires its drivers to
21 carry proof of insurance.
22 THE COURT: All right. Now, we are getting into
23 argument on your part. Just ask your officer the question.
24 MR. WIRTSHAFTER: Okay.
25 Q Are you aware that it is not against the law in Arkansas
35
1 for an Ohio driver not to have proof of insurance on him at the
2 time?
3 A Sir, what I understand is that any vehicle operator from
4 another state should produce proof of insurance.
5 Q Are they legal -- Are you required to produce proof of
6 insurance? You said "should." I'm just trying to make it
7 clear.
8 A Yes, sir.
9 Q Were you investigating a specific complaint that day at
10 that location? Were you investigating a specific complaint that
11 day?
12 A No, sir. We were just conducting a standard line road
13 check.
14 Q You knew you were setting up on the road to the planned
15 site of the Rainbow gathering, were you not?
16 A No, sir.
17 Q You knew Rainbows were coming through that day, did you
18 not?
19 A No, sir.
20 Q You had -- you were just following orders to go to that
21 location?
22 A Correct.
23 Q And you were not under any orders to try to find the
24 location to the Rainbow gathering?
25 A No, sir.
36
1 Q And you knew nothing about the Rainbow gathering when you
2 were sitting out there on that road? You had had no discussions
3 with your fellow officers whatsoever about the Rainbow
4 gathering?
5 A Sir, what I understand is that the Rainbows were going to
6 gather in this area. We were setting up random check points
7 throughout the forest for vehicles.
8 Q And your random check point just happened to land on the
9 road announced that morning on the internet as the location for
10 the Rainbow Gathering?
11 MR. FERGUSON: Your Honor, I object to him testifying.
12 THE COURT: That will be sustained. He's already
13 testified that he didn't know about it.
14 Q But you were present for 10 days previous to this date as
15 part of the National Incident Management Team for the Rainbow
16 gathering?
17 A Yes, sir.
18 Q And you were receiving training in -- you were receiving
19 training this week as part of your participation in the National
20 Incident Management Team? You were getting training credits?
21 A Yeah. We are trained specifically --
22 Q Specifically?
23 A We had, we had crowd training. That was large numbers of
24 people.
25 Q And some of that training is going on while you're here as
37
1 part of the National Incident Management Team; you're getting
2 trained as you work?
3 A Well, training is a part of our -- part of the incident.
4 We are trained. We also do patrol.
5 Q So do you get certified for the year in certain aspects of
6 your job by participating in the National Management Team's
7 supervision of the Rainbow family?
8 A No, sir.
9 Q There's no special certificates that you're receiving, no
10 special training that you're getting accredited in as part of
11 your being on this team?
12 A We were trained in crowd management, crowd control, but
13 it's no specific qualification, no specific reg.
14 Q Okay. Of the 10 to 15 officers there on the road to go
15 through this check point to do this check point, how many of
16 them were supervisors or managers or trainers?
17 A Sir, I cannot say.
18 Q Why?
19 A I'm not sure who the cadre of the trainers were. There
20 were 10 to 15 officers. Some were in the management position,
21 some were trainers, some were special agents, county deputies,
22 some were game wardens.
23 Q But you would admit then there was a cadre of trainers as
24 part of the National Incident Team?
25 A There were people in leadership positions that were present
38
1 at the check point.
2 Q Who were certified trainers doing their jobs as trainers
3 while the incident was going on?
4 A Sir, I cannot say.
5 MR. WIRTSHAFTER: I've no further questions of this
6 witness.
7 THE COURT: Mr. Ferguson?
8 MR. FERGUSON: Your Honor, I don't have anything
9 further of this witness at this time. I may need to recall him.
10 THE COURT: Let me ask him a couple of questions.
11 Why ask the canine to go around the vehicle? What's going on
12 there?
13 A We had the canine units at the site and we'll ask the dogs
14 to do a walk-around to see if the vehicle has a presence for
15 narcotics.
16 THE COURT: Was that a standard practice?
17 A Yes, sir, it is.
18 THE COURT: And that was, that was Officer Hyrons?
19 A Correct, Officer Hyrons.
20 THE COURT: When you spoke with the Defendant, no odor
21 of marijuana?
22 A No, sir.
23 THE COURT: And were you present when the vehicle was
24 searched?
25 A Yes, sir.
39
1 THE COURT: Did you recover any item?
2 A No, sir. The officer that searched the vehicle and found
3 the marijuana brought the marijuana to me directly.
4 THE COURT: Okay. So you ended up being the logging
5 officer? They --
6 A Yes, sir.
7 THE COURT: Okay. Did you see where it was recovered?
8 A Not directly. I -- they recovered some from an ashtray and
9 the ashtray --
10 MR. WIRTSHAFTER: I -- objection over --
11 THE COURT: All right. Did you see then where it was
12 recovered?
13 A No, sir.
14 THE COURT: Okay. They looked in, sort through that.
15 But somebody delivered what they recovered to you?
16 A Yes, sir.
17 THE COURT: And you logged it?
18 A Yes, sir.
19 THE COURT: Did you perform field tests?
20 A No, sir.
21 THE COURT: Did you deliver it to somebody else?
22 A Yes, it was turned in to the agents that were custodians
23 for the evidence.
24 THE COURT: All right. Do you remember who that was?
25 A Yes, sir. It was --
40
1 THE COURT: Officer Alford here?
2 A Correct.
3 THE COURT: Okay. Mr. Ferguson, anything else?
4 MR. FERGUSON: Your Honor, what I'd like to do, since
5 we got into this, I would like to go ahead and go into what I
6 was planning on recalling him for, if I may.
7 THE COURT: All right. Let's go ahead.
8 REDIRECT EXAMINATION
9 BY MR. FERGUSON:
10 Q Officer Welden, you testified, I believe, that you packaged
11 the items that were found in Mr. Wirtshafter's vehicle, is that
12 correct?
13 A Yes.
14 Q And what did you do with them after you packaged them?
15 A I secured the items and then I -- they were turned over to
16 Officer Alford.
17 Q And where did you turn them over to Officer Alford at?
18 A At our incident command post.
19 Q Okay. Let me show you what's been marked as Government's
20 Exhibit No. 3, and ask if you can identify that?
21 A Yeah. I recognize that as the items that were retrieved
22 from his vehicle and turned over to Officer Alford.
23 Q Okay. Now, where did you get that item from? Did you find
24 the item?
25 A No, sir, I did not.
41
1 Q Okay. Where did you obtain it from or who did you obtain
2 it from?
3 A Also Officer Alford --
4 Q Were you -- go ahead.
5 A Officer Alford had brought or Officer Hyrons had brought
6 the ashtray forward which had this residue in it from the
7 vehicle.
8 Q All right. And he gave it to you?
9 A Right.
10 Q And you, in turn, what did you do with it?
11 A Both being an officer, I packaged it for evidence.
12 Q Okay. Let me show you what's been marked as Government's
13 Exhibit No. 4.
14 (TRANSCRIBER NOTE: Undecipherable mumbling heard.)
15 Q Let me show you what's been marked as Government's Exhibit
16 No. 4. And I think this may be a loose item, so you may just
17 look in there as opposed to... (Pause) Can you identify what's
18 marked as Government's Exhibit No. 4?
19 A Yes, sir. It appears to be marijuana.
20 Q Well, do you know, have you seen that before?
21 A Yes, sir.
22 Q And where have you seen it?
23 A All right. It was brought from the vehicle.
24 Q From Mr. Wirtshafter's vehicle?
25 A Yes, sir.
42
1 Q And who gave it to you?
2 A Officer, I cannot recall which officer.
3 Q Was it at the scene?
4 A Yes, sir.
5 Q Were there any other civilian vehicles at that site at that
6 time?
7 A No, sir.
8 Q And who -- what did you do with it?
9 A I secured it and then I turned it over to Officer Alford.
10 THE COURT: I'm sorry. Secured and what?
11 A I secured it in my vehicle.
12 Q And then what did you do with it?
13 A Then I turned it over to Officer Alford.
14 MR. FERGUSON: Okay. Pass the witness.
15 RECROSS EXAMINATION
16 BY MR. WIRTSHAFTER:
17 Q I asked to see the evidence against me right before I was
18 released, is that not right? Do you recall this? Do you recall
19 showing me the bag of -- the one bag?
20 A Yes, sir.
21 Q You only showed me the one bag with a little bit of green
22 material in it?
23 A Yes, sir.
24 Q You didn't show me a bag with ashes in it, did you?
25 A No, sir.
43
1 MR. WIRTSHAFTER: I have no further questions.
2 THE COURT: Just so I understand, what's been marked
3 for identification purposes only as Government's No. 3, you
4 received from Officer Hyrons?
5 A Yes, the burnt remains in the ashtray.
6 THE COURT: Burnt remains in the ashtray. And what
7 has been marked as Government's 4 for identification purposes
8 only, you can't remember what officer brought you that?
9 A Yes, sir.
10 THE COURT: When you get an item, whether it's from
11 this search or any search, how do you specifically mark that
12 item? When they hand you something and you bag it, do you
13 initial it, date it?
14 A Yes, sir.
15 THE COURT: Okay. Are your initials and date then on
16 the proposed Exhibit 3 and 4?
17 A Well, we have a form we fill out.
18 THE COURT: Okay.
19 A There's a log form that we fill out.
20 THE COURT: All right.
21 A And then they put the sticker on the evidence. The agents
22 put the sticker on the evidence, the evidence custodians.
23 THE COURT: All right. I'm just trying to understand
24 how you identify and clarify that a particular piece of
25 evidence -- I'm assuming that you seized many items --
44
1 A Yes, sir.
2 THE COURT: -- how you identify a particular piece of
3 evidence coming out of a particular vehicle.
4 A Right.
5 THE COURT: All right. And how do you do that?
6 A The officers that find the items bring the items to me and
7 I identify the items as the being contraband and the items are
8 bagged.
9 THE COURT: All right. And when they are put in the
10 bag, how do you identify the bag? What's on the bag?
11 A It is marked.
12 THE COURT: All right. And what's it marked with?
13 A It's marked with an identification.
14 THE COURT: A number?
15 A Yes, sir.
16 THE COURT: All right. A specific number?
17 A Yes, sir.
18 THE COURT: All right. And you have a sequencing
19 number that goes through and you only assign that number to that
20 particular piece of evidence?
21 A Correct.
22 THE COURT: All right.
23 (TRANSCRIBER NOTE: Undecipherable mumbling heard.)
24 THE COURT: All right, Mr. Ferguson, as a result of
25 the Court's questions, anything else?
45
1 MR. FERGUSON: No, Your Honor.
2 CONTINUED RECROSS EXAMINATION
3 BY MR. WIRTSHAFTER:
4 Q Officer Hyrons did not make any marks on the bag or the
5 evidence that he found, did he?
6 A I'm not aware of it.
7 Q You're the first person to sign the custody --
8 A Correct.
9 Q -- thing?
10 MR. WIRTSHAFTER: No further questions.
11 THE COURT: All right. You can step down, but do not
12 leave. The Government may need to recall you.
13 A Yes, sir.
14 THE COURT: Thank you.
15 MR. FERGUSON: Call Sean Hyrons.
16 THE COURT: Come up, officer. Were you sworn earlier?
17 A Yes, sir.
18 THE COURT: Have a seat, please.
19 SEAN HYRONS, DULY SWORN, DIRECT EXAMINATION
20 BY MR. FERGUSON:
21 Q Will you state your name for the record?
22 A Sean Hyrons.
23 Q And how are you employed?
24 A United States Forest Service as a law enforcement officer.
25 Q Do you have special duties as a law enforcement officer for
46
1 the U.S. Forest Service?
2 A Yes, sir. I'm a canine officer.
3 Q All right. And are you on a special assignment currently?
4 A Yes, I am.
5 Q Is that assignment here in the Western District of
6 Arkansas?
7 A Yes, it is.
8 Q Were you on that assignment on June the 20th of this year?
9 A Yes, I was.
10 Q And were you at a check point location set up by your
11 agency?
12 A Yes, I was.
13 Q Do you recall where that check point was?
14 A I believe it was 215, the Shores Lake area.
15 Q Okay. Were you on a state highway or Forest Service Road
16 or intersection?
17 A It was an intersection with a Forest Service Road. I don't
18 recall the Forest Service Road number at this time.
19 Q Okay. And do you know Officer Bill Welden?
20 A Yes, I do.
21 Q Was he present?
22 A Yes, he was.
23 Q Did you see Mr. Wirtshafter, the gentleman seated at the
24 other table --
25 A Yes, I did.
47
1 Q -- okay, at that check point?
2 A Yes, I did.
3 Q And do you know how Mr. Wirtshafter arrived at that check
4 point?
5 A He was driving a motor vehicle, a black Toyota four-door
6 pickup, I believe, with Ohio tags on it.
7 Q And what did you do in relation to Mr. Wirtshafter's
8 presence?
9 A He was stopped at the check point. I believe Officer Bill
10 Welden was the primary officer on this stop, and I believe he
11 asked for his driver's license, registration, and proof of
12 insurance.
13 Q Okay. Did you hear him ask for that?
14 A I believe I did, but I wouldn't --
15 Q Okay. All right. But you were nearby at least?
16 A I was nearby; I was near the vehicle.
17 Q Okay. And did you at some point do something with your
18 dog?
19 A Yes, I did. They performed -- I heard them state they were
20 performing a secondary stop. The driver was unable to produce
21 proof of insurance I believe is what they stated and at that
22 point I removed my dog from my vehicle and walked it around the
23 back of the vehicle.
24 Q Okay. You're going to have speak up, please.
25 A Okay.
48
1 Q Has your dog received any special training?
2 A Yes. He's trained in bite work, tracking, article
3 searches, and narcotic detection.
4 Q Okay. How long have you -- has that dog been assigned to
5 you?
6 A A little over three years.
7 Q How old is the dog?
8 A The dog is approximately six years old.
9 Q And how long have you been a canine handler?
10 A Approximately three years.
11 Q So this is the only dog that you have worked with, is that
12 correct?
13 A This is the only dog I've worked with as a canine officer.
14 Q And does the dog have to be -- go through some kind of
15 certification periodically?
16 A Yes, it does, yearly. We have yearly certifications.
17 Q And when was the last time that dog was -- had gone through
18 a certification?
19 A September, I believe, 26th of 2006.
20 Q And was it certified on that date?
21 A Yes, it was.
22 Q And do you have to go through some type of certification
23 process?
24 A Yes. It's the same certification as the dog. We handle
25 the dog and we put the dog through the narcotics training, the
49
1 bite work training, and tracking, and that sort of thing. Both
2 of us going through the same thing.
3 Q On the same day?
4 A Correct.
5 Q Were you approved on that day to be a canine handler?
6 A Yes, I was.
7 Q You say that's done yearly?
8 A Yes, it is.
9 Q So going back to the date that -- June the 20th when you
10 made contact with Mr. Wirtshafter, tell me exactly what you did
11 concerning his vehicle.
12 A I walked the dog around the outside of the vehicle. When
13 the dog passed by the rear passenger door area on this one,
14 walked past it, the dog suddenly swung its head back, which is
15 a -- the dog does this same motion in training situations where
16 she comes to an odor of a narcotic and she went back and looked
17 at the area back and forth and then at a point she scratched on
18 the vehicle which is part of the indication that she's -- it has
19 an odor of narcotics.
20 Q So what did you do at that point?
21 A At that point indicated -- at that point I put the dog up
22 and then we began a search of the vehicle.
23 Q Where was Mr. Wirtshafter when the dog alerted to the
24 vehicle?
25 A He was out -- I have individuals usually removed from the
50
1 vehicle when we do a vehicle search.
2 Q Okay. And were there any occupants in the vehicle besides
3 Mr. Wirtshafter?
4 A There was a front seat passenger.
5 Q Okay. Was this male or female?
6 A It was a male.
7 Q Were both subjects out of the vehicle?
8 A When the dog was walked around the vehicle?
9 Q Yes.
10 A I don't recall. I usually have individuals out of the
11 vehicles for safety purposes, but I don't recall if the
12 individuals were out of the vehicle at the time.
13 Q Did you smell the odor of marijuana? Are you familiar with
14 the odor of marijuana?
15 A Yes. I'm familiar with the odor of marijuana. When I
16 opened the rear passenger door, I got a strong odor of
17 marijuana, it smelled to be green marijuana to me, not so much
18 burnt marijuana, but green marijuana. It had a real strong
19 odor.
20 Q And you can distinguish between the two?
21 A Between the two? Green marijuana, burnt marijuana, it's
22 the odor is just slightly different, but, yes, I usually can
23 tell the difference between because when you smell green
24 marijuana, it's a very strong odor, but they are similar odors.
25 Q All right. Tell us what you did.
51
1 A I began searching the vehicle. I searched the -- started
2 searching the back passenger area of the vehicle. I found a
3 pair of green pants that had an extremely strong odor of
4 marijuana, extremely strong odor of marijuana on them and then
5 there was also a bag that was pulled out that I was present when
6 they removed a small amount of marijuana from the -- I don't
7 recall the color of the bag. It was inside of a coconut shaped
8 purse or package. Inside of it was a small amount of green
9 leafy substance in it. I didn't test it, but I believe it was
10 tested positive for marijuana.
11 THE COURT: I'm sorry. I couldn't quite hear.
12 MR. FERGUSON: You are going to have to speak up.
13 A Okay. Sorry.
14 MR. WIRTSHAFTER: Objection to this answer. He wasn't
15 present. He said he believed something. It's not relevant what
16 he believed.
17 THE COURT: Well, I didn't hear his answer so if he's
18 testifying -- just tell what you saw or observed.
19 A We removed a bag from the vehicle. A bag was removed from
20 the vehicle. I was present when they were searching the bag.
21 Inside the bag there was a small cyl -- it looked like a
22 coconut. I believe it looked like a coconut. It was like a
23 purse or something of that sort. It was opened up. There was a
24 green leafy substance inside of it that in the past it appeared
25 to me to be marijuana.
52
1 Q Was there any other items found in the vehicle that may
2 have been marijuana?
3 A Yes. After we had searched and removed a lot of items I
4 went ahead and put my canine back in the vehicle. The canine
5 went in the vehicle and went up to the front of the ashtray in
6 the front seat between the two front seats, the dashboard area,
7 and indicated on that. After she indicated on that, I removed
8 it from the vehicle, removed the ashtray and I saw a burnt
9 substance that smelled like marijuana, appeared to be burnt
10 marijuana.
11 Q What did you do with that?
12 A I believe I sat it on the top of the hood of the car in
13 front of the car and I think it -- I believe it was passed on to
14 Bill Welden or James Alford.
15 Q Have you conducted a field test of this item?
16 A Yes, I did.
17 Q And what test was that?
18 A It was -- it's a narcotic identification kit. It's a kit
19 that tests for marijuana.
20 MR. WIRTSHAFTER: Can we be clear as to which item he
21 tested?
22 THE COURT: Need to know what item you're talking
23 about.
24 A I tested both items, what was in the front inside the
25 ashtray and what was in the rear inside the bag. I tested both
53
1 items.
2 Q And what was the results of the tests?
3 A Positive.
4 Q For what?
5 A For marijuana, or T H C.
6 Q Have you conducted that type of test prior to that date?
7 A Yes, numerous times, numerous times.
8 Q Have you ever conducted that test, it come back positive,
9 and you send it to a crime lab to be analyzed?
10 A Yes, I've tested it and sent it off to be tested.
11 Q No, I'm not talking about these items. I'm talk --
12 A Yes. I have tested the item and then I've sent it off to a
13 crime lab to also be tested. Yes, I've done that.
14 Q We are talking about previous occasions.
15 A Previous occasions, yes, correct.
16 Q And have you ever had a field test come back positive but a
17 crime lab say that it was not marijuana?
18 A No; that's never occurred.
19 Q So both substances that you found in the vehicle that you
20 just testified to, you did a field test on both of them?
21 A Correct.
22 Q And they both came back positive?
23 A Yes. Both the items came back positive.
24 Q As far as marijuana?
25 A Correct.
54
1 MR. FERGUSON: Pass the witness.
2 CROSS EXAMINATION
3 BY MR. WIRTSHAFTER:
4 Q Is your dog trained to differentiate the smell between
5 burnt marijuana and fresh marijuana?
6 A The dog indicates on the odor of marijuana.
7 Q And not burnt marijuana?
8 A It will --
9 Q Is he certified --
10 A The dog has indicated on items, paraphernalia items which
11 have burnt marijuana in them.
12 Q And this is part of its training?
13 A Yeah, we --
14 Q You test on residue?
15 A Residue? Yes.
16 Q Uh-huh. Are there any videotapes depicting my stop? Were
17 you taking any photographs?
18 A Not that I recall.
19 Q Are there -- how do you keep records of what your dog does?
20 Do you have a separate log of your dog's performance?
21 A During field work, during training?
22 Q He works a day like you do. He's an officer of the law.
23 Does he keep a log or do you keep a log for him as to his daily
24 activities?
25 A When I search a vehicle and the dog indicates on the
55
1 vehicle, I keep a log of the information. I write it down on a
2 note pad and then I transfer it to an activity log.
3 Q And you keep a log when the dog indicates, and then nothing
4 is found in the vehicle, does that get in your log?
5 A The dog indicates and it does not find anything in the
6 vehicle --
7 Q Yes.
8 A -- do I keep a log of that?
9 Q Yeah.
10 A I document that, yes, also.
11 Q And how often does that happen?
12 A Periodically it occurs that I do not find a substance.
13 Q Is there a de minimus quantity that dogs are not able to
14 find?
15 A I can't answer that question.
16 Q Are there any departmental or organizational policies
17 concerning the quantities that dogs are able to find or look
18 for, anything about quantity in your certification?
19 A You have to rephrase the question. I'm not understanding
20 it.
21 Q Is your dog certified to be able to find a hundredth of a
22 gram of marijuana?
23 A We don't base it on that -- I, I -- during training I've
24 taken my dog and had residue amounts placed on people's hands
25 and on other objects that I did not locate and the dog hasn't
56
1 indicated on those locations before based on the odor of the
2 drug.
3 Q Is your dog able to detect tiny quantities of that with any
4 reasonable degree of scientific certainty?
5 A I don't have that in a scientific -- I can't answer that
6 question.
7 Q And so how do I get copies of your canine record that might
8 show instances where you made searches and found nothing?
9 A I have canine records at my home unit.
10 Q And if your dog finds, indicates on three cars in a row and
11 you find nothing in any of those three cars, does your dog lose
12 its certification?
13 A No.
14 Q How many drug dogs or drug dog handlers are present as part
15 of the National Incident Management Team this year?
16 A I believe there's six.
17 Q And are the six of you working together in training
18 yourselves or getting certifications or doing any of that work
19 while you're here?
20 A We've done a little bit of training over here.
21 Q Can you describe it, please?
22 A Done some bite work training, in other words, training in
23 bite work and aggression training.
24 Q Do you have a trainer here?
25 A Do we have a trainer here?
57
1 Q Is there a trainer --
2 A At that time there was --
3 Q -- certified trainer?
4 A -- a canine coordinator was present.
5 Q At the time on my bust?
6 A When you were present? No, there was only two handlers at
7 the time of your --
8 Q You had two dog handlers and two dogs present at that check
9 point?
10 A Correct.
11 Q There was lots stuff in my vehicle, true?
12 A Correct.
13 Q And when your dog indicated, that became enough probable
14 cause in your mind to begin to start tearing things out of my
15 vehicle?
16 A Search the vehicle, correct.
17 Q Uh-huh. That included tearing upholstery out of my
18 vehicle?
19 MR. FERGUSON: Your Honor, I'm going to object to him
20 testifying.
21 THE COURT: Well, I'll sustain the objection. Why
22 don't you ask him if, if --
23 BY MR. WIRTSHAFTER:
24 Q Did that include tearing --
25 THE COURT: If, if --
58
1 Q -- trim and such from my vehicle and looking for hidden
2 places?
3 A I did not tear anything from your vehicle.
4 Q But it could have been done during that search because
5 there were other officers present?
6 A I don't know if it was done.
7 Q Now, I saw you and heard you. I mean, I'm sorry. Let me
8 not testify and ask this right. Did you not yourself go through
9 my vehicle using your own nose trying to find marijuana?
10 A I smelled a large -- I smelled what to me smelled to be of
11 marijuana in the rear of the vehicle. Yes.
12 Q And is that part of your -- are you certified to smell
13 marijuana? Are you an expert in it? Is it --
14 A Am I an expert in smelling marijuana?
15 Q Yes.
16 A I know the odor of marijuana.
17 Q Now, can you describe where exactly you found that sample
18 of quote green marijuana in the vehicle?
19 A I didn't find it. Another officer found it. I was
20 present.
21 Q Can you describe where it was?
22 A It was -- I, I saw -- as I said before, a coconut type
23 shaped I believe it was container inside that was inside of
24 another bag which was in the rear of the vehicle.
25 Q Can you describe the other bag?
59
1 A The other bag that it was pulled out of?
2 Q Yes.
3 A I believe it was a black leather bag, but, no, I --
4 THE COURT: You believe it was what kind of a bag?
5 A It was, I believe it was a backpack or like a suitcase type
6 bag.
7 Q Could you tell whose backpack it was?
8 A I didn't know whose backpack it was.
9 Q There were prescription drugs in that backpack that you
10 asked me about, were there not?
11 A I did not ask you about prescription drugs.
12 Q Did you find prescription drugs in that bag?
13 A I did not search that bag.
14 MR. WIRTSHAFTER: No further questions.
15 REDIRECT EXAMINATION
16 BY MR. FERGUSON:
17 Q Sir, is your dog trained to alert to odors or quantities?
18 A Odors.
19 MR. FERGUSON: That's all I have, Your Honor.
20 RECROSS EXAMINATION
21 BY MR. WIRTSHAFTER:
22 Q Is there --
23 THE COURT: Just, just -- all right. Go ahead.
24 Q Is there a small enough quantity that your dog cannot
25 detect reliably?
60
1 A When she smells an odor, she detects on the odor that she
2 smells.
3 Q But is there -- but your dog has to be reliable. Is there
4 a quantity of material that your dog is trained to detect?
5 A She detects when she smells an odor of what she's been
6 trained to detect, yes.
7 Q So your dog can smell miniscule traces is what you're
8 saying?
9 A If she smells it, it's present, yes, she can smell.
10 Q Can your dog -- Will your dog indicate if marijuana might
11 have been smoked in a vehicle previous, you know, previously to
12 the time, and your dog will indicate on the smell of burnt
13 marijuana from the vehicle?
14 A She will indicate if she smells the odor of marijuana.
15 Q Or burnt marijuana?
16 A If she smells marijuana, yes, she will indicate.
17 Q Previously burnt marijuana?
18 A I assume she would, but she indicates when she smells
19 marijuana.
20 Q Marijuana smoking leaves a residue that smells like
21 marijuana, is that right?
22 A She would indicate on the odor of burnt marijuana.
23 Q Okay. So she does not necessarily indicate the presence of
24 marijuana. She indicates on the odor of marijuana? That's a
25 yes?
61
1 A She indicates on the odor of marijuana which would be
2 residual amounts.
3 MR. WIRTSHAFTER: Okay. No further questions, Your
4 Honor.
5 THE COURT: All right. Just a couple. In the
6 certification process that your dog goes through, is it run
7 through a series of tests where they place marijuana somewhere
8 and your dog has to find it and alert to it?
9 A Correct.
10 THE COURT: All right. And how many test runs does
11 your dog have to -- have to do at the training that your dog
12 receives?
13 A We do it in different locations. We do it on bags. We do
14 it inside of buildings. We do it inside of vehicles. We do it
15 on the outside of vehicles. Numerous times.
16 THE COURT: All right. Is there going to be ten items
17 or approximately ten times? Do you know?
18 A Times she would indicate on a drug or that --
19 THE COURT: That it's a test for her where they have
20 placed the drugs and she has to find them.
21 A Yes. There would be least ten times of that, they would
22 test and she would find.
23 THE COURT: And does your dog have to alert and get a
24 positive or pass the test a certain percentage of the time?
25 A Yes.
62
1 THE COURT: And did your dog ever fail, when you had
2 those tests that would go -- you were doing at the academy or
3 wherever your dog is trained, did she ever falsely alert when
4 the drugs were not present?
5 A During the testing, no.
6 THE COURT: Okay. Is there a certain number of times
7 that she will have to give a positive alert in order to pass or
8 to be certified?
9 A If there's drugs present, yes, she has to meet a certain
10 percentage of the time, hit the number of drugs that are placed
11 outside.
12 THE COURT: All right. Now, as I understand it, this
13 background, how many people were in the car?
14 A There was two individuals in the vehicle.
15 THE COURT: Two individuals in the vehicle and lots of
16 stuff in the vehicle. And your dog first alerts to the backpack
17 that's in the back seat.
18 A She alerted on the back doors of the vehicle on the
19 outside.
20 THE COURT: All right. And as a result of that alert,
21 you-all searched the vehicle?
22 A Correct.
23 THE COURT: All right. You didn't find the bag,
24 whatever is in the backpack, the coconut that you talked about?
25 A. I didn't find it; no, sir.
63
1 THE COURT: So the only thing that you found and are
2 testifying is whatever was found in the ashtray?
3 A Correct.
4 THE COURT: And whatever was found in the ashtray, and
5 I believe that is Government's Exhibit No. 3, you delivered that
6 to the Officer Welden?
7 A Correct.
8 THE COURT: And what was found in the ashtray, is that
9 all just burnt-up marijuana, it's just residue, or it's residue,
10 whatever it is?
11 A You could see some leafy-type substances mixed in with the
12 burnt amount. There was -- I don't know a weight, but there was
13 a fair amount.
14 THE COURT: Is somebody going to be able to take this
15 what's in the ashtray and reroll it and use it in some way?
16 A Could they?
17 THE COURT: Right.
18 A I've known figures that claim they clean their bongs out
19 and smoke the car in the bongs (sic), but I don't know if the
20 individual in question did that.
21 THE COURT: All right. No smoking devices found?
22 A I not did not discover any smoking devices.
23 THE COURT: And what's the quantity that's found in
24 the ashtray? Do you know?
25 A I don't recall. (Pause)
64
1 THE COURT: All right, Mr. Ferguson?
2 MR. FERGUSON: That's all I have of this witness, Your
3 Honor.
4 THE COURT: Mr. Wirtshafter?
5 RECROSS EXAMINATION
6 BY MR. WIRTSHAFTER:
7 Q Would you agree this bag was a female purse?
8 A Which bag?
9 Q The bag that the coconut shell purse was found in was a
10 female purse and that this was a little change thing or
11 something inside the purse. It was a female's purse, is that
12 not right?
13 A I wasn't really sure what the --
14 Q You don't know what else --
15 A -- bag inside that --
16 Q What else was inside the bag?
17 A There was female clothing inside the bag.
18 Q And there was prescriptions for a female?
19 A I don't know what it was.
20 Q There was an identification for a female?
21 A I don't recall that.
22 Q And there were other female things like lipstick or
23 something like that that indicated a female purse?
24 A All I recall is female clothing in the bag and the other
25 objects.
65
1 Q Did you seize the bag?
2 A Did I seize the bag?
3 Q Yeah.
4 A No, I did not seize the bag.
5 Q So you don't -- you didn't take the bag or the bag in the
6 bag or whatever into evidence? You just seized the --
7 A I didn't seize anything out of the bag.
8 Q Well, you seized -- somebody seized the marijuana?
9 A Correct.
10 Q Okay. Do you know the quantity of the marijuana that was
11 found in the bag?
12 A No, I don't.
13 MR. WIRTSHAFTER: No further questions.
14 THE COURT: Step down. Thank you. Can this officer
15 be excused?
16 MR. FERGUSON: Please.
17 THE COURT: All right. You're free to go. Thank you.
18 I tell you what. Before you call your next, let's take about a,
19 about a five-minute recess. Court's in recess.
20 MR. WIRTSHAFTER: Your Honor, if there are people
21 waiting for trial and all, I don't mind being put off for an
22 hour or two.
23 THE COURT: No. Let's go ahead.
24 MR. WIRTSHAFTER: Okay.
25 (Off the record at this time.)
66
1 JAMES ALFORD, DULY SWORN, DIRECT EXAMINATION
2 Q Officer Alford, were you previously sworn in?
3 A Yes, I was.
4 Q Would you state your name for the record?
5 A James Alford.
6 Q And how are you employed?
7 A I am a Special Agent with the United State Forest Service.
8 Q Okay. Where are you usually assigned?
9 A I'm assigned to the Ouachita National Forest in, excuse me,
10 Central Arkansas and Eastern Oklahoma.
11 Q Okay. But you are on a special assignment currently, is
12 that correct?
13 A Yes. I'm assigned as an incident investigator to the
14 National Incident Management Team here.
15 Q Okay. Here in the Western District of Arkansas?
16 A Yes, sir.
17 Q You've heard the other officers testify about an incident
18 that occurred on June the 20th of this year involving
19 Mr. Wirtshafter. Were you present at that time?
20 A Yes, I was.
21 Q Were you present the entire time?
22 A Yes.
23 Q Okay. Do you know this check point authorization plan I
24 believe that was planned for three hours, is that correct, or do
25 you need to --
67
1 A I would have to look at the specific plan, but.
2 Q Okay.
3 A Yes, this was planned from one o'clock until four o'clock
4 in the afternoon.
5 Q And did you all -- did the officers have the check point in
6 place during that entire time?
7 A No, they did not.
8 Q Why not?
9 A There was a pretty severe storm that came through, lots of
10 lightning and lots of heavy rain, and so the beginning of the
11 check point was delayed until I believe about three o'clock.
12 Q Okay. And were you present when Mr. Wirtshafter's vehicle
13 came through the check point?
14 A Yes, I was.
15 Q Was there anything set up on the road to identify that a
16 check point was up ahead?
17 A Yes. We have -- we had two different types of signs. One
18 set of signs said check point, check point ahead, and the other
19 signs were stop signs.
20 Q And how far in advance were those signs from the actual
21 check point approximately?
22 A 100 yards approximately.
23 Q How big? What did they look like? What did the signs look
24 like?
25 A The signs are a bi-pod type of sign. They are a folding
68
1 sign and they are approximately three-and-a-half feet high and
2 approximately a foot-and-a-half wide and they have a stop sign
3 that's probably 12 to 14 inches in diameter. And then the
4 lettering on the signs that say check point ahead are
5 approximately two to 3-inch tall lettering.
6 Q Tell the Court what you observed whenever Mr. Wirtshafter's
7 vehicle came to a stop at the check point.
8 A There were a group of three vehicles and Mr. Wirtshafter's
9 vehicle was the first vehicle that came past me. I initially
10 went to the second vehicle and contacted that driver. I noticed
11 that when I finished with my vehicle, I noticed that Officer
12 Welden had contacted Mr. Wirtshafter and Mr. Wirtshafter's
13 vehicle was being pulled over for a secondary stop.
14 Q Okay. Tell us about the secondary stop. I heard testimony
15 of that, but explain what a secondary stop is.
16 A If a violation is encountered, we don't want to leave a
17 vehicle on the roadway because it will obstruct other traffic
18 that's coming through, so the vehicle is pulled over to the side
19 of the roadway so the violation can be addressed.
20 Q That's what happened in Mr. Wirtshafter's case?
21 A That's correct?
22 Q So what happened?
23 A On the secondary stop while Mr. Welden was dealing with the
24 violation, Officer Hyrons, who is a canine officer, brought his
25 canine out and ran the canine around the vehicle, Mr.
69
1 Wirtshafter's vehicle.
2 Q Okay. And you were present?
3 A Yes.
4 Q Did you take anything, any objects from any of the
5 officers, objects that were found in the vehicle?
6 A Yes.
7 Q Okay. Let me show you what's been marked as Government's
8 Exhibit No. 3, and also let me show you what has been marked --
9 A It's the one stapled on part. Pardon me.
10 Q -- as Government's Exhibit No. 4, and ask you if you can
11 identify those items?
12 A Government's Exhibit No. 3 is the contents of an ashtray
13 that was taken out of the vehicle by Officer Hyrons and the
14 contents of that ashtray were dumped into this plastic bag by me
15 and Officer Welden, and then Officer Welden delivered this to
16 the incident command post to me and Agent Finagin, we are both
17 the evidence custodians, and me and Agent Finagin checked this
18 into evidence at the incident command post. Government Exhibit
19 No. 4 is some marijuana that was removed from a backpack that
20 was in the vehicle. I saw it removed from a coconut shell type
21 purse that was in the backpack and it was also -- I saw it given
22 to Officer Welden and saw Officer Welden place it in a brown
23 paper sack, and then it was also delivered to me and Agent
24 Finagin on the following morning at the incident command post
25 and checked in as evidence.
70
1 Q And were you present when those two objects were tested,
2 field tested?
3 A I was present? No, I was not.
4 Q Okay. How much time would you say elapsed from the time
5 that Mr. Wirtshafter's vehicle first came to the check point to
6 the point that these two items were found?
7 A I'm not really sure. I would -- the marijuana that was in
8 the backpack, it would have been some time, it would have been
9 several minutes because it was in -- the bags were set out on
10 the ground and each bag was individually searched. I don't know
11 how many minutes.
12 Q Well, let me ask you this: Do you know how much time
13 elapsed from the time when the officer approached his vehicle
14 from -- to the time that the officer's, the other officer's dog
15 alerted to the vehicle?
16 A Probably less than three, four minutes. I think
17 Mr. Wirtshafter was looking for his insurance for a minute or
18 two before the canine was ever taken out of the vehicle because
19 I believe he had some expired insurance forms in his glove box,
20 so there was a minute or two that elapsed while he had looked
21 for his current insurance.
22 Q But we are not talking about 30 minutes or an hour or two?
23 A Oh, no, sir, just a matter of minutes.
24 A Okay.
25 MR. FERGUSON: Your Honor, I move to introduce
71
1 Government's Exhibits 3 and 4 into evidence.
2 THE COURT: Okay. Show them to Mr. Wirtshafter. Have
3 you seen these before, Mr. Wirtshafter, I mean, in the trial
4 here?
5 MR. WIRTSHAFTER: I have not seen No. 4.
6 THE COURT: Okay. Show them to Mr. Wirtshafter.
7 MR. FERGUSON: Your Honor, the items in that sack
8 marked as 4 are loose, so...
9 THE COURT: Okay.
10 MR. WIRTSHAFTER: Your Honor, I don't see anything in
11 there.
12 (TRANSCRIBER NOTE: Undecipherable mumbling heard.)
13 MR. WIRTSHAFTER: Okay.
14 THE COURT: Any objection for the purpose of this
15 hearing only?
16 MR. WIRTSHAFTER: Your Honor, yes, as to Exhibit No.
17 3, you know, the officer previously testified, Officer Welden
18 testified that at the time when we were on the scene before the
19 incident was over, I asked to see the evidence against me.
20 Officer Welden said that he showed me Exhibit No. 4, the
21 contents of the purse. He agreed that he had never showed me
22 No. 3, the ash. Now, we made a stipulation about the evidence
23 here, and I agreed to this miniscule quantity, and No. 4 was or
24 could be marijuana. I knew nothing about this Exhibit No. 3 at
25 the time we made that stipulation and I object to its inclusion
72
1 in the evidence. I don't think it's necessary and I don't think
2 it's marijuana or could be considered marijuana or used as
3 marijuana or will stand the lab tests of marijuana. So all bets
4 are off on that one. I would hope the prosecutor would not
5 include Exhibit 3.
6 MR. FERGUSON: Your Honor, I disagree with
7 Mr. Wirtshafter to what our agreement was. We discussed it
8 outside and I told him about the contents in the ashtray and
9 that's when he told me that he would stipulate that the items
10 that we had were in fact cannabis.
11 THE COURT: Well, it's -- this is a Motion to
12 Suppress.
13 MR. WIRTSHAFTER: Yes, sir.
14 THE COURT: For the purpose of this hearing the
15 Court's going to admit items 3 and 4. Whether you could be
16 legally deemed to have been in constructive possession of item
17 No. 4 would be a legal argument, but obviously whether it
18 gets -- it may still be an item that gives or the Government
19 argues gives them probable cause for the search, if that's the
20 item that the dog alerted to. So for the purpose of this
21 hearing, the Court's going to admit items 3 and 4. All right.
22 Q Officer Alford, did --
23 THE COURT: Just a second.
24 MR. FERGUSON: Okay.
25 THE COURT: How am I supposed to look at this? (Pause)
73
1 Okay. Okay. Go ahead, Officer.
2 Q Officer Alford, lost my train of thought. Give me just a
3 second. Oh, there was testimony about Mr. Wirtshafter being
4 present and a passenger. Was the passenger male or female?
5 A Male.
6 Q Were there any female individuals with Mr. Wirtshafter at
7 that time?
8 A No, there were not.
9 Q Pass the witness.
10 THE COURT: Mr. Wirtshafter?
11 CROSS EXAMINATION
12 BY MR. WIRTSHAFTER:
13 Q Did the drug dog circle the vehicle, the second vehicle,
14 the vehicle behind me when you were doing your work?
15 A I don't believe the canine was taken to either of those
16 vehicles because those vehicles were not on a secondary stop.
17 Those vehicles had all of their current information.
18 Q And so it's your testimony the drug dog did not come out
19 immediately upon our being stopped?
20 A The dog was brought out after it was determined it was
21 going to be a secondary stop.
22 Q Was the dog handler with the dog until the dog was brought
23 out?
24 A I don't remember. The handler was helping us on the check
25 point, so the handler could have been present before the
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1 secondary stop took place.
2 Q And he didn't have his dog in his hand at that time?
3 A I don't remember that; no. I believe I remember him going
4 to his vehicle and taking the dog out of the vehicle.
5 Q And you're quite certain that the signs you described were
6 in place at that location at the time of my stop?
7 A I am absolutely certain, because I placed my hands on those
8 signs at various times and actually set a set of binoculars on
9 those signs.
10 Q Was I placed under arrest?
11 A I'm sorry?
12 Q Was I placed under arrest?
13 A No, you were not.
14 Q Was I allowed to leave?
15 A Not until the stop was conducted and completed. You were
16 detained while the violation was being addressed.
17 Q When you do one of these searches, do you employ any
18 special tarp or anything to hold the vehicle's contents while
19 you're tearing the vehicle apart?
20 A While they are being searched? No.
21 Q Yeah. So you just took my pillow and my clothes and threw
22 it out on the wet ground?
23 A The vehicle -- the items of the vehicle were all taken out
24 of the vehicle and placed on the ground.
25 Q Wet ground?
75
1 A It had rained; yes.
2 Q I had a lot of stuff in that vehicle?
3 A You had a lot of stuff; yes; that's correct.
4 Q It was packed as full as a vehicle could be packed?
5 A It was very full.
6 Q There was food in the vehicle? Was there food in the
7 vehicle?
8 A Yes.
9 Q There were camping, camping gear, items like that, but
10 nothing that you would consider contraband other than Exhibit 3
11 and 4? There was no contraband other than Exhibit 3 and 4; it
12 was all legitimate camping gear, food, things that people would
13 need in a national forest, correct?
14 A You're saying that.
15 Q I'm asking that.
16 A There was camping gear in the vehicle.
17 Q Was there any thing, any other contraband other than
18 Exhibit 3 or 4, that you saw?
19 A No.
20 Q Now, do -- you admit that you were at that location because
21 you had seen on the internet that morning that that was going to
22 be the location that the Rainbow gathering was going to move to?
23 A No.
24 Q You were not targeting the Rainbow gathering that
25 particular day with this particular check point?
76
1 A I believe the question was did I look at that and see that
2 that morning and come to that particular spot for that reason,
3 and my answer is no.
4 Q You came to the spot because you had an order to go to that
5 particular spot?
6 A The previous afternoon the check point plan was approved
7 for that location. What was on that internet that morning had
8 no effect on this location because the check point plan had been
9 approved the previous day.
10 Q But you understood that the Shores Lake location was a
11 potential Rainbow gathering site and you learned this through
12 your intelligence into the activities of the Rainbow family?
13 A Sorry. Repeat that.
14 Q Does your team do intelligence into the Rainbow family's
15 communications?
16 A I routinely look at the AGR message board, the Rainbow
17 family message board which is a blog that lists certain
18 activities of certain members of the family.
19 Q And would you admit that the day before, on the day that
20 this order was issued for you to be at that road block that the
21 AGR contained the announcement of two potential sites for the
22 Rainbow family gathering?
23 THE COURT: Just a second. I don't understand what
24 the AGR is.
25 MR. WIRTSHAFTER: Oh, that's our -- that's -- that's a
77
1 news group on the internet dedicated to the, you know, things
2 going on with the Rainbow, anybody can post to it.
3 THE COURT: All right. It's a public site.
4 MR. WIRTSHAFTER: Yes, sir.
5 THE COURT: All right. All right. I'm sorry.
6 MR. WIRTSHAFTER: Okay. So --
7 THE COURT: Reask your question.
8 BY MR. WIRTSHAFTER:
9 Q You were based -- you set up this check point on Shores
10 Lake -- on the road into Shores Lake because it was a potential
11 site for the Rainbow family gathering and that people were --
12 I'm sorry. I'll stop the question there.
13 MR. FERGUSON: Your Honor, I don't know that he's
14 asked a question. He's made a statement.
15 THE COURT: All right. Try to rephrase that as a
16 question as to why did you set up the road block.
17 Q If the Rainbows had not announced the Shores Lake site on
18 the internet, would your National Incident Management Team have
19 been at that location?
20 A We had actually been at that location about a week prior
21 before we ever learned the Shores Lake might have been a
22 location, so possibly we could have.
23 Q Well, Shores Lake was listed as a location by our scouts in
24 our communications to the management team prior to your
25 attendance at that location, is that not true?
78
1 A We had heard about that through other family members. I
2 don't remember exactly what day it was, but we heard about
3 Shores Lake as a possible location.
4 Q And on the 20th day of June, you weren't certain where the
5 location of the Rainbow family gathering was going to be, isn't
6 that true?
7 A That is true.
8 Q You were kind of frantic to figure out where the Rainbow
9 family gathering was going to be, isn't that true?
10 A No.
11 Q You were quite interested or curious. You talked to me
12 about it, did you not?
13 A I certainly did; yes.
14 Q You came up and asked me where it was. You said you guys
15 are supposed to move here today according to the internet. You
16 said that to me, didn't you?
17 A Not in those words.
18 Q What words did you use?
19 A I can't remember my exact words, but it was you asked us
20 about where the gathering was going to be and I believe the
21 other agent made a comment to you that we were hoping you could
22 tell us and we had discussions about that. I don't remember my
23 exact words, but what you said is not my words.
24 Q You guys had knowledge that this was one of our two
25 potential sites there at Shores Lake on the date of June 20th?
79
1 A Yes.
2 MR. FERGUSON: Your Honor --
3 MR. WIRTSHAFTER: That's fine. I'll find another line
4 of questioning.
5 MR. FERGUSON: No, I think I'm done with this witness,
6 Your Honor.
7 THE COURT: Anything else?
8 MR. FERGUSON: No, Your Honor.
9 THE COURT: You can step down. Thank you. Call your
10 next.
11 MR. FERGUSON: The United States rests.
12 THE COURT: Mr. Wirtshafter, call your first.
13 MR. WIRTSHAFTER: Your Honor, I would like to make my
14 own personal statement and then open myself up for cross
15 examination by the --
16 THE COURT: All right.
17 MR. WIRTSHAFTER: -- prosecutor.
18 THE COURT: Raise your right hand.
19 MR. WIRTSHAFTER: I have been previously sworn.
20 THE COURT: Thank you.
21 MR. WIRTSHAFTER: Go ahead. You can testify,
22 Mr. Wirtshafter.
23 ---o0o---
24 DEFENDANT'S EVIDENCE
25 ---o0o---
80
1 MR. WIRTSHAFTER: Your Honor, my name is Don E.
2 Wirtshafter. I am an attorney at law. I have been an attorney
3 at law in the state of Ohio since May of 1985. I am in good
4 standing in all respects. I have no previous violation or no
5 previous violations or citations or anything of any relevance
6 here. Although I have been ticketed on several occasions by the
7 U.S. Forest Service for the act of exercising my right to
8 gather. The most recent other than the subject matter today is
9 most recent ticketing I received by the Forest Service happened
10 last year in Colorado. I heard on my way to Colorado that
11 several of the people I was intending to camp with were stopped
12 and detained in a road block check point on the way to the
13 gathering and issued tickets for unpermitted gathering. I kind
14 of rushed to their defense. I didn't expect that I was going to
15 be able to appear in court or anything, but I went to just, you
16 know, hurry up and got to Colorado in time to attend their
17 hearing. At that hearing, I learned that I could become
18 admitted to the Federal bar in Colorado, and that the Court
19 would allow me to assist defendants being called to
20 circumstances very similar to this, where a special court was
21 set up outside the gathering to adjudicate tickets for the
22 convenience of the gatherers and the officers, and although the
23 conditions there were far more brutal than they are here, we
24 still didn't have any water or toilet paper in the toilets.
25 It's just like that, but you are at least letting witnesses or
81
1 observers into the courtroom and several other things. We ended
2 up having to go to court in Colorado just to open up the special
3 magistrate's court for witnesses and for attorneys to be able to
4 come in and got a Court Order to that effec