By Scott Sandlin
Albuquerque Journal
ALBUQERQUE, N.M. — Albuquerque Police were notified in 2010 to be on the lookout for a car whose occupants - two African-American men - had been stopped on I-25 in Raton, where they were questioned, searched and found to have almost $17,000 in cash.
The men had been sent on their way by Raton police with a warning for going 5 mph over the speed limit, then were stopped a few hours later by Albuquerque police for not signaling a lane change.
Their car was towed and their money confiscated by a federal agent who was called in, even though the men were never arrested or charged.
The Albuquerque Police report gives no hint of the Raton contact on Sept 28, 2010. However, APD Deputy Chief Paul Feist confirmed that information about the first stop was shared among law enforcement agencies that are part of the Southwest Border Task Force, which targets drug trafficking, illegal alien smuggling and bulk cash smuggling. He said that, regardless of what happened in Raton, “I don’t think profiling was an issue,” when APD pulled the men over. The American Civil Liberties Unit disagrees. It calls events relating to the stops of Stephen Skinner and his son Jonathan Breasher “profiling for profit” because their money was seized, even though no criminal charges were ever filed.
“My take on all of this is they were ready to seize their money when they came into town,” says ACLU attorney Alexandra Freedman Smith. “It was already in the cards.” Stopping someone for a minor offense such as an improper lane change is perfectly legal, undertaken at the discretion of the officer. The APD officer who made the Albuquerque stop was a member of an interagency task force, Feist said, and was looking for a make of car and license plate number. In addition to APD, a Homeland Security agent on the task force was notified, participated in the Albuquerque stop, took over the case and seized the cash.
The New Mexico Forfeiture Act, which became effective in 2002, provides that seized cash subject to forfeiture must be deposited in an interest-bearing account with the district court clerk and a complaint to seize it must be filed within 30 days or the money returned. The state must prove by clear and convincing evidence that the property is subject to forfeiture.
Federal forfeiture proceedings, by contrast, are more generous to law enforcement.
Some agencies, including APD through the task forces in which it is a member, participate in an “equitable sharing” program in which a qualified local agency can recoup up to 80 percent of the seized money when it participates in a joint investigation.
Over the years, APD’s take has ranged from hundreds of thousands to over a million, and the department could potentially have garnered a percentage of the forfeiture had the money not been returned to the men, Feist said.
The federal government released Skinner and Breasher’s money last month after the ACLU intervened to challenge the permanent forfeiture action filed by the U.S. Attorney’s Office.
Stopped twice
New Mexico State Police pulled over Skinner, the 60 -year- old driver, and Breasher, who is in his 30s, about 7:20 a.m. in their rented Chevrolet Impala. Drug dogs alerted to the car after it was stopped in Raton, court documents say. But neither drugs nor weapons were found, despite efforts that lasted at least an hour.
A review of the 52-minute belt tape from Raton officer John Valdez shows that he searched the car and luggage, questioned the men and told an officer he telephoned, “This boy has three thousand right here alone.” He also told the men their money was suspicious, because it wasn’t all hidden in one place. On the belt tape, the officer at one point says to the men, “The reason I keep questioning you is that throughout the traffic stop there’s been nothing but lies to me. You two guys aren’t telling me the same story.” As he was about to release them, Valdez told someone in law enforcement during a phone call that he would “snap a picture of their licenses” and send it on. He then released Skinner and Breasher with a, “Have a safe journey.” Feist said in a telephone interview that the veteran Albuquerque detective who stopped the duo a second time, Elder Guevara, is assigned to the task force and had been alerted to watch for the Impala. Feist said Guevara did not have a copy of the driver’s licenses mentioned by the Raton officer.
After the stop, another task force member from Homeland Security arrived to seize the money, Feist said.
State Police who made the stop in Raton had reason to believe there were drugs because a drug-sniffing dog had alerted on the car. But there wasn’t enough for an arrest. “They called down to HSI (Homeland Security Investigation) and said the vehicle is going south on the Interstate and you need to keep an eye on it.” Guevara, who is part of the inderdiction task force, was working the interstate, saw the vehicle, got behind it and witnessed a traffic violation. “You can’t just stop them because they came by,” Feist said. “There has to be a bona fide reason.”
The APD incident report says Guevara was driving with the flow of traffic on I-25 just south of Alameda when he noticed a gray 2010 Chevy Impala traveling “faster than anyone else.” He saw the Impala’s wheels stray into the fast lane, then back to the middle lane and followed the vehicle. When the car changed lanes a quarter mile later after signaling, then switched back to the middle lane “without utilizing his turn signal,” the officer pulled it over. Guevara said Breasher, who was driving, “grew nervous and uneasy ... (His) hands began to shake,” when he was asked to step out of the vehicle.
Reasonable search?
Based on Breasher’s demeanor, Guevara decided to conduct a pat-down search of both Skinner and Breasher and asked them to step away from the vehicle so he could search its contents. Breasher gave permission for the officer to open the suitcase and the officer found the cash. The report says a senior Homeland Security agent who “stopped to assist,” said she was going to take over the case and asked APD to assist her. By the time their day was over, the father and son, who were becoming reacquainted after a separation of decades, had their rental car towed and were dropped at the Albuquerque International Airport bereft of cash. Guevara contacted Enterprise Rent a Car after finding that the only name on the car rental agreement was that of Skinner’s wife, and the company said neither man was authorized to drive it. The company asked that it be towed.
Smith, the ACLU attorney who represented the father and son in making a claim to the funds in federal court, said she isn’t claiming racial profiling by APD or even Homeland Security. “I think there was racial motivation in conduct of the Raton stop and that set wheels in motion for what happened further down the road,” she said. She does find fault with the Albuquerque stop, for which she does not believe there was probable cause. “They (APD) said there was a bad lane change, although ... they were already looking for them,” she said. The ostensible reason for the “inventory” of the car was that it was going to be returned to Enterprise, although that, too, could easily have been fixed by adding Skinner to the agreement in his wife’s name, she said. “An inventory search can’t be a pretext for a criminal investigation, and that’s exactly what happened here,” she said. Ironically, Smith said, the purpose of the road trip, which was to include some gambling in Las Vegas and a stop in Sacramento, was for the two men to get to know each other.
“One of the things I thought was compelling was the family story,” she said. “Skinner is the biological father, but Jonathan was adopted when he was a baby, so Jonathan didn’t have contact (with him) until recent years. This trip was about going to see Skinner’s family (the son) hadn’t seen before.”
The derailment in New Mexico not only left them virtually penniless, but also ruined the road trip, she said. Smith said the newness of the reconnection of the father and son, and Breasher’s lack of knowledge about Skinner’s family, “is one element to this that explains some of the stuff that police thought seemed odd.”
Copyright 2012 Albuquerque Journal