Sent to us by the author.
Another question brought up in Sorola’s motion to suppress evidence was also addressed. At issue is whether he was detained, at which point he would have to be read his Miranda rights, which they did not do, or simply stopped for investigative purposes. The latter would be what is referred to as a Terry Stop. It is worth noting that a Terry Stop is defined as:
A brief detention of a person on reasonable suspicion of involvement in criminal activity but short of probable cause for arrest. To have reasonable suspicion that would justify a stop, police must be able to point to “specific and articulable facts” that would indicate to a reasonable person that a crime has been, is being, or is about to be committed.
As you read the testimony, decide what you believe the answer is. Remember that only two people were witness to any criminal activity — the shooting incident.
Mr. Hagen said, in his initial argument:[T]he Border Patrol agent [then] fired several shots at Mr. Foerster, thankfully missing.
So that launched a — an investigation since a federal agent had discharged his firearm. That’s what brought the FBI and the Sheriff’s Department and Border Patrol Internal Affairs and all these people out to the area.
But as far as suppressing evidence, I think the government is on solid ground here because before the shots were even fired, there are multiple Border Patrol agents that observed Mr. Massey carrying a firearm, and that’s what he’s charged with is possession of a firearm. Even before he was ever detained or questioned, he was seen carrying a firearm on August 29th of 2014.
And the only relevant information or information I’d say that is critical to our prosecution is his identity, who he is, and I don’t believe that can be suppressed, although I think — I think law enforcement behaved accordingly in all respects in connection with this investigation. Even if it was a bad stop or a bad search or — you can’t suppress identity.
Yes, he is correct. If you were a criminal walking down the streets, absent a warrant, could they just stop and arrest you because you are doing something that many others are doing? We are a nation of laws, not of men. Those laws require that certain procedures be followed, even to the point of protecting a criminal — whether he is a criminal, or not. So, since there are no “Wanted Posters” for K. C. Massey, identification becomes a crucial point.
As Hagen said, “there are multiple Border Patrol agents that observed Mr. Massey carrying a firearm”. So, why didn’t they arrest him, then? Could it possibly be that the law, not men, are the rule?
I believe Mr. Massey said to Danny Cantu: Look, nobody got hurt. We’d like to — you know, we’re going to be on our way.
Danny Cantu said: Look, a federal agent discharged his weapon. There’s going to be an investigation. Y’all need to stay around.
Earlier, Cantu had said that he thought that the shots had come from the Mexican side of the border. He received radio communication that a federal agent had done the shooting. Why would someone that was very far from the actual shooting be a witness in an investigation?
Let’s keep in mind some recent events of which we are all aware. We have law enforcement people saying that if you don’t want us to shoot you, you had better cooperate. That might be sound advice if one wasn’t subject to persecution because he cooperated, however, if you believe that under state law you have every right to have a firearm on private property, with the permission of the owner, what are you going to do the next time a law enforcement, any law enforcing, officer wants to detain, stop, hold, or even ID you? It is somewhat difficult to reconcile yourself to the idea passive obedience when one realizes that even if they are not violating the law, the feds might use every trick in their toolbox, if they want to persecute or prosecute you.
So, then Hagen says:
Now, Mr. Massey was detained or was in the area for several hours. I think everyone left around 7:00. I think the evidence will show that shots were fired around 3:45.
Note that Hagen has framed the whole event into over 3 hours. This will be addressed more in Act Two, Scene 3.
Now, we move to the first witness, Agent Cantu, in examination by Hagen.
Q All right. Now, did you give any instruction to Mr. Massey after you first encountered him?
A After we encountered them, I asked him and Mr. Varner if they can hang tight. They were missing one of their — their friends that was with them, and I wasn’t sure where exactly he was. Again, I was still in the back of my head, the shots had rang out. They had called for a supervisor. I was trying to make my way down to where the agents needed me, ensuring safety, that everybody was okay. So I asked them to stay by their Kawasaki as I continued down this dirt road.
Q Okay. So you get to the area where the shooting took place. What do you see?
A As I approach, I see Mr. — Mr. Foerster holding a weapon in his hand. It was just hanging down to his side, but he was holding the weapon as an –
So as I came down, I saw Mr. Foerster there holding that weapon. I saw the agent, Marco Gonzalez, approaches me as I’m getting close, and he’s telling me that, you know, he shot at Mr. Foerster; that Mr. Foerster turned in his direction with the weapon and he opened fire. And I was trying to get — Foerster started talking, and so I was trying to get everybody to –
Now, according to Cantu’s testimony, he already had their identification, so essentially, they cannot leave. They have to consider that if they do leave, at best, they no longer have any identification, and, at worst, they might be charged for resisting arrest, or some other bogus charge. After all, who would leave their ID with an LEO, if they were free to leave?
Later, he testifies that he, and Massey, knew what had happened before they got to the ATV. That would, of course, make anything Massey knew nothing more than hearsay.
As we got to the ATV, Mr. Foerster started telling Mr. Massey what had occurred…
Cantu continues, in response to Hagen asking him what happened next:
A As soon as we… Mr. Massey tells me: You know, as far as we’re concerned, nobody was injured. We want to go on our way.
Q Okay. And is there a protocol that you need to follow when an officer discharges a weapon?
A Yes. We need to make notifications. We need to investigate why the firearm was discharged.
Q Okay. Now, at this point in time, did you know whether or not Border Patrol Agent Gonzalez had been threatened or whether or not perhaps Border Patrol Agent Gonzalez had irresponsibly fired upon Foerster? Did you know?
A From what I had gathered, he had fired in — from what Mr. Gonzalez told me. Again, this was preliminary. I was trying to — I had to speak with everyone to figure out kind of what was actually happening, so I wasn’t sure at that point.
Q Okay. Did you explain to Mr. Massey — and may I ask you this? When Massey said, “We want to leave,” who was he talking about when he — when he mentioned or by the word “we”?
A Well, Mr. Foerster, Varner and himself were inside the Kawasaki, so that to me told me they all wanted to depart.
Cantu knew that Massey and Varner knew no more than he did. The question involved three people, as Cantu puts it. If the majority should be excluded, reason dictates that he should have said that only Foerster had to remain.
Q Okay. So did you explain to them that an investigation was going to be conducted?
A I did.
Q And how did you explain that to them?
A I told them that they weren’t allowed to leave and that we were going to move to a staging area just further up, which is the — this area right here. My initial thought — and the reason I chose this area was to give us distance from the river that was close by. We moved here to stage the vehicles and kind of get a grip of what actually transpired.
Now, they were not allowed to leave. That means that they are not free to go. However, as explained above, they were being good, State law-abiding, cooperative citizens.
Later in testimony:
Q Okay. Now, did you ask Mr. Massey to provide you with an ID?
A I did, sir.
Q At what point in time did you make that request?
A Our initial encounter, as I approached him with Mr. Varner.
Q Okay. And did — did he provide you with an identification?
A He did.
So, it was when Varner and Cantu met up with Massey that the physical (identification papers, please) ability to leave was removed. This singular act sets the stage for the whole drama of whether it was detention or a Terry Stop.
So, let’s keep the stage set. Cantu has the IDs. Rather than return them he, well:
Q And when Sergeant Valerio showed up, did you provide the IDs from Mr. Massey and Mr. Varner to him?
A Yes, sir. I had not been able — had time to conduct any further investigations on those. When I say that, I mean run records. I mean, normally typically run records when we encounter people. I had not had the time. I was attempting to secure everything that — when Mr. Valerio showed up, I handed him the identifications and kind of gave him the rundown of what had occurred, and he took over at that point.
So, if he gave Valerio the “run down”, the Cameron County Sheriff’s Deputy would know that there were only two witnesses to the shooting.
This is cross-examination by Mr. Sorola, and a repeat of part of Scene 1, and brings in the question posed by the Judge:
Q Okay. Later on do you find out who is shot — who is firing a weapon, a firearm?
A Upon approaching [where] Foerster and Mr. Gonzalez [were], yes.
Q And Agent Gonzalez is the only one that discharged a weapon; is that correct?
A At that point, that’s what I was told, yes.
Q And you were told that by Agent Gonzalez, right?
A Correct. And Mr. Foerster attested to that.
THE COURT: And you said at that time. I mean, nothing subsequent to that time has changed that, have they?
THE WITNESS: No, sir, no. It’s just that –
THE COURT: So as far as you know sitting here today, the only weapon that was shot was — the only weapon discharged was discharged by Agent Gonzalez.
THE WITNESS: Correct.
In confirming (that’s what good attorneys do) that Massey and Varner were detained, Mr. Sorola asks:
Q And this is about 3:45 in the afternoon, correct?
Q Now, you testified earlier that you told Mr. Massey he could not leave the area, right?
Q So he wasn’t free to leave.
Q He had to stay there.
Q What would you have done had he tried to leave?
A I could have detained — placed him in handcuffs, put him in a unit to secure him to prevent him from leaving the area. But he was being cooperative, and none of that was necessary.
Next, we look at whether there was any reason, at all, to believe that Massey and Varner were complicit, or even aware, of the shooting event — other than having heard the shots.
Q And when the shooting occurred, you didn’t take Mr. Varner’s weapon from him, did you?
A No, sir.
Q You didn’t disarm him?
Q You didn’t frisk him?
Q When you encountered Mr. Massey, did you check him for firearms?
A Just the one he was carrying, the longarm, the AK47 weapon.
Q But you didn’t take it from him?
A I did not.
THE COURT: Okay. But you had no — you obviously didn’t have any reason to think Mr. Massey was the one that had done the shooting because –
THE WITNESS: No, I –
THE COURT: — you went on. You left him there and went on.
THE WITNESS: Correct.
Here is a rather interesting side note, perhaps a contradiction that has to do with “Officer Safety”. At this time, there are just a few agents in the area. The recipient of the shots fired is still armed, as are Massey and Varner. After additional officers arrive, approaching “between 15 and twenty”, it is determined that the weapons must be “secured”, first to the open ATV, then, later, to the back of the BPS “unit” (why don’t they just call it what it is, instead of government double-speak?)
Q Okay. So Mr. Varner and Mr. Massey just tell you out of the clear blue: We also have firearms on us?
Q And you didn’t see these firearms prior to them telling you?
A I did not.
Q But then are you saying that Mr. Varner then handed you the — the firearm that he had?
A Yes, sir.
Q And what did Mr. Massey do?
A Same thing. They both removed the — their pistols and put them in the back of my unit. The pistols were downloaded and placed there with the remainder — with the other rifles.
Back to the subject of this Act, whether they were detained or stopped. Mr. Sorola still questioning:
Q How long was it that Mr. Massey was not free to leave this area?
A In its entirety, sir, or the investigative agency showed up?
Q In its entirety. From 3:45 when shots are fired, when is Mr. Massey free to go?
A He departed — I’m — I can’t tell you exactly who told him it was — after the investigative agency showed up, they began to interview him. And which agency ultimately told him they were done with their interviews, I couldn’t tell you.
Next Witness, Cameron County Sheriff’s Deputy Daniel Valerio. This will be the handoff of the ID cards, though there arises a question (good memories?) of whether there were two, as Cantu said, or three, as Valerio will testify:
Q Okay. Did you observe or did you meet with an individual by the name of Danny Cantu?
A Yes, I did.
Q And did he provide you with any ID cards?
A Yes, he did, with three ID cards from the persons that were there.
Q Okay. Did he provide you with three ID cards or two ID cards?
A As far as I can remember, it was three ID cards.
Q And soon after arriving, did you request criminal histories and a warrant search on the IDs that had been provided to you?
A Yes, that’s correct.
Q All right. Now, did you have reason to believe that Mr. Massey had been carrying a weapon or weapons on that date prior to your arrival?
A Yes, I did.
Q Why did you think that?
A I was informed by the — by David Cantu that this — the suspects, the persons that were there, they were carrying these weapons that he had shown me.
Q All right. Did you — when you first arrived, did you think Mr. Massey had committed a crime? And I’m talking about before you ran the criminal history or anything like that. When you first arrived, did you think he had done anything that — where he should be detained or arrested?
A No. I only had the information on the shooting, but we didn’t know at that point in time what actually had happened.
Q Okay. So if Mr. Massey would have asked you when you arrived at 4:18, told you, “I’m getting out of here,” would you have let him go?
A At that point, yes.
Q Okay. Now, after you learned that he had been in possession of a weapon and he had a felony conviction, did your position change on whether or not you would let him go if he would have asked?
A Yes, it changed based on the information I had and his record and him being in possession. It had changed, that he would have been asked to stay.
Now, wouldn’t the Cameron County Sheriff’s Deputy know that after 5 years, Massey could have a firearm? It is suggested, in other testimony, that he knew. In response to Sorola’s questioning:
Q If I have a felony conviction on my record, is it against the law for me to have a firearm?
A It depends if it’s within five years, sir, or not. That’s something that we would have to further — be further looked into.
So, can there be any doubt, even with the hedging, that Valerio knows what Texas law says.
A Prior to his arrival there.
Q Okay. Now, Mr. Massey had a weapon and a felony prior, but is that why you were out there in the Sabal Palms area, to investigation Mr. Massey?
A No. We were out there for the shooting itself.
Q Okay. And what kind of investigation was conducted by the Sheriff’s Department in connection with the shooting?
A The investigation was at the — who — how it happened, who was the one carrying the weapons also, and who was the one that did the shooting, which was Border Patrol involvement.
Then, we have this:
Q All right. Now, did you speak with — towards the end of the shooting investigation, did you speak with your supervisor to determine whether or not you should return the weapons to Mr. Massey, Foerster and Varner or maintain custody of them?
A That’s correct. I spoke to Lieutenant Diaz. And based on the field investigation, he advised that we were going to collect the weapons. We were going to take custody of them for further investigation.
Q Okay. And was that because of the felony convictions?
A Correct. That’s correct.
Then, Mr. Sorola asks:
Q Sergeant, did you ever get a warrant to take possession of the firearms?
A No, I did not.
Q When you arrived at 4:18, was there any emergency? Was the shooting over?
A That’s correct, yes.
Q Well, when you arrived, the firearms were actually in the possession of Border Patrol, right?
A That’s correct.
Q And when you arrived at 4:18, as far as you’re concerned, Mr. Massey was free to leave?
A That’s correct.
Q Do you know if he was under orders from any other law enforcement not to leave?
A No, I did not. I had no knowledge of that.
Q You don’t know?
A I don’t.
Q But at this time, you have his identification card.
A That’s correct.
Q And you have Mr. Varner’s identification card.
A Uh-huh. Yes.
Q Did you give them back to them?
A After I — after I did the inquiry, yes.
So, there was no justification for the Deputy to retain, or take custody of the firearms — even Foerster’s, as it was clear there was no criminal act on their part. And, they were free to go, if they left their ID with the Deputy.
Next on the stand, David Daniel Cordova, FBI Special Agent, being questioned by Hagen, and who testified that he arrived on the scene at about 6:00 PM, fully two hours after BPS had determined that Gonzales was the only shooter.
Q Okay. Why did you interview Mr. Massey?
A Mr. Massey? At the time it was my understanding that he was a witness to a shooting. A Border Patrol agent had discharged a firearm, and so I needed to obtain the details of what happened.
Q Okay. At that time — did you state earlier that you were investigating a possible assault on a federal agent?
A That’s correct.
Q And were you also investigating a possible assault by a federal agent?
A That is correct.
I suppose that there is a reason that he wanted to investigate the possibility that there was an assault on a federal officer. But, based upon what we know, is it at all possible that the known information wasn’t provided Cordova? If not, why wasn’t he informed what had already been provided by the participants in the shooting event.
Regarding the investigation as to whether there was an assault by a federal agent, we have heard nothing as to the results of that investigation, if it was every completed. Since Gonzales has not been charged with anything,, we must assume that the focus was on Massey, not on the shooter, Gonzales.
Just trying to understand how the investigators and government look at this, I suppose that we could compare it to you being two blocks away from a bank robbery, though you heard shots fired. The government then holds you as a witness, detaining you until they have fully satisfied themselves that, based up the eye witnesses to the account, and extensive, intrusive interviews, they determine that you are now, finally, free to go — subject to subsequent arrest because they have to check with their bosses to see how to charge you with a crime that you didn’t commit –under state law.
Another side note, in answer to another question, Cordova says, about Massey, “I ended up interviewing him along with an HSI agent.” HSI is Homeland Security Investigations, part of US Immigration and Customs Enforcement.
Q Do you know if any of the other FBI agents, your supervisor or anybody took any?
A One of our TFOs I believe took some photos.
THE COURT: What’s a TFO?
THE WITNESS: Task force officer.
So, why is a Task Force Officer present during the investigation? The only task force that I can find reference to that might want to be involved is theDomestic Terror Task Force (DTTF).
However, back to whether, or not, Massey was detained, we have the Hagen discussion with the judge:
HAGEN: No. I mean, my understanding, the motion to suppress is that the stop was illegal and that the arrest warrant was based on that, which, you know, my argument would be if Your Honor doesn’t like the stop, there’s certainly a good faith exception that would apply to the arrest and the search warrant wherein ATF agents were not present on the 29th relied on.
THE COURT: What are you referring to as “the stop“?
HAGEN: The August 29th encounter.
So, Hagen has to set the distinction that it was a stop, not a detention. You have read the testimony, and it appears quite clear that Hagen is grasping at straws. However, there is more coming in the next “Scene”.