Flyer “Processed” (Arrested?) in NM After Declining to Show ID
Jan 29, 2011, 3:33 pm
#1621
Join Date: Apr 2008
Location: USA
Posts: 1,439
ABQ arrest: dealing with police encounters, remaining silent, jail
Code:
time elapsed name diaogue ---------- ---------- ------- ------------------------------------------ 14:37:16 00:02:41 Mocek I'm going to remai-- remain silent. 14:37:17 00:02:42 Dilley Alright, let's go. 14:37:18 00:02:43 Mocek I'd like to talk to an attorney. 14:37:18 00:02:43 Dilley We're go-- we're gonna end up arresting you. Come on, let's go. 14:37:22 00:02:47 Dilley We're gonna search your property, and if we find I.D. on you-- on your property, we will arrest you for concealing I.D. 14:37:39 00:03:04 Dilley S15, 110. (radio 14:37:40) 14:37:43 00:03:08 Dilley S15, 116. (radio 14:37:40 +00:00:04) 14:37:45 00:03:10 Dilley There, sir. 14:37:48 00:03:13 Dilley Actually, do me a favor. I don't know what you have in your bags. This officer's gonna take your bags. Put your bags. 14:37:54 00:03:19 Dilley 34 with me at uh 19, please. (radio 14:37:55) 14:37:56 00:03:21 Dilley Place your bag down there, please, sir. 14:37:57 00:03:22 Mocek I don't consent to any search. 14:37:58 00:03:23 Dilley You're not being searched. Place your bag down there. And if we arrest you your property will be searched without [inaudible] won't need to. 14:38:04 00:03:29 Mocek I don't consent to any search. 14:38:04 00:03:29 Dilley Place your other bag down. 14:38:09 00:03:34 Dilley The officer [inaudible] bags for you. 14:38:11 00:03:36 Dilley Gimme your camera. 14:38:12 00:03:37 Mocek Can I get a receipt?
About 20 seconds later, an audio recording I received via public records request, which I believe to be part of Officer Wiggins' "belt tape" (created via handheld audio recorder that can be seen in his hand in my video; the files I received contain a gap beginning at that point), begins. Following is a transcript of that recording:
Code:
time elapsed name text (police audio DW_A0008_1.wav begins; note 27 second gap between Mocek camera recording and this)
--------- --------- --------- ------------------------------------------
14:38:39 00:00:06 radio negative, we're in route now (radio 14:38:33 +00:00:06)
14:38:58 00:00:19 Gallegos Oh, we're not worried. [inaudible] We've got an hour or so [inaudible]
14:39:07 00:00:28 Gallegos So I'm flying with my partner, but um, I got my I.D., um, What's the process that he's going through
now?
14:39:13 00:00:34 Wiggins He's gonna be arrested.
Gallegos He's gonna be arrested?
Wiggins Yes, sir, for being stupid.
Gallegos Really.
Wiggins Yep.
Gallegos Alright. Hey, Phil. Hey Phil, I'm staying. Hey Phil.
14:39:22 00:00:43 Mocek Yeah.
Gallegos I'll stay in Albuquerque.
Mocek Okay. He said I'm under arrest.
Gallegos Yeah, that's what just I heard. So, uh--
14:39:27 00:00:48 Mocek Officer DIE-lee.
Gallegos So, um, what kind of info-- I'll jus-- I know, you'll be, we'll be at downtown Albuquerque? Is he
going to Albuquerque downtown?
14:39:36 00:00:57 Wiggins He's gonna be way the-- way out in the bushes
Dilley Do me a favor
Gallegos Well, I
Dilley Do me a favor--
Gallegos Can I you talk to you, sir?
Dilley Not yet.
14:39:48 00:01:09 Wiggins Hey, why don't we [inaudible] and search him get all his items off of him cause he turning on phones,
and everything else. We don't know what he-- gonna bomb or something else, man.
14:39:55 00:01:16 Mocek I don't consent to any search. I don't have anything dangerous on me.
Dilley Doesn't matter. You're under arrest. You don't have no options. Let's go.
Wiggins Let's, uh... Hey, lemmee-- We could search him now, because we don't know what's on this guy.
Dilley He's being searched for [inaudible]
Gallegos Hey Phil. I'll be around
14:40:08 00:01:29 Mocek Okay.
Gallegos I'm not leaving Albuquerque without you.
Mocek Alright.
Gallegos Just call me. If you need help, call me.
Mocek Okay.
Gallegos [inaudible]
14:40:15 00:01:36 ? The airport's under, uh, federal, uh, terrorist act. High-- High, uh, security issues [inaudible] the
airport [inaudible] lawsuit
Wiggins [inaudible] cell phone [inaudible] in his pocket [inaudible] it's activated
Dilley Put your hands on your head please sir.
Mocek On my head?
Dilley Yes.
? [inaudible]
14:40:34 00:01:55 Dilley [paper ruffling] He was concealing his ID.
14:40:39 00:02:00 ? The only way you can get a pass is you have to have ID. Only way to get a, uh, airline ticket's to
have an I.D.
14:40:45 00:02:06 Mocek I'd like to talk to an attorney. I'm gonna remain silent until then.
14:40:47 00:02:08 Dilley Let's go. Then please don't talk. Hands down, let's walk with us. Do not speak [inaudible] not
speaking. [inaudible]
14:41:03 00:02:24 Dilley Sir, stop walking. Stand right there.
14:41:18 00:02:39 Dilley Stop. Okay, walk. [inaudible] on the left
14:41:40 00:03:01 Gallegos I called Ben. [inaudible]
14:41:41 00:03:02 Mocek Call Alison Holcomb. She's here.
Gallegos Okay.
14:41:47 00:03:08 Mocek She's on our flight.
Gallegos [inaudible]
14:41:54 00:03:15 Dilley [inaudible] Right here. [inaudible]
14:41:58 00:03:19 Wiggins Hey Jesus, gimme one of them chairs, man. I'm a-- I'm gonna use it [inaudible] This stuff is
heavy. And I'll bring it back, okay?
14:42:08 00:03:29 Dilley Comm center, 116. 10-4. We are en route with a 19. (radio 14:42:04)
14:42:21 00:03:42 Comm 10-4, 116. Do you want to advise on what you have? (radio 14:42:16)
14:42:56 00:04:17 Dilley We have a 16. I'll advise you on the phone in a few moments. (radio 14:42:16 +00:00:05)
Comm 10-4 (radio 14:42:16 +00:00:21)
Dilley In reference a 39. (radio 14:42:16 +00:00:15)
Comm That's 10-4. (radio 14:42:16 +00:00:19)
Comm 16, [inaudible] 15, you got a 82 with you? (radio 14:42:52)
Dilley 10-4. 135, 137. (radio 14:42:52 +00:00:04)
Comm 116, 110, I'll go ahead and give comm center the 49, what I know about it. (radio 14:42:16 +00:00:16)
14:43:19 00:04:40 Dilley 10-4. Can you get statements from all the TSA people? We need written statements from them. Ask them
to be detailed please, especially Gerald. (radio 14:42:52 +00:00:23)
Comm 10-4. (radio 14:42:52 +00:00:34)
14:43:38 00:04:59 Dilley Go in there [inaudible]
14:43:42 00:05:03 Wiggins This thing's heavy, man.
14:43:54 00:05:15 Dilley [inaudible] afterward [inaudible]
? [inaudible] wanna leave that in there
14:44:09 00:05:30 ? [inaudible]
14:44:34 00:05:55 Dilley Do you have a driver's license or anything in your stuff?
Mocek I'm gonna remain silent. I'd like to talk to an attorney.
14:44:41 00:06:02 Dilley Okay, well we're gonna have to look through your bag for you to see if you do have an I.D.
14:44:44 00:06:05 Mocek I don't consent to any search.
Dilley Huh?
Mocek I do not consent to any search.
Dilley [inaudible]
14:45:32 00:06:53 ? [inaudible]
14:46:06 00:07:27 ? [inaudible]
14:46:13 00:07:34 Rojas If he refuses to depart the area [inaudible] can charge him with criminal trespass, too. Ah...
14:46:26 00:07:47 Dilley He refused several times to leave.
Rojas Okay. [inaudible] Don't forget the 90-day barment letter.
14:46:26 00:07:47 Dilley Okay. He's probably going to be uh, 16. We might... Probably just end up arresting him, and do the
barment later on. It's up to you.
Rojas Okay. How about-- Yeah, well, we need to make sure that we do a 90-day letter on him.
Dilley Yeah. You bet.
Rojas [inaudible]
Dilley Alright.
14:46:52 00:08:13 Rojas Is that the only form of documentation he had in his possession?
14:46:52 00:08:13 Dilley No, we're gonna find out. He said that he doesn't want to give us any information.
14:46:59 00:08:20 Mocek I don't consent to any search.
14:47:04 00:08:25 Dilley [inaudible] have a seat.
14:47:07 00:08:28 Dilley You wanna-- you wanna identify who you are, sir?
:color="blue"]14:46:59 00:08:20 Mocek I'd like to remain silent. I want to speak to an attorney.[/color]
Dilley You don't want to identify yourself? You can say yes or no on that. Okay. I assume your silence
says no. You're gonna be booked under John Doe. You will remain in jail until the FBI is able to
identify who you are.
14:47:31 00:08:52 Mocek Does the law require me to provide my--
14:47:33 00:08:54 Dilley Sir please don't talk. You asked-- You said you don't want to talk, and you leave it at that. We're
not going to answer any questions. We're not going to ask you any questions. Please do not talk any
further. We've given you a chance to talk.
That depends on what you mean by that. There were no rubber hoses involved.
Some other inmates taught me to play a game of dominoes. They were surprised that unlike most inmates, I was not in there for DUI or drug prohibition violations. Most meals included some strange, foamy, balogna-like substance. I do not memorize phone numbers any more, instead relying on my mobile phone's in-built directory, so reaching people on the outside was difficult. In the in-jail, remote-video, courtroom while awaiting my arraignment, public defenders found a press release from Cannabis Defense Coalition indicating that a defense fund had been created and that my friends and colleagues were working to get me released, and that they had discovered my earlier contact with a TSA ABQ airport representative, who stated that filming of the sort I did in the airport was not prohibited. That, at about 9am the day after my arrest, was the first communication I received from anyone besides bail bonding agents who were not willing to work with an out-of-town inmate. It brought tears to my eyes then and does so again as I type this. Shortly after that, I was arraigned, then taken back to the cell block, where I napped with the knowledge that there was nothing more I could do, and that other people were doing everything they could do to get me out.
No. Just degrading.
During my experience at county jail and between the city jail and county jail, it was difficult to impossible to get information about what was happening and why. There were no clocks visible, and the jailers were not at all helpful.
Presumably, the price of asserting our rights will decrease as others assert their rights. I would be honored if other people were inspired or emboldened by my actions. I go about my business in a lawful manner without surrendering my rights unless there is good reason to do so. It's arguable whether avoiding all the hardship described above is good reason to surrender one's rights, but when I was being walked from the checkpoint to the airport holding cell, I fully expected to be released after some paperwork in time to catch my flight home.
Jan 29, 2011, 4:07 pm
#1622
Join Date: Apr 2008
Location: USA
Posts: 1,439
FOX Business "Freedom Watch" interview January 28, 2011
It was shorter than I expected. I'm disappointed that I didn't get to 1) suggest viewers go to papersplease.org for details, 2) solicit donations to my defense fund, 3) thank those who showed up in court to lend moral support and bear witness, 4) thank my friend Jesse, who made first contact with our colleagues at CDC upon my arrest and was dropped off at the edge of airport property, then had a very rough night, 5) commend my attorneys, Molly Schmidt-Nowara and Nancy Hollander, and 6) mention what I'd like to see out of TSA (I like this list a lot: http://papersplease.org/wp/2010/11/1...one-about-tsa/).
Jan 29, 2011, 4:55 pm
#1623
Join Date: Apr 2008
Location: USA
Posts: 1,439
New Mexico v. Phillip Mocek: lawyers, video tape, and I, were all kind of important
I was somewhat involved as well, taking my attorney a bit by surprise early on. I'm no legal expert, but I know the evidence extremely well, and became familiar with transcripts of witness interviews (which I'd happily publish someday, along with audio, but only after I get some legal advice on whether that's advisable), so if nothing else, I was a very good index of material that they just weren't likely to learn as well as I did (and Molly may have done so by the time we were finished). I put an enormous amount of effort into transcribing all the audio. It was very useful to me, and all of us used my transcripts for quite some time before we had any of it transcribed by a court reporter (which was terrible before we sent it back with notice of such, and still far less accurate than mine, though not in ways that were of significant concern). The subtitles are helpful with hearing and comprehending what is said in my video, and I did all that myself. And apparently it's not just a given that the client go with his attorney(s) at lunch to talk about the trial. I don't know what else someone who's on trial would want to do. I was welcomed openly to go with them instead of with my family, and am glad that I did (helped a bit, didn't get in the way, was extremely fascinated), but I don't think it was expected until I asked.
Having a videorecording of what happened was also very significant. I would almost certainly have been convicted were it not for my video. Juries tend to give police the benefit of the doubt. Police don't always have an accurate memory of what happened, and I have a theory that when you annoy them or in any way question their authority, their memory gets worse. I suspect that if they arrest you first, then figure out what to charge you with afterward, their memories are pretty rotten.
I've nothing but good things to say about Molly and Nancy. However, I think videotape and no lawyers might have been better than lawyers and no videotape. I'm fortunate to have had both. That absolutely unbiased third party is hard to beat when there's a conflict between two people who were there. I wish I could wear one any time there's someone around who has the ability and authority to hold me at gunpoint and/or to lock me in a cage, based solely on his word.
Jan 29, 2011, 5:12 pm
#1624
Join Date: Mar 2009
Posts: 1,972
The question is what was the prosection's theory about what the "lawful order" was supposed to be. I think that varied from time to time, but it was clear that by the end of the trial, the "lawful order" was the order to leave the airport. Whether it was lawful or not was immaterial (the issue is what justification an LEO must have to revoke somebody's permission to be there) because it appears that the jury accepted the defense theory that you couldn't have "refused" the order since you weren't given any time to do so.
Mr. Breedon, the TSA security guard who began to perform the alternative identification process after being informed by Mr. Martinez (TSA document checker) that I did not have identity documents, testified that he was concerned about me filming the form he was completing.
It's doubtful. Mr. Breedon also testified that TSA procedure is to have the passenger sign that form after it is completed by TSA staff.
It's also interesting that my attorneys downloaded a copy of the form from the TSA Web site and showed it to Mr. Breedon in court. He said that his form had a different typeface and a few more check-boxes at the end.
Last edited by Kiwi Flyer; Jan 30, 2011 at 12:16 am Reason: merge consecutive posts
Jan 29, 2011, 5:26 pm
#1625
Join Date: Sep 2006
Location: San Francisco, USA
Posts: 79
It's not as exceptional as you might think. In some jurisdictions courts of the first instance aren't courts of record. If you lose at trial at that level and appeal, you get an automatic de novo trial in a court of record.
Jan 29, 2011, 5:34 pm
#1626
Join Date: Apr 2008
Location: USA
Posts: 1,439
Officer Dilley was great during his examination, though. I suspect that without video evidence contrary to his testimony, the jury would have believed him.
Jan 29, 2011, 5:37 pm
#1627
Suspended
Join Date: Jul 2008
Posts: 2,726
The question is how many of us have printed out the screenshot and sent it, with a letter of complaint, to the TSA Inspector General?
Jan 29, 2011, 5:38 pm
#1628
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Bruce
Jan 29, 2011, 5:49 pm
#1629
Suspended
Join Date: Jul 2008
Posts: 2,726
Why do you think police in Illinois are trying to put people in jail for 15 years for recording them? It's a complete misuse of the wiretap law, and won't survive appellate review, but they're doing it on the "won't beat the ride" theory.
Jan 29, 2011, 6:25 pm
#1630
Join Date: Mar 2009
Posts: 1,972
Besides, I don't see that they would have succeeded in most objections or even that what was said was harmful. To me, more of Breedon's testimony was exculpatory than harmful. It's far better to attack testimony in cross than to try to supress it in direct. In this particular case, he was asked why he did certain things. That's a legitimate question. His answer was that he believed that photography was prohibited. That's why the cross was aimed at bringing in the evidence that the TSA's own statements were that photography was allowed. So the argument they're making was "Breedon called the police for an incorrect reason".
If they suppressed him giving the reason, they couldn't make that argument. More fundamentally, the defense chose not to present a case. That means they're presenting their case via cross of the prosecution witnesses. But you can only ask on cross about things that were mentioned on direct. If everything got suppressed via objections, how would this get in?
I disagree that the defense erred here in not objecting: I think they did exactly the right thing.
Jan 29, 2011, 6:58 pm
#1631
Join Date: Apr 2008
Location: USA
Posts: 1,439
Jan 29, 2011, 9:39 pm
#1632
Moderator: Travel Safety/Security, Travel Tools, California, Los Angeles; FlyerTalk Evangelist
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The Judicial Council of California - Designating the Record
What is an "agreed statement"?
It is a summary of the trial court proceedings that all the parties agreed to. It can be used for both the record of documents and the record of oral proceedings in the trial court.
What is a "statement on appeal" or "settled statement"?
It is a summary of the trial court proceedings that is approved by the trial court. You can use a statement on appeal (also called "settled statement") if you cannot get an agreed statement (because the other party will not agree to your statement).
It is a summary of the trial court proceedings that all the parties agreed to. It can be used for both the record of documents and the record of oral proceedings in the trial court.
What is a "statement on appeal" or "settled statement"?
It is a summary of the trial court proceedings that is approved by the trial court. You can use a statement on appeal (also called "settled statement") if you cannot get an agreed statement (because the other party will not agree to your statement).
Jan 30, 2011, 5:46 am
#1633
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Join Date: Aug 2005
Location: Chicago
Posts: 11,513
In California "Agreed Statements of Appeals" or "Settled Statements of Appeals" are often used instead of transcripts when appealing misdemeanor convictions.
Here in Cook County they have microphones in the courtrooms you go to if you just have a speeding ticket. The City of Chicago uses microphones in the parking ticket hearing rooms-- parking tickets! How states continue to permit criminal trials without any record in this day and age is incredible-- it isn't like the olden days where you had to hire a stenographer.
Jan 30, 2011, 6:14 am
#1634
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Additionally, I owe thousands of dollars (no final bill yet, but I estimate it will be another $10,000 more than the retainer I paid), and my partner and family were worried for 14 months about the possibility of me going to jail. My partner and I travelled to and from Albuquerque twice via train (there's an outstanding request here for me to report on the train ride; very briefly, I like it - there are A/C outlets at each seat and I was able to tether my laptop to my mobile phone for Internet access; I'm writing this from the train somewhere in Oregon), stayed in hotel rooms for two weeks, and my parents rode the train and drove from/to Kansas City twice.
Presumably, the price of asserting our rights will decrease as others assert their rights. I would be honored if other people were inspired or emboldened by my actions. I go about my business in a lawful manner without surrendering my rights unless there is good reason to do so. It's arguable whether avoiding all the hardship described above is good reason to surrender one's rights, but when I was being walked from the checkpoint to the airport holding cell, I fully expected to be released after some paperwork in time to catch my flight home.
Presumably, the price of asserting our rights will decrease as others assert their rights. I would be honored if other people were inspired or emboldened by my actions. I go about my business in a lawful manner without surrendering my rights unless there is good reason to do so. It's arguable whether avoiding all the hardship described above is good reason to surrender one's rights, but when I was being walked from the checkpoint to the airport holding cell, I fully expected to be released after some paperwork in time to catch my flight home.
For me, reading the recent outrageous post on the TSA blog about which many have also written elsewhere finally motivated me to send along a modest donation to your defense fund.
It's definitely not in honor of the TSA,
but in recognition that you successfully challenged this powerful bureaucracy, ^ their current "we-weren't-involved" denials in that disgraceful blog post notwithstanding. 
I encourage other FTers who feel the same way, but like me haven't made a donation up to now, to take a moment to click on the link in your signature and donate to your defense fund. @:-)
Jan 30, 2011, 6:22 am
#1635
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Join Date: Aug 2005
Location: Chicago
Posts: 11,513
Have you come out with any allegation that the police deleted the video? That seems to be the case from reading between the lines . . . am I mistaken?