39-day detention sparks federal lawsuit in Hill County

Offense: 'breathing while brown'

Hillsboro, Texas – In certain Texas communities, traveling with money will get you locked up - pronto.

A suspicious State Trooper leveled bogus charges against two Hispanic men that led to an extended stay in the Hill County jail under legal conditions that resemble the standards of medieval courts – all because they had money.

Roberto and Jaime Moreno-Gutierrez allege in a federal lawsuit that when DPS Trooper Carl R. Clary stopped them on I-35, he asked for permission to search their vehicle with the assistance of his canine partner.

Try as he might, the dog could sniff out no drugs or drug paraphernalia.

But the trooper smelled money, and when he discovered the $14,000 in cash and checks they had saved to buy a used Nissan hybrid electric car, he asked them to accompany him to a place for an interview “where it was quiet.”

He never told them they were under arrest, or even that they were being detained.

He didn't handcuff them, didn't warn them of their rights under the Miranda decision; he just took them to the Hill County Jail, where they languished for 39 days without charges, with no probable cause, and under the twin falsehoods that they were money launderers, detained by the Immigration and Customs Enforcement Division of the Department of Justice .

Records show no such federal detainer was ever filed, no state charges were ever filed, and no affidavit of probable cause was ever presented to a magistrate, according to their attorney, Cary Toland of Brownsville.

On the morning of March 31, 2011, the men left their home in Killeen to visit a used car dealer in Plano. They had cobbled together the cash to buy the hybrid Nissan following the sale of an older Dodge Envoy, borrowed an additional $4,000, and chipped in some more cash; they were ready to buy the Nissan that day.

In a traffic stop that resembles the classic portrait of racial profiling, they were stopped for traveling while brown, both driver and passenger's driver's licenses were scrutinized and scanned electronically, and questioned by means of a “translator apparatus” to convert the trooper's questions into Spanish.

"There was simply no indication of wrongdoing. Nevertheless, Trooper Clary seized the money and waited for backup...,” the federal complaint states. Attorneys with the Peek and Toland law firm conducted an investigation which turned up a property receipt for the $14,000 in cash seized that day. That part is clear. From there, the record becomes downright murky.

Attorneys never found the federal affidavit form that would have supported a detainer for an illegal immigration investigation, just an advisory that the government would not press charges.

That's not all they never found.

"There was no warrant; there is no record of the plaintiffs being brought before a magistrate; there is no record of a bond hearing; and no bond was ever set by Hill County authorities, all of which has been confirmed by FOIA requests and USDOJ FBI CJISD Reports." The two men were never advised they were under arrest, nor were they ever handcuffed. The law men just threw them into the casa de calaboose for a striped sunshine treatment.

The suspicion voiced by lawmen and never recorded in the annals of law and order: “money laundering.”

DPS and Sheriff's office officials stonewalled numerous attempts to exercise the right to an application for a writ of habeas corpus, according to the attorneys.

"Between April 6, 2011 and April 12, 2011, counsel made several calls to the Hill County Sheriff Department/Jail and was told they had no information and to call DPS Officer Clary or the district attorney," the complaint states. "On April 12, 2011, counsel sent a request to the Waco, Texas office of the Texas Department of Public Safety for contact information on the detective assigned to the case for copies of the probable cause affidavit and arrest warrant or offense report. None was provided...There was no cause number, offense report, warrant, or probable cause affidavit; defense counsel for plaintiffs had no reference for their requests for bond or bond hearing... Between April 12, 2011 and April 25, 2011, counsel, in a series of calls and visits, pointed out to the jailers there were no charges; no offense report; no probable cause affidavit on file; and plaintiffs were being held more than 72 hours in violation of Texas Code of Criminal Procedure, Section 17.033(b)...Counsel was told to contact the arresting officer or the office of district attorney.

“On another occasion, counsel was told there was an 'ICE hold detainer.' The 48 hours passed and plaintiffs were not released. The FOIA request reveals no ICE hold detention (Form I-247) notice during this time." (Parentheses in complaint.) After the plaintiff's attorney sent a letter to State Trooper Clary asking for information about their charges and did not get a response, he filed a motion with the Hill County DA's office for an examining trial, and another motion with Hill County's district clerk, seeking information and/or a case number. 
     Again there was no response, plaintiffs say. On May 9, 2011, (the first time immigration documents showed up in the FOIA file), ICE sends an immigration warrant, at which time immigration officials were told no charges were going to be pursued and an immigration bond was set and paid," according to the complaint.

"Plaintiffs were released after 39 plus days of incarceration with no charges; no hearing; and no probable cause, all in violation of state and federal laws and constitutional requirements. 
All authority to continue detention under the immigration detainer or state law had expired 36 days earlier. It was defendants' legal duty to immediately release plaintiffs. Nevertheless, defendants continued to imprison plaintiffs, without legal authority, for approximately 39 days.

That is 36 days longer than the three days the Texas Code of Criminal Procedure law allows  lawmen to place a suspect in custodial detention without charges and reasonable bail.

In a final note, laconic and somewhat ironic, the lawsuit concludes, “Trooper Clary is not a party to the complaint."