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)

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 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

                                                                    74
 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 effect.  I represented
 5   people for six days, basically used up my Rainbow gathering.
 6   The only day we did not have court was on the 4th of July.  We
 7   had court on Saturday.  We had court at eight o'clock on Sunday
 8   morning, all, in the end, for the most little offenses
 9   imaginable.  It was very clear to me that the Forest Service was
10   using any excuse to build up their numbers to get statistics to
11   cite people wherever -- whenever they could on the most minor of
12   issues that would have been looked in any other circumstance
13   other than a National Incident Command Team (sic), and the
14   National Incident Command Team and their taking over the
15   management of this gathering that I really object to, Your
16   Honor.  We have a National Incident Command Team to deal with
17   serious emergencies.  The Federal Government is not supposed to
18   be the ultimate arbiter of health and safety.  These things were
19   reserved by the Constitution to the state --
20             MR. FERGUSON:  Your Honor, I don't see what relevance
21   this has to a suppression hearing.
22             THE COURT:  And I don't mind hearing some argument,
23   but I'd like to try to keep it kind of on point to what we're
24   doing here today.
25             MR. WIRTSHAFTER:  I'm trying to be as quick as I can,

                                                                    82
 1   Your Honor, but I need to state my case in chief here for --
 2             THE COURT:  All right.  Go ahead.
 3             MR. WIRSHAFTER:  Okay?
 4             THE COURT:  The objection will be overruled.
 5             MR. WIRTSHAFTER:  So here we have testimony that --
 6   and I'm not arguing.  I'm just trying to say that the National
 7   Incident Command structure was set up in April; that it's a
 8   continual structure; it goes from year to year to year; that
 9   they have done it over and over and over again for something
10   that's not an emergency.  Last year they might have had some
11   justification for stopping so many vehicles on the road because
12   the Forest Service termed the gathering an illegal gathering,
13   and so they had people on the road.  Do you know you're going
14   into an illegal gathering?  And that was their justification for
15   it.  This year there is no accusation that this is an illegal
16   gathering.  We are clearly a legal gathering.  We are operating
17   under an operating plan given to us by the Forest Service.
18   There's nothing about that this year, and, therefore, this road
19   stop is absolutely and totally illegal, which is why I'm putting
20   my own neck on the chopping block, because I strongly, strongly
21   believe that it's wrong.  This is totally unconstitutional.
22   This is not America where they can choose a church, sit in their
23   driveway, take down the name's of everybody coming in, cut down
24   our numbers by their interference in our ingress and egress, put
25   us at risk of health and safety because people are afraid to go

                                                                    83
 1   out on the road and get water, get food, get what they need.
 2   This -- the Forest Service is using this National Management
 3   Incident Team to do illegal activities.  They have -- it becomes
 4   a National Incident Creation Team because there really is no
 5   incident.  There's no complaints.  There's nobody that has said,
 6   please come; I'm being robbed; please come; I'm being -- you
 7   know, things like that going on.  And there's nobody from forest
 8   resources coming in here to say, oh, there's a problem because
 9   they are ripping up the forest; oh, there's a problem because
10   they are not listening to us.  You have to understand here.  The
11   Rainbows are a victim of a rift going on within the Forest
12   Service itself.  You have the rangers, and now in the last 20
13   years we have the law enforcement and investigations branch of
14   the Forest Service, and over the last 20 years this branch has
15   tried to take predominance to say, oh, we cannot be ruled by the
16   rangers who had always ruled the forest, because sometimes we
17   have to investigate the rangers, so we can't be under their
18   control, so the LEI branch of the Forest Service has become its
19   own entity and seems to be from my observations on the ground
20   talking to resource people who have been unbelievably friendly
21   and there's absolutely no complaint as to anything from our side
22   coming -- anything that they have done, and I don't believe
23   there's any serious complaints from anything that we have done
24   to the forest.  If you went out there today, Your Honor, you
25   would see the place meets the Forest Service specifications, and

                                                                    84
 1   always we've cooperated with the archaeologists; we have
 2   cooperated with the water people; we've cooperated with the
 3   health department; we've cooperated in a hundred different ways
 4   to make this a safe and secure gathering, and it was.  Is there
 5   a way I could get some water, please?
 6             THE COURT:  Take your time.
 7             MR. WIRTSHAFTER:  Your Honor, this is my church.  We
 8   have stipulated to it being a religious event.  If you saw it
 9   yesterday you would have been really impressed.  It takes
10   sincerely held belief to get people to do this difficult thing
11   of getting out there in the woods and carrying everything in and
12   dealing with the mud and dealing with Forest Service and all of
13   these things for us to be able to have our gathering, but it's
14   something this circle that we form is good that people have done
15   for millennia.  This is an ancient tradition where we gather in
16   peace, and but -- for the fact that we are peace-loving,
17   peaceably- assembling individuals, we do really good at it.
18   Yesterday we had 20 -- I don't know how many people they say
19   were there, but thousands of people absolutely silent by
20   agreement for hours at a time.  I ran, you know, I work out a
21   security team at the Rainbow gathering.  Not a team that's
22   organized in any way, but the same people show up every year and
23   on the 4th of July we are all out there making sure that
24   everybody is really safe.  And so I was privy to all of our
25   internal communications and the special radio frequencies that

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 1   we use that the Forest Service monitors.  And I'm aware that
 2   really nothing happened.  We had a incredibly safe day.  The
 3   whole Rainbow gathering itself, other than the interference of
 4   the L E I's, has been as safe as any city of 10,000 people.
 5   Yes, you are going to have somebody who breaks their neck
 6   swimming in the river or you are going to have things like that,
 7   but in terms of drug overdoses or any of those things, there's
 8   just nothing about the gathering that's extraordinary from any
 9   other group of people.  We are -- maybe some of the first people
10   who show up are the ones without jobs and but most all of us are
11   absolutely law-abiding people who come here as an annual
12   retreat, as a spiritual exercise.  The most insidious thing
13   about the Government is not that everybody --
14             MR. FERGUSON:  Your Honor, I want to object.  He's
15   just making an argument.  He's not testifying.
16             MR. WIRTSHAFTER:  I'm --
17             THE COURT:  Mister -- I want to give you an
18   opportunity to -- I want you to understand.  I'm here on what
19   you're claiming is a Motion to Suppress an illegal search.  And
20   I think I understand from your argument what your contention is,
21   but you're giving me a lot of history about your organization
22   and everything that doesn't really sound relevant to me
23   concerning this particular issue.  Can you tell me how --
24             MR. WIRTSHAFTER:  Well, let me bring it this way --
25             THE COURT:  That's the Government's objection.

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 1             MR. WIRTSHAFTER:  The Government is basing its stop on
 2   its regulations -- they haven't even brought -- introduced their
 3   regulations that allow these stops, but the Government issued
 4   regulations that allow them to make these check points after the
 5   1988 U.S. versus Park decision where the Forest Service --
 6             MR. FERGUSON:  Your Honor -- --
 7             MR. WIRTSHAFTER:  -- was found to be
 8   unconstitutionally --
 9             MR. FERGUSON:  -- are we at the --
10             THE COURT:  Just a second, now.
11             MR. FERGUSON:  Are we at the point of argument?
12             THE COURT:  We're --
13             MR. WIRTSHAFTER:  He asked -- this is argument in
14   terms of this particular point.  He asked me to argue --
15             THE COURT:  Where I am, I'm sorry, but you, I thought
16   you were testifying for --
17             MR. WIRTSHAFTER:  I was.
18             THE COURT:  -- for your side of the case.
19             MR. WIRTSHAFTER:  I am.
20             THE COURT:  Normally what's going to happen is you're
21   going to testify --
22             MR. WIRTSHAFTER:  Yes.
23             THE COURT:  -- and give me your side of the case.
24   Then after I've heard all of the evidence, we'll have closing
25   argument.  The Government will get to go, then you would get to

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 1   go, and you are trending over into argument now as opposed to
 2   testimony, and I'm trying to restrict it right now to your
 3   testimony.  Then when you get to argue, you can argue anything
 4   you want.
 5             MR. WIRTSHAFTER:  I'm trying to explain how these
 6   Government regulations as are applied here are infringing on my
 7   right to gather, that I'm trying to, you know --
 8             THE COURT:  All right.  That sounds like argument to
 9   me.  What I'd like to try to get you focused on is the facts
10   pertaining to this particular stop that you want me to address
11   or listen to --
12             MR. WIRTSHAFTER:  Well --
13             THE COURT:  -- and then, then the Government will have
14   an opportunity to cross examine you about those facts.
15             MR. WIRTSHAFTER:  Okay.  Fine.  The facts of the stop
16   itself are we drove into this road which was the road announced
17   the afternoon before for the location of the Rainbow gathering.
18   We -- there were two potential locations announced.  The Forest
19   Service had interfered with our ability to even have the scouts
20   meet.  The scouts, every time the scouts did anything, they were
21   getting ticketed and arrested by law enforcement officers, and
22   it interfered with our ability to even meet to discuss a site to
23   have the Rainbow gathering.  We went to this location, and, just
24   as I expected, there was the road block, just where I expected
25   it, you know, right on the road right into the site, you know.

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 1   We were fortunate in that it had just started raining and the
 2   road black was standing down.  The officers were running back to
 3   their cars when we drove into the site.  We went and checked out
 4   the Shores Lake site as for its availability and suitability for
 5   a location for the Rainbow gathering.  We spent about an hour,
 6   hour and a half driving up probably seven miles up the road,
 7   checking out a few things, seeing sites, going back in the
 8   woods, coming back out.  We fully expected to see the officers
 9   still present at that location when we came out and, in fact,
10   they were there.  I took a picture 50 or a hundred feet before
11   the stop just because, you know, we were, we were right.  And I
12   certainly knew they were there.  Let's see.  Other things of the
13   stop that you need to know are that their allegations -- you
14   know, they don't have the purse that this was in, but it was
15   clearly not my purse.  I don't own a purse.  You should know
16   that the drug dogs were out of the car and around my vehicle
17   before I ever talked to an officer.  That's how the drug dog
18   officer whose name I don't recall, Hyron or -- was able to
19   testify that he heard this insurance thing, because he was
20   already there with the dog and the dog went around all of the
21   vehicles, okay, before they were let go.  I was there.  I have
22   not checked the time on my camera, but my estimation was it was
23   a full hour.  I asked several times if I could leave and I was
24   told I could not leave.  It took just about to the end of the
25   hour until they found something.  They were going to search

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 1   until they found something.  I'm trying to get into the details
 2   of the stop.  It turns out I did have the insurance paper in the
 3   car.  I just couldn't find it, or at least I had the new one
 4   that was my, you know, my renewal notice and everything from the
 5   insurance papers which included my next certificate starting
 6   next week or something.  We got out of that road stop and drove
 7   to the other Rainbow gathering location.  On the way they had a
 8   road block set up in a place that hasn't been -- we haven't seen
 9   the authorization for, but they had one of these check points,
10   same officers who stopped me had another one set up in between
11   the two locations.  When the officers, by the way, stopped me,
12   they told me, told us that they were there because they had read
13   on the internet that this is where the Rainbows are going to
14   move.  Why aren't you there?  Where are you guys going to be?
15   They really needed to know.  It turns out that Washington had to
16   make their motel reservations and they needed to know where the
17   officers were going to stay and so they were kind of -- felt
18   very frantic that day to figure out the location.  I'll explain
19   how I feel that.  I left that road block.  Ten minutes up the
20   road ran into another road block.  The one that isn't -- no
21   location, you know, but they recognized me, oh, we already did
22   you.  You can go through.  I got over to the Fallsville
23   location, pulled into the driveway there.  There was another,
24   equally-similar road block.  This one didn't have the stop signs
25   up on the -- on the road block thing, but there were people all

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 1   over the ground and 10, 15 officers going through three
 2   different vehicles, I believe, on my first time through the road
 3   block.  I had another time getting down to the -- you know, this
 4   same time, this is the same trip just trying to get to the
 5   gathering.  My fourth stop was at the bottom of the hill.  There
 6   were officers there stopping vehicles.  Not only was my ID
 7   searched, you know, obtained, but the ID of my passenger was
 8   also sought and taken by the officers.  And let's see.  (Pause.)
 9   I have no further evidence.
10             THE COURT:  Cross examination.
11                          CROSS EXAMINATION
12   BY MR. FERGUSON:
13    Q   Mr. Wirtshafter, can you give us an estimate of how many
14   people attended the Rainbow gathering this year?
15    A   It's really difficult for me to do that.  The Forest
16   Service has a much better idea of that because they take videos
17   of the cars and the car counts and --
18    Q   You're not answering my question.
19    A   I -- I don't know.  I saw at least I would say six to 8,000
20   people circling yesterday and there were also people back in the
21   various camps doing security and people, you know, coming in and
22   out.  My guess is that we did not reach 10,000 people this year.
23    Q   But we are in -- we are talking in the thousands of people?
24    A   Correct.
25    Q   All right.  And this is an area that routinely would not

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 1   have anyone in it, is that correct?  I mean, there's no
 2   permanent residents in that area?
 3    A   That's true.  There's nobody that lives down the road that
 4   their block was on at Fallsville whatsoever.  And when we first
 5   traveled down it, it had -- it was a very seldom traveled road.
 6   You could tell just by how torn up the road is.  Now it looks
 7   really good.
 8    Q   Now, there's no designated campsites down there, are there?
 9    A   There -- I'm not sure the definition of "designated
10   campsites," but it is a commonly used recreation area.
11    Q   Okay.  But it's not like at a lake.  You've seen a Corps of
12   Engineers lake.  You've seen picnic tables and grills.  There's
13   nothing like that down there, is there?
14    A   Nothing at all.
15    Q   Okay.  And, in fact, people that come to this are from all
16   over the United States, is that correct?
17    A   True.
18    Q   All walks of life, is that correct?
19    A   True.
20    Q   And do you know about how many cars were down in that area?
21    A   No.
22    Q   Well, we are talking about in the thousands, is that
23   correct, or at least a thousand?
24    A   Certainly.
25    Q   So can you tell the Court that all of those cars are --

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 1   everything is correct about them as far as turn signals, brake
 2   lights, tail lights, registration, insurance?
 3    A   I have no way of telling that or interest in it.
 4    Q   Okay.  So basically this is a small town in a way that has
 5   come into a remote area established for a week or two, is that
 6   correct?
 7    A   Yes.
 8    Q   Okay.
 9    A   Except it doesn't have the accouterments of a town.
10    Q   Right.
11    A   It doesn't have a mayor or off, you know --
12    Q   I understand.
13    A   -- offices or officers or anything of those things.
14    Q   Right.  But basically we are talking about a group of
15   people the size of a small town to just come into a remote area
16   for a week or two at a time and set up camp, is that correct?
17    A   Sure.
18    Q   And as you know, in towns there's potential for traffic
19   violations and other type of criminal acts that occur to any
20   small town anywhere in the United States, is that correct?
21    A   Yeah, I guess I can answer that correctly.
22    Q   Okay.  And is there any specific law enforcement officers
23   designated for that area on a full-time basis that you're aware
24   of?
25    A   Yes, the county sheriff and the law enforcement officers

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 1   who are already assigned to the national forests.
 2    Q   All right.  And do you know that they're down there in that
 3   area on a routine basis even when the Rainbow family is not
 4   there?
 5    A   I wouldn't imagine they were there very often.
 6    Q   Okay.  Do you know how many traffic violations occurred
 7   within the last couple of weeks in the Fallsville area -- well,
 8   on Forest Road 1463?
 9    A   We talking violations that you caught or violations that
10   you didn't see?
11    Q   Just any.
12    A   We're talking about cited violations or people who sped and
13   you didn't catch them?
14    Q   I'm just talking about any traffic violations.  Do you have
15   any idea how many?
16    A   I don't know.
17    Q   Okay.  Has the sheriff or any other law enforcement officer
18   asked you to be a reserve officer down there?
19    A   No.  Can I supplement my last answer in that I did go to
20   Jasper, the county seat, and attempt to get records of the
21   people arrested.
22    Q   Okay.
23    A   I was told that I had to seek public records through the
24   Public Records Act and that these records of who was arrested
25   were not available to me or even newspaper reporters.  I also

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 1   went to the county jail to see a specific inmate, presented my
 2   Federal bar admission, fresh-admitted Federal bar admission for
 3   Alabama, and my attorney credentials from Ohio, and I was not
 4   allowed to visit that prisoner.
 5    Q   So did you have any clients in that jail?
 6    A   Yes, I did.  In that I was asked --
 7    Q   What was their names?
 8    A   -- to -- I came with a specific name.  Let me -- give me a
 9   second here, but the sheriff agreed -- the deputy and I went
10   over and tried to, to work it out, and I was told that I was not
11   allowed in the jail.
12    Q   Okay.  But you don't remember the client's name?
13    A   Brian.
14    Q   Okay.  Well, let me ask you this:  Well, you testified
15   earlier that there had been no complaints made concerning the
16   Rainbow family, is that correct?
17    A   I said I was not aware of any complaints that came to law
18   enforcement based on anything that happened down in the
19   gathering itself.
20    Q   Okay.  So you're not aware of any property that was stolen
21   a couple days ago?
22    A   I am not aware of it and I certainly haven't had any law
23   enforcement officers come to us to ask us if we know anything
24   about it.
25    Q   Okay.  But they wouldn't be obligated to come to you, would

                                                                    95
 1   they?
 2    A   No.  But we try our best to maintain a cooperative stance,
 3   and if there is thievery or robbery in the gathering, the
 4   gatherers want to know about it, too, and would certainly help
 5   recover any property.  Yesterday when the Health Department --
 6    Q   All right.  Let me -- You've answered my question.  Let me
 7   ask you:  Are you aware of a person that made a complaint
 8   yesterday regarding an assault down in the camp?
 9    A   I was present when an assault or maybe two took place that
10   really wasn't in the camp.  It was kind -- we have on the
11   entrance to the camp or near the entrance to the camp for people
12   who don't fit into the gathering because they insist on drinking
13   alcohol and we don't tolerate that very well inside, so they
14   form their own camp and --
15    Q   Well, let me ask you this:  Do you tolerate use of
16   marijuana in the camp?
17    A   Uh, I wouldn't tolerate use of marijuana where there was
18   somebody objecting.
19    Q   But if no one objected, then that would be fine.  Is that
20   what you're saying?
21    A   You're asking my opinion?  Yes.
22    Q   Yes, sir.  Now, the day of the stop at Shores Lake on June
23   the 20th, you said that when the first officer approached your
24   vehicle, that the canine officer was right there with him, is
25   that correct?

                                                                    96
 1    A   Yes, sir.
 2    Q   So the dog, they took the dog around your vehicle
 3   immediately, is that correct?
 4    A   Before I ever talked to an officer the dog was out.
 5    Q   So the dog alerted to your vehicle within a minute, if not
 6   seconds, from the contact?  Is that what you're saying?
 7    A   I'm not aware of the dog indicating on my vehicle outside.
 8   I was talking to the officer and after a while I was looking for
 9   the paperwork that disappeared somewhere.  I had insurance
10   papers, but they didn't bring me right up to the -- I had a
11   series of insurance papers of the same policy going to that same
12   truck, you know, and I just didn't have the most current one and
13   I'm not required to have the most current one under Ohio law.
14    Q   Okay.  So you will agree that you had proof of insurance
15   for that vehicle, but you didn't have the current proof of
16   insurance?
17    A   Correct, except that all of that proof was in an envelope
18   from the insurance company I had picked on up on my way out of
19   town, I stopped at the Post Office, and there was a pile of mail
20   I hadn't gone through.  So I actually did have it.  (Pause)
21             MR. FERGUSON:  Nothing further, Your Honor.
22             THE COURT:  You have a right to have redirect
23   examination of yourself so... of anything that the Government
24   has asked you that you would like to give an explanation to the
25   Court.

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 1             MR. WIRTSHAFTER:  I rest.
 2             THE COURT:  Well, let me -- under Ohio law, do I
 3   understand your contention to be that Ohio law requires you to
 4   have insurance, you just don't have to have proof of it in your
 5   car?
 6    A   Correct.
 7             THE COURT:  Okay.
 8             MR. WIRTSHAFTER:  There is a procedure where if you're
 9   in an accident you have to provide proof of insurance.  The
10   state Bureau of Motor Vehicles randomly checks people to see
11   whether they have insurance, certain conditions like that where
12   you have to prove that you have insurance, but actually carrying
13   a card in your car is not required.
14             THE COURT:  Okay.  But Ohio can also run checks to see
15   if you -- to see if you have driver's license, registration and
16   insurance?
17    A   No.  Actually when you are stopped in Ohio, the question is
18   driver's license and registration.  If you are in an accident,
19   then the question about insurance comes up, but you're not
20   required to prove it on the spot.  You are required to prove it
21   in the accident report, so you have 30 days to provide an
22   insurance policy.
23             THE COURT:  Okay.  All right.  Anything else,
24   Mr. Wirtshafter?
25             MR. WIRTSHAFTER:  Not in my direct testimony; no.

                                                                    98
 1             THE COURT:  Any other evidence, or to call anyone?
 2             MR. WIRTSHAFTER:  Your Honor, at this point I feel
 3   that we have put on the evidence about the issue of my traffic
 4   stop only.  That was what the Motion to Suppress was.  The issue
 5   of the dog and all of that stuff, I would -- that's secondary to
 6   the traffic stop.  We're talking about the constitutionality of
 7   actually stopping me here today.
 8             THE COURT:  All right.
 9             MR. WIRTSHAFTER:  If I fail on this motion, I would
10   reserve a right to do a supplementary Motion to Dismiss on the
11   issue of the dogs.
12             THE COURT:  Well, I'm not sure what that is.  I don't
13   quite follow that.  This is a Motion to Suppress.
14             MR. WIRTSHAFTER:  Yes.
15             THE COURT:  I'm going to hear -- I'm hearing the
16   evidence on the Motion to Suppress.
17             MR. WIRTSHAFTER:  Yes.
18             THE COURT:  I'm not going to have -- all right.  Any
19   argument from the Government?
20             MR. FERGUSON:  Your Honor, I just state briefly that
21   check points for things such as registration, proof of
22   insurance, that sort of thing, driver's license, has been ruled
23   upon as being legal.  There's some cases on point.  I would
24   refer the Court to primarily two cases concerning the issues
25   that we are addressing here today, United States versus Trevino,

                                                                    99
 1   which is a Seventh Circuit case, 60 F3d 333.
 2             THE COURT:  Excuse me.  Give me the cite again.
 3             MR. FERGUSON:  I'm sorry, 60 F3d 333.  It's United
 4   States versus Trevino.   It's a 1995 Seventh Circuit case.  It
 5   talks about the -- and I won't get into the actual argument in
 6   the case or the holding, but whether or not -- it talks about
 7   constitutional challenges to this, this type of seizure.  And
 8   that's talking about a check point, turns on whether or not the
 9   initial stop at the check point was reasonable.  Also, there's
10   an Eighth Circuit case, United States versus $404,905 in United
11   States Currency.  That was a civil forfeiture.  It's 182 F3d
12   643.  It's 182 F3d 643.  It's an Eighth Circuit 1999 case and
13   talks about dog sniffs at check points as far as the
14   permissibility of that.  Those are two cases I'm relying on.
15   I'll be glad to do a supplemental brief, if I need to.
16             THE COURT:  All right.
17             MR. WIRTSHAFTER:  I think that the check point itself
18   was legal.  I think the use of the dog was permissible.  I think
19   the length of time that this stop was reasonable and that's all
20   I have as far as argument, Your Honor.
21             THE COURT:  All right.  Mr. Wirtshafter, we're in
22   argument now.
23             MR. WIRTSHAFTER:  Okay.  The most insidious thing
24   about what the Rainbow national management incident command team
25   is doing is stopping every car and seeking the ID's of not just

                                                                   100
 1   the drivers but the passengers in these vehicles.  In other
 2   words, the Government is assembling a complete list of everyone
 3   who attends a Rainbow gathering.  The Government has twice used
 4   information obtained in these road blocks to then turn around
 5   and issue summonses on individuals, you know, seek preliminary
 6   injunctions to keep them from meeting or whatever.  None of --
 7   neither such attempt was very successful on the Government's
 8   part.  This has caused an extreme disturbing effect chilling our
 9   spiritual exercise.  And, you know, the Rainbow gathering is
10   entitled to the protection of the Catholic Church, you know,
11   whatever Christian church or the mosque or whatever in America.
12   We treat these things the same.  And, in fact, the Constitution
13   protects the establishment of religion which some people have
14   interpreted to say that what they were talking about there is
15   it's these young cult-type religions, you know, these new
16   prototype religions, these new beliefs, you know, ones that are
17   establishing themselves that need the protection of the
18   Constitution.  The larger churches can stand on their own.  They
19   don't need such constitutional protection.  It's more eyeball-
20   type events like the Rainbow gathering.  Your Honor, there is
21   only two reasons why such a massive Federal effort is used to
22   try to control a family picnic and/or family campout and one
23   would be that someone in Washington, according to the testimony,
24   issues these orders based on extreme religious prejudice,
25   extreme dogmatic thinking or general redneck behavior, hate the

                                                                   101
 1   hippies kind of attitude, and these orders are issued in an
 2   extremely prejudicial manner basically against us or that we
 3   have assembled over the years a team of police officers who
 4   quite frankly hate us and I've already said this isn't about the
 5   resources.  This isn't about the normal park rangers who are not
 6   here trying to shut us down.  They have been incredibly
 7   cooperative.  This is about orders from Washington to sit in our
 8   driveway, sit in our gate, take down our names, issue tickets
 9   for any little violation that can be found, and obviously we are
10   talking little violations here.  For cases, I want to talk about
11   Oregon versus Smith.  I'm sorry.  I don't have the record, but
12   Oregon versus Smith preserves strict scrutiny for hybrid First
13   Amendment and other First Amendment right kind of cases, and
14   what the stipulation that the prosecutor has agreed to save me a
15   long bit of testimony that I attend the Rainbow gathering as
16   part of my sincerely-held religious belief.  The regulations
17   that control us, the Forest Service regulations need to be, you
18   know, examined under the most strictest of scrutiny to make sure
19   that these regulations do not burden this exercise of religious
20   and political expression.  I would also cite the Cabales case
21   which is about drug sniffing and the fact that they can't have a
22   prolonged stop, but more importantly, the Sitz case --
23             THE COURT:  Wait just a second.  I've got Oregon
24   versus Smith.  You'll have to give me that citation or give the
25   name, which you have.

                                                                   102
 1             MR. WIRTSHAFTER:  Oregon versus Smith, the second one
 2   was Cabales, C A B A L E S, which is the dog sniff case that
 3   said that they can't prolong a -- a dog, a dog search is a
 4   search, a dog sniff is a search --
 5             THE COURT:  Uh-huh.
 6             MR. WIRTSHAFTER:  -- and that they can't prolong it
 7   very long.  They couldn't, in that case, wait 20 minutes to
 8   bring a drug dog there to a traffic stop.  The Sitz case
 9   controls traffic stops for a drunken behavior, but they are
10   saying that isn't what they are operating under here.  Here they
11   are operating under these National Forest regulations that were
12   promulgated after the U.S. versus Park case out of Missouri, and
13   let me find you a quote to that one, a cite for that one.  It's
14   case number 96-3288-CV-S, as in Sam, RGC, which was appealed,
15   and here the judge found --
16             THE COURT:  Wait just a second.  I've got United
17   States versus what, Curse? (Phonetic)
18             MR. WIRTSHAFTER:  Actually it's Tracy Parks versus the
19   United States Forest, the Forest Service of the United States of
20   America.
21             THE COURT:  I'm not hearing the name.
22             MR. WIRTSHAFTER:  Tracy Park, P A R K.
23             THE COURT:  Park.  Oh, okay, Tracy Park.
24             MR. WIRTSHAFTER:  Uh-huh.
25             THE COURT:  All right, Tracy Park, and the citation is

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 1   what?
 2             MR. WIRTSHAFTER:  The trial case was 96-3288-CV-S-RGC
 3   in the United States District Court for the Western District of
 4   Missouri.
 5             THE COURT:  Okay.
 6             MR. WIRTSHAFTER:  And I can give you a copy of that
 7   case, if you'd like, Your Honor.
 8             THE COURT:  All right.
 9             MR. WIRTSHAFTER:  And this was in 1988.  And Judge
10   Schlesinger granted a preliminary injunction against the Forest
11   Service enjoining them from establishing or participating in
12   road block quote safety checks unquote except for bona fide
13   traffic violation purposes and from making quote -- I'm sorry --
14   and quote from making any motor vehicle stops and/or searches
15   for criminal purposes without individualized exigent
16   circumstances or other proper and articulable individualized
17   suspicion or probable cause as United States Constitution so
18   requires during a Rainbow gathering, oops, in Florida.  I got
19   cases mixed up, Your Honor.  That case that I just quoted was
20   United States versus Addison, and I'll find you a cite for that
21   in a second here.  But after the Parks case that found similar
22   targeting by the Forest Service at a Rainbow gathering event
23   held in 1998 in Missouri, the Forest Service issued these
24   regulations that they are operating under, and they say to
25   themselves by putting in these regulations that they had to be

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 1   evenly applied on publicly traveled roads and all of these
 2   things to avoid targeting.  Now, Parks lost her appeal because
 3   she couldn't prove the ongoing nature of her harm, the harm to
 4   be caused because the Forest Service had issued these new
 5   regulations and there was no evidence that they would disobey
 6   the regulations.  Here now in the last two or three years they
 7   are, clearly and absolutely, unconstitutionally interpreting
 8   these regulations to say that they can stand in our driveway and
 9   search all our cars, and that this is a random traffic stop.  If
10   they are going to do these check points, it has to be about the
11   place and not about the occupant.  Okay.  It has to be about the
12   safety, the driver's license and all, but when they target us,
13   when they create this national team to manage this perfectly
14   legal event and have professional officers leave their
15   jurisdictions and come here en masse for no other purpose than
16   to police this gathering, when there are no complaints, nobody
17   calling to say I need help from the policeman here, they are
18   doing this on their own, they become more of an incident
19   creation team than an incident management team.  And I hope in
20   the next day or two you are going to hear more about that.  One
21   more minute.  I'm just -- to make sure I said everything I need
22   to say.  (Pause) In terms of the dog search, Your Honor, even if
23   the Government is correct that the vehicle I was driving in
24   really did contain these miniscule quantities of marijuana,
25   there's no scientific basis that a properly trained dog could

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 1   detect and indicate on such a de minimus quantity, especially in
 2   view of the fact that this car was filled with food and camping
 3   gear and other smelly things.  In other words, even if the
 4   officer was correct that the dog really did quote indicate on my
 5   car, that dog was wrong. (Pause)  Almost done.
 6             THE COURT:  Okay.
 7             MR. WIRTSHAFTER:  We've gotten past many of the issues
 8   about whether my belief is religious -- Is the belief sincere?
 9   Is there a compelling Government interest about my belief? --
10   because of the stipulation, but I need to also point you to the
11   RFRA, the Religious Freedom and Restoration Act, as amended that
12   specifically bars the Government from, you know, such
13   activities, and when such activities happen against a
14   sincerely-held religious belief, the Government has to use the
15   least restrictive infringement possible, make reasonable
16   accommodations, and they have to make sure there's no other
17   equally-effective means to meet the Government goal of, in this
18   case, safety.  And they certainly haven't made that case at all.
19   I also would refer to the Religious Land Use and
20   Institutionalized Persons Act as it applies to us.  Finally,
21   Your Honor, I just need to say that this -- these tactics are
22   outrageous.  This is not the America I grew up in.  This is
23   not -- this is the stuff we heard about was going on in Russia
24   where minority religious groups were being beat up by the
25   government.  This is not what our children are fighting for.

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 1   These freedoms of America need be preserved and it's up to you
 2   now to do that by telling the Government they are not allowed to
 3   be in our driveway, or at least, if they are going to be in the
 4   driveway trying to collect evidence, that it will not be
 5   accepted into Federal Court.  Thank you, Your Honor.
 6             THE COURT:  Mr. Ferguson?
 7             MR. FERGUSON:  Nothing further, Your Honor.
 8             THE COURT:  All right.  It was the Court's
 9   understanding at the beginning of this that this was a Motion to
10   Suppress.  I thought, Mr. Wirtshafter, that you wanted an
11   opportunity to submit a supplemental brief.  If you think that
12   you have told me everything that you want to tell me, well, that
13   will be fine, and the Court will make its ruling.  If you think
14   that you need additional time to submit things for the Court to
15   consider, I'll be glad to do that.
16             MR. WIRTSHAFTER:  Again, let me explain myself because
17   I didn't do it very well before.  This motion was about the
18   stop --
19             THE COURT:  Right.
20             MR. WIRTSHAFTER:  -- okay, only, not about any
21   anything subsequent to the stop.  So on that basis, I am ready
22   to rest.  I've cited the operative cases and Your Honor has
23   enough evidence to understand that this was illegal targeting
24   and should not be permitted in court.
25             THE COURT:  All right.

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 1             MR. WIRTSHAFTER:  If you want me to brief any issues,
 2   I would certainly do so, Your Honor.
 3             THE COURT:  No.  Well, Mr. Wirtshafter, first of all,
 4   as to the Government Exhibit Number -- where's the stip at --
 5   No. 4, if that was the marijuana that was found in the backpack,
 6   well, the Court doesn't need to rule on that.  What you're
 7   asking me, I think, to say is that the road blocks or check
 8   points are illegal per se and that they should not be allowed in
 9   any circumstance to establish those check points.
10             MR. WIRTSHAFTER:  No, Your Honor.  It's the targeting
11   of the Rainbow gathering with these check points, the creation
12   of a national incident command team and their focus of these
13   which check points in the driveway to our church that is the
14   issue here.
15             THE COURT:  Well, I know you've used that terminology,
16   "our driveway" several times, and now you've used used the
17   terminology "church."  I'm -- the Government has stipulated you
18   have some religious belief and that you want to gather together
19   to exercise those religious beliefs.  I don't think that that is
20   the issue or that is the problem.  I think you're clearly going
21   to be able to exercise religious beliefs, whatever those
22   religious beliefs are.  In the Court's mind, what is at issue is
23   when you have a gathering as substantial as this one is and when
24   you're going to bring into the community five to 8,000 extra
25   people all of a sudden, all of the vehicles, everything that's

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 1   connected with that into a road system that's not made to handle
 2   it, into a sewer system that's non-existent, into a water system
 3   that's non-existent, that you are, in essence, you have a public
 4   safety issue at least for the Government to be concerned about.
 5   You evidently have some concern about your own issues with
 6   safety in that you are saying you restrict people who come into
 7   your gathering who have alcohol, and they can't come into your
 8   gathering, and you prohibit them and they have to camp somewhere
 9   else, so you're self-restricting in some way.  And you're asking
10   the Government not to have any restrictions whatsoever on your
11   gathering and that I shouldn't be concerned that any of the
12   citizens driving on the roads here in the Western District of
13   Arkansas aren't properly licensed or insured or aren't under
14   undue influence or whatever the situation might be.  I think the
15   one -- the Court, the Chief Judge of this Court has previously
16   approved the check point plan presented by the Forest Service.
17             MR. WIRTSHAFTER:  I was not aware of that, Your Honor.
18   It's not in evidence.
19             THE COURT:  Okay.  Well, you're correct it's not in
20   evidence in this case.  It has been presented to the Court
21   previously that -- I guess in other evidence in the numerous
22   cases that have been tried here in this jurisdiction.
23             MR. WIRTSHAFTER:  Are we talking about for the Rainbow
24   gathering recently?
25             THE COURT:  For the Rainbow gathering recently, yes,

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 1   sir.
 2             MR. WIRTSHAFTER:  Are we talking about the Neninger
 3   case?
 4             THE COURT:  I don't know what case we are talking
 5   about.  All I'm saying is that --
 6             MR. WIRTSHAFTER:  I don't think it's proper for the
 7   Court to take this into consideration.  These issues were not
 8   argued in front of the judge.  If the judge did anything, it was
 9   on an ex parte basis.  The facts were not in front of the judge
10   and please do not rule based on that.
11             THE COURT:  All right.  I won't consider it, Mr.
12   Wirtshafter.  I don't care if the judge -- whatever he ruled on
13   it.  What I'm saying is a matter of public safety and as a
14   matter of law I think the Arkansas -- I mean, the U.S. Supreme
15   Court has said check points of this nature are permissible and
16   can be done; that when they are done, a dog may be, as long as
17   it's not unduly delayed, may perform a cursory search or a walk-
18   around of that vehicle.  I think these check points have been
19   presented.  They show to be for a valid basis.  They show to be
20   under a specific time constraint.  They comply with I think what
21   the United States Supreme Court has said, and they are
22   permissible.  Therefore, and I think this one was done in a
23   permissible manner.  Therefore, your Motion to Suppress based
24   upon the allegation that the check point is an unconstitutional
25   infringement upon your exercise of free speech or religion is

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 1   denied.  All right?
 2             MR. WIRTSHAFTER:  Yes, Your Honor.
 3             THE COURT:  All right.
 4             MR. WIRTSHAFTER:  Can we -- I guess, I know I have to
 5   waive the rest of my case or whatever -- proceed to sentencing
 6   so that I may immediately begin the appeal of your decision?  I
 7   am ready to --
 8             THE COURT:  Well, you told me, you told me this is the
 9   only thing that was here, Mr. Wirtshafter.  You wanted a Motion
10   to Suppress.  You didn't want a trial.
11             MR. WIRTSHAFTER:  Correct.  I lost my Motion to
12   Suppress.  I want to appeal this decision.  I could go through
13   the -- have another hearing where they talk about whether I'm
14   guilty or not of the marijuana offense and then I could appeal
15   this decision or I could simply rest, have the Court grant my,
16   you know, find me guilty, grant a sentence, and it would go
17   straight to appeal.  Based on everything that's happened, I am
18   willing to rest my case and allow the Court to proceed towards
19   sentencing.
20             THE COURT:  Does the Government have any other
21   evidence that it desires to present to the Court?
22             MR. FERGUSON:  Your Honor, I was planning on, since
23   this was a suppression hearing and I talked to Mr. Wirtshafter
24   before we ever started, I was planning on presenting the
25   evidence, Exhibits 3 and 4, to a crime lab to be tested.  Now

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 1   Mr. Wirtshafter told me before we got started that he would
 2   stipulate that the items, and we specifically talked about the
 3   item in the back of the vehicle in the container and also the
 4   items in the ashtray, he specifically told me before we got
 5   started that he would stipulate that they were cannabis
 6   material, and based upon that I agreed to go forward with the
 7   suppression hearing.  And as the Court knows, during the
 8   hearing, he objected to the item in the ashtray which was not
 9   what we stipulated to, and so, you know, I don't know that we're
10   at a point for him to be sentenced, unless he wants to state on
11   the record that these two items are, in fact, cannabis and he's
12   willing to state that as such.
13             THE COURT:  Mr. Wirtshafter, you understand the
14   Government's position, and I don't know looking at these two.
15   We've had some field tests and I can tell you in my 30 years of
16   doing criminal work that I've had field tests when they have
17   been done on cocaine or methamphetamine that the officers think
18   they are cocaine or meth, we've sent off to the crime lab and
19   it's not.  All right?  So I don't know why those tests are not
20   consistent, but I've never had one where you've done a field
21   test on marijuana and it's been sent off to the crime lab and
22   would come back and it's not marijuana.  I'll be glad -- I mean,
23   if there's going to be a contesting of the -- whether this is
24   marijuana or not, then we probably need to have it sent off and
25   tested.

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 1             MR. WIRTSHAFTER:  I wasn't going there at all, Your
 2   Honor.
 3             THE COURT:  Okay.
 4             MR. WIRTSHAFTER:  But in view of these objections by
 5   the Government, fine, give me my another day in court and I will
 6   say thank you for today and we will meet again.
 7             THE COURT:  What we can do, Mr. -- I don't mind if you
 8   say that the evidence -- that you will stipulate to the crime
 9   lab result when it comes back, if the crime lab results come
10   back and it's not marijuana, obviously I'm going to throw the
11   case out, because, one, I don't think that the Government can
12   establish that you're in possession of state or Government's
13   Exhibit No. 4 that is in the backpack, okay, so in the Court's
14   mind the only issue is No. 3 and whether that is in fact
15   marijuana.
16             MR. WIRTSHAFTER:  And since I didn't stipulate as to
17   number three, I only knew about No. 4 when I made that
18   stipulation, I would like to see the Government lab tests come
19   back.
20             THE COURT:  Okay.  All right.  And what we can do,
21   Mr. Wirtshafter, if you want, as I said, we can send this off,
22   have it tested, if it comes back and it's positive for
23   marijuana, the Court's going to -- based upon the evidence that
24   I've heard so far, the Court is going to find you guilty of
25   possession of marijuana.  If it's not marijuana, then the

                                                                   113
 1   Court's going to dismiss the case.  You want me to do that?  You
 2   want the Government to do that?  I can do that --
 3             MR. WIRTSHAFTER:  No, I don't -- I didn't want
 4   marijuana to be the case.  I really want to do an appeal based
 5   on your decision today.  I want to keep it clean.  I don't want
 6   to make other defenses, which is why I was ready to just
 7   stipulate to that miniscule, we are talking miniscule
 8   quantities.  If you try to test it in a lab, there's nothing
 9   going to come back, and, you know, I feel badly that we didn't
10   indicate on the record a weight, you know, so somebody really
11   interested in the future realizes that we are talking about
12   barely a trace, that we had to look very hard to even see, but
13   other than that, I'm ready to get out of here.  I'm ready to be
14   found guilty.  I'm ready to stipulate to this.
15             THE COURT:  On No. 3?
16             MR. WIRTSHAFTER:  I don't know what that is.  It's
17   ashes.  It's not marijuana.
18             THE COURT:  Well, it was field tested and tested
19   positive for marijuana.
20             MR. WIRTSHAFTER:  Yeah.  Is it a usable quantity?  Is
21   it a quantity that, you know, those kinds of questions come in.
22   It isn't whether it's just cannabis sativa.  It's whether it's
23   in a form that may be used.
24             THE COURT:  That is an entirely different issue.
25             MR. WIRTSHAFTER:  Yeah.

                                                                   114
 1             THE COURT:  And you may want to litigate that issue.
 2             MR. WIRTSHAFTER:  Correct.  So let me have another day
 3   in court on this.
 4             THE COURT:  I'm going to do that.  And what we're
 5   going to do is -- I'm not sure -- if the Government wants to
 6   send both of them off, that's fine.  But in the Court's mind
 7   only number --
 8             MR. FERGUSON:  Well, Your Honor, there is -- there may
 9   be another case involving the other Exhibit.  But, Your Honor,
10   there was one item when Officer Smithson testified,
11   Mr. Wirtshafter asked to look at another check point --
12             THE COURT:  Okay.
13             MR. FERGUSON:  -- plan, and we never received that
14   back, so if we could get that...
15             MR. WIRTSHAFTER:  I have that.
16             THE COURT:  All right.  Need to get that back.
17             MR. WIRTSHAFTER:  Okay.
18             THE COURT:  The Court has found that it is admissible.
19   What I'm going to do, Mr. Wirtshafter, is order that the
20   evidence, Government's Exhibit 3 and 4 be returned to the
21   Government to send to a lab to be testified.  All right?
22             MR. WIRTSHAFTER:  Could we get an order that the rest
23   of the evidence in my case be preserved by the Forest Service;
24   that they not erase transcripts or recordings or anything having
25   to do with my stop until we're able to adjudicate this thing?

                                                                   115
 1             THE COURT:  Well, what other evidence are we talking
 2   about?
 3             MR. WIRTSHAFTER:  I'm not certain, but we've heard
 4   talk about the drug dog records and things like that.  There are
 5   transmissions that happened during the time of my stop, things
 6   like that, that I would like preserved.
 7             THE COURT:  Yes.  Whatever evidence pertains to
 8   Mr. Wirtshafter, order the Forest Service to keep that all
 9   collected.  All right?  All right, Mr. Wirtshafter.  Anything
10   else from the Government?
11             MR. FERGUSON:  No, Your Honor.
12             THE COURT:  Anything else from the defense?
13             MR. WIRTSHAFTER:  No, Your Honor.  Thank you.
14             THE COURT:  Thank you.
15             MR. FERGUSON:  Your Honor, as far as a court date, you
16   know, we will need to submit this to a crime lab, and I have no
17   idea how long it's going to take, so --
18             THE COURT:  Mr. Wirtshafter, this will be done by
19   notice to you and this will be held in Fort Smith.
20             MR. WIRTSHAFTER:  My last address that they have has
21   been my address for 35 years.  I will be there to get your
22   notice.
23             THE COURT:  We will get word to you and you'll have
24   plenty of notice on the trial date.  All right?  Thank you very
25   much.  Court's in recess.

                                                                   116
 1      (End of proceeding.)
 2                        C E R T I F I C A T E
 3   
 4   State of Arkansas   )
                        )
 5   County of Sebastian )
 6   
 7        I, Rick L. Congdon, a Registered Merit Reporter, and
 8   Official Court Reporter for the United States District Courts,
 9   Western District of Arkansas, do hereby certify that the
10   foregoing is a transcript of proceedings which occurred at the
11   time and place herein designated, consisting of pages 2 through
12   116, which was recorded by court-approved electronic sound
13   recording means and then transcribed via computer personally by
14   me, and that this transcript is a true, correct, and complete
15   transcript of said proceedings as reflected herein to the best
16   of my ability after listening and transcribing said sound
17   recording.
18        Signed this 14th day of September, 2007, in the City of Ft.
19   Smith, County of Sebastian, State of Arkansas.
20   
21   
22   
23                                 ________________________________
                                        RICK L. CONGDON, RMR
24                                     OFFICIAL COURT REPORTER
                                        U. S. DISTRICT COURTS
25                                   WESTERN DISTRICT OF ARKANSAS

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 1