Molon Labe! (5 page)

This legal knowledge surprises Holgate. Most citizens do not understand the difference between a protective frisk and a full-blown search incident to arrest.

"Sir, I am happy to radio in for a warrant, and then I
will
search your trunk — thoroughly. What do you have in there you don't want me to find?"

Russell does not fall for this. "If you already
had
probable cause to search my trunk, then you wouldn't
need
a warrant, would you? There's an automobile exception to the Fourth Amendment warrant requirement."

This surprises Holgate even more. While he considers what to do next, Russell says, "I'd like to be on my way, now. Am I free to go?"

"No, sir, you are
not
free to go. I have not returned your license and paperwork yet."

"Well, I'd like them back now. If you have a ticket for me to sign, I would like to sign it right now and be on my way."

"Why are you in such a hurry to leave?" asks Holgate.

"Why are you so determined to waste any more of my afternoon?" replies Russell. "And all for a burnt-out brake light? It's ridiculous."

"It won't take but a minute for me to look in your trunk, then you can be on your way. What's the problem with that, unless you've something to hide?"

It was always better to say "look" rather than "search."

Russell is having none of it. "The problem is that you're on some fishing expedition without any probable cause, much less my consent."

"Sir, I deal with hundreds of people every month and this is
not
the way average folks act. Most folks don't object to me having a routine look in their trunk. It's for everyone's safety. So, what do you have in the trunk that you don't want me to see?"

"Nothing but lawful, personal property."

"Well, there's no problem is there? Why not let me have a quick look?"

"Yes, there
is
a problem. I'm not a criminal. There are no warrants for my arrest, or you'd have cuffed me by now. You're unlawfully detaining me without reasonable suspicion, and I'd like to leave now."

"Your behavior
is
suspicious to me, sir. You won't let me have a look in your trunk. That gives me grounds to detain you."

"Case law has ruled exactly the opposite. Failure to consent to a search is not suspicious behavior. Just because I am exercising my rights as an American does not constitute reasonable suspicion or probable cause."

"Are you an attorney?" Holgate asks, startled.

"No. Although I am studied in the law, I haven't yet passed the bar."

It is a curious reply and Holgate doesn't know quite what to make of it. Is Russell a law student? Paralegal? Judicial scholar?

"What kind of work
are
you in?"

"That is not germane," Russell snaps.

Trying a different tack, Holgate says, "I noticed a shell casing on the floorboard and believe you have a rifle in your trunk. I need to determine that it's not stolen."

Russell snorts, "Aren't you confusing 'wants' with 'needs'? You mean you
want
to search my trunk, don't you? Well, you
can't.
"

"So, you
do
have a rifle in there?"

Russell has sparred enough. "Whether I do or not is nobody's concern since it's perfectly legal to carry a firearm locked in a trunk. It's even legal in Wyoming to openly have a firearm on the seat. You've checked me and my car interior for weapons, and I am unarmed just like I said. Any weapons in my trunk would not jeopardize your safety. You're
way
out of bounds here, Trooper Holgate. You have neither probable cause nor my consent to search, and I do not wish to answer any more questions. I'd like to sign the ticket and get home. Am I free to go?"

Holgate is at an impasse. Cajoling and stern bluffs won't work. "No, you are not free to go. Stay here. I'll be right back."

Walking to his unit he mulls over the scene. This is one of the oddest traffic stops Holgate has ever made. A middle-class, middle-aged white male with no criminal history so adamantly refusing a routine inspection. And so informed of his rights! This was really unusual.

Gotta be up to something!
Probably got an AK47 in there
.

Holgate has an idea. It is an old trick, but often cracks tough cases.

"16 to Base. Subject William Olsen Russell detained for possible narcotics trafficking. Request a K-9 drug unit at my 10-20; westbound I-25, two miles east of the Evansville exit. 1457."

"Base to 16, 10-4. Stand by. 1457."

A minute later he hears back, "Base to 16. WSP K-9 unavailable. DEA K-9 is on station and en route. ETA your 10-20 in six minutes. 1458." A DEA unit has just left Casper for a case in Douglas and was only a few miles away. The timing couldn't be better.

As little as Holgate wants to share with the feds, the arrival of DEA may help rattle Russell's cage. "16 to Base. 10-4, thanks. 1458."

DEA agent Arturo Gomez arrives five minutes later with his trained German shepherd, Oso. He gets out of his black Crown Victoria with some effort, weighing 320 pounds. His fellow agents snidely call him "Oilturo" for his perpetual greasy patina of sweat.

Holgate has met him a few times over the past year and knows him as an agent who gets things done. Rumor had it that Gomez supplemented his salary with "commissions" taken from seized drug cash. It was quite common amongst the Drug Warriors.

With Oso on a leash, Gomez meets the trooper behind his WSP unit. "Hey, Holgate."

"Gomez. You got here fast."

"Was just up the highway. So what's this guy's story?"

"Routine stop for equipment violation, no wants or warrants. Subject is William Olsen Russell. Evansville residence. Ring any bells?"

Gomez searches his memory. "Nah, never heard of him." His wide, pockmarked face shines like a brown mirror in the afternoon heat.

Holgate continues, "Noticed a shell casing on the floorboard, and he got uncooperative when I wanted to search his trunk. Turned into a real hardass and started spouting off about his constitutional rights. Knows the law pretty good; refused to open his trunk after I frisked him and the vehicle interior. Even mentioned
Terry
."

Gomez grimaces. "That's weird. What's he do for a living?" he asks, leisurely scratching a sweat-stained underarm.

"Wouldn't say. He's not an attorney, though. Maybe a paralegal. He clammed up once I insisted on going through his trunk. White guy, guns, constitutional familiarity, poor attitude towards law enforcement . . . "

"Sounds like a militia puke to me," Gomez says, finishing the train of reasoning.

"Yep, me too."

"He's your collar; how ya wanna play this?"

Holgate points to Oso. "The nose knows, right?"

Gomez chuckles. "Yep. That's why we pay him the big bucks."

Russell would never find out exactly why Oso alerted to the presence of nonexistent drugs in his trunk, but he suspects a trick. He thinks that either Holgate or Gomez transplanted the scent of marijuana from a pocket baggie to his car. All he knows is that he's never used drugs — much less driven around with a trunkload of them — and since he bought the Taurus new, no previous owner could have contaminated the car with drug scent. Holgate and Gomez concocted PC to search; it was that simple. That, or else Oso is the worst drug dog in Wyoming, giving false positives wherever he goes.

Although no drugs were found, Russell had an unloaded FAL rifle in a soft case. The FAL (
Fusil Automatique Leger
, or Light Automatic Rifle) is a Belgian military pattern rifle adopted by 93 countries since the 1950s. Russell's rifle is a civilian version without the capability of full-automatic fire. Visually, however, it is nearly indistinguishable from its military cousin, which facilitated Congress misnaming such civilian guns as
"assault rifles."

Its serial number was radioed in for an NCIC
¹
check, and was listed in the federal database as stolen. Russell was arrested, his Ford Taurus thoroughly searched "incident to arrest," and his FAL confiscated. It was discovered the following day that Holgate had inadvertently transposed two digits of the serial number over the radio, and that Russell's rifle was indeed clean.

Although the trooper had acted in good faith and thus not jeopardized the WSP, Natrona County Attorney George Crimp had disliked Russell and his "right-wing" views for years. Russell was a persistent writer of letters to the newspaper editor and had once lambasted Crimp for his malicious prosecution of a midwife for practicing medicine without a license. The trial ended in a hung jury and Crimp declined to refile due to the public fervor.

Crimp had a golfing buddy who was a federal agent. Gordon Lorner had originally applied with the FBI but was turned down. He then applied with the Secret Service. Same result. US Marshals didn't want him either. Not even the DEA took him. Finally, Lorner found a home with the Bureau of Alcohol, Tobacco, and Firearms (ATF). A branch of the US Department of the Treasury, the ATF
²
were merely armed tax collectors, although they increasingly thought of themselves as federal police. They were infamous for malicious prosecutions of nonviolent offenses, and rarely condescended to search gang areas for armed and dangerous felons.

Crimp asked Lorner to examine Russell's FAL rifle for possible federal firearms violations. Lorner eagerly did so and came to conclude that the rifle was an illegally assembled
"assault weapon"
under Title 18 of the US Code. Section 921(30)(B)(iv) of the
1994 Public Safety and Recreational Firearms Use Protection Act
(commonly referred to as the "Crime Bill") prohibits a detachable magazine, semiautomatic rifle made in the US after 13 September 1994 to have more than one of the following features:

a folding or telescoping stock

a pistol grip that protrudes conspicuously beneath the action

a bayonet mount

a flash suppressor or threaded barrel designed to accommodate such

a grenade launcher

Russell's rifle was an Imbel FAL receiver (made in Brazil under license by FN of Belgium) imported after September 1994, and assembled with a sufficient number of American-made parts to qualify as a domestic rifle. It originally had a pistol grip stock as its one "evil feature," and a previous owner had affixed a muzzle brake. Although muzzle brakes were not prohibited on post-ban semi-autos, a flash suppressor counted as an illegal second feature. In the opinion of ATF Agent Lorner, the muzzle brake on Russell's FAL
"significantly reduced"
the rifle's muzzle flash, and thus functioned as a flash suppressor — even though it had been sold for years as a muzzle brake.

In short, a flash suppressor was anything the ATF said it was.

This was deemed sufficient to indict Russell on felony possession of a banned "
assault weapon."
His bail was set by the Honorable Henry T. Fleming at $25,000. Russell had to put up his home as bond.

Based on an interview with a local gun shop owner (who had been threatened with an investigation), the ATF sought and received a warrant to search Russell's home. Owning an illegally assembled "
assault weapon"
was one felony; having also
assembled
it was another. The gun shop owner thought that the FAL had been sold without the muzzle brake, but wasn't certain. Lorner wanted to search Russell's home for evidence that he had purchased and installed the brake himself, which would support a second charge of assembly. Also, with any luck, Lorner would discover other contraband during the search. He had nothing to lose by trying.

Anticipating a probable raid, Russell had days earlier moved his home computer, books, and personal records to the ranch of his boyhood friend Chet Garland. His guns (all of which were legal) he had sold to Chet for $21 in US silver coin
³
. Once he was acquitted, Chet would sell them back to Russell for the same coinage. Russell also cleaned out his two bank accounts and hid the cash with another friend.

Russell was not at home during the ATF raid, which found nothing. They were prepared to torch through his gun safe but Russell had left it open — and empty. Fuming, agents deliberately trashed his home, leaving the front door off its hinges — his tropical aquarium smashed. Russell returned home to find a soaked carpet and dead, desiccated rare fish.

A hastily scrawled note had been dropped on the living room floor. It read, "Nothing taken. ATF."

Russell had been prepared to represent himself, but a Wyoming libertarian defense attorney, Juliette Kramer, offered to defend him
pro bono
. Although only twenty-nine, she was already a renowned advocate in the tradition of Gerry Spence. She had lost only her first two cases. Her courtroom brilliance was enhanced by her striking Irish/Hungarian beauty, long brown hair and flashing ice-green eyes. Her cross-examinations were piercing; her closing arguments captivating. She had a fighter's instinct for weakness and sensed precisely when to go for the kill. To underestimate "J.K." in, or out of, court was a serious mistake. Coming from a wealthy oil family, she could afford to practice for principle and specialized in Bill of Rights abuse cases. She particularly loathed the IRS, DEA, FDA, and ATF. Didn't care much for the FBI either. She once whipped the US Forest Service on a bogus firearm discharge case and they quit harassing shooters ever since.

Explaining her most recent
pro bono
charity, Miss (not "Ms.") Kramer told the local TV news, "My client Bill Russell has harmed no one. He has done no wrong. His only offense was to exercise his natural rights as a peaceable American under the Constitution. For that he has been charged with a federal felony. The US Attorney's office chose to falsely and maliciously indict Bill Russell because they knew that he could not afford an attorney. Well, now he doesn't
have
to afford one. It is my honor to defend this victim of injustice, and to accept a penny for my efforts would be a collaboration with the US Attorney's office in their goal to disenfranchise all of us from our God-given liberties protected under our Bill of Rights."