The attorney for a man charged with illegally re-entering the United States presented police video recordings in federal court Wednesday that he says show a state trooper’s decision to stop and detain a van filled with Spanish-speaking men on Interstate 295 in Portland was a case of racial profiling and an unlawful detention.

Maine State Trooper Robert Burke III said in U.S. District Court that he pulled over the van carrying about a dozen immigrants on Sept. 9 because it had a cracked windshield and the front passenger was not wearing a seat belt.

But defense attorney Robert Andrews presented video clips from Burke’s dashboard camera that he said showed Burke was more interested in the occupants’ immigration status than in the seat belts or cracked windshield.

Wednesday’s hearing focused on defense motions to suppress evidence and dismiss the case, so the merits of the case were not argued. However, Andrews wrote in an Oct. 23 filing that “the real reason the van was stopped was racial profiling by Trooper Burke.”

Warning: This video contains graphic language

The court record includes a two-hour police video of the stop, although only some clips were played in court during the hearing. The video mostly captures conversations between Burke and Trooper Jay Cooley, in which they can be heard ridiculing the Spanish-speaking passengers and referring to them as “disgusting” and “sketchy.”

“This is the (expletive) ICE motha load right here,” Burke tells Cooley when he arrives as backup. “Fourteen of ’em. Not one of them speaks English. Drivers – No driver’s licenses. ICE is gonna be coming out here with their (expletive) SWAT team on this one. I just need you to watch them. They’re all (expletive) sketchy as hell.”

“ICE” is the acronym for U.S. Immigration and Customs Enforcement.

Assistant U.S. Attorney Jonathan Chapman, the prosecutor in the case, said after the hearing that he could not discuss the case or answer questions about the state troopers’ conduct. But he defended Burke’s actions in a Nov. 9 court filing as a routine investigation that did not breach any protocols.

Chapman said Burke had reasonable grounds to suspect that the defendant, Mario Ernesto Garcia-Zavala, was in the country illegally.

“As the trooper was diligently pursuing matters related to that stop and arrest, including determining whether any of the passengers were licensed drivers, he developed a reasonable suspicion that Garcia-Zavala was an undocumented alien,” Chapman said. “That suspicion was developed well within the appropriate time frame of the initial stop.”

Chapman said that suspicion was based on Garcia-Zavala’s Honduran identification and his inability to speak English.

“Garcia-Zavala possessed no green card, driver’s license or other indicia of lawful presence in the country. He was one of several apparent undocumented aliens in the white van,” Chapman said. “Under these circumstances, it was reasonable for Trooper Burke to suspect, as he did, that Garcia-Zavala was an undocumented alien. The trooper was thus permitted to extend the detention for a reasonable time in order to confirm or dispel that suspicion.”

PREVIOUS ARREST AND DEPORTATION

Whether non-citizens have the same constitutional rights as U.S. citizens is a focus of ongoing legal debate. Courts have ruled that all people in this country, including those here illegally, have many of the same constitutional rights, but they also have held that immigrants facing deportation proceedings do not have all the same rights to due process as citizens have.

In this case, Andrews maintains that no one can be stopped and questioned without a reasonable suspicion.

Garcia-Zavala is 22 years old and a citizen of Honduras. He was first arrested by the U.S. Border Patrol in Texas in March 2014 for being in the United States without permission or legal status. He was deported that April, according to court records.

It is not clear how long he had been back in the United States before the traffic stop in Portland on Sept. 9. The men in the van lived in South Portland at the time and were co-workers at an unidentified industrial site, Andrews said.

Court records say Garcia-Zavala admitted to the state trooper who pulled the van over that he was in the country illegally and presented identification issued by the Honduran consulate. It is a federal felony to re-enter the U.S. without permission after having been deported.

Garcia-Zavala has since pleaded not guilty. He likely faces deportation regardless of the outcome of the criminal trial, but is fighting the charge to avoid having a felony record.

Except for his 2014 arrest and deportation, Garcia-Zavala has no criminal record, his attorney said.

Warning: This video includes graphic language

The video now entered into the court record shows Burke and Cooley making fun of the men after the traffic stop. At one point, the troopers try to count in Spanish.

At another point, Burke referred to an informal competition between himself and another trooper about who could arrest the most people that month. Burke explained in court Wednesday that the competition was for total arrests, not deportations.

“There’s no way Flanagan’s gonna beat me this month. No. Way,” Burke says in the video. He then went on to talk about ICE immigration enforcement. “When they show up – there’s no paperwork. It’s like they’re (expletive) kidnapping people. Have you ever seen it?”

When questioned by a reporter about the stop in September, a Maine State Police spokesman initially told the Portland Press Herald that immigration officials were called to help overcome the communication barrier.

“It was a 15-passenger vehicle. Burke reported that (the) driver did not have a driver’s license. Most of the occupants could not produce identification. Most in the back were not wearing seat belts. And no one spoke English. Because of the communication barrier, we sought out the help of a local ICE (agent),” Steve McCausland said. “Typically, that’s a way of getting a quicker response rather than a translator.”

JUSTIFICATION FOR CALLING ICE AGENTS

It took the ICE agents 30 minutes or more to respond in this case. McCausland acknowledged that the officers could have called on available translators, but chose not to.

However, McCausland also said at the time that the ICE agents were called because the failure of the men to provide identification raised the issue of immigration status.

“If there are questions of immigration, we will obviously call the agency who oversees that,” he said. “If there was a fire, we’d obviously call the fire department. If it’s about the woods, we’d call the Maine Warden Service. … Laws had been broken, and the trooper needed to know who he was dealing with.”

Warning: This video contains graphic language

In the video, Burke seems focused more on immigration status than on finding a translator. Upon his return to the cruiser after first speaking with the driver and passengers in the van, Burke calls ICE Deportation Officer Elliot Arsenault.

“Elliot, you’re not gonna (expletive) believe this,” he said. “I got a van load of (expletive) I don’t even know what of about 13 that nobody speaks English. Nobody has IDs. And they’re all not wearing seat belts, so that’s why I stopped them. You might want to come out. This is just gonna be – they’re all – you know what I mean? I don’t know what to tell ya.”

Burke tells Arsenault: “I’m in the same spot we were in last time, just so you know, OK?”

Asked on the stand whether he makes such calls to ICE on a regular basis, Burke said no but that he had two or three time previously.

On Sept. 9, Burke was sitting near the intersection of Veranda Street and Washington Avenue when he saw the van pass. Burke said he stopped the van as it got on I-295 because it had a broken windshield and the front passenger wasn’t wearing a seat belt. Nobody had a valid U.S. ID, but a few of the men produced identification cards from Mexico, Honduras and El Salvador. The exact number of passengers wasn’t clear because the court records include different numbers.

Burke would eventually arrest the driver, Rudolfo Ramirez, for driving without a license. That decision was made after ICE informed Burke that Ramirez was already undergoing an immigration removal proceeding.

Arsenault said one man – Garcia-Zavala – had been deported and had apparently re-entered the country illegally. Two others did not have any immigration history, he said, adding, “So that tells me they’re in the country illegally.”

It was not clear how many of the other men faced immigration enforcement actions, although at least some of them were detained.

During the stop, a passerby who is an attorney and an immigration attorney and heard about the incident tried to communicate with the van’s passengers. In the video, the troopers repeatedly warn the two women against getting involved. One of the officers said on the video that he came close to arresting a woman who stopped to speak with the men.

MOTION TO SUPPRESS EVIDENCE

Andrews, the defense attorney, is arguing that Burke violated the Fourth Amendment rights of his client as well as the other passengers by detaining them after the traffic stop and asking for their identification. He has asked the court to suppress evidence of his client’s identity.

“At most, Trooper Burke had the authority to search Mr. Ramirez when he was arrested for operating without a license,” Andrews said in a Oct. 23 court filing. “It was totally irrelevant that the passengers spoke only Spanish, had identification issued by other countries, and did not have active licenses. The real reason the van was stopped was racial profiling by Trooper Burke.”

Burke, however, testified that he had two reasons for asking for everyone’s identification. First, he planned to cite each person for not wearing a seat belt. And second, he wanted to find out if there was anyone licensed to drive the van, so it wouldn’t have to be towed.

Judge George Singal is expected to issue a ruling after both sides file additional briefs within the next month.

Andrews tried to make the case in court Wednesday that Burke deliberately slowed down the investigation so ICE could arrive on the scene. The entire traffic stop took about two hours.

Burke maintained in court that the delay was justified.

“I would say that I wasn’t moving as fast as I could have with some things, but I had to wait for a tow truck anyway,” Burke said in court.

Andrews played one portion of the dashboard camera video 39 minutes into the traffic stop, when Burke decides to write a ticket.

The full video suggests Burke had other reasons for moving slowly.

Minutes before he decides to write a ticket, Burke told Arsenault, the ICE officer, that he would hold them “for as long as you want.” Arsenault, who was in Massachusetts and did not arrive on the scene, said it would take about 20 to 30 minutes for someone to get there.

After writing the ticket, Burke takes it to the van for one of the occupants to sign. Then he says to the men in the van, “It’s going to take me a half-hour, because I have to write everyone a ticket who doesn’t have a seat belt on.”

Upon returning to the cruiser, he tells Cooley,”they bought that hook, line and sinker.”

Staff reporter Matt Byrne contributed to this story.

Randy Billings can be contacted at 791-6346 or at:

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