Judge rules search of festivalgoer was illegal

Oct - 31

Judge rules search of festivalgoer was illegal

There was something suspicious about Sean Moore. Maybe it was Moore’s being “way too nice” during a traffic stop on the Blue Ridge Parkway. Or maybe it was because he was attending FloydFest, a four-day concert heavy on sandals, tie-dye and long hair.

For whatever reason, Moore’s behavior prompted a park ranger to order him out of his pickup truck, pat him down and arrest him after allegedly finding a small amount of marijuana in his pocket.

The ranger’s reasons were not good enough for U.S. Magistrate Judge Michael Urbanski, who recently ruled the search illegal and threw out a misdemeanor drug charge against Moore.

Urbanski’s decision is likely to bolster complaints by some of overzealous law enforcement at FloydFest, which brings both heavy traffic and extra park rangers to the Blue Ridge Parkway each summer.

The judge — who has dismissed at least one other FloydFest drug charge based on a ranger’s heavy-handed frisking — was not impressed with the testimony of Bruce Gagnon, who stopped Moore the afternoon of July 25 for driving through a patch of fog with his headlights off.

Gagnon testified that he quickly became suspicious because Moore was “way too nice” and “extremely polite,” answering his questions with an eagerness that amounted to rambling.

But as Urbanski noted in an Oct. 26 opinion, “Moore’s continued cooperation, talkative demeanor and friendly attitude does not suggest that crime was afoot.”

Nor could Gagnon justify his search of Moore by the mere fact that the 36-year-old had been to FloydFest, Urbanski ruled.

“Basing Moore’s detention purely on the fact that he attended FloydFest, without any other fathomable objective basis, creates an intolerable risk of arbitrary and abusive police practices,” the 16-page opinion stated.

Bill Cleaveland, a Roanoke lawyer who represented Moore, said the case validates concerns of festivalgoers who complained of being pulled over for minor traffic offenses by park rangers more interested in searching for drugs or other contraband.

Moore, who lives in the Greensboro, N.C., area, could not be reached for comment.

At past FloydFests, the National Park Service has deployed its Criminal Interdiction Task Force, a group of rangers who patrol a 14-mile stretch of the parkway adjacent to the event.

“Despite the fact that FloydFest was targeted,” Urbanski wrote, “no evidence was introduced that it is a high crime area, and individuals must remain secure in their right to be free from unreasonable and unwarranted interference by overzealous policing.”

John Garrison, the parkway’s chief ranger, said beefed-up enforcement is necessary for an event such as FloydFest, which drew an estimated 10,000 people.

Of eight complaints the park service received, only two were from people who had personal contact with a ranger, Garrison said. In those cases, the ranger’s conduct was deemed appropriate, he said.

As for Moore’s case, “We’re looking at what the courts may be saying about the specific way we go about conducting our work, and we’ll take their guidance as well,” Garrison said.

Although complete numbers were not available, Garrison said he was aware of one other FloydFest-related charge that was dismissed. Another charge of public intoxication ended with a deferred prosecution.

Several cases are still pending, Garrison said, and the rest resulted in convictions.

During the week of the festival, rangers logged 183 contacts with drivers along the affected stretch of the parkway. Most of the stops resulted in written warnings. About 50 people were charged, including 29 in drug-related offenses, 12 in traffic violations and two in drunken driving.

While few people disputed the need for law enforcement, many questioned the manner in which the parkway was policed.

The crackdown drew so many complaints that U.S. Rep. Rick Boucher, D-Abingdon, called the superintendant of the parkway to discuss his concerns.

Before the next FloydFest, Boucher will meet with festival organizers, parkway officials and other involved parties.

“My entire purpose for doing this is to ensure that whatever problems arose this time … do not recur,” Boucher said Wednesday.

Urbanski’s opinion gives a detailed account of how the stop of Moore “quickly escalated from one involving a minor traffic violation to an inquisition regarding contraband.”

After pulling Moore over, Gagnon noticed that the driver had both hands out of the window — which he interpreted to mean there was a weapon in the vehicle.

There was no gun. But Gagnon wasn’t done.

As the well-mannered motorist answered questions in a “rambling, cooperative and forthcoming” way, the suspicious ranger became even more so — especially after learning that Moore had been to FloydFest.

So he asked if he could search the truck.

“By all means, go ahead, brother,” Moore replied.

Gagnon searched the cab and rummaged through luggage in the bed of the truck, looking for guns, drugs or alcohol. All he found was some medication that belonged to Moore’s passenger.

He patted the passenger down, found nothing incriminating and turned his attention back to Moore.

“Lacking any objective basis for suspicion,” Gagnon then frisked Moore and found a pipe with a small amount of marijuana in his pocket, the opinion stated. Although prosecutors argued that Moore consented to the search, Urbanski ruled that the ranger had no legal reason to detain him.

Even some members of the local law enforcement community are irked at the way park rangers have acted, according to Jonathan Rogers, a Floyd County lawyer who represents two people charged in the crackdown.

Especially troubling, Rogers said, is that someone can arouse an officer’s suspicion just for being “way too nice” or “extremely polite.”

“You can’t be polite without being suspicious,” he said. “Please. It’s outrageous.”

Source – The Roanoke Times