A Department of Public Safety (DPS) trooper may have unconstitutionally detained two Mexican nationals during a traffic stop last month, according to legal experts. A dashcam video obtained by the Observer shows that the trooper held the men for nearly an hour so an immigration agent could arrive and begin the deportation process.
In March, the Observer reported the story of the Conejo brothers, undocumented construction workers in Austin with clean criminal records who were driving home from work with a broken tail light when State Trooper Daniel Gonzalez Jr. pulled them over. After seeing the brothers’ Mexican ID cards, Gonzalez contacted U.S. Immigration and Customs Enforcement (ICE) and the men were deported the following evening.
But legal experts, pointing to a series of Supreme Court rulings, say that by holding the brothers beyond the time it took to deal with the initial infraction, the trooper may have violated their constitutional rights.
“Any situation where an individual is held for a period of time beyond what’s necessary to address a traffic violation simply for immigration officers to arrive at the scene is a potential Fourth Amendment violation,” said Edgar Saldivar, an attorney with the ACLU of Texas.
Saldivar said that a 2015 U.S. Supreme Court ruling, Rodriguez v. United States, found that extending detention by as few as eight minutes beyond what is “reasonably required” can violate the constitution. That’s far less than the 48 minutes the video shows the brothers were detained after the trooper first contacted ICE.
Barbara Hines, senior fellow at the Emerson Collective and former director of the University of Texas School of Law Immigration Clinic, agreed, pointing to another case. (Full disclosure: The Texas Observer receives funding from the Emerson Collective.)
“Questioning someone about their immigration status and holding them for a prolonged period of time is not permitted under the Supreme Court’s reasoning in U.S. v. Arizona,” Hines wrote to the Observer. “ReadingU.S. v. Arizona together with Rodriguez, a traffic stop cannot be prolonged for a different reason, i.e. immigration status, that results in an unreasonable prolongation of detention.”
The dashcam video, obtained under Texas open records laws, strongly suggests the trooper continued detaining the brothers solely so ICE could arrive on the scene.
On February 11 around 1 p.m., Gonzalez stopped the brothers, Everardo and Juan Luis, on Interstate 35 north of Austin.
After the brothers showed Mexican ID cards, Gonzalez returned to his squad car to call ICE. Switching between English and Spanish, Gonzalez told the ICE agent over the phone that he’d stopped the brothers for a “traffic minor violation (sic)” and described the IDs they presented. He explained their location in relation to the nearby Macaroni Grill, the video shows.
Gonzalez then received a call from a colleague. He can be heard saying, “I’m waiting on ICE right now. They’re about to come to pick up two male subjects, gonna turn them into mobile CAP [Criminal Alien Program], so I’ll be here for the next 20 to 30 minutes.”
After getting information from the brothers and sitting in his car for about 20 minutes, Gonzalez emerged to tell the brothers ICE was on the way and handcuffed them on the side of the road, where they would wait for another 23 minutes, the video shows.
The ICE agent would have arrived a little earlier, but he got lost and called Gonzalez for further direction.
“I’m right next to the Macaroni Grill,” Gonzalez reiterated.
When the agent arrived, Gonzalez finally presented Everardo with his ticket for driving without a license. But waiting until the end to issue the ticket may not clear the Supreme Court’s requirements, legal experts told the Observer.
Juan Luis Conejo with extended family in Austin, March 2016. via Facebook
The following evening around 5:30 p.m., the Conejo brothers crossed the bridge into Nuevo Laredo, Mexico, about 600 miles from their home in the state of Guanajuato, with just enough money for bus fare and most of their possessions abandoned in a South Austin trailer.
DPS spokesperson Tom Vinger said the department stands by the trooper’s actions since the trooper was acting ”at the request, approval or instruction of a federal officer,” in accordance with policy.
In the minutes before ICE hauled the brothers off, the video shows they chatted with Gonzalez on the roadside. Gonzalez asked whether they had children in the U.S., which they didn’t.
Gonzalez then asked about Mexico, and Juan Luis told him about the poverty-level wages, gang extortion at the border, the price of coyotes and the corruption of the Mexican government. A little later, the trooper asked, “And nothing bad will happen to you when you go back?”