POINTS OF CONTROVERSY: SHERIFF DEPUTIES’ TREATMENT OF 3 KIDS JOGGING IN RURAL AREA RAISES COMMUNITY CONCERNS
15-Year-old faces felony arraignment Sept. 28 for carrying hunting knife while jogging in rural area where kids were stalked by mountain lion
East County News Service
“My 12-year-old daughter was put against the car and she was searched by an adult male officer; the kids said they were touching their butts. My son said they put their hands up between their legs. They were crying and they were all shocked…No one in my household has ever been involved in illegal activities.” – Carmen Gomez Villeda Wagner , mother of two children stopped, including a 15-year-old boy charged with a felony
"I would never in a million years say that wearing camouflage clothing constitutes reasonable cause for anything." -- Rebecca Jones, president, Criminal Lawyers Defense Club, San Diego, who questions the legality of the stop made by Sheriff's officers.
“If they were three white children, would it have happened at all? I think it’s racial profiling.” – a concerned mother in the neighborhood who asked that her name not be published.
“You would think any officer seeing a child wanting to go into a law enforcement program like the Border Patrol would want to support them. They were just straight up rude.” – Wes Oplustic, grandfather and guardian of a 12-year-old boy who was also detained.
September 27, 2010 (San Diego’s East County) – Three kids in Boulevard were looking forward to participating in a Border Patrol summer camp program, so they went jogging in their rural neighborhood to get in shape as instructed, according to family members. They wore camouflage gear purchased by a family friend and one of the youngsters had a four-inch hunting knife in his pocket that his mother says she wanted him to carry for protection from predators including a mountain lion that stalked her children recently on the same road. Now the boy, 15, faces a felony charge of carrying a concealed weapon, among other charges.
Returning home on private property owned by their landlord, the children suddenly found themselves staring into a spotlight, confronted by two Sheriff’s deputies who demanded to know what the kids were doing.
This story was first brought to ECM’s attention by a concerned mother and employer of a parent of a child who was stopped that night. She asked that we not publish her name, for she fears retaliation by law enforcement. “They were accused of being out past curfew and because they were wearing military clothes, this was reasons for supposition that they should be questioned and detained,” said the source. “I wear camo pants and my son wears camo pants. If I’m out, are they going to throw me in jail? If they were three white children, would it have happened at all? I think it’s racial profiling,” she said, adding that she fears the area is becoming a police state with an influx of border enforcement officials at various levels. “My kid is white as snow and he goes hiking around here all the time, and he’s never been stopped.”
Rebecca Jones, president of the Criminal Defense Lawyers Club in San Diego, told East County Magazine that officers must have reasonable suspicion that kids have been involved in illegal conduct in order to detain them. “I have to say, I would never in a million years say that wearing camouflage clothing constitutes reasonable cause for anything. I think the officers would be hard-pressed to explain that.”
She likened the situation to gang territories and said merely wearing gang colors has been found to not be enough to warrant detaining a suspect. Jones suggested that counsel could “file a motion to suppress the evidence based on an illegal stop and search.”
“They were asking us questions and where we got the fatigues,” the girl, 12, told East County Magazine. “They slammed [my brother] up against the car and asked him if he had any weapons.” After her brother showed them the knife, she said, “They slammed him against the car and he said `What the F…” They just kept calling him stupid…They were in my face, they scared me. They searched all my pockets including squeezing my back pocket.” The girl said she was searched without a female officer present. Later, a female officer was summoned, who searched her a second time.
Her mother is outraged. “My 12-year-old daughter was put against the car and she was searched by an adult male officer; the kids said they were touching their butts, “ Carmen Gomez Villeda Wagner, mother of both the girl and the 15-year-old boy, said. She added that her children said the same deputy who searched her daughter, Officer Gomez, also cursed and spat in her son’s face. “My son said they put their hands up between their legs. They were crying and they were all shocked…No one in my household has ever been involved in illegal activities.”
Attorney Jones suggested searching the young girl was inappropriate. “The fact that she’s with someone who says he has a weapon is not reasonable cause to say that she has a weapon, too…I have not haerd any information to give them reasonable suspicion that she was armed.”
According to the kids, even though they were within sight of their house, officers refused to take them home or call their parents, instead putting them in the back of the patrol car.
“Officer McFadden pulled up,” said Wagner, adding that McFadden is a local Sheriff’s officer who told the officers it wasn’t yet curfew and persuaded Deputy Gomez and Deputy Gutierrez to take the children home. According to Wagner, the children were returned home around 9:30 p.m., well before the 11 p.m. curfew in effect at that time. Wes Oplustic, grandfather and guardian of the third child, a 12-year-old boy, said he received a call from Carmen Gomez, mother of the other two children, between 9:30 and 10 p.m. regarding the incident.
Wagner says her daughter also told her that they stopped the children because they were brown skinned, in an area a couple of miles from the border. “I think it was racial profiling,” she said, noting that her children, who are of Hispanic heritage and Native American heritage, are dark-skinned. Enrolled members of the Campo tribe, they live off the reservation.
But the nightmare soon got worse. Officers informed her that carrying a four-inch blade, even a straight-blade, is a felony if it’s concealed in a pocket. The boy’s mother says she was notified by Border Patrol that her son could not participate in the summer camp program, even though he had not yet been charged with a crime.
Wagner alleges that deputies violated the youngsters' civil rights. She believes her children were stopped due to racial profiling—and she is appalled to learn that the knife presented as a birthday gift to their son may be illegal to carry in California. She spoke with ECM several times. For months, she said the Sheriff’s office refused to provide her with copies of the deputies’ report. She claims the Sheriff’s office also refused a request from her family’s lawyer. She and Oplusco both say that the officers who stopped their children refused requests to identify themselves, and that it took weeks to obtain their last names and ID numbers from the Sheriff’s office.
The Sheriff’s office has declined to discusss the case with ECM or provide a copy of the report. “Your request seeks information pertaining to a juvenile arrest. Such information is not subject to mandatory disclosure pursuant to the California Public Records Act. In fact, juvenile arrest information may not be released by a law enforcement agency absent a court order,” a response sent by e-mail from Sheriff William Gore by Sanford A. Toyen, legal advisor to the Sheriff, stated.
In response to another email with additional questions, Toyen replied, “I cannot comment on why (of if) Sheriff’s deputies did not identify themselves to the parents. If the parents believe that their child’s rights were violated by an SDSO deputy, they may file a complaint with Internal Affairs. The fact that they do not know the names of the deputies will not impede a full and fair investigation.”
Soon after, Wagner did just that. She requested an internal affairs investigation, alleging that deputies had no reasonable cause to stop the children and abused their authority.
After she requested the investigation, charges were filed against her son three months after the incident: felony possession of a concealed weapon, willfully and unlawfully resisting and delaying a peace officer and an emergency medical technician, and possessing smoking paraphernalia.
“That’s a total lie,” Wagner said, adding that no emergency medical personnel present, that the kids deny resisting the officers other than her son using a curse word when slammed against a patrol car. She added that the children told her they found a lighter and picked it up so it wouldn’t pose a hazard to little kids in the area.
Wes Oplustic, grandfather and guardian of a 12-year-old boy who was also present but not arrested, also raises troubling allegations, including an allegation that deputies attempted to force him to leave a Border Patrol facility where his son was to be interrogated by Sheriff’s officials.
After Wagner filed her complaint, Oplustic recalled, “Officer Piscitelli, who is the head honcho at the Campo substation, came up to my house at ten at night.” Piscitelli wanted to question Oplustic’s grandson, who was away. On the next Saturday, he said he got a call from Agent Jonathan Munoz, an instructor in the Border Patrol class his son was taking. “He called me up and said hey, I’ve got two sheriffs coming over here to interview your grandson; it’s your right as a parent to be there and hear what’s going on,” said Oplustic, who added he has raised the boy since he was little.
But when Oplustic arrived, he said, a Sheriff’s official told him he had to step outside while they talked to his grandson. “I told him Agent Munoz said I should be in there, so he went down the hall and all hell broke loose. “ He said Agent Munoz and Officer Piscatelli argued and “next thing I knew, both Sheriffs were thrown out of the Border Patrol station…I was about ready to call Channel 8 and 10 and Turko Files and tell them what’s going on out here. It stinks.”
He added that he was present when a family friend purchased the knife at Wal-Mart that’s caused the controversy. “It was a little four-inch knife, like the buck knives the old cowboys had,” he said. Asked if Wal-Mart provided any warning or info advising that carrying the blade in a concealed manner would be illegal, he replied, “No.”
Jones confirmed that carrying a concealed knife, even a straight-edge hunting knife (not a switchblade) violates Penal Code section 12020 if the blade is four inches or more. Family disputes that the blade was four inches. Although the knife was confiscated by authorities, family provided a photo of the sheath, which appears to measure less than four inches. Other experts consulted said laws conflict and in some cases, even smaller blades me be unlawful, such as carrying any knife at all onto a school ground or in an airport. Knives carried openly in sheaths suspended from the waist of the wearer, however, are legal in most public places including rural roads.
“I would add that this would see to be a case in which many jurors would find it hard to find any wrongdoing, despite what the law says,” Jones added.
Oplustic expressed outrage at the way law enforcement officials treated children aspiring to careers with the Border Patrol. “You would think any officer seeing a child wanting to go into a program like they are in would want to support them. They were just straight up rude.”
East County Magazine asked Agent Munoz to confirm Oplustic’s account. “I can refer you to one of my supervisors in charge of the Explorer program, Mr. Alex Garcia,” Munoz said, adding that he would speak with us if Garcia would authorize the conversation. But he added, “He was informed of everything that has happened.”
Garcia returned our call, but said “I am not involved in this case. I am not authorized to speak.” He also declined to authorize Agent Munoz to speak with us.
On September 8, Wagner related another troubling detail. She said that the Tuesday before, a Sheriff’s official was spotted by her landlord entering a trailer on their property. “He went over to our trailer and opened the door. The landlord said `What are you doing there, this is private property,” she said. “The officer told her he was looking for me. She said `Carmen lives oer there.’” But instead of coming to speak with her, the officer got back in his vehicle and drove away, Wagner said. "We found Officer Piscitelli's card at the scene." Her landlord could not be reached for confirmation.
Meanwhile, Wagner’s 15-year-old son has seen his dream of becoming a Border Patrol agent shattered and worse, could face jail time if convicted of a felony weapon’s charge for carrying the knife he was given as a birthday gift—violating a law he didn’t know existed by putting the knife in his pocket.
“Have you ever stepped on a Cholla cactus? Or confronted a pit bull?” Wagner asks, adding that her children believed they had a mountain lion following them recently. “We have rattle snakes and other wild or loose animals." Just a week before her son's arrest, ECM reported on a 12-year-old girl attacked by a coyote in Jamul. "This is rural East County," said Wagner, who believes rules should be different for carrying a knife than in an urban setting.
A descendant of our region's original Native American inhabitants, her family has a long tradition of teaching the next generation how to hunt and protect themselves from predators. "I made my kids carry a knife in case they have these confrontations. They do know what to do in the backcountry to stay safe.”
Oplustic agrees, and added that he believes the kids were “treated like gang bangers” by Officer Gomez “because down in San Diego that’s his beat.”
East County Magazine spoke with numerous parents in rural areas. Nearly all were unaware that having a hunting knife in a jacket pocket could constitute a felony--and all expressed shock when told that a 15-year-old who has not been accused of threatening or harming anyone has been charged with a felony for carrying a hunting knife while jogging in a remote rural area of East County.
A law enforcement official who spoke off-record with East County Magazine said officers can exercise reasonable discretion and that if the facts of the case as described by the family are true, officers could have simply taken the children home and provided parents with a warning.
Instead, a young boy's dreams of becoming a Border Patrol Agent may be dashed--and he could face time in jail if convicted.
Tonight, ECM spoke with a distraught Wagner on the eve of her son's arraignment. "We don't have a lawyer," she said. Asked what happened to the family attorney, she replied, "He said he can't represent us without the police report, and the Sheriff wouldn't give it to him."
Yet in an earlier e-mail to ECM, the Sheriff's attorney wrote, "I would think that if the minor was charged with a crime, these reports would have to be made availble to the minor's defense attorney."
“We are a small community overrun with illegals and drug traffic, but when did we turn to a police-controlled environment were you cannot job at night in camouflage clothes?” a neighbor who asked not to be identified asked.
Wagner now fears for her son’s future. “We are losing our liberties,” she concluded.