Burning Man Traffic Stop Cases Rejected by Prosecutors Due to Lack of Probable Cause
By Jennifer Kane, October 31, 2018, Reno Gazette Journal
Local prosecutors are rejecting the majority of cases stemming from a spate of traffic stops of vehicles headed for Burning Man in August, citing uncertainty over probable cause in the searches by federal agents and tribal police.
The Washoe County District Attorney’s Office chose not to pursue seven of nine cases in which Burners were arrested on their way to the weeklong 80,000-person event in the Black Rock Desert. The cases would not hold up in state court, the district attorney’s office said in court documents obtained by the Reno Gazette Journal.
The traffic stops were on State Route 447 in Nixon, Nev., by U.S. Bureau of Indian Affairs agents and Pyramid Lake police. A BIA spokeswoman said the stops were part of an opioid interdiction operation on tribal lands in the weeks before and during Burning Man.
“It has nothing to do with Burning Man. That’s not it,” Nedra Darling, a spokeswoman for the U.S. Bureau of Indian Affairs, said in August about the stepped-up enforcement on the remote road. The opioid epidemic “is a serious problem that Indian Country has, that the country has. This is an opportunity to help the tribe.”
Burners took to social media during the sting, warning that vehicles were being stopped for reasons including going a few miles over the speed limit, having dim tail lights and tires touching the white line on the roadside shoulder.
Officers did uncover drugs during the stops — marijuana, ecstasy, meth, ketamine, cocaine and a number of random prescription pills — but no opioids.
The cases were too riddled with holes or conflicts with state law for the Washoe County District Attorney’s Office to prosecute, according to court documents obtained by the Reno Gazette Journal.
“We look at every step from a traffic stop to a conviction, and we have to ensure that every step was followed and compliant with state law, whether it’s the duration of the stop, the search itself or even the stop itself – all of those have to comply with state law,” said Michelle Bays, spokeswoman for the district attorney’s office.
Two additional arrest cases are pending, and another 300 or so citations have been filed, though most citations are simply paid, according to officials at the Wadsworth Justice Court.
The arrest cases still could be pursued in federal court because of the involvement of BIA agents, though the U.S. Attorney’s Office has not seen any sign of the cases, according to spokeswoman Trisha Young.
Wadsworth Justice Court is the two-room courthouse that handles most of the traffic misdemeanor cases that occur on State Route 447 during Burning Man.
Judge Terry Graham reviewed the case files last week, but said he could understand why prosecutors were pointedly rejecting the arrest cases.
“They’re not saying, ‘Can you correct this and send it back?'” said Graham.
Part of the reason these cases aren’t making it to trial, he said, is because federal agents were operating under federal law during the opioid sting; federal law often gives law enforcement agencies more liberties than state law.
Federal agents, for instance, can detain a suspect for a longer period than those working for state or tribal agencies, Graham said.
During one of the stops, the officers appeared to hold the suspect beyond the designated time limit in Nevada for a Terry stop, or a brief detention under reasonable suspicion of criminal activity.
“Police must diligently pursue a means of investigation during a Terry stop that is likely to dispel their suspicions quickly,” the district attorney’s office wrote, noting the 79-minute length of the suspect’s detention.
Federal agents also have a lower bar to prove probable cause, Graham said, but it’s those discrepancies that can cost a case if pursued in a non-federal court.
“The Fourth Amendment issues are troublesome,” wrote the district attorney’s office in one of the cases submitted.
In the case, no probable cause is listed for the initial traffic stop, which later led to a search and seizure of what appeared to be cocaine, according to the arrest report. The report did not specify the quantity of the controlled substance.
The district attorney’s office turned down a similar case in which officers failed to report a probable cause for stopping a suspect who officers charged with illegal possession of a firearm.
In another case, the report lacked enough information about the time of the stop, the reason for the stop and the length of the stop. The stop led to a K9 search of the vehicle and a federal agent found mushrooms and acid tablets during the vehicle search, according to the arrest report.
“I do not believe I can prove this case beyond a reasonable doubt at trial,” wrote the district attorney’s office.
One case in particular illustrated a clear conflict between state and federal law.
The suspect was a passenger in a vehicle stopped by BIA agents, and when the suspect stated that he had marijuana in his bag, agents searched the bag further, the arrest report said. Besides pot, law enforcement found ecstasy, ketamine, and several Xanax pills, but the case could not be pursued in state court because the suspect had less than an ounce of marijuana, the district attorney’s office stated.
Although marijuana is still considered a Schedule I drug and entirely illegal on a federal level, adults aged 21 and older are allowed to possess up to one ounce of marijuana under Nevada state law.
Busted drug bust?
Neither federal nor tribal officials have responded to public records requests and queries over whether the late-August opioid sting was a success or a flop.
The Bureau of Indian Affairs has issued press releases on this year’s other opioid interdiction operations on tribal lands since U.S. Department of Interior Secretary Ryan Zinke created an opioid task force in March. While the agency has released data on a recent seizure in North Carolina, as well as operations in Arizona and New Mexico, the BIA has not released any summaries related to the operation in Nixon, Nev.
The tribal court also has not responded to calls about whether the court is handling any cases related to the operation. While the Wadsworth Justice Court handles most of the non-native cases in the area, the tribal court handles cases for defendants who are tribe members.
“I don’t know the demographics of who they cited and released, but it didn’t appear to be targeted toward the local tribal community. It was the road to Burning Man on the eve of the event and Early Man,” said David Levin, an attorney with Lawyers for Burners, a Reno group representing many of the defendants.
Early Man is an exclusive celebration for artists, staff and volunteers the week before Burning Man opens.
“If anything, it seems like a bad time to be conducting such an operation, given all the negative impact that such an operation had on the tribe. People didn’t want to stop and economically support the tribe. If that’s true, it’s a strange and inappropriate time period that they chose,” Levin said in response to the BIA’s statement that the timing had nothing to do with Burning Man.
Some Burners on social media did express resentment toward the tribe, questioning whether the Pyramid Lake Paiute Tribe requested the federal intervention.
The tribe released a statement several days after the traffic stops began, noting that the tribe had signed a memorandum of understanding with the Bureau of Indian Affairs and the tribe had agreed to a joint operation.
Neither the tribe nor the Bureau of Indian Affairs has shared the memorandum with the public.
Burning Man organizers call the bureau’s silence since the operation “telling.”
Though they threatened a lawsuit after the traffic stops, they have not pursued legal action. The organization is keeping its options open, said spokesman Jim Graham.
“It was clear from the outset the BIA was targeting Burning Man participants with their traffic stops,” Graham said.
The American Civil Liberties Union of Nevada said the issue could be a civil rights issue considering the possible violation of Burners’ right to assembly, protected by the First Amendment in the U.S. Constitution, and their right to a consensual search, protected by the Fourth Amendment.
“We heard from a lot of the people that were at Burning Man,” said Wesley Juhl, communications manager for ACLU of Nevada. “I had to craft a whole ‘know your rights guide’ for Burners.”
Based on the calls the civil rights organization was receiving from Burners, Juhl believes that the operation was targeted toward Burners.
“I think it would be an awfully big coincidence, and I don’t believe in coincidences,” he said. “It’s not the question: Are you pulling people over? It’s the question of, are you pulling people over because you think that they’re going to Burning Man?”
The easiest way to find the answer, Juhl said, is to look at the data, which neither federal nor tribal officials have released.
“A lot of times in these cases, we look for a disparate impact. You’d look at the numbers and say, ‘Is this only affecting homeless people, or African-American people? and keep digging,” Juhl said, adding that Burning Man-bound vehicles would not be difficult to pick out in traffic thanks to the stacks of bicycles, decorations and art often packed in the back.
Levin, of Lawyers for Burners, said that based on their clients’ experiences, Burners were being targeted.
“There’s drug use in Golden Gate Park (in San Francisco) on any given weekend. Does that empower law enforcement to stand outside the park, or stop vehicles and manufacture reasons for probable cause? Just because you believe people are consuming drugs?” he said.
‘More than meets the eye’
Although the traffic stops raised eyebrows among locals and ire among Burners, the number of roadside arrests and citations issued this year was relatively low, according to Judge Terry Graham of the Wadsworth Justice Court.
In the early 2000s, authorities issued between 1,500 and 1,800 citations for traffic violations a year, Graham said, though the figures have decreased substantially since Burning Man has directed Burners to follow speed limits, keep passing to a minimum and drive secure vehicles. Only 300 or so citations were issued this year.
“The makeup of Burning Man is different now. It takes a lot of money to go out there,” Graham said. “Most of the vehicles are in better condition, and they’re just a different crowd.”
The BIA operation was unlike any Graham had seen in the area, he said, explaining that bureau agents usually work under the radar and shirk the spotlight when they visit the Pyramid Lake Paiute Tribe reservation. They usually are working on serious crimes, and this operation felt more like a publicity stunt, he said.
“I can tell you that it was no accident that it happened right before Burning Man,” he said. “There’s more than meets the eye.”
Moving forward, he does not expect that this will repeat next year, though much is at stake in regards to Burning Man organizers and their relationship with federal officials.
The Burning Man organization is seeking a new environmental impact statement for the next 10 years from the Bureau of Land Management, an agency that — like the Bureau of Indian Affairs — is under the umbrella of the U.S. Department of Interior. The statement would allow annual permitting of the event, and a possible 20,000-person increase of the event’s population cap.
The BLM previously stated that it was in no way involved with the BIA’s operation, though the BIA did use some of the BLM’s facilities on-site during the event. The Burning Man organization reimburses the BLM for all costs incurred during the Burning Man event, and the BLM’s heftiest cost is law enforcement.
BLM agents assist the local Pershing County Sheriff’s Office at the event site, although the sheriff’s office is usually the only agency that makes arrests. Of the four or five dozen arrests each year, and the additional several hundred citations, most are drug-related.
Read the documents
Excerpts from the case files:
No arrest report provided