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April 13, 2008
The FLDS Raid and the Extension of the Police State
Houston Criminal Attorney John T. Floyd Discusses Military Style Raid on Eldorado FLDS Compound, Illegal Arrests and Fabricated Probable Cause
The Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) is the largest Mormon fundamentalist denomination. The FLDS broke from the Church of Jesus Christ of Latter Day Saints (“LDS”) in the 1930s. Located in southern Utah and northern Arizona, the fundamentalists rejected the LDS’s renunciation of polygamy. After the ex-communication of members who continued to practice plural marriages, the fundamentalists decided break all their religious ties to the LDS Church.
The headquarters of the FLDS remained in Hildale, Utah – a twin city with Colorado City, Arizona. The FLDS also operate in a small outpost just across the Canadian border in Bountiful, British Columbia. Over its nearly eight decades of existence, membership in the FLDS Church grew to 10,000 members. In the late 1990s a former higher school principal named Warren Jeffs began assuming a greater leadership role in the FLDS Church before becoming the church’s undisputed leader in 2002 following the death of his father Rulon Jeffs.
In late 2003 members of the FLDS Church began arriving in Eldorado, Texas. They purchased a 1,700 acre ranch four miles outside of the town of 2,000. They called it Yearn for Zion Ranch (“YFZ”). Church members immediately started constructing their own town on the ranch. The owner of the local newspaper, Randy Mankin, was quoted in a recent Houston Chronicle article as saying: “In four years, they’ve built another town outside my town.”
Eldorado residents were suspicious as the FLDS erected more than 35 buildings and constructed a massive white temple for worship. Several hundred people lived in the sprawling religious community, including more than 400 children. Eventually the local townspeople grew accustomed to the religious sect whose members rarely ventured into Eldorado, according to Mayor John Nikolauk. The mayor said it was widely suspected that FLDS members practiced plural marriages, some with minor girls.
“We suspected it was going on, but without a complaint, you’re not going to get in there,” the mayor was quoted by the Chronicle. “It’s a closed society. Everyone has empathy for the kids, that they’ll get the breaks a normal kid would have.”
Eldorado residents had good reason to be suspicious. In 2004 Warren Jeffs was placed on the FBI’s Ten Most Wanted List for a laundry list of sex offenses, including accessory to rape, sexual conduct with a minor, and incest. He remained a most wanted fugitive for two years until captured in Las Vegas in August 2006. In September 2007 Jeffs was convicted of two counts of being an accomplice to rape and sentenced to ten years to life in prison. He is currently sitting in the Mohave County Jail in Kingman, Arizona awaiting trial on other sex charges, including incest and sexual conduct with a minor.
According to news accounts, a 16-year-old pregnant girl, beginning on March 29, 2008, made several telephone calls to a local family violence center. In a voice barely audible, the teenager chronicled a litany of sexual and physical abuses inflicted on her at the YRZ ranch at the hands of her 49-year-old “spiritual” husband, including forced marriage, rape, and physical beatings (one so bad that it resulted in broken ribs), She said the forced marriage occurred when she was 14 and she now has an eight month old child by Dale Barlow, the man she identified as her forced husband.
Dale Barlow was quickly located in Colorado City, Arizona where he lives. He was one of several FLDS member arrested in Mohave County, Arizona, in 2005 on a number of sex related offenses with minors. He pled guilty last year to one count of conspiring to have sexual contact with a minor and was placed on probation. Conditions of his probation require that he report to his probation officer twice a month, register as a sex offender, and secure a permit to travel before leaving the state of Arizona.
At the request of Texas authorities around April 1, Mohave County sheriff’s deputies interviewed Barlow, collected a sample of his DNA, and compiled a list of the people living at his residence.
“At this time, our contact with Mr. Barlow is complete,” said Trish Carter, a spokesperson for the sheriff’s department, “We have not been informed of a warrant, or any more information being sought.”
Barlow’s probation officer, Bill Loader, told the Salt Lake Tribune: “He [Barlow] said the authorities had called him and some girl had accused him of assaulting her, and he didn’t even know who she was.”
No one seems to know who the mysterious 16-year-old girl is. That unsolved mystery raises a number of questions. How did she get a cell phone inside the FLDS compound? The religious sect does not believe in modern amenities so it can reasonably be assumed that there are no land line telephones, much less cell phones, accessible to women and children. And how did she get the telephone number of the local family violence shelter? Surely, this information was not lying around on a FLDS coffee table or tacked to a community bulletin board in some common area inside the compound. Women and children rarely, if ever, went to town – and if and when they did, they certainly did not tour the local family violence shelter. These teenaged brides were so tightly controlled that they were drinking raw milk straight from the cow.
Nonetheless, based on the information supplied by the unidentified teenager, local law enforcement authorities, the Texas Department of Public Safety, and CPS raided the YFZ ranch and removed more than 130 females and 400-plus children. The FLDS men and boys have all been detained at the ranch while two others have been formally arrested and taken into law enforcement custody. Nineteen year old Levi Barlow Jeffs was arrested for a class B misdemeanor of interfering with a public servant while 41-year-old Leroy Johnson Sneed was arrested for tampering with evidence.
The central legal question not answered for the public by either the Texas DPS or CPS is this: how did Dale Barlow marry, impregnate, and physically abuse the unidentified 16-year-old inasmuch as he’s been living in Colorado City, Arizona since at least 2005? He’s been a registered sex offender since last year with severely limited travel restrictions. He lives in an Arizona home with a wife, two other women, and 20 children he has fathered with all three women. Based upon publicly known information, it certainly stretches the realm of logic that he could maintain yet another marriage at the YRZ ranch with a 16-year-old bride.
Friend Walker is the chief probation officer in Mohave County. He quite naturally became concerned about all the national publicity drawn to Colorado City by Dale Barlow. He recently drove to Barlow’s residence and met with the probationer for fifteen minutes.
“With everything going on I wanted to confirm his whereabouts myself,” Walker was quoted as saying by the Chronicle on April 9. “He is there and, as far as I know, he’s complying with the terms and conditions of his probation.”
Although San Angelo state district court Judge Barbara Walther reportedly signed an arrest warrant for Barlow on April 3, this information was apparently not been conveyed sufficiently enough to Arizona authorities for them to arrest Barlow.
“He [Barlow] notified us when [Mohave County] sheriff’s deputies questioned him last week, as he is supposed to do, “ Walker said in an April 9 Chronicle report. “But I see no reason for him to be taken into custody.”
The massive military-raid on the YFZ ranch raises another interesting question: why did the FLDS decide to relocate to Texas in late 2003?
The answer to that question is actually not as difficult to discern as many others associated with the FLDS are. The Texas Legislature, with its mostly all-male wisdom handed down to them from the “ole pioneer days,” has long sanctioned the marriage of young teenage girls. Until 2005, the age of consent for marriage was 14 before the legislature raised it to 16 at the request of Rep. Harvey Hilderbran, R-Kerrville, who had become concerned about the religious propensity of FLDS men to marry young girls and as many as possible.
A 14 or 16 year old girl cannot buy alcohol, cigarettes in some areas, or join the military. Yet Texas legislators believe these young teenagers are capable child birth and rearing, accepting the awesome responsibilities of marriage, and joining the ranks of womanhood. Surprisingly, these same lawmakers lament the social evils associated with unwed teenaged pregnancies. There’s something “pioneer” about that stunning legislative contradiction.
The massive law enforcement raid on the YFZ ranch and the detention of all the men and boys there also raises serious legal questions. For all practical purposes, the FLDS males have been “arrested.” The Court of Criminal Appeals has said that an “arrest” occurs when a person’s liberty of movement is restricted or restrained. See: Amores v. State, 816 S.W.2d 407, 411 (Tex.Crim.App. 1991). The FLDS men and boys have been confined to the YFZ ranch.
Law enforcement authorities will probably attempt to classify this restraint as an “investigative detention.” The Amores court held that “an investigative detention, to be constitutionally valid, may be found upon a reasonable, articulable suspicion that the person detained is connected with criminal activity [while] an arrest, to pass constitutional muster, must be supported by the greater conclusiveness of probable cause to believe that a particular person committed or is committing an offense.” Id., at 411. See also: Terry v. Ohio, 392 U.S. 1 (1968).
The following are examples of the Texas Court of Criminal Appeals ruling that the detention of an individual rose to the level of arrest:
•Defendant was arrested when officers grabbed his arm, “escorted him outside,” and ordered him to raise his hands and told him he was under arrest. Hogan v. State, 631 S.W.2d 159 (Tex.Crim.App. 1982).
•Arrest occurred when reserve officer for Sheriff’s Department “held” defendant for the police. Hardinge v. State, 500 S.W.2d 800 (Tex.Crim.App. 1973).
•Defendant arrested when taken outside and ordered to place his booted feet into boot tracks from the scene of the crime to the vicinity of defendant’s house, despite the fact that officers told him that he was only under investigation. Woods v. State, 466 S.W.2d 741 (Tex.Crim.App. 1971).
•Defendant was under arrest when he was “subdued and spread-eagled against a stock trailer” while officer held pistol on him. White v. State, 601 S.W.2d 364 (Tex.Crim.App. 1980).
•Defendant arrested when taken from inside the courthouse to a room in Sheriff’s office at the same courthouse, and subsequently questioned for three hours. Maldonado v. State, 528 S.W.2d 234 (Tex.Crim.App. 1975).
•Defendant was arrested when he was ordered at gunpoint to freeze and to place his hands on vehicle. Colston v. State, 511 S.W.2d 10 (Tex.Crim.App. 1974).
In Hoag v. State, 728 S.W.2d 375 (Tex.Crim.App. 1987) the Court of Criminal Appeals specifically “acknowledged that the question of whether a person is under arrest is not to be determined solely by the opinion of the arresting officer…Rather, the officer’s opinion is a factor to be considered, along with the other facts and circumstances of the detention, in determining whether an arrest has taken place.” Id., at 378-79. See also: Boone v. State, 629 S.W.2d 786 (Tex.App.-Houston [14th Dist.] 1981, no. pet.).
The large scale detention of FLDS males at the YFZ ranch is not the kind of “investigative detention” authorized by the Supreme Court in Terry v. Ohio. Terry allows law enforcement to briefly detain and question a person concerning his identity, his purpose for being in a given area or location, and to make other similar inquiries of an investigative nature.
The FLDS detentions, therefore, are “arrests” under state law – and it will be state law that will decide the legality of those arrests. See: Milton v. State, 549 S.W.2d 190, 192 (Tex.Crim.app. 1977), In all likelihood, these arrests were made without arrest warrants. Tex. Code Crim. Proc. § 14.03(a)(1) authorizes a warrantless arrest of “persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony.” This statute requires “the legal equivalent of constitutional probable cause.” See: Amores, supra, at 413.
The Amores court then emphasized that “an anonymous phone call,” standing alone, does not establish probable cause. Id., at 416. See also: Royas v. State, 797 S.W.2d 41, 43 (Tex.Crim.App. 1973). Law enforcement authorities must have “additional facts” beyond an anonymous phone call that “would warrant a man of reasonable caution to conclude that a crime has been or was being committed.” See: Amores, supra, at 416.
The only evidence that a crime had been committed or was being committed at the YFZ ranch was the anonymous telephone call from the unidentified pregnant teenager. That telephone call alone was insufficient to establish probable cause for either an arrest or a search and seizure of evidence at the ranch. Rojas v. State, supra; Amores v. State, supra. See also: Colston v. State, 511 S.W.2d 10 (Tex.Crim.App. 1974).
The anonymous telephone call was certainly sufficient for law enforcement to send a couple officers and/or CPS workers to the YFZ ranch to make inquiries about alleged criminal wrongdoing. But, standing alone, the anonymous telephone call was woefully inadequate to justify the military-style raid launched against that ranch.
The Court of Appeals more recently restated the requirements of probable cause: “Probable cause requires an evaluation of probabilities, and probabilities ‘are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ The United States Supreme Court has described probable cause as a ‘fluid concept[]’; its ‘substantive content’ is derived from ‘the particular context[] in which’ it is assessed. Probable cause ‘exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found[.]’ Known facts and circumstances include those personally known to law enforcement officers or those derived from a ‘reasonably trustworthy’ source.” See: Wiede v. State, 214 S.W.2d 17, 24 (Tex.Crim.App. 2007).
There were no “known facts and circumstances” that underage girls were being forced into marriage by older men at the YFZ ranch. Eldorado Mayor Nikolauk conceded that local authorities had suspicions that polygamy and underage marriages were occurring at the ranch, but no known facts.
The Wiede court defined “known facts and circumstances” as those “personally known to law enforcement” or those “derived from a ‘reasonably trustworthy’ source.” The military-size contingent of law enforcement authorities that raided the YFZ ranch did not have “facts … personally known” to them, or from some other “reasonably trustworthy” source, that the anonymous 16-year-old teenager had been physically and sexually abused at the ranch by a 49-year-old “spiritual” husband.
Based on that anonymous call, those who ordered and participated in the raid may have been of the opinion that a crime had been or was being committed at the YFZ ranch but “opinions, even those of police officers, cannot be transformed into facts without supporting evidence.” See: Torres v. State, 182 S.W.3d 899, 903 (Tex.Crim.App. 2005).
The end result of the raid is that hundreds of children have been separated from their parents. They are now being pressed into “foster homes” by state social workers. While law enforcement authorities may ultimately produce evidence of criminal wrongdoing seized during their raid, it is highly unlikely that the evidence will withstand a pre-trial motion to suppress in any eventual criminal prosecution of individuals linked to that evidence. Law enforcements authorities simply did not have sufficient probable cause to, first, launch the military-styled raid, and, second, to either arrest or search and seize evidence at YFZ ranch. This was made even more evident by the refusal of Arizona authorities to arrest Dale Barlow based on some anonymous telephone call alleging criminal conduct by him.
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