177 BIKERS BUSTED ON ‘COOKIE CUTTER’ PROBABLE CAUSE AFFIDAVITS

In the wake of the biker brawl at Twin Peaks in Waco, an officer obtained 177 identical probable cause affidavits with only the names of the bikers changed

In the wake of the Twin Peaks biker brawl, a Waco police detective obtained 177 identical ‘cookie cutter’ probable cause affidavits from the McLennan County District Attorney’s Office. The only change in each affidavit was the name of the arrested biker. None of the affidavits specified what each biker did.

Turning back a challenge to the lack of specificity in the affidavits, State District Judge Matt Johnson upheld the probable cause for the arrests.

It should be noted that not all outlaw biker club members are criminals or engaged in criminal activities. For reasons of their own, some doctors, lawyers and businessmen have been attracted to the outlaw clubs and joined up to become members, usually participating only in weekend rides. Furthermore, many of the arrested bikers did not come to Twin Peaks looking to brawl. They merely answered a foolish biker party invitation from the restaurant’s management.

Of course, anytime rival outlaw motorcycle gangs end up in the same place at the same time, the tiniest speak can set off a brawl. Many of the bikers at Twin Peaks did not participate in the brawl and should not have been arrested unless they were carrying weapons illegally or had outstanding warrants against them.

I realize that Waco’s police had a problem in arresting so many bikers, but when the founding fathers passed the Constitution’s Fourth Amendment, I don’t think they had in mind ‘cookie cutter’ affidavits. The Fourth states, “… no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” And for those bikers that were arrested simply for being at Twin Peaks during the brawl, the $1 million bail set seems to violate the Eighth Amendment prohibition against excessive bail.

Here is the July 2 Waco Tribune story on the ‘cookie cutter’ affidavits:

Biker attorney challenges ‘cookie-cutter’ arrest warrants
By Tommie Witherspoon

A hearing Thursday for a disabled Gatesville Army veteran who rides with the Cossacks Motorcycle Club included a strong challenge to the probable cause used to arrest 177 bikers in the wake of the May 17 Twin Peaks shootout.

Ronald Atterbury’s attorney, John H. Jackson, who also is a former state district judge from Corsicana, attacked the probable cause reported in Atterbury’s arrest warrant affidavit, which is identical to the others used to detain bikers en masse after the melee that left nine dead and 20 injured.

Officials used identical documents, labeled “cookie-cutter” by defense attorneys, changing only the names, to apply the same conduct to all those jailed.

Jackson was not successful in getting the charges dismissed, but convinced 54th State District Judge Matt Johnson to reduce Atterbury’s bond from $1 million to $40,000.

Jackson called Waco police Detective Manuel Chavez as a witness to describe how the affidavits were drafted. To obtain the arrest warrants, Chavez swore before a judge as to their content. He testified Thursday that the document was written by prosecutors in the McLennan County District Attorney’s Office on the day of the shootout.

Chavez admitted he didn’t know if Atterbury, 45, committed any of the offenses alleged in the affidavit and acknowledged that the affidavit does not accuse Atterbury specifically of any wrongdoing besides being a member of the Cossacks.

“Is membership in one of those organizations a crime?” Jackson asked. Chavez answered, “No.”

“You did not furnish any information to Judge (Pete) Peterson that my client committed any crime, did you?” Jackson asked.

Chavez said, “No, sir.”

Peterson, a justice of the peace, issued the arrest warrants and set $1 million bonds for each biker.

Under cross-examination from prosecutor Brandon Luce, Chavez said he spoke with other officers and witnesses who were present during the shootout.

“He committed the offense of engaging in organized criminal activity by associating with a criminal street gang and showing up with other members of an organized street gang where a melee ensued, involving another organized street gang. Is that right?” Luce asked.

“That is correct,” the detective replied.

Jackson again questioned Chavez.

“You did not set out specific allegations in those affidavits for any of these 177 people that would lead a judge to believe that any of them committed any offense at all, did you?” Jackson asked. “Does it bother you that a lot of people were locked up because of your affidavit that doesn’t allege any criminal act by any of these 177 people?”

His question drew an objection from Luce, and Jackson withdrew it.

Johnson ruled that probable cause was sufficient to support Atterbury’s arrest.

The judge lowered his bond to $40,000, but placed Atterbury under the same restrictions, including wearing a GPS ankle monitor, that most of the other bikers have.

Jackson said Atterbury’s family should be able to come up with the $4,000 — or 10 percent of the total bond — to get him released in a couple of days.

Prosecutors have filed a petition to seize and forfeit Atterbury’s 2003 Harley-Davidson motorcycle to the county.

Family members testified Atterbury has no prior criminal record and is needed at home to help support his wife, Diana, who suffered a debilitating leg injury in a motorcycle accident and came to court in a wheelchair.

She testified that her husband is 100 percent disabled after his Army service in the Gulf War.