July 21, 2014
camera, Civil rights violation, Failure to identify, Fourth Amendment to the United States Constitution, Law Enforcement, Mike Osborn, Officer Paul Hernandez, Paul Hernandez, Police abuse, Police officer, Round Rock Police, Round Rock Texas, Sergeant Mike Osborn, Texas
Again, we have a case of police in Texas not understanding Tex. Pen. Code § 38.02, or the idea of lawful detention.
In this video, the photographer is taking pictures of the Round Rock, Texas Police station when he is approached by Officer Paul Hernandez who advises him he is being detained until he produces identification. First, under Texas law, a person is not required to identify themselves unless they are under arrest, see § 38.02(a). Officers are not allowed to demand identification without reasonable suspicion that the subject is involved in criminal activity, Brown v. Texas, 443 U.S. 47, 51 (1979); Wade v. State, 442 S.W.3d 661, 670 (Tex. Crim. App. 2013). Officer Hernandez stated (at 6:26, part I) that when asked to identify by an officer, refusal is a crime, which is not true. A person being detained is under no obligation to identify themselves, see § 38.02(b).
“[W]hen they have no basis for reasonable suspicion, officers may ask questions . . . and request identification, ‘as long as the police do not convey a message that compliance with their requests is required.’” St. George v. State, 197 S.W.3d 806, 819 (Tex. Crim. App. 2006). Here they handcuffed and searched the photographer without any reasonable suspicion.
What is even worse is that after the supervisor gets there, the officers condition the photographer’s release on whether or not he’ll “cooperate” with the officers by providing identification (at 6:15, part II). At 8:20 (part II), the photographer requests identifying information from the officers present and Sergeant Mike Osborn informs him that all he needs is the sergeant’s information. That’s all well and good, but in all likelihood violates their own department policies. The Round Rock PD is accredited by CALEA, and CALEA standard 22.2.7 requires that police employees identify themselves on request. Additionally, the detention was unlawful, as was the demand for identification.
If you are concerned about this, you may contact the following:
- Chief Allen Banks, email@example.com, 512-218-5521.
- Lieutenant Robert Rosenbusch, Internal Affairs, firstname.lastname@example.org, 512-218-3262.
- Lieutenant Larry Roberson, Accreditation Manager, email@example.com, 512-218-6614.
- Sergeant Mike Osborn, Patrol, firstname.lastname@example.org, 512-671-2853.
- Officer Paul Hernandez, Patrol, email@example.com.
If you are concerned about this from the accreditation standpoint, you may contact Stephen W. Mitchell, who is the Regional Program Manager for CALEA. His number is 703-352-4225, ext. 29.
H/T: Carlos Miller & PINAC
Picking up complaint form and filing complaint.
July 11, 2014
Batson challenge, Batson v. Kentucky, Prosecutorial misconduct, Rosemary Lehmberg, Travis County District Attorney, Travis County Texas
The Travis County District Attorney, Rosemary Lehmberg, fired a felony prosecutor for violating Batson v. Kentucky, 476 U.S. 79 (1986) in an aggravated robbery trial in Austin.
Batson prohibits attorneys from striking jurors on the basis of race, and although it can be raised against defense attorneys, it is almost always raised against prosecutors. To raise a successful challenge, the defense must show a prima facie case of discrimination, in other words must show that a juror was removed from the panel and that race appeared to be the reason. Then the prosecutor must show that the challenge to the juror was for a race-neutral reason. Finally, the judge makes a decision.
Batson challenges are almost never granted, they are normally to preserve error in the hope of convincing a later appellate court to overturn the decision. What is even more rare is for the ADA to be fired based on a Batson challenge. To be fair, the fired attorney is claiming that his firing is not for Batson, but was retaliation for cooperating into a Texas Ranger investigation of the District Attorney.
However, having said that, here is what the attorney said when questioned about his reason for striking a black juror.
She’s a member of the NAACP which—and there are things on her Facebook page which appeared that she was an activist in several ways on behalf of a particular race. … It’s not because of race. It’s because in part she appeared to be an activist, and that’s what we don’t want.
The judge quite properly held that this was a race-based reason and struck the array.
And then DA Lehmberg fired the prosecutor. She also sent out a memo to her staff that the prosecutor’s comments were “inappropriate and unacceptable” and “We all need to learn from this event. I do not want this error ever repeated. . . .”
I mentioned earlier that Batson challenges are almost never granted–I have also never heard of a prosecutor being fired over one. Ever.
HT: Texas Lawyer
June 29, 2014
Baltimore police, ESU, Jeffrey Bolger, Killing a dog, Officer Jeffrey Bolger, Officer Thomas Schmidt, Police abuse, Police officer, Puppycide, Thomas Schmidt
When I first heard about this, that Baltimore Police Officer Jeffrey Bolger killed a dog with a knife, I immediately formed an idea of what happened. My thought was that the dog was a big dog, a pit or a shepherd, etc. that had attacked the officer and knocked him down so that a knife was the only option.
Boy, were my initial thoughts wrong.
Bolger has arrested and is suspended without pay while he is facing felony animal cruelty charges. A second officer, Thomas Schmidt, was been suspended with pay while the department investigates whether Schmidt held the dog down while Bolger killed it. He has subsequently been charged with animal cruelty and malfeasance in office.
There was absolutely no need for the dog to be killed, it was at the end of a catch pole and was under control. If the dog needed to be put down (for rabies or whatever), then animal control should have been the ones to do it, not the ESU/SWAT officers.
And police officers wonder why they don’t have the support of the general public…
June 25, 2014
Cellphone, Fourth Amendment to the United States Constitution, Law Enforcement, police, Search warrant
The Supreme Court, in an opinion by Chief Justice Roberts, stated that the Fourth Amendment requires a search warrant to look at the digital contents of a cell phone that the police have seized incident to arrest. The opinion is Riley v. California, No. 13-132, 573 U.S. ___, ___ S. Ct. ___, 2013 WL 2864483 (June 25, 2014).
The decision was unanimous, with a concurrence by Justice Alito.
Basically, the Court took two cases, Riley and United States v. Wurie, No. 13-212, that had reached opposite conclusions and consolidated them. In Riley, a driver was stopped for expired registration and having a suspended driver’s license. His car was impounded and inventoried, and two handguns were found. A search of his cell phone incident to arrest and other factors led police to believe that Riley was a member of the Bloods street gang. Following a warrantless search of the phone, photographs were located tying Riley to a gang shooting and he was charged with attempted murder and several others crimes. The trial court denied a motion to suppress the evidence and the Ninth Circuit affirmed.
In Wurie, police were conducting routine surveillance and saw Wurie make a drug transaction. Wurie was arrested and his cell phone seized. They searched the phone (an older flip phone) and eventually obtained a search warrant for Wurie’s house based on the warrantless search of the phone. Police seized 215 grams of cocaine, a firearm and other drugs, and cash. Wurie’s motion to suppress was denied, but the First Circuit reversed and vacated the conviction.
Roberts held that the search incident to arrest exception (from Chimel v. United States, 395 U.S. 752 (1969)) did not include the digital contents of a cell phone. Police may examine the phone to make sure that it is not a weapon, but may not search the contents. The claim that the search is necessary to prevent the destruction of evidence is also not valid. Police may place the phone in a Faraday bag to prevent outside signals from reaching it, may turn off the phone, or may remove the battery.
Roberts cited Judge Learned Hand who said in 1926 that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” Riley, slip op. at 20 (internal citation omitted). Searching a cell phone is ransacking the house.
“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” Id., slip op. at 28 (emphasis added).
June 8, 2014
camera, Civil rights violation, Deputy Stokes, Failure to identify, First Amendment to the United States Constitution, Fourth Amendment to the United States Constitution, Gray County Texas, Law Enforcement, Officer Stokes, Pampa Texas, Photographer, Photography is not a crime, Police abuse, Police officer, Sheriff, Texas
Here we go again. Another Texas peace officer with no clue about what Failure to Identify, Tex. Pen. Code Ann. § 38.02, actually says.
Andrew was taking photographs of the county courthouse and sees five police and sheriff squad cars on a stop, so he starts to film the scene from across the intersection. At about 0:55, a Pampa Police Department officer Herrera walks across the street and contacts Andrew. Their conversation goes well, clearly a consensual stop, and Andrew provides his name and date of birth on Officer Herrera’s request.
At 3:00 into the video, the traffic stop has concluded and Andrew starts to walk away, when he is confronted by Deputy Stokes of the Gray County Sheriff’s Office. Stokes, who has since become employed by the Pampa Police Department, immediately attempted to seize the photography equipment as evidence. Stokes refuses to get a supervisor on request, tells Andrew to stop talking, and threatens to arrest Andrew when Andrew points out that he has a First Amendment right to speak. When that happened, Stokes said that “I think I’ll make up stuff” and attempted to grab the camera from Andrew (at 3:50).
At about 4:20, the demand for ID begins by Stokes and he really shows his ignorance. First, as has been noted numerous times before, in Texas, under the Failure to Identify statute, one has to be under arrest to be obligated to provide their name, residence address, and date of birth to an officer. Otherwise, the statute merely makes it an offense to provide fictitious information.
At about 4:40, Stokes tells Andrew that he is not allowed to record peace officers in the public arena while they are conducting a traffic stop. Stokes is clearly out of his league here. It is well-established that the public have the right to videotape public officers in a public place. See Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); and Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
This did not start to calm down until Andrew asked the Pampa officers if he could press charges on Stokes for assault. At that point (7:50), the deputy was told to walk away by Officer Reynolds, who then talked to Andrew. Stokes comes back over and starts to question Andrew again, and this time tells Andrew that he has to answer Stokes’ questions (at about 10:10). This is obviously not true, and Andrew calls him on it. At this point, Andrew is allowed to walk away.
May 30, 2014
I just found a new blog that looks promising.
It appears to focus on prosecutorial misconduct, and has quite a bit for a blog just started.
You should go over and say hi to Leslie K. Smith, who runs the blog.