Round Rock Police Violate Photographer’s Civil Rights – UPDATED

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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, abanks@roundrocktexas.gov, 512-218-5521.
  • Lieutenant Robert Rosenbusch, Internal Affairs, rrosenbusch@roundrocktexas.gov, 512-218-3262.
  • Lieutenant Larry Roberson, Accreditation Manager, lroberson@roundrocktexas.gov, 512-218-6614.
  • Sergeant Mike Osborn, Patrol, mosborn@roundrocktexas.gov, 512-671-2853.
  • Officer Paul Hernandez, Patrol, phernandez@roundrocktexas.gov.

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

UPDATE:

Picking up complaint form and filing complaint.

 

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SCOTUS Requires a Warrant to Search a Cellphone

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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).

Pampa, the Panhandle, and more Failure to ID Idiocy

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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.

 

Former Texas Trooper takes Guilty Plea

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Kelly Helleson, a former Texas Highway Patrol trooper, took a guilty plea in the case against her for the roadside body cavity search of two women in Irving.  Helleson was charged with two counts of Sexual Assault, but those charges were dropped in return for her pleading guilty to two counts of Official Oppression.  She will serve two years probation and pay a $2,000 fine.  In addition, she lost her peace officer license.  If she violates probation, she will face a year in jail.

The trooper who called her out to do the search, David Ferrell, was indicted for theft by a public servant, but was acquitted of those charges.  He was not fired for his role in the search.

Originally, the Texas DPS-Highway Patrol did not take the allegations seriously and threatened to file charges on the victims.  The victims then filed a lawsuit, settling for $185,000.

 

Trekkies Win, Collinsville Settles!

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Huff v. Reichert has been settled by Collinsville for $100,000.

After listening to the audio from the arguments at the Seventh Circuit, I understand why they settled.

The panel really questioned the officer’s attorney, doubting almost everything that he said, after pointing out that he had cited a case which had been subsequently overturned.  The exact quote was that the case cited “had been overruled on precisely this ground.” Ouch.  That is not good.  That hurts.  That hurts like watching Mazeroski’s Game 7 walk off home run, if you’re a Yankee’s fan.

And everytime that the attorney stated his position, a judge was shooting it down.  Why did Reichert pat down Huff and his passenger?  What reasonable suspicion did he have?  How does this even begin to be a valid search?  Etc.

I also noticed that Huff’s attorney was only asked one question, not related to the facts of the case.

I think that Huff could have held out for more.

 

 

 

Trekkies to Get Their Day in Court

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In 2011 Terrance Huff and his friend Jon Seaton were driving back to their home in Ohio after attending a Star Trek convention in Saint Louis.  When going through Collinsville, Illinois they were stopped by officer Michael Reichert, allegedly for crossing the centerline.  A few months later Huff posted the officer’s dashcam video, which went viral.

Many of the comments suggested that Huff and Seaton should sue Reichert, which they did.  Reichert moved for dismissal which the U.S. District Court for the Southern District of Illinois denied and Reichert filed an interlocutory appeal with the U.S. Circuit Court of Appeals for the Seventh Circuit.  See Huff v. Reichert, No. 13-1734, 2014 U.S. App. LEXIS 4446, 2014 WL 906103 (7th Cir. Mar 10, 2014).

Before I link to the Seventh’s Circuit opinion, let’s look at the traffic stop.

First, the violation is probably BS.  First, there is no video of the violation.  While it is not required, officer’s who are concerned with documenting evidence will turn on the camera and get the violation (most have a buffer that saves the previous 30-60 seconds).  Second, this seems to be a recurring violation used by Reichert.

Second, when the reason for the traffic stop is over, the driver must be free to leave.  Here Reichert asked for consent and Huff denied it, saying that he wanted to leave.  Reichert told him that he could leave, but that the car could not.  Really?  On what grounds?  Because thus far, Reichert hasn’t shown anything even approaching reasonable suspicion, much less probable cause.

Third, during the open air drug sniff, Reichert repeatedly told his dog to “Show me where it’s at! Find it!”Id., at *4, 2014 WL 906103, *2.  Reichert even admitted that this was improper procedure and violated his training.  Well, duh!  He’s telling the dog to alert, which it conveniently does at the front of the car, out of the camera’s vision.  Really?  Gee, I would have thought that the scent of drugs would have been strongest at the doors and windows, not at the radiator.

Fourth, why is an arrest of over 10 years age even relevant?  Besides that, why even run Huff for his criminal history?  It’s just not done on a routine basis.  Sure, officers will check the DL and for warrants, that’s easy.  It is more difficult to run a CCH.  First, it is done separately from a DL/warrants check.  Second, you have to have a valid reason to run it, other than it just being a traffic stop.  Third, a CCH can take forever to return, and if you do get a hit, you have to run it again to get the details.  It just isn’t done on normal traffic stops, but it does explain his comment about the computer running slow.

Fifth, why was Reichert still on the street doing interdiction?  A federal judge had already found that his testimony about having probable cause to search a vehicle was not credible.  United States v. Zambrana, 402 F. Supp. 2d 953 (S.D. Ill. 2005).  OK, I’ll grant you that Collinsville PD fired Reichert in 2006 and the union got his job back.  But why doing K9 drug interdiction?  Isn’t the State’s Attorney Office required to turn over this type of information on officer credibility to the defense?  See Brady v. Maryland, 373 U.S. 83 (1963).  This seems relevant, especially when you consider that a large part of the reason that Judge Michael Reagan noted that “Reichert thereby engaged in misrepresentation, deceit, and falsification” when he was earlier convicted of a misdemeanor for selling fake Oakley sunglasses.  Id., at 958-59.  Here it is clear that no one trusts Reichert, from the Federal Court to the state Circuit Court to the State’s Attorney to the U.S. Attorney, Radley Balko, Illinois Traffic Stop of Star Trek Fans Raises Concerns about Drug Searches, Police Dogs, Bad Cops, Huffington Post (Mar. 31, 2012, updated Aug. 7, 2013), http://www.huffingtonpost.com/2012/03/31/drug-search-trekies-stopped-searched-illinois_n_1364087.html.

This is a disaster waiting to happen, at least to the taxpayers of Collinsville.  In the meanwhile, the police chief is standing behind Reichert.  This may be due to Reichert being the Officer of the Month in 2011.  The reason?  His good work in drug interdiction.

Of course, we’ll see what the city does next.

The court opinion is here.

See also:

Lakewood, NJ Police Arrest One of Their Own

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jeremy_felder_lpd_tlsThe Lakewood, NJ Police and the Ocean County Prosecutor recently announced the arrest of Lakewood Officer Jeremy Felder for Official Misconduct.  Official Misconduct is a second degree felony, with a punishment of 5-10 years in prison.  N.J. Stat. § 2C:30-2.

After Felder was indicted and arrested, he was suspended without pay pending the outcome of the trial.  The charges against the original subject were dropped due to the misconduct.

Felder is accused of committing an illegal search in the Lakewood case, but had earlier been involved in the illegal arrest of Anthony Bell while Felder was an officer in Jackson Township.  The township settled the inevitable lawsuit for $95,000 while admitting no fault.  Felder was hired by Lakewood shortly thereafter, at a significant pay cut.

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