Sep 04, 2017 Virginia criminal lawyer pursuing your best defense, since 1991 – On police boundaries
Police are not permitted to overstep their bounds. That means, for instance, that police may not tell suspects they have to answer questions, because everyone has the right to remain silent with the police (other than circumstances where a suspect is required by law to identify himself or herself). Police may not require people to consent to searches. Police may not require DWI suspects to engage in field sobriety tests. As a Virginia criminal lawyer, I advise and remind people of this all the time.
Too many police violate too many people’s rights too often. This arises from such factors in such police as personal limitations, ignorance, prejudice, insensitivity, and arrogance,
Police do not have an easy job. They are thrown into the police academy to learn a dizzying amount of data on the law, criminal defendants’ Constitutional rights, when and how to use weapons, investigating DWI suspects, analyzing suspected drugs, making arrests, searching arrestees, executing search warrants, diffusing tense situations, writing police reports, testifying in court, staying on top of changes in the law, saving their own lives and lives of others, not using excessive force, treating people right, and not violating discrimination laws.
Even after a few years on the job, a police officer is going to have knowledge blind spots. A police officer should never shy away from saying “I don’t know” rather than making up or disregarding the law.
Following are three situations where police blatantly violated the law:
– Thanks to Delaware corporate lawyer Rebecca A. Musarra for accepting an arrest in 2015 after a New Jersey traffic stop, rather than answering police questioning about whether she knew why the police had stopped her car. As icing on the cake, Musarra succeeding in getting the police twice to admit that her arrest was due to her remaining silent (see minutes 2:20 (where an officer told her she was culpable for “obstruction) and 3:00 in the incident video). At the police station, a supervisor informed Musarra that a mistake had been made. Musarra subsequently settled the case for $30,000 in a federal lawsuit.
The Fifth Amendment to the United States Constitution guarantees people’s right to remain silent with the police. Asserting that right often spells the difference between conviction or not, both for innocent and culpable people.
– Thanks to Sennett Devermont for his 2011 refusal to engage in DWI field sobriety testing, despite the police officer’s insist that Devermont was obligated to do such tests. The audiotaped incident shows Santa Monica police officer Koby Arnold incorrectly insisting that the law required Devermont to do such tests (minute 0:20), while taunting Devermont for asserting his right to do such tests (minute 0:40).
Devermont sued over the incident in federal court. In granting partial summary judgment against Devermont — who was arrested but never got formally charged for DWI — while preserving Devermont’s claims of false arrest, excessive force, and First Amendment retaliation, the judge said in 2014 that “it is [police officer] Arnold who sounds more ‘antagonistic’ in the audio recording than Plaintiff [Devermont]; Plaintiff simply and calmly asserts his right not to perform any FSTs.” A few months after the judge granted partial summary judgment, Santa Monica settled Devermont’s case for $70,000.
Field sobriety tests are voluntary tests that may be refused, even when such refusal is admissible into evidence at trial as knowledge of culpability.
– Sending thanks and a proverbial bear hug to former Olympian — and University of Utah nurse and now legal Olympian — Alex Wubbles, for standing her ground in protecting an unconscious and severely burned patient, against a Salt Lake City police officer insisting on getting a blood draw from the patient for an investigation of possible driving under the influence.
In standing up to the police in this late July 2017 incident, Wubbles did not state that the police were absolutely barred from getting a blood draw, but instead pointed to a written policy that she understood the police had previously agreed to, that a police blood draw was barred absent an arrest, consent of the patient or a search warrant. (Video minute 5:00). The police had none of those three in place.
The police officer then proceeded not only to arrest Wubbles, who had been speaking politely and calmly, but did so with verbal exasperation and heavy force. (Video minute 6:00).
The police held Wubbles for around twenty minutes before releasing her without charge. The Salt Lake City police department ultimately apologized to Wubbles.
Hospitals and health care professionals are obligated to serve their patients, and are not police surrogates. The Supreme Court in 2016 reaffirmed that police DWI blood draws are not admissible at trial without the suspect’s consent, a search warrant or exigent circumstances. Alex Wubbles rocks.
All of the foregoing police interactions were recorded by video and/or audio. Police and prosecutors must stop threatening and effectuating arrests and prosecutions for recording police in the process of doing their work in public.
Highly-rated Fairfax, Virginia Criminal Lawyer Jon Katz has been defending thousands of criminal defendants since 1991. To consult with Jon about your case, please schedule an appointment through his staff, at 703-383-1100.