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Righting the wrong of a hunch stop, that the cop and prosecutor should have stopped in its tracks

Oct 11, 2013 Righting the wrong of a hunch stop, that the cop and prosecutor should have stopped in its tracks

Our tax dollars pay prosecutors and police to serve the people, including those they arrest and prosecute, not just to serve the amorphous “people that I — the cop or prosecutor — am here to protect.”

How many police, prosecutors and other civil servants see their jobs as serving the people — and not the other way around — and all the people, versus seeing their work as a job that earns a paycheck and that might be a career stepping stone? For police and prosecutors dissatisfied with their pay and working conditions — including too much work, and exhaustion — they are all the less likely to keep in mind that they are here to serve the people, and to follow that duty.

In that context, I was most disappointed that a prosecutor chose to go to trial — rather than to dismiss — my client’s driving while intoxicated (DWI) case where the stop, in my mind, was clearly unconstitutional, and where the trial judge suppressed the stop of my client’s car as a stop based on but a hunch.

According to the reporting police officer, he received a report from police dispatch of a domestic dispute in a deadend street community of townhouses. As he approached the street t this time when most people are asleep, he saw my client’s car coming from the direction of the townhouses at a time of little traffic. He stopped the car to see whether my client or his passenger were involved in the domestic dispute.

In my cross examination and argument to suppress the stop of my client’s car, I highlighted points including the following:

– The police officer did not know who made the complaint. He knew nothing about the reliability of the caller (including whether the call even came from the location of the alleged dispute as opposed to being a false report from someone having no connection at all to the house).

– The officer did not know the gender, age, nor other description of the civilian calling in the domestic dispute nor of the description of those alleged in the domestic dispute.

– The officer did not know any details of the domestic dispute. For instance, h did not even know whether such a non-criminal matter as a verbal argument was alleged.

– The officer had no information that any parties to the dispute was in a car, let alone any description of the car.

Backup. Before the trial commenced, I tried talking sense to the prosecutor that this was an entirely unconstitutional car stop lacking reasonable articulable suspicion to stop my client’s car. I suggested that her office should not feel proud to proceed to trial on such a bad stop. The prosecutor had a choice: Stand by his oath to uphold the Constitution and dismiss the case, or try the case, thus avoiding alienating the county police department that the prosecutor repeatedly works with, avoid a tongue lashing from the prosecutor’s supervisor (who should only have given the prosecutor a tongue lashing for not dismissing the case), and keep a reputation of not having the good discretion and action to dump cases that are unjust to be prosecuted.

The judge, bless his brain, heart, and courage, ruled the stop unconstitutional, for being based on not more than a hunch. The judge did not berate the cop for stopping my client’s car nor the prosecutor for the stop, arrest and prosecution, and it was not his duty to do so. We had our victory, finally.

I certainly wish any judge in the courthouse would have also suppressed this stop. Our judge seems to be very dedicated to serving his oath of office to uphold the Constitution, regardless of whether doing so leads to rulings by him that offend the lawmakers who appoint and re-appoint judges in Virginia. Not all judges seem to be the same, being human, with trial judges falling into three general categories: (1) judges devoted to upholding the Constitution and their oath of office, (2) prosecutors in robes, and (3) judges elevating administrative, budget and time efficiency above all else, including the Constitution and their oath of office.

Getting back to our trial, the prosecutor wisely did not argue that the police officer’s stop of my client’s car was akin to a Constitutional roadblock intended to investigate an immediate harm. Before being Constitutional, such roadblocks must be for clearer and more severe public safety threat (for instance a homicide) than an amorphous report of a “domestic dispute”, must be executed by a valid plan, and must be a roadblock, where a roadblock was not in effect in my case. Burns v Virginia, 261 Va. 30, 541 S.E.2d 872 (2001).

My client left the courthouse victorious, with justice delayed but not denied, and a lighter wallet after having paid my attorney’s fee. Police and prosecutors: It is your job for unconstitutional stops not to happen, and for prosecutors to have the courage, wisdom and duty to dismiss such cases.

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