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Archive for Sunday, November 24, 2002

Incidents shine light on questionable police conduct

November 24, 2002

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The Lawrence Police Department is under fire from defense attorneys, civil liberties advocates and even judges who say the agency needs lessons in conducting interrogations and searches so constitutional rights aren't mangled or criminal cases bungled.

Defense lawyers are calling on police to change their search and interrogation procedures because, they say, there are systemic problems within the department and a handful of officers who need to be reined in.

"I could - but I won't - name you five bad officers, who I feel continually go beyond what the Constitution allows. I think they ought to be rooted out or at least told to knock it off, but I don't see that happening," Lawrence defense attorney John Frydman told the Journal-World.

The Douglas County Chapter of the American Civil Liberties Union last week sent a letter to Police Chief Ron Olin, asking him to require officers to get written consent from people on the receiving end of consensual searches - those done without a warrant - before such searches are allowed to begin.

Too many people, particularly minors, don't know they have the right to refuse an officer's request for a search of their person or vehicle, chapter president Mary Davidson wrote in the letter.

There have been a "number of cases" in the county, she wrote, "in which the arresting officer testified that consent was given for a search, while the defendant testified that no such consent was given. In several cases, the court has determined that no consent had been shown to exist. As members of the ACLU, we are quite concerned about this trend."

More evidence

There's more evidence of a problem at the police department, though Olin and his overseers at City Hall say all is well and that concerns raised by attorneys and even judges are normal given the adversarial nature of the U.S. legal system, which pits defense lawyers and their clients against police and prosecutors.

But the department's critics point to a couple of recent police interrogations to support their claim the department needs to reconsider how it operates. One interrogation violated the law. The second incident, for many, suggested the presence of an us-against-them culture at the department that encourages bullying tactics and hinders common-sense judgment.

In that case, the rebuke to the police in a ruling from Douglas County District Court Judge Michael Malone was harsh and to the point.

"This is the most blatant ignoring of someone's constitutional rights that I think I've ever seen," Malone said from the bench. "It's unfortunate that : the detective believes he is indeed operating within the framework of the law."

Malone said "there is not a court in the land" that would have upheld the police department's handling of the case.

He wondered aloud if the police had played "mind games" with the defendant.

Judge blames DA

Turning his attention to the Douglas County District Attorney's Office, Malone said, "I think one of the roles of the law enforcement system is to have the prosecutor serve as a teacher and the students are police officers, and the class needs to be called 'Constitutional Rights of Citizens.'

"When a police officer flunks the test, they need to retake the class, not to have their failing performance somehow argued as being acceptable."

  • There also was the recent case of a 17-year-old cashier at McDonald's taken in for interrogation after an on-duty Lawrence police officer found a piece of lint in his order of chicken strips.

The boy's mother complained her son was interrogated for three hours before she was notified and that her son was never advised he could call an attorney. Police said the boy was only interrogated for an hour and a half and that there is no legal obligation for them to contact parents when suspects are 14 or older.

The boy was released later the same day and never charged. Police never apologized to the boy or his family, saying they observed all proprieties and legalities in their investigation of what they suspected was a case of "food tampering."

Internal affairs

For reasons never fully explained, the department sent the lint to a lab for testing. The full expense of the testing isn't known yet, city officials said. But each hour of lint analysis costs the department between $50 and $60.

The case also cost the department and its chief hours of follow-up time after the mother filed a complaint and the incident was reported in the Journal-World. The complaint sparked an internal affairs investigation in which the department absolved itself of any wrongdoing.

Olin provided the newspaper a brief letter of explanation regarding the chicken lint episode. The Journal-World later acquired a longer memo the chief sent to City Hall officials explaining the internal affairs investigation of the episode.

"It is my belief that this could have been handled differently by other officers or sergeants," Olin wrote to city officials. "However, all the officers involved adhered strictly to the policies and procedures of the department. There were no violations of law by the officers."

That statement, not shared with the public, was the closest Olin came to an apology or indication of regret about the incident.

In any event, the department had not been accused of violating the law in the incident, merely of being overzealous in its investigation of a relatively trivial matter.

Olin's memo also seems to cast blame on news organizations for reporting the incident.

"We are very serious about preserving our reputation in the community," Olin wrote. "The manner in which this was reported did a disservice to that goal."

'Not unusual'

Lawrence attorney Rick Frydman said he was only half surprised when he heard about the chicken lint incident.

"I was surprised they spent three hours on chicken strips," he said. "But the cops going overboard - that's not unusual."

Rick Frydman has represented dozens of young people who cooperated when police officers asked to search their pockets, their cars, or consented to questioning, then found themselves charged with a crime.

"You're going to have a hard time finding a criminal defense attorney in Lawrence who's not handling at least one of these cases," Rick Frydman said. "I probably get one a month - and that's just me."

Rick Frydman and John Frydman are brothers.

Olin said he didn't put much credence in their criticism.

Squabbles between police and defense attorneys, he said, are commonplace.

Police, he said, are in the business of protecting the public from criminals, and it's the lawyers' job to defend the criminals.

"We try to stay exactly within the law," Olin said.

'Outrageous'

Rick Frydman said Olin was right, that most officers were "good people trying to do good work."

"But there are a few wayward officers who don't get reined in when they get out of line," he said.

Rick Frydman pointed out that in a letter last week to the Journal-World that addressed the chicken lint incident, Chief Olin wrote that his department "continues to operate and conduct investigations with the utmost professionalism."

"That's outrageous," Rick Frydman said. "Here you've got officers holding a kid for three hours over chicken strips, and the police chief comes out and says they acted professionally."

But Olin insisted the officers did nothing wrong. The cashier, he said, was rightfully asked if he would mind going downtown for questioning and willingly agreed to go.

From there, Olin said, the investigation proceeded like any other.

"In the past year, I think we've investigated four reports of food-tampering incidents," he said. "This one just happened to involve an officer as the victim. That's the only thing that was different about it."

Olin said the interrogation lasted an hour and 25 minutes; the teenager's mother told the Journal-World she spent at least two and a half hours in the lobby waiting for her son.

Know your rights

Rick Frydman said he didn't see much difference between police grilling an innocent cashier for hours and somebody being stopped for a traffic violation only to have his car searched for drugs.

"The common denominator is that people, especially minors, don't know their rights," he said. "So when an officer - in uniform, with a badge and wearing a holster - asks you to go downtown, you don't hear 'Will you come with me?' you hear, 'You're coming with me.'

"It's the same thing when they ask to search your car."

Court rulings have established that under the Constitution, police have the right to stop someone suspected of wrongdoing, ask to see their identification and vehicle registration.

The driver has the right to move on after he's been given a warning or a ticket, assuming he's not found to be intoxicated or under the influence of drugs.

From the moment the officer gives the driver back his license, the encounter is considered to be consensual and the driver is free to go or stay.

At the same time, the officer is free to ask permission to search the driver's vehicle or his pockets if there is "reasonable suspicion" of criminal activity. According to defense lawyers, the driver can - and should - just say no and leave.

If consent is given, the officer is free to conduct a thorough search.

Machine guns?

Several Lawrence criminal defense attorneys said it's not unusual for police here to stop cars for minor traffic infractions, assure the drivers they won't be ticketed, and off-handedly ask if they're hauling machine guns or heroin.

When the driver, grateful for not being ticketed, assures the officer that he's not, the officer then asks if it's OK to search the trunk or check the back seat.

"Most people know the officer has the right to stop them for a traffic violation, so when he asks to search their car, they figure he has that right too. So they say 'Yeah, sure, go ahead," said Elbridge "Skip" Griffy, a Lawrence defense attorney.

Then the officer can legally do a thorough search. If the remains of a marijuana cigarette are found - as they often are - the driver will likely be charged with possession.

In Kansas, a second marijuana possession charge is considered a low-level felony.

According to the lawyers, most possession charges filed in Douglas County involve less than a gram of marijuana.

"It's offensive to me that someone can get stopped on a traffic violation and end up having their car searched," Rick Frydman said. "When I drive by and see police searching somebody's car, I don't think 'Lawrence and its Free State legacy.' I'm thinking, 'Lawrence, The Police State.'"

Olin dismissed the allegations.

"If you volunteer to have your property or person searched and you're not carrying any contraband, then there'll be no probable cause for arrest," he said.

Also, he said, officers can ill-afford to be out of line in their questioning because they know their actions will be challenged in court.

Bungled interrogation

Lawrence police did not fare well last year when Lawrence attorney Shelley Bock questioned a detective's actions in a case involving one of four Topeka men accused of robbing the Virginia Inn.

Bock established that during an interrogation, his client, Henry Davis, twice told Det. Jack Cross that if he was going to be arrested, he wanted his attorney to be called.

The detective assured Davis he was not under arrest.

Davis also handed Cross a "prepaid legal card" that read, in part: "To any law enforcement officer or security personnel, if it is your intention to question, detain or arrest me, please allow me to call : an attorney immediately."

Cross laid the card aside and continued questioning Davis. At the end of the interrogation Davis was jailed and charged with aggravated robbery, conspiracy to commit aggravated robbery, two counts of theft and aiding a felon.

Bock asked Judge Malone to suppress statements made by his client because he had been denied access to legal counsel. Malone upheld that motion.

The District Attorney's Office appealed Malone's ruling to the state Court of Appeals.

The higher court upheld Malone's decision. The case has since been dismissed. Davis is a free man.

Bock said that as Davis' attorney he had no choice but to challenge Cross' handling of the case.

"If we're concerned about fairness in our society, then our legal system ought to be striving to follow the rules and the Constitution from the beginning rather than, as in this case, after you're in court," Bock said.

Olin defended Cross' handling of the case, noting that Davis said he wanted to call an attorney if he was going to be arrested. But the detective, Olin said, didn't know if Davis would, in fact, be charged.

When it became clear that Davis would be arrested, he was read his rights, Olin said.

"(Davis) was being detained, but he was not under custodial arrest," Olin said.

Unreasonable suspicion

Last month, Malone ruled against the police in another Bock case, this one involving a KU janitor who had been stopped late at night for driving without a tag. Within minutes, police assured the man he would not be ticketed and then asked him for permission to empty his pockets and search his car.

The man was found to have a small bag of marijuana in his jeans pocket. He was charged with possession.

No drugs or contraband were found in the man's car.

Bock asked the court to suppress the evidence, arguing that his client, Ronny Mole, had been duped into letting the officer search his car, and that there wasn't a 'reasonable suspicion' that Mole was engaged in criminal activity outside of driving without a tag.

Malone, a former prosecutor, upheld Bock's motion, noting that:

  • Mole had testified that he'd been stopped in the past and mistakenly thought "if you don't give them consent to search, usually that's probably cause for them to call in a full search."
  • Mole's appearing nervous, his being out late at night and the officer's knowing he'd been arrested before for drugs were not enough to warrant 'reasonable suspicion' that Mole was engaged in criminal activity beyond driving without a tag.
  • The officer asked for permission to search Mole and his car before he'd given Mole back his driver's license, causing Mole to think he had no choice but to comply.
  • Olin defended the officer. The incident, he said, occurred a year and half before the case went to trial, and the officer could not remember whether he'd given Mole back his license or had laid it on the hood of Mole's car.

"The officer's testimony was accurate and truthful," Olin said.

Also, Olin said, when the officer asked for permission to search, Mole took his hands out of his pockets, handed the officer his marijuana and said, "Here, you probably want this."

Though disappointed, Olin said he was not upset by Malone's ruling.

"The system worked exactly the way it's supposed to work," he said. "We made a good faith effort in making legal decisions on the street, we had a District Attorney who agreed with us and we went to court. That's not abusing our authority."

City Hall response

Mayor Sue Hack said she fully supports the Lawrence Police Department and Chief Olin. She said she saw no problem with the way the agency operated. Other city commissioners said they were unaware of any problems at the department.

City Manager Mike Wildgen said police acted properly in the chicken lint investigation.

As for the Virginia Inn case, well, he said, you win some, you lose some.

"We don't bat 100 percent - we try for 100 percent, but we don't expect it. That's not the system," Wildgen said.

But defense attorneys said if someone doesn't confront the issues at the police department, the system could be undermined by lack of public confidence in the police.

"You know, sooner or later, people who read the chicken-lint stories and wondered what the hell the police thought they were doing, are going to get called for jury," said defense lawyer Bock.

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