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Archive for Sunday, February 15, 2004

Illegal stop calls conduct of city police into question

February 15, 2004

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With binoculars in hand, a Lawrence police officer stakes out a local convenience store that he thinks is a drug-dealing spot.

He sees a car pull into the lot. An unidentified black male climbs into the back seat. The car immediately leaves. The officer follows, based on his knowledge that drug deals often happen during short drives around the block.

He sees no traffic infractions, but he pulls over the car anyway. After calling the teenage driver's father and getting verbal consent from him to search the car, the officer finds a bag of marijuana in the ashtray.

What's wrong with this picture?

According to a judge's ruling last week in Douglas County Juvenile Court, the officer who made the stop didn't have a valid basis to suspect that anything illegal was happening under the Fourth Amendment's protection against unreasonable search and seizure.

Charges dismissed

The officer's hunch may have been right, but the stop was wrong, Judge Peggy Kittel found before dismissing marijuana charges against the car's driver, a 17-year-old Baldwin girl.

Now, the defense attorney who handled the case alleges that Dist. Atty. Christine Kenney's office wasted court time and legal fees by pursuing the case. Defense attorney John Frydman said it should have been clear early on that the traffic stop wouldn't hold up in court.

"I told the prosecutor from the get-go, 'You've got nothing. What are we doing here?'" Frydman said. "It's a squandering of our limited resources and tax dollars, which surely can be put to better use than to keep pushing cases that are obviously unconstitutional on their face."

Frydman also claimed that the case smacked of racial profiling.

Kenney said there was much more to the story, and she denied race was a factor.

"If I had any indication at all that race was a motivating factor, not only would we not file charges, but we would take other steps to make sure that the supervisor understood that the officer was acting inappropriately," she said. "However, that is not what happened here."

Prosecutor's case

Rather, Kenney and a prosecutor in her office argued that it was the officer's overall impression of the situation that caused him to make the stop. Kenney said the case was an example of the balancing act that happens every day as police try to fight crime.




She also defended her office's handling of the matter.

"I think our responsibility as the prosecutors is to weigh the evidence and weigh what we believe our chances of success will be on a case," she said. "If it is a close call, or if it is a case in which we believe we should be able to prevail, I think we owe it to this community to do what we can to prosecute those crimes that occur."

Police in Lawrence conduct tens of thousands of traffic stops each year, and it's not always a clear-cut decision whether to turn the lights on, Police Chief Ron Olin said.

"The issue in this case is: Based upon the training, experience, and knowledge of the officer looking at an evolving situation, does the officer have reasonable suspicion to stop the car?" Olin said in an e-mail response to a question. "In the cases where an officer believes such reasonableness exists, he/she may stop the car."

What happened

The inadmissible stop happened May 6, 2003, at Fast Lane convenience store at Sixth and Florida streets. According to court records, Lawrence Police Officer Mike McAtee, a former detective who once specialized in fighting gangs, was staking out the store because he had information from an unidentified source that drug deals were happening there.

At 8:54 p.m., he saw a car pull into the lot. McAtee testified that he saw a black male come out of the store and get into the back seat, but the driver testified the man who got into the car had arrived with her and went in to make a purchase, Frydman said.

Another factor that aroused the officer's suspicion was that, after the car left the lot, the car's driver didn't slow or make unusual movements as if she were lost. And, the officer saw that after driving in a rectangular route, the car was headed back toward the parking lot again.

"Officer McAtee, a person knowledgeable in the field of law enforcement, and specifically drug crimes, determined that these factors in their totality were of a suspicious nature," prosecutor Scott McPherson argued in a written motion.

Racial profiling

As it turned out, not only were there drugs in the car, but the person McAtee had seen get into the vehicle was someone he'd known to be involved in illegal activity. But the officer testified he didn't recognize the man until after stopping the car, according to documents. Even if McAtee had recognized the passenger beforehand, it still wouldn't have been enough to justify a stop, Frydman argued.

Steve Lopes, an official with the Douglas County chapter of the American Civil Liberties Union, does not accept the notion race had nothing to do with the stop.

"Racial profiling is the ugly aunt in the attic that Lawrence doesn't want to let out, but there's a lot of it going on," he said.

Defense attorneys often file motions to suppress evidence found during police stops, and more often than not, their challenges fail. One local attorney estimated that about one in 10 motions to suppress actually results in a finding that the stop was improper.

Kenney said she thought that in this case the officer wasn't acting on an "unreasonable basis."

Lacking consequences?

"Clearly we have constitutional rights to protect the accused, but on the other hand, law enforcement has an obligation to this community to try to deter criminal activity where they can," Kenney said.

Asked what the consequences are for an officer making a stop that is later ruled inadmissible, Olin said it was having the case thrown out even though drugs were found.

Frydman said there should be more consequences. And he claims the case shows that Kenney's office needs to exercise more oversight.

"A person who has their constitutional rights violated is forced to hire an attorney, appear in court, then pay more money to have the attorney file briefs on the issue," Frydman said. "The end result is that justice is served and the charges are dismissed. The problem is that there's no disincentive for police to continue to act in a like manner. ... It's the prosecutor's decision what to charge and what not, and unfortunately, there does not seem to be much of a check or balance."

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