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Archive for Saturday, May 5, 2012

Appeals court says Lawrence officer violated Fourth Amendment in DUI case

May 5, 2012

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A Kansas Court of Appeals panel has ruled a Lawrence police officer overstepped the bounds of the Fourth Amendment when she stuck her foot under a garage door to confront and later arrest a suspect in his home in 2009.

The judges released their opinion Friday in the appeal of Troy E. Dugan’s DUI and traffic-related convictions, saying Officer Laurie Scott should have applied for a warrant the afternoon of Sept. 17, 2009, instead of placing her foot under Dugan’s closing garage door.

It tripped a safety mechanism causing the door to open, and Scott began investigating Dugan.

The appellate judges also ruled Douglas County Chief District Judge Robert Fairchild erred in denying a motion by Dugan’s defense attorney to suppress evidence Scott obtained after she stuck her foot under the garage door.

“Although the question might be closer than some, we do not share the district court’s tolerance for the governmental breach of a private residence and, therefore, reverse that ruling with directions the motion be granted,” the judges wrote in their opinion released Friday.

Scott was following Dugan’s sport-utility vehicle after a dispatcher put out his description, tag number, name and address following a rear-end collision earlier near downtown. Dugan was accused of leaving the scene of the crash in which no one was taken to the hospital.

Scott found an SUV matching that description and followed it until Dugan pulled into a driveway, activated an automatic garage door and pulled inside. Scott turned on her patrol car’s emergency lights in the driveway, and later got out of the car and placed her foot under the door.

The appellate judges ruled it did not qualify as a “hot pursuit,” which would have permitted Scott to enter the home without a warrant. She had not engaged emergency equipment while following the vehicle and “saw nothing suggesting any traffic violations” as she followed him.

According to the opinion, when officers interacted with him in the garage, they determined Dugan “displayed signs of intoxication.” He told officers he was involved in a rear-end collision earlier and admitted having “several beers.” He did poorly on field sobriety tests, but refused to take a breath test. After denying the motion to suppress, Fairchild eventually convicted him of felony DUI — because he had three prior convictions — and other misdemeanor traffic infractions.

But the appellate panel ordered that motion to suppress ruling be reversed and the case be sent back to the district court.

The Fourth Amendment protects against unreasonable searches and seizures.

“A citizen’s Fourth Amendment rights do not rise or fall on the schedules of government agents or their predilections for expediency,” the opinion states. “The framers intended judicially issued warrants as a check on just those inclinations and to preserve for the citizenry a sphere of privacy in their own homes against undue government intrusion. The Fourth Amendment has not yet fallen into such disrepair that it no longer serves that fundamental purpose in a case such as this.”

Douglas County District Attorney Charles Branson said Friday prosecutors were still reviewing the opinion and deciding how to proceed, including a possible appeal to the Kansas Supreme Court.

Comments

Gecko 1 year, 11 months ago

HELPS "just a SMIDGEN" that his GIRLFRIEND is a Lawrence Attorney, no?

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camillia 1 year, 11 months ago

Without arguing with others about the 4th amendment...why in the H.E. double hockey sticks does this guy still have any driving privileges? Where was the judge when Dugan was in court for those?? Obviously the system had already failed way before this incident.

And as for the incident, yes Officer Scott broke the 4th amendment. Im sure it was a mistake but she did it and now she must face the consequence just as anyone else who makes a legal mistake. Her actions could possibly set herself up for old cases to be re-opened if others come forward saying she violated their 4th amendment right. Now Im sure my next statement is going to take flack but this specific officer has somewhat of a bad rep if you search her name online. Not saying shes automatically guilty bc of her reputation but its going to add fuel to the fire for this DUI offender. (btw I HATE people who commit multiple DUI's but in this case the officer just botched the case)

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tbaker 1 year, 11 months ago

The practical reaction to this is to gripe about this bogus technicality, but I'm glad the court erred on the side of our civil liberties.

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toe 1 year, 11 months ago

Limiting police powers is easier than reducing policy budgets. Imagine that.

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Lateralis 1 year, 11 months ago

This is the correct decision. The officer should know better. We must protect the 4th amendment at all costs. To allow law enforcement to enter your property in this manner would catastrophic.

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Gotland 1 year, 11 months ago

I am confused are police officer the only people who are constrained by the constitution? Because it seems to be irrelevant to POTUS Obama and Bush.

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verity 1 year, 11 months ago

Pretty much everything being discussed here is irrelevant except for the fact that the police officer searched without a warrant. Any one of us might have done the same thing in the circumstances, but that doesn't make it right. We can't go about undermining constitutional and civil rights even if it means letting a criminal go free. If we do that, then everyone of us is at risk for it happening to us.

It may be obvious that a person committed a crime, but if we allow evidence that was gotten illegally to be used, then there is no reason for Law Enforcement to follow the laws. Again---it could be used against you.

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autie 1 year, 11 months ago

What I don't get is the officer had his tag number, name and address and description from the dispatcher after he had fled the scene of an accident. Where is there no probable cause in all of that? If he robbed a store and they knew who he was in the same circumstance is he protected under the 4th? This is when good intentions run afoul and no common sense prevails.

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oldvet 1 year, 11 months ago

A police officer has but seconds to choose the course of action they must take...

And that course of action will be debated and decided 6 years later by a 5-4 vote in the Supreme Court.

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pace 1 year, 11 months ago

Home, house, garage, a lot of difference between knocking on a door and putting your foot through it.

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jaywalker 1 year, 11 months ago

"to preserve for the citizenry a sphere of privacy in their own homes against undue government intrusion. "

Against UNDUE government intrusion. Sorry, but there was nothing "undue" here. And the moron still could have just entered his house and reached "base."

Still sayin' we need a Minister of Common Sense. 3 prior DUI's w/ a 4th in the act plus leaving the scene -- no legal favors for this bleepin' bleep.

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pace 1 year, 11 months ago

Law should be precise and applied, not a reflection of emotion or media hype. They should think warrant not body jams. No one was in immediate danger and now the case against a dangerous driver is skewed.

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volunteer 1 year, 11 months ago

At least this time the headline did not scream "Judge Fairchild Reversed Again" or whatever that was several months ago when the issue, I believe, was the precise wording of the jury instructions.

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jhawkinsf 1 year, 11 months ago

  1. If a person is less secure in his car than in his home (from police search and seizure), is a garage somewhere in the middle, a sort of grey area?
  2. Would it have made any difference if the garage detached?
  3. Would it have made any difference if the garage door were open?

Because it can be assumed that when the officer saw the garage door open and the car heading into the garage that the situation changed, her time to react changed from the time she was simply following the car on the streets, therefore the characterization of it being a split second decision might be more accurate.

Courts frequently have to deal with these hair splitting decisions. This time, the DUI suspect got lucky. With his record, let's hope that his next DUI isn't given after a fatal accident.

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OonlyBonly 1 year, 11 months ago

Not "stupid judges" in this case. IF the officer (and she apparently did) have reason to suspect this was indeed the vehicle involved in the crash all she had to do was light him up! Once that was done there would have been "probably cause" to detain under suspicion of DUI even if it was NOT the vehicle involved in the hit and run. Plain and simple "bad Copsmanship" and "bad Judgemanship" on the local judge.

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Hudson Luce 1 year, 11 months ago

If the officer didn't have probable cause to stop the guy while driving, and didn't have it when he pulled into his driveway, she didn't have it when the car was in the garage, parked, with the front of the car not visually apparent, and the door coming down so low she had to stop it with her foot. It's a bad arrest, she shouldn't have done it, and the case shouldn't have been prosecuted. Game, set, and match...

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jackbinkelman 1 year, 11 months ago

It's not like the car was going anywhere...

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equalaccessprivacy 1 year, 11 months ago

Just like the cop and judge in this story many people in this part of the country really seem to have a real problem seeing boundaries and respecting them. It leads to presumptuousness and disrespect--- even harassment and lawlessness-- beyond words. Presumptuous people just don't know how and when to mind their own business or when to stop. They go too far. So glad to be done with Kansas and to escape this crazy place half alive. For example I had a delivery guy recently who just grabbed my screen door right out of my hands to adjust it to remain open. Didn't bother to ask. I had not and would never approve his action.

Or the stinking LMH imaging tech who followed me into the women's room-- listen, blind miss, I'd far rather carry my own bags than put up with such presumptuous, patronizing crap! Yuck and double yuck! Stupid people who damage and disrespect others yet blindly assume they are being so helpful are the norm in Douglas County. Get a clue and keep your distance, folks, please. Ignorance is frightening. Don't wish it up in my face. Don't enjoy being screwed with. Stop messing with other people's belongings and persons in such an inconsiderate, inappropriate, and intrusive way.

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equalaccessprivacy 1 year, 11 months ago

Doesn't Charles Branson just come off as a grandstander? Who can respect law enforcement ( including DAs) who do not revere and uphold the constitution above all else and thus hold themselves accountable to it? I pity anyone who has the misfortune of a scrape with the lawless crowd of movers and shakers who run Lawrence--even someone with a sad pattern of DUI's like the clown in this article. No one likes liars , especially when they are calling the shots."Just doing her job" is an incredibly poor excuse for the abuse of power. It's used way too often by people who prefer not to engage their brains before opening their mouths.

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Bob Forer 1 year, 11 months ago

No need to slam the officer involved in the case. If she were dishonest, or out to violate the driver's constitutional rights, she would have pulled him over before he arrived home and fabricated a story claiming that he crossed the center line or otherwise committed a minor traffic violation

No, this was not a split second decision. But like some fourth amendment issues, the answer is far from a bright line. Heck, the district judge got it wrong, and he has a legal education and years of experience.

The cop did her job professionally and competently. She just happened to be wrong on a difficult fourth amendment issue. Leave her alone. she is a human being, and all we can expect is her honesty and best judgment, which I believe the public received on this one.

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rukidingme 1 year, 11 months ago

I think the officer made the correct call. If she would have left went back to station and wrote up a search warrant (which is no easy process) and than tracked down a judge to sign off on it. When she would have returnd to the house thedriver would say he had been drinking in his house and his lawyer would had advised him to say the same thing. Just another exampe of a drunk getting off free and beating the system. Lets hope today he doesn't kill someone when he drive's drunk again because he will.

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Cant_have_it_both_ways 1 year, 11 months ago

People that cheat on their taxes should have their bank accounts confiscated and should be prohibited from having one.

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Pastor_Bedtime 1 year, 11 months ago

With multiple DUIs this person's vehicle should be confiscated and he should be prohibited from even owning one.

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jafs 1 year, 11 months ago

I would also note that he had 3 prior DUI convictions, according to the story.

So, he's not some sort of model citizen either, and shouldn't be drinking and driving.

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Liberty275 1 year, 11 months ago

Good. Now give her 6 months off without pay and we'll see if she's so quick to violate the constitution again.

"It's a sad day when the constitution is considered a "technicality.""

Perfectly stated.

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jafs 1 year, 11 months ago

I don't know why people keep talking about quick thinking and split second judgments - didn't she follow him for a while before he got to his house?

If so, she had plenty of time to pull him over before he got there - no split second decisions were necessary.

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reality_check79 1 year, 11 months ago

this is a case that represents an officer attempting to do a job that requires split second thinking and judgement calls... I received a dui after a bad choice and the officer did her job professionally and given the circumstance was a pleasure to deal with... this individual got lucky!!!

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tennesseerader 1 year, 11 months ago

You are guilty until you buy your innocence...You get as much justice as you can afford.

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patkindle 1 year, 11 months ago

troy was lucky and skated on this one on a technicality, perhaps he learned his lesson, and cleaned up his act, if he didnt learn anything it willl be cuff city some time soon at least he wasnt trying to sell baby chicks that is what the city is all about

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doc1 1 year, 11 months ago

Dang that sucks. I bet it took awhile for them to decide on that one and then persecuted the officer to make the same decision in a very small window of opportunity.

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mutualrespect37 1 year, 11 months ago

My sense is that officers violate the 4th amendment all of the time. Few of them are ever held accountable. False convictions can result. Great news that least one officer is being forced to acknowledge the constitution exists!

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Rara_Avis 1 year, 11 months ago

This comment was removed by the site staff for violation of the usage agreement.

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Monty Amick 1 year, 11 months ago

It sucks But that is the correct interpretation.

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NOTcrusher 1 year, 11 months ago

Stupid judges.

Lately, they've had a habit of letting obvious crinimals go free.

Blame it on See Bilious!

Hugs!

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