Category Archives: Police

Scientists are working on Cannabis testing for Impaired Drivers

weed reefer

Marijuana

States across the country have set a testable limit on the level of alcohol in someone’s bloodstream as a threshold in lieu of demonstrating impairment. While .08 has been established as a baseline legal limit for alcohol, there is no test available to readily measure the amount of THC, the active ingredient in marijuana, that is present in someone’s system. CNN.com took a long look at the issue, and at ongoing efforts to create a test similar to the breathalyzers that measure alcohol for purposes of prosecuting DUIs.

It is against the law for anyone to drive under the influence of alcohol or drugs, even if the drugs have been prescribed. Florida defines under the influence as “under the influence to the extent that normal faculties are impaired,” and other states use similar definitions. That’s why law enforcement use field sobriety exercises: they are meant to give the officers a chance to observe a driver to see if their faculties appear to be impaired. The shortcoming of those tests is their unreliability and that they are subjective: an officer will see impairment if they are looking for it. The breath and blood alcohol tests at least provide some consistency, though they are not impairment based. Time will tell if science can come up with something comparable for THC and other controlled substances.

Reliance on impairment based tests is challenging for law enforcement when a case goes to trial. Unless the impairment is clear, a jury may be reluctant to find it beyond a reasonable doubt. The subjectivity may matter more in a DUI than any other, and the outcome of a DUI is more dependent on the skill of the attorneys trying the case. The ambiguity cuts both ways, because the subjectivity of the field sobriety testing may lead to an arrest, and there is no dispositive scientific test to disprove the allegation. If a cop thinks you are impaired, you can be arrested, and the case may have to go to a jury trial. It will be interesting as this field becomes more important with the expansion of recreational and medicinal marijuana.

Body Cam Footage Released in St. Paul Police Shooting

It’s incidents like these that leave me astounded that not every police and sheriff’s department provides body cams to its officers. A week ago, a St. Paul police officer shot and killed Ronald Davis, who the officer said had attacked him after Davis rammed the officer’s patrol car. Protesters took to the streets to call for justice, though dispatch audio indicated the officer shouting “Drop the knife! Drop the knife!” It was poised to be another touchpoint for a story about a black man being killed by a police officer, and several people claimed they didn’t believe the official story that Davis had a knife.

The video was released Tuesday, and it’s dramatic. The officer gets out of his car after he’s struck, and is immediately set upon by Davis. The video shows Davis attacking the officer, knife in hand, knocking him to the ground. The officer gets up and tries to get away, with Davis continuing to pursue him. The officer shouts for him to drop the knife, and ultimately fires when he fails to comply. The video shows that the officer had a grave reason to fear for his safety, and conclusively shows that his actions were justified. Why Davis attacked him is unclear, and the loss of life is certainly a tragedy, but the video gives a lot more insight into what happened, and prevents a false narrative from going any further. I would urge all law enforcement agencies to follow this practice, and supply body cams and other recording devices for officers.

You can watch the video but are forewarned that it is violent and contains mature content:

 

The Dallas DA did an Interview, in Spite of a Gag Order, and the Judge Couldn’t Stand it

Amber Guyger

I should really say the judge couldn’t sit for it, because when she heard the DA had done an interview the night before the trial, she literally couldn’t stay in her chair. The judge is presiding over the Dallas trial of the former police officer Amber Guyger, who went into the wrong apartment apparently thinking it was her own, and shot the resident. The defense is arguing mistake of fact, and it appears they are claiming Guyger was distracted by sexy texts with her partner around the time she entered the incorrect apartment. There was some controversy, as she was initially charged with manslaughter, which is not the correct charge, since she definitely intended to shoot Mr. Jean. The new DA upped the charges to murder, and then couldn’t stop himself from talking to the media on the eve of trial.

Botham Jean

The case is a clear tragedy. While Ms. Gugyer was a cop, she was not on the job. It is indisputed that Mr. Jean was not in the wrong- it was his apartment. Not only that, he was a leader in his church and community. It will be up to a jury to decide if her mistake of fact was reasonable, so as to excuse her grave mistake of killing an unarmed black man in his own home. That’s a tough sell for the defense.

Here’s a story about the judge presiding over the case, and her reaction:

Details Released in Arrest of FMPD Captain – the Case Still Looks Like Garbage

Capt. Jay Rodriguez

The affidavit for the warrant in the arrest of FMPD Captain Jay Rodriguez has been released, and as we anticipated in the detailed post about the charges yesterday, it doesn’t look like the charges are legally sustainable. As expected, the Misconduct and Prostitution Charges both stem from actions that happened in 2013, several years beyond the statute of limitations.* One newly revealed detail is that the investigating Detective not only accuses Rodriguez of misconduct for being involved in a false report, but also for improperly receiving a benefit with city money for the alleged sexual act. That allegation might sound good, except that he was working in an undercover capacity for the city police department, and his acts led to two arrests. That is still not a prosecutable case. It definitely would have been better practice for Rodriguez to have stopped the suspect before actually receiving a sexual act, but that does not make his action criminal. In fact, it sends a bad message that if the City gets pissed at its cops, it’s going to try to prosecute them for doing their job.

As to the perjury charge, it appears the questions posed to Rodriguez were a little clearer than indicated in the earlier press release. Rodriguez was asked “were you ever involved in sex while on duty” and “have you ever engaged in sexual activity on duty with a sex worker or prostitute”, which Rodriguez denied. These questions are not as vague as “did you have sex”, but they are not so specific that there is not ambiguity. Definitely hard to prove beyond a reasonable doubt. More importantly, this confirms it was an internal affairs investigation, which does not appear to be an “official proceeding” to satisfy the required element of the perjury statute.

Captain Rodriguez may have been involved in wrongdoing, especially if he directed the fabricated statements that led to the arrests of the two individuals. Ultimately, charges were apparently dropped against both of them. However, these charges, under more detailed scrutiny, still look like garbage. If Detective Kendall Bores, who swore out this warrant, does not have a better understanding of the law, that Detective should be reviewed for incompetence. And even if the Detective didn’t catch the problems, it should have gone through the State Attorney’s office (of the 12th Circuit) for review before the warrant was sworn out. But caution gets thrown to the wayside when political pressure gets applied on a high-profile media case.

Also, NBC-2 spoke to another attorney who agrees that the old charges may be barred by the statute of limitations.

Here’s a link to yesterday’s even more detailed post as to why these charges are garbage. To reiterate, police misconduct, and especially lying or falsifying police reports, deleting evidence and the like are extremely bad… but that’s not what Rodriguez is being charged with. As it is, these charges are, in my humble legal opinion, bullcrap, and I call it like I see it.

*Update, the News-Press points out the charges may fit an exception to the statute of limitations, as the accused is a public employee. The charges are still crap, however. They have also posted the full affidavit for the warrant.

FMPD Captain Arrested, but the Charges may be Fatally Flawed

jay rodriguez

Capt. Jay Rodriguez

So often, the cover up is worse than the crime. That’s the case here, as FMPD Captain Jay Rodriguez is charged with perjury and falsifying a document – two felonies – to cover up for soliciting prostitution, which is only a second degree misdemeanor. However, these charges may not pass muster when we get a chance to look at them. The arrest affidavits are not publicly available yet, so information is limited to the press release and related media coverage. 

The charges apparently date to an undercover sting operation in which Capt. Rodriguez was involved all the way back in March, 2013. He supposedly received a sex act and then authored a falsified account of his actions. This appears to be the basis of the prostitution and falsifying document charges. However, it appears that these charges are outside of the statute of limitations, which would prevent him from being prosecuted. The statute of limitations for a felony, such as falsifying a document, is generally three years while it’s only one year for a second degree misdemeanor. So, prosecution for these charges is more than three years too late!

I contacted FDLE to see if they had any comment about the statute of limitations, but they say the State Attorney makes the filing decisions. These cases are being handled by the 12th Circuit State Attorney, not our local prosecutors.

Further, it’s highly unlikely that Rodriguez could be prosecuted for receiving a sex act during an undercover operation. He was operating in his capacity as a police officer at the time, and that is a defense to criminal charges. For comparison, if an undercover officer buy drugs from a drug dealer during an undercover operation, the officer cannot be charged with buying the drugs. It may be unpleasant, but officers are given leeway under the law in these circumstances. The better practice is assuredly to make the bust before the actual sex act, once an agreement is in place, as indicated by the professor in this article. However, the officer is not prosecutable for his violation of the law. There have been several undercover operations locally where a sex act unfortunately took place, but those officers are not facing charges.

Even worse, the timing of this arrest makes these charges look politically motivated. Just 10 days ago, the News-Press ran an article about officers who have been on paid leave for a long time, prompting city councilmen in the article to say that they wanted to see some action. I cannot demonstrate that the FDLE was moved by political and media pressure, but here we are less than two weeks later with questionable charges. Now the city will likely commence termination proceedings. They got what they were looking for to try to stop paying Rodriguez.

The final charge appears to be perjury for lying in the internal investigation. FDLE indicates that Captain Rodriguez denied having “sex” while on duty. Even if the state can prove that a sexual act occurred (the alleged act was not on the video), they will have a hard time proving that he was committing perjury when he said he didn’t have sex on duty. The most common usage of “sex” would refer to sexual intercourse, and unless there was some better specificity in the interview… it’s not perjury. Further, an interview given in an internal investigation is almost certainly not an “Official Proceeding” as defined by the statute. Perjury usually means lying in court or to in some sort of formal hearing, not simply in a police interview. There is a separate misdemeanor charge for giving a false statement to a police officer, but unless there were some really specific questions being asked about the nature of the sexual activity, even that allegation would be difficult to prove. This charge is also unlikely to be provable beyond a reasonable doubt.

Another questionable issue related to these charges is that WINK news published what appears to be a mug shot of Captain Rodriguez. What’s interesting about that is that Florida Statute prohibits the release of mug shots of law enforcement officers. WINK is not in the wrong for publishing it, but the question is where did they get it? Was his mug shot illegally provided to the media? At this point, these charges, and the way they are carried out, create more questions than answers. I am electing not to republish the mug shot in this article, not so much because of the prohibition on dissemination, rather because I think the charges are bogus and have decided to only publish the professional photo that has previously been widely distributed.

Finally, these charges, and the likelihood they get dismissed, will end up serving as a cover for what should be the biggest scandal related to this whole thing. A Fort Myers police captain has been accused of lying, falsifying reports, instructing other officers to assist in his cover up, and possibly deleting video evidence of a criminal investigation. That is the issue we should be most concerned about, especially in light of the ongoing corruption probes at FMPD going back several years. While Captain Rodriguez shouldn’t be jailed for lying and saying he kept his bottoms on since it’s outside the statute of limitations, we should be terribly concerned that the department covered for his lie for six years. That’s a big lie, and if someone was charged with criminal acts, lying about it is far more serious for the effect it may have had on the integrity of our criminal justice system.

Here’s an edit of the video in question, from the News-press.

*UPDATE* NBC-2 reports he has been put on unpaid leave. I don’t blame Chief Diggs under the circumstances, but it shows that the arrest helped the City with their public pressure to take action.

Amazon is Sharing Ring Doorbell Info with Law Enforcement

Ring doorbells have video cameras on them that allow people to view and record things happening in front of their homes. They are online, so people can be notified and watch when someone approaches their door, even when they are not at home, thanks to mobile devices. They are becoming more and more popular, and since they are owned by Amazon, they can even be linked up with Amazon’s Echo smart home systems.

However, and this may come as a surprise to people considering them, Amazon has partnered with hundreds of law enforcement agencies to share the surveillance data. That means that law enforcement may literally have a live feed from your house, or other homes in your neighborhood. The technology has benefits and concerns. This video surveillance net could help law enforcement catch more crooks, and has become a frequently used tool for that effect. However, the privacy concerns abound, that the government can be watching with multiple eyes around your neighborhood. Some 67 Florida agencies have already signed on to the program, so it looks like it’s not going away any time soon.

College QB charged with Drugs for the Bird Poo on his Hood

This poor kid literally got arrested for some shit on his car…

screen capture of body cam of the car hood

Shai Werts, who is the starting QB for Georgia Southern University, and has a game scheduled against LSU in a few weeks, was pulled over for speeding in South Carolina, near his home. Officers noticed a white substance on his hood, and thought it was cocaine. Why somebody would drive down the highway with their cocaine on the hood is beyond me, but officers tested it with a presumptive field test which gave them a positive result for the presence of cocaine. Presumptive field tests are not reliable and, for that reason, are not admissible in court. Fortunately, the poo was sent to a lab which has confirmed that it is not drugs, and charges against Wert have been dropped.

Werts was suspended from the team, though he passed a drug test and has since been reinstated. You can watch the in-car video on News Maven here around the 15-minute point. Bonus on the car video, the cops start interrogating Werts in custody without informing his Miranda rights, which they don’t read until near the end of this clip. Even if he had made an admission, it would have been inadmissible thanks to poop-cops’ eagerness to confront him. Body cam clip on WTOC here.