Brooklyn 99 used the Stingray as a Plot Device

We’ve talked about the secretive Stingray devices several times on crimcourts, and I’ve even talked about them on local TV. Stingrays are devices that mimic cell phone towers and can allow law enforcement to secretly collect cell phone data. The problem is, without a warrant, they can be used to unconstitutionally invade people’s privacy and to collect overbroad types of data from innocent citizens. It’s a clear violation of the constitutional prohibition on unreasonable searches.

On the pair of shows of the fictional New York police precinct “Brooklyn 99” which aired last night, the officers of the 99th precinct discover the new NYPD police commissioner has started using a Stingray to illegally collect data. The good guys set up a sting operation to bust the commissioner and end the illegal data collection program- a Stingray-sting! Hijinks ensue, but I won’t spoil the outcome for those who haven’t seen it. Nonetheless, it’s impressive that a comedy show used a hot button topic as the basis for an episode.

Sarasota Police try to Charge an Attorney Defending Her Client

Sarasota defense attorney, and friend of the firm, Varinia Van Ness had criminal charges sought by the Sarasota Police against her for her representation of her client. The mere fact that officers would even consider trying to charge a defense attorney for zealously doing her job is shocking. It’s petty, retaliatory, and an affront to our adversarial system of justice. Fortunately, the officer’s multiple attempts to file charges were rebuffed by cooler heads.

Attorney Varinia Van Ness, via
http://www.vannesslawgroup.com/

It started when two Sarasota detectives sought to serve search warrants on Ms. Van Ness’ client and his phone. The parties agreed to meet at Van Ness’ office but about 10 minutes into the meeting, it was revealed that a Detective Derek Galbraith had activated a recording device without notifying Ms. Van Ness. When she found out, she insisted he either terminate the recording, or to leave the office. He declined to turn it off, but he also declined to leave the office. She indicated he was trespassing, but he still wouldn’t leave and Van Ness eventually called 911 to get him to leave.

After detectives left, they tried to serve the warrants again at the client’s work, at his brother’s house, and even at his ex-girlfriend’s home. Van Ness and her client agreed to meet at the police department. When the Detectives read the phone warrant, a spelling error was noticed in the client’s name, and Van Ness and her client left the room, though they ultimately did submit a DNA sample. Later that day, Detective Dan Riley from the Sarasota PD requested that a warrant be issued for the arrest of attorney Van Ness for obstruction of justice.

Fortunately, the warrant was never issued. It was submitted to a judge who recognized that the case involved a defense attorney doing her job, which would be a valid challenge to the warrant. He said it would have to be reviewed the State Attorneys office to see if formal charges were warranted. Sarasota PD didn’t give up, and submitted the warrant request to the State Attorney’s office. The local SAO had a conflict of interest, and the case was reassigned to the 20th Judicial Circuit SAO, who also declined to file charges. Sarasota PD took one more shot, submitting the case to FDLE, who also declined to pursue charges. The case was reviewed by three separate independent judges/agencies, who all agreed there was no merit to bringing charges.

This type of attack on an attorney is shocking and very problematic to the justice system. Ultimately, the fear would be that if cops can go charge an attorney for advocating for their clients, the chilling affect on the job of defense attorneys would harm our criminal justice system and is an affront to the Constitutional protection to the right to be represented by an attorney. The Sixth Amendment guarantees the right to assistance of counsel, and it applies at every level of a criminal investigation.

It’s rare that law enforcement would seek to charge an attorney for advocacy in the normal course of their work. Usually, it takes something really egregious, the Paul Bergrin case in New Jersey springs to mind, where he assisted gangsters placing hits against witnesses. Only something extreme that goes beyond advocacy should even be considered, and even then, it should be reviewed by attorneys before being submitted for a warrant.

Asking a Detective to leave your office because they recorded you without permission is not obstruction of justice. Declining to have your client turn over his phone password when his name is spelled wrong on the warrant is not obstruction of justice. That’s advocacy. Zealous advocates like Varinia Van Ness are the first check against government overreach and the primary protection of individual Constitutional rights. We are lucky to have defense attorneys like Varinia.

via Sarasota Herald-Tribune

FMPD Sued for Arresting and Tasing a Man for No Legal Reason

Jones, about to be tased from behind

Two FMPD officers had no legal reason to arrest Holley Jones in April, 2018, but when he tried to walk away, they tasered him. The officers indicate they responded to a third-party complaint about a disorderly person, which apparently did not identify Jones. The whole incident is on body cam, and Mr. Jones is not causing a disturbance when officers come in and tell him they want to talk to him. When he declines to come outside, he tries to shake the officer’s hand, and the officer gets angry, and starts yelling at him not to touch him, pulls out his taser, and orders him outside. Jones says he did nothing wrong, and the officer says you’re real close to doing something wrong.

An officer is not allowed to detain someone, or order them around, unless he has evidence that they’ve done something wrong. Jones’ refusal to come outside isn’t improper because the officer doesn’t have evidence of a crime to have the authority to order him outside. People like to say you don’t have to consent to officers if you’ve done nothing wrong, but it results in poor Mr. Jones getting tased when he eventually runs away from the officers.

Something that’s nearly as bad as the unnecessary violence is that the officers mislead in their report to try to justify their actions. They indicate in their report that Jones did not seem to understand what they wanted him to do. The video is clear that he understood, but did not consent to following them outside or being searched. Then the officers say that when he ran back inside, he turned around in a “defensive posture with his arms raised,” and “a closed fist as if he was going to strike” the officer. The video clearly shows the officer is lying, as Jones is simply trying to evade the illegal arrest. The irony is that experienced criminal attorneys will recognize the “defensive posture” language as a phrasing that cops frequently use to justify use of force. In this case, thanks to the body-worn cameras, the truth is exposed. NBC-2 uploaded the video here, and it is somewhat graphic.

The case went to court, and on a motion to suppress, the state could not show a lawful detention, and the evidence was suppressed, leading to the case being dropped. Officers are allowed to talk to people in a consensual encounter, but they can’t just order people around who aren’t breaking the law. This should be a teaching tool, and body cams will help improve police and citizen interactions. In the meantime, this poor police work will probably lead to Mr. Jones getting paid. Not only that, they found substantial amounts of drugs on him, but he cannot be prosecuted due to the poor police work.

Fort Myers Pays Nate Allen $440,000 for Wrongful Arrest

Nate Allen

The city council yesterday finalized a settlement of nearly a half-a-million dollars for NFL player Nate Allen for his wrongful arrest. (While he was detained, and ultimately released without a formal arrest, it was easily a ‘de facto arrest’ due to time and totality of the circumstances.) It was enough to make the news, especially since he is a professional football player. Even though he was released that day, the suit was worth a lot more because of the demonstrable negative effects it had on his NFL contract situation. Worse, the FMPD chief at the time, Doug Baker, was caught lying in the investigation into the cover-up, leading ultimately to his termination. The entire incident was a black eye on the city. To the council’s credit, they recognized the wrongdoing, and have repeatedly apologized. Neither the chief, nor the detective on the case are still with the city. Sawyer Smith handled the case for Allen, and tells me he is as nice a guy you could ever meet.

Sadly, the lessons are still being learned. Just a few months ago I encountered a case where the FMPD utilized the same faulty show-up procedure to identify someone, in spite of the pending lawsuit. The state ended up dropping the case. Meanwhile, the 2-year anniversary of Zombie-con has passed with no arrests, charges, or even named suspects. And just last week, more details have come out about the officers suspended after the Freeh Report. FMPD has a long way to go…

Man Gets $37,000 after Doughnut Arrest

Daniel Rushing

Daniel Rushing was arrested in 2015 when an officer mistook the glaze from his Krispy Kreme doughnut for Crystal Meth. He bonded out after 10 hours, even though he should not have been locked up at all. He sued the maker of the field test kit, as well as the city, who failed to properly train their officer on how to use the field test. They settled this week for $37,500. That’ll buy Mr. Rushing a lot of doughnuts!

This kind of thing happens more often than you would think. I saw a guy get arrested for patchouli that the officer said tested positive for heroin. A man in Ovideo was recently held for 90 days until a lab test proved that his drywall was not cocaine. He may be seeking an even more substantial lawsuit, that the taxpayers are going to end up footing. And to compound his problems, he may not be able to get the arrest record expunged because he has a prior history, which prohibits expungement under current Florida law.

News of this settlement comes as the City of Fort Myers seeks to finalize a settlement for wrongly arresting football star Nate Allen: which crimcourts will be following closely.

FMPD Sergeant Fired for Lying: More Details Emerge

The News-Press published a thorough article detailing the latest corruption concerns at the Fort Myers Police Department. Former FMPD Sergeant Eric Gutridge was fired last week, having been suspended since February. He was fired for lying on official documents and lying under oath during court proceedings. Although lying in court proceedings is perjury, and giving false information in a police report is also a crime, there are no indications that charges are being considered. Gutridge was also accused of planting evidence, but there was not enough evidence to prove that allegation. Gutridge reported, and reiterated, that the 911 caller in a case was unknown, when in fact it was a confidential informant he had worked with before, and approached him for financial compensation for sending the tip.

The city has not released information about other officers that were suspended earlier this year in light of discoveries made by the Freeh group in their review of FMPD. The News-Press and several criminal defendants have been trying to get the City to release additional information regarding police corruption, and the city has spent thousands of dollars on outside attorneys to fight the release of the appendixes of the Freeh Report. The city also appeared in the criminal case to fight the release of the additional pages, and the court has not yet ruled on that. The city may end up being on the hook for a lot more money, as the suspect in the case that led to the Gutridge firing was held incarcerated for about a year and a half before the US attorney’s office dropped the case, and to their credit, reported his misdeeds to city authorities. This comes on the heels of another FMPD officer Detective Donald Weathers, being fired for lying and misusing informants. And there may be residual effects as attorneys review their files and look at other cases in which Weathers and Gutridge may have handled.

FHP Troopers told to Write More Tickets – Allegations of Quotas

The Tampa Bay Times has uncovered an email from an FHP supervisor instructing his troopers to write more tickets. “The patrol wants to see two citations each our…” reads the email from Major Mark Welch. He and FHP deny this is a quota, which would be in violation of state law: but this is a quota. He sets a minimum number of tickets he expects his underlings to write per hour. That’s exactly a quota. The fact that he says “This is not a quota” does not redefine what a quota is.

 

To make matters worse, there may be benefits tied to the number of tickets officers write. Troopers in Miami-Dade were given additional weekend passes when they met ticket-writing goals earlier this year. FHP ended that policy when it was exposed. It seems this new quota is tied to ‘SOAR’, an overtime program, though that program appears to incentivize them to work more hours, not to inflate their ticket numbers. Big brother is most definitely watching.

Inmates Are Still Dying at Charlotte County Prison

Antonio Kirkland

A spate of troublesome deaths has continued this year at Charlotte Correctional Institute. Most recently, it was just revealed that inmate Antonio Kirkland was reported dead on July 10, 2017. The report was released Thursday, with no details on how he died. News-Press reporter Melissa Montoya was able to extract a telling quote from FDLE spokesperson Jessica Cary, who pointedly stated, “We don’t normally investigate deaths of natural causes.” Kirkland was serving life in prison for armed robbery, in addition to attempted murder and other charges in Pinellas.

Cesar Ruano

Kirkland’s death is the second to be investigated this year at CCI. In May, a 37-year-old inmate named Cesar Ruano, a.k.a. “El Diablo”, was found dead, and no information was released to date. Ruano was serving life in prison for a first-degree murder out of Miami-Dade. The News-Press article indicates there was an investigation for this death, and as Ms. Cary pointed out, they don’t usually investigate deaths of natural causes. While FDLE and DOC have not released any information, a person claiming to be Ruano’s brother commented on a Facebook post, claiming that he died in solitary confinement, crying for help.

There was another inmate death earlier this year, making Kirkland’s at least the third at CCI this year. 48-year-old Michael Diffenderfer passed away suddenly in April at CCI. He had been serving consecutive life sentences for murder and armed robbery from Palm Beach. The cause of death in his case has been reported to be natural: pulmonary embolism as a result of deep vein thrombosis. That’s according to Diffenderfer’s ex-wife… FDLE did not publicly release any information regarding that death either. We don’t have any suggestion that his death was suspicious, but no official word from FDLE, either.

The News-Press says that FDLE is still investigating three deaths from last year (2016), and another from 2015. Including the two from the last couple months, that’s six troublesome cases that are apparently still under investigation. That doesn’t include the 2014 death of Matthew Walker, who’s death was determined to be a homicide at the hands of correctional officers, but for which the State failed to secure an indictment, due in part to a botched investigation and/or cover-up. That means more than 10 criminal probes in the last few years. Coverage of that case, and others, garnered at Pulitzer Prize for the Charlotte Sun. But even their award-winning writing has not led to answers for the ongoing spate of inmate deaths. Nor has it brought an end to the growing body-count piling up at Charlotte Correctional Institute.

More coverage of Charlotte Correctional Institute is worth reading

LCSO Deputy Fired for Excessive Force

This came out a couple days ago, but I haven’t had a chance to write it up. A deputy with the Lee County Sheriff’s Office was dismissed after a complaint about excessive force. The internal affairs investigation actually cited him for several things, including not being forthcoming in his report of the incident. He pulled a woman out of her car at gunpoint, while the car was still in gear, and she ended up being dragged along side it for a moment. Fortunately, nobody was hurt.

While this isolated incident pales in comparison to the recent wave of suspensions after the city-commissioned audit of Fort Myers PD, it is nonetheless disturbing. The encouraging thing is that we are not talking about a cover, rather that the deputy had consequences for his actions. Sheriff Mike Scott has shown time and again that he will act swiftly to punish misbehavior to protect the reputation of his department, particularly when there is any indication of dishonesty from his team. That’s the first step in building a strong reputation and confidence in the community.

Also troubling is that the woman’s attorney indicated to NBC2’s Jaclyn Bevis that there were not made aware that another witness had come forward, nor that there was an internal affairs investigation on the case. That sort of information is known as “Brady” material: which must be turned over to the defense. The failure to turn that over in discovery is likely a violation, and could result in the conviction being thrown out. The woman involved did get a reduced charge from DUI to reckless driving, which was already probably due to the arresting deputy’s aggressive behavior.

Fox4 has uploaded the raw video:

Major Allegations of Misconduct at Naples PD

The Naples Police Department is currently fighting a Federal lawsuit for police misconduct, and the allegations that have come out in the course of the case are more and more shocking. In an affidavit filed Monday, a former Naples officer stated that he and his fellow officers were “constantly pressured” to increase numbers for arrests, stops, and citations, and that supervisors would chastise officers who did not “produce statistics”. The affidavit makes it sound as though the department had a de facto quota system that encouraged officers to be reckless.

The lawsuit claims over a million dollars in damages against former Officer Kyle Bradshaw, who has since left the department. The city was dismissed from the case, but could still end up on the hook for at least part of the damages Bradshaw could be facing. Bradshaw’s attorney contends he was just doing his job. Naples police, including Bradshaw, initially responded to Bayfront for a noise complaint, and things escalated quickly. There is video of the incident, which has been played to the jury for dramatic effect for the beating allegedly given to the suspects. The trial continues in Fort Myers this week.