News reports have surfaced this week that people are accusing FMPD officers of an improper, invasive search. Michael McDonald was pulled over by officers, who say they smelled a strong odor of marijuana. They sought to search Mr. McDonald, and gave him a pat down. Officers indicate they felt something that felt like a baggie, and that when they asked McDonald about it, he became “very uncooperative and hostile” toward officers. However, they also indicate that he admitted that it was a bag containing marijuana.
Mr. McDonald then agreed to retrieve the marijuana, and handed it to officers. They patted him down again, and felt something else concealed in his pants. And that’s where things started to go really wrong.
Officers say McDonald did not respond to their commands, They say he tried to kick an officer in the face (leading to a felony charge for resisting with violence). Officers literally held his legs down. They physically spread his legs and cut his underwear to recover baggies containing heroin and cocaine from inside his undergarments. He alleges that they further probed his rectum with a finger during the search.
When NBC-2 first aired the story, they included a response from Chief Eads, who indicates he has seen both the cell-phone video, and the officer body-cam videos and that no cavity search occurred. I said, hey, that’s a great reason for officers to wear body-cams… so that if they are accused of something they didn’t do, the video evidence can exonerate them. I think body cams will be more of a help to law enforcement than a hindrance.
Then, NBC-2 reported the following day that they have made a public records request for the videos, but the police department has refused to release them. That’s a bad look, FMPD. If the video shows what you say it shows, then RELEASE THE VIDEO!
FMPD told NBC they weren’t releasing the video because there is an ongoing criminal investigation (which is an exception to the Sunshine Laws on public records). That sounds at least a little questionable, as Mr. McDonald was arrested and charged that day: which was 2 weeks ago. It sure sounds like they are claiming that an investigation is ongoing, to avoid releasing the video. Again, bad look FMPD. If the video exonerates your officers, release the video! Don’t make excuses.
Seriously, the news story might be over by now if the video proves that the officers did nothing wrong.
There still may be an issue with the way the search was handled, even if there was no cavity search. While an odor of marijuana gives officers sufficient probable cause to conduct a search, and search that involves removing or arranging clothing to “permit a visual or manual inspection” of private areas is governed by Florida’s strip search statute,Fla. Stat. Sec. 901.201. That statute says that such a search must be conducted “…on premises where the search cannot be observed by persons not physically conducting or observing the search…” The fact that such searches are being performed in public, on the roadside, in full view of people with camera phones, does not sound like it is in compliance with the statutory strictures. Of course, we’ll have a better idea when FMPD releases the video.
NBC has also reported on a similar incident involving an allegedly invasive search, also on video, just a few weeks prior and only a short distance away from Mr. McDonald’s search. As a criminal law practitioner, I have seen cases where officers just grabbed people shorts and pulled them down on the side of the road, so there may be a policy training issue with local law enforcement (it is not limited to FMPD). Or maybe not. Maybe they have done nothing wrong, as the chief said. Many of these questions will be answered when they meet their statutory obligation under the Sunshine law to release the video. If it’s bad, don’t cover it up. If it exonerates the officers, the city should want the video released!