For the third time, a Yolo County Jury has hung on charges against Ernesto and Fermin Galvan. But this time it was different. The Galvan brothers, who have been prosecuted since 2005 for resisting arrest and battery on police officers, in the two previous trials had seen 11-1 splits in favor of the prosecution. That prompted the DA to refile charges twice and continue pursuit of the case.
However, this time it was very different. Fermin Galvan, who was the less active participant and the brother less badly beaten by the police, was nearly completely acquitted. He was acquitted of the misdemeanor charge of resisting detention by then-Officer Jim Reeder, who dropped him to the asphalt with a leg sweep. The jury hung, 11 to 1 in his favor on the misdemeanor charge that alleged he had caused interference or delay to Officer Donald Schlie’s detention of his brother.
Ernesto Galvan, badly beaten, with permanent injuries including a 17-mm indentation to his skull, has been charged with two felony counts, one each against Officer Schlie and Officer Justin Farrington, of resisting detention/arrest, and with two misdemeanor counts of battery on the same two officers. The jury could not reach a verdict on any of these counts, and were hung 7 to 5 to acquit on all four counts.
This is a marked change from the first two verdicts and it puts the prospects of trying the case for a fourth time in serious doubt. There will be a hearing on Monday, where defense counsel will move for dismissal. The key question is what Judge Tim Fall views as their prospects for prevailing at this point.
The brothers have been charged with resisting arrest and battery during a 2005 incident with police officers in West Sacramento. The altercation occurred on June 14, 2005, around 3:30 am on Riverbank Road along the levee in West Sacramento. Both brothers were injured and hospitalized, with Ernesto Galvan’s injuries being the most severe, resulting in permanent damage and disfigurement.
The reasonableness of the officers’ use of force, as well as of Ernesto’s responses, were crucial to determine whether the police used excessive force, as well as whether the Galvans’ actions constituted resisting arrest, obstructing officers or battery. The People have the burden of proving, beyond a reasonable doubt, that the officers were lawfully performing their duties and not using excessive force.
In her closing arguments on Tuesday, DDA Carolyn Palumbo argued the reasonableness of the officers’ actions and the appropriateness of their use of force. She insisted that there had been justification for detention and arrest, that Officers Schlie, Farrington and Reeder followed protocol, and that the Galvans would not have been harmed if they had complied with police commands.
While also attempting to argue that the officers even showed restraint by not killing the Galvans, Ms. Palumbo reiterated that their injuries do not reduce their guilt.
Defense Attorney Anthony Palik, representing Ernesto Galvan (as he did in the first mistrial, in 2007), first reviewed the concepts of presumption of innocence, reasonable doubt and the standard of proof being “beyond a reasonable doubt.” He described that the “objective standard of reasonableness” should be based on common sense, and that officers’ stories should not be taken at face value if there is no scientific evidence to support them.
Further, in addition to pointing out several inconsistencies in the testimonies of prosecution witnesses, he conjectured that it could be possible that none of the descriptions by the several law enforcement witnesses were even true.
He argued that if there is no evidence to back up their stories, and their stories have contradictions, then there is reasonable doubt.
Mr. Palik cited testimony from the defense’s one witness, expert Dr. Steven Gabaeff, which suggested that Ernesto’s minor injuries to his extremities (mainly arms and hands) were more consistent with being handcuffed, and that the extreme injuries to his skull could reflect lack of any defensive movements by his arms.
Deputy Public Defender Martha Sequeira, in her closing argument on behalf of Fermin Galvan, proffered the belief that we want to be able to respect and trust police officers, but at the same time we must not be biased and ignore any abuses. She said that the jury represents the checks and balances, to weigh conflicting evidence and to arrive at truth and justice.
She argued that they must question whether the detention of Ernesto was legal in the first place, and she countered several points offered by the prosecution to justify the initial detention.
Ms. Sequeira questioned whether police use-of-force expert Don Cameron was unbiased, and she suggested that the officers erred in their behavior, and then tried to justify their actions.
She countered a reference to a pending civil trial as motive for the Galvans to claim excessive police force by saying that was only a distractive tactic, and also that the prosecution could equally have an agenda. The civil trial was filed in federal court in 2006, and charges West Sacramento, its police department and specific officers with multiple charges, including civil rights violations and battery.
The Vanguard spoke briefly with Deputy DA Palumbo after the verdict.
She said that she appreciated the diligence and service of the jurors, as well as the system itself. As already indicated, she is scheduled to reveal on Monday the DA’s intentions about any further action on the remaining 5 counts.
The Vanguard will have more extensive coverage of this case next week.
At the outset of this trial, Deputy DA Ryan Couzens remarked, in the Gang Injunction Trial, that 22 of 24 members of the jury had previously voted to convict the Galvan brothers, to which he asserted that they were de facto guilty. Judge Kathleen White did not buy into that explanation and reminded the prosecutor that one needs all 12 jurors to convict.
This trial marked a clear change in the perception of this case. One of the biggest differences was the effectiveness of Deputy Public Defender Martha Sequeira, who along with Anthony Palik was able to lay out a case that the jury could relate to. They were able for the first time to show the officers’ responses to be unreasonable to the situation that they were confronted with.
Ms. Sequeira basically got her client fully acquitted. She was able to show that Officer Reeder overreacted to a non-threatening Fermin Galvan. She got the jury to see Fermin Galvan as a non-threat, as he was 30 feet from the altercation and was neither participating nor shouting towards it. Yet Mr. Reeder attempted to apprehend Mr. Galvan, who freed his wrist from his grasp before being taken to the ground, suffering injuries. He was acquitted on that charge.
The other charge, which finished 11-1 to acquit, stemmed from an earlier point where Mr. Galvan had moved towards his brother and Officer Schlie quickly ordered him to back away before pushing him away. At that point, he stayed away. The prosecution tried to argue that this was delaying an officer, but the quick injunction of the order and use of force by Officer Schlie may have led all but one of the jury to discount that explanation.
But more than that, it was Ms. Sequeira’s argument about the threat that the officers should have reasonably felt from Ernesto Galvan, that may have resonated with the jury.
Officer Schlie’s contention was that Ernesto Galvan appeared under the influence of a controlled substance and also he was putting his hands in and out of his pocket.
To back up the contention of under the influence of a controlled substance, the officer stated that Ernesto Galvan was sweating a lot on a night that was not particularly hot and that he wouldn’t make eye contact. However, none of the symptoms that he mentioned are official symptoms that trained officers would be looking for, according to earlier testimony.
Ms. Sequeira pointed out that Ernesto was never charged with being under the influence, which is a crime and would have anchored the resisting arrest charge. Ms. Palumbo tried to explain away the lack of a charge, arguing that they did not have time to administer a blood test. But the hospital certainly would have, particularly in the course of doing surgery. What testing was done in the hospital was inconclusive and was deemed of no consequence to the immediate surgery, and so was, in court proceedings, excluded from evidence.
Moreover, the argument about his hands in his pockets was not backed up by other facts. Officer Schlie pointed his partner to the other car down the road rather than asking for assistance with a possibly-armed man. He never drew his weapon, nor ordered Mr. Galvan’s hands to be shown. Instead he walked next to him, almost casually. In short, Ms. Sequeira was able to show to the jury that Officer Schlie’s actions were inconsistent for dealing with a subject he thought reasonably could be armed.
There were other problems with the officers’ stories, including the fact that Mr. Galvan was beaten so badly he lapsed into a coma and yet they argued he continued to resist. There was the testimony from Officer Reeder that Ernesto tried to kick him with his shoes when he was on the ground, except that the other officers said he had kicked off his shoes almost from the start.
There is also the problem that the injuries sustained by the officers, which include some pretty superficial cuts and a single bruise, are not consistent with an out-of-control man kicking and punching officers repeatedly.
In the end, there are just too many questions that will never be resolved to get a clean verdict in this case. Given the severity of the injuries suffered by Ernesto Galvan, the fact that he is not facing prison time in this case, and the three mistrials, it makes little sense to continue trying this case.
However, there is the pending civil suit that may weigh into whether the DA charges this case for a fourth time. At some point though, I think the DA needs to cut its losses. Now would be a logical time to do so.
—David M. Greenwald reporting
“In the end, there are just too many questions that will never be resolved to get a clean verdict in this case. Given the severity of the injuries suffered by Ernesto Galvan, the fact that he is not facing prison time in this case, and the three mistrials, it makes little sense to continue trying this case.”
What is the point of trying this case over and over again? It is costing the tax payers for the prosecutor, the public defender, the judge, the court clerks, bailoffs, etc.
And now the jury is even less convinced of guilt. Stop the madness.
FAI: “What is the point of trying this case over and over again? It is costing the tax payers for the prosecutor, the public defender, the judge, the court clerks, bailoffs, etc.”
Bc of the pending civil suit. If the DA cannot get a conviction, then it is much more likely the defendants in this case will be successful in their civil suit – which would be a bad mark for police in this case…
“Bc of the pending civil suit. If the DA cannot get a conviction, then it is much more likely the defendants in this case will be successful in their civil suit – which would be a bad mark for police in this case… “
So to be clear – the multiple trials are less about justice and more about face saving for some police officers (and the city they work for) who beat the crap out of somebody.
This case demonstrates the DA’s organization has a bigger budget than they need. While social programs in the county suffer, the DA’s office has money to burn. Do we continue to pour money into a system (entire US view) that incarcerates more people per thousand than any other country in the world or do we move some of that money back into things like education.
Here are some comments from Daily Disappointment (AKA: Daily Dem)
Actually from what I have read I think it is bull that they are being prosecuted and I think it is a terrible waste of tax payer money that the DA keeps trying these victims. Obviously, in this hangtown of Woodland, we have enough citizens are are concerned with the lack of evidence. These men had not been committing a crime so it does not make sense that they attacked the officers.
In quotes is states, “lots of criminal activity”, I figure they print it like that because it’s not really factual. They have to beef up this 3rd trial as though these officer’s were in the right. THIRD TRIAL! They (officer’s) hate being caught doing dirty, criminal activity. Serve and protect is out the window in Woodland. Now, I can’t say truthfully about all, but you know there are dirty cops/sheriff’s in this city.
Mr. Bogey, the solution would not be to let them go free, if they indeed attacked the cop. However, the cop’s should not go free if they are the attacker’s, as well. Justice should be served, do you agree?
This case and criminal charges is about protecting the city from a lawsuit. Plain and simple. If they are convicted the civil suit goes away.
Very bad case from the start. Way too much money wasted by DA Reisig. Of course Reisig will blame the jury or the Judge or the cops or the Defense…..he is always full of excuses and blame.
Same story, the DA runs a muck with no oversight and no accountability all at tax payers expense.
Why isn’t anyone asking why a DA is so incompetent that he cannot tell the difference between a case he can get a conviction and a case he can’t win?
How many bites at the apple does he gets? Perhaps if Reisig tries this case 10 more times, people will get tired and just vote guilty to stop him from wasting so much time and money.
– Maybe people are finally getting wise to DA Reisig’s stunts….
Rabbit,
That could be. How many of those comments were your own?
“”Bc of the pending civil suit. If the DA cannot get a conviction, then it is much more likely the defendants in this case will be successful in their civil suit – which would be a bad mark for police in this case… “”
That’s really not the DA’s problem is it? Perhaps instead of protecting the cops in this case, they should be prosecuting them?
dmg: “That’s really not the DA’s problem is it? Perhaps instead of protecting the cops in this case, they should be prosecuting them?”
There tends to be a very symbiotic relationship between local police departments and the local DA. As such, they tend to help each other out – which can be a built in conflict of interest when the police do something wrong or vice versa. Another imperfection in the legal system…
RR: “These men had not been committing a crime so it does not make sense that they attacked the officers.”
Had the defendants obeyed the officers and kept their hands out of their pockets, and not resisted arrest, the entire matter may not have happened – unless you believe the West Sac police randomly accost passersby for no reason…
Alphonso: “So to be clear – the multiple trials are less about justice and more about face saving for some police officers (and the city they work for) who beat the crap out of somebody.”
If they first two trials had resulted in more even splits for conviction/acquittal, I might agree w your assessment. But remember, the first two trials were close to conviction, w only one or two jurors dissenting. That would make the DA strongly believe he could eventually get a conviction, an important conviction bc the West Sac Police Dept’s reputation is involved. Now the tide is turning the other way towards acquittal. It will be interesting to see what the DA does…
“unless you believe the West Sac police randomly accost passersby for no reason… “
I believe the police in this case unnecessarily escalated a incident into a confrontation, I believe regardless of how it started that they beat the guy much longer than they needed, it is hard to believe that a man with a 17 mm dent in his head who fell into a coma was still enough of a threat that they had to continue to hit him with a baton even after he was handcuffed.
I’m not convinced the guy really was taking his hands in and out of his pocket. The officer’s response if he truly believed there was a weapon would have been to draw his weapon and order his hands where he could see it. Instead the officer basically walked next to him attempting to start a conversation.
In other words, I don’t buy the police’s account, it is not consistent with how they reacted if they really believed the guy was armed.
To dmg: You probably would get no argument from me that the police unreasonably escalated the incident, and could have handled it in a way that such physical violence was not necessary. However, I believe the defendants had to have done something that set the West Sac Police off in the first place – in other words they did not fully cooperate in the eyes of the law.
I don’t find it hard to believe a citizen would take their hands in and out of their pockets if nervous – it is somewhat a natural reaction, especially if the person is in the habit of putting their hands in their pockets. Once the officer told the defendant to keep his hands out of his pockets, I could visualize a scenario where the defendant was just in the process of putting his hands back in his pocket and could not help himself bc it was just a habit. Or he was so nervous he did not process the police officer’s order not to put his hands in his pocket. The police, fearing the defendant might be going after a weapon, would then grab the defendant’s wrist. The defendant, feeling the arrest was totally unfair or just a natural reaction of defending himself from what he thought was excessive force, fought back by hitting the officer – really escalating things.
So my comment has always been to all of this, if anyone is stopped by a police officer, COOPERATE! The police have the upperhand, the gun, the authority, whereas the average citizen is at a distinct disadvantage. It is absolutely foolish to resist – it is not likely you will win the encounter.
Just to put this in context, many years ago I had a minor car “accident” when I was driving w my 3 little children in the back. I was rolling up to a stop light in Sacramento and nudged the car in front of me. The driver of the car I nudged got out and looked at his back bumper. I also got out to check to see if I had done any damage and to apologize. There was not a mark on his car, nothing. Yet he went ballistic, said he was a police officer (had no ID), and ordered me to pull over to a nearby parking lot. He then called his police buddies to come as back up. I was so frightened of him, I locked myself in the car w my children.
When his police buddies arrived in a police car, I got out of my car and explained the situation, telling them how afraid I was of their friend. They listened politely, asked lots of questions. Then they looked to see if my kids were wearing seatbelts – to determine if they could give me a ticket that way to pacify their friend. All of my kids were wearing seat belts, so that did not work. I was not issued a ticket, and was ordered on my way. As I left, I saw the enraged officer whose car I had nudged pacing off where the cars had been at the intersection when the “accident” happened, stopping all traffic to explain to his pals what had occurred. This guy was completely out of control, gesticulating wildly, pacing like an irate bull.
Several weeks later I received a traffic ticket in the mail – for driving too fast for the conditions! I paid the ticket – not wanting to tangle with the Sacramento criminal law system. I had successfully fought a traffic ticket once before in my life, but this one seemed wiser to let go. This happened to me after having recently moved to this state. Yet I have had other encounters with the police out here, and they have gone out of their way to be extremely helpful. So as w anything else, it is a mixed bag.
Elaine: I’m sure they didn’t cooperate at the beginning. There are probably a number of factors to explain that including a language barrier and maybe a mistrust for law enforcement. But until they are detained by the police, they do not have to cooperate. The question is at what point were they detained and at what point did they resist. And were they lawfully detained.
The problem is that the police are clearly if not lying in this case, then attempting to paper over their actions. There are too many inconsistencies here.
To me the DA should have prosecuted the police, not the defendants.
DMG, “But until they are detained by the police, they do not have to cooperate. The question is at what point were they detained and at what point did they resist. And were they lawfully detained.”
That’s the crux here, when were the two “detained.” If the officer first notices signs of criminal activity upon contact and/or during his subsequent investigative observations which are consistent with criminal activity/behavior (location, time, s exhibiting symptoms of illicit substance use, etc), thus giving them articulable suspicion, then they can be detained.
As you and Elaine know, it’s highly subjective and the officer doesn’t have to state to the suspect(s) verbally “you are now detained…keep your hands out of your pockets.” Conversely, a “suspect” can be legally detained even though the officers involved swear the individual was not being detained…it’s the “what would a reasonable person feel or think considering x, y and z” standard.
An officer can’t just walk up to someone and put their hands on them or detain them without it. IF the officer commanded him to keep his hands out of his pockets…that’s a detention.
It could have been that the officer was just fishing and when the one brother kept putting his hands in his pockets the officer decided to grab them…for whatever reason…and there was never any sweating, but the officer was fearful of what the brother may have in his pocket. Would that constitute as?
Did the officer activate any of his lights or siren?
Did the officer activate any of his lights or siren?
It is not clear when that occurred. At some point it did but we’re not sure when exactly.
ERM, “I don’t find it hard to believe a citizen would take their hands in and out of their pockets if nervous – it is somewhat a natural reaction, especially if the person is in the habit of putting their hands in their pockets. Once the officer told the defendant to keep his hands out of his pockets, I could visualize a scenario where the defendant was just in the process of putting his hands back in his pocket and could not help himself bc it was just a habit.”
To help avoid that “natural reaction” a person with rattled nerves might have, putting their hand (s) in their pocket, the officer should have commanded that his hands be placed upon the steering wheel and/or dash, depending on whether the driver or in front passenger seat.
Less likely to fall into that “habit” when they aren’t at their sides/on lap and increases the amount of time the officer has to react if the suspect were to go for his pockets…for a weapon, for example. All just my opinion…
ERM, “So my comment has always been to all of this, if anyone is stopped by a police officer, COOPERATE!”
My sentiments are the following, first ask if you’re being detained and if the officer responds with “yes”…ask why. If detained and following the explanation of the detention, it’s best to say and do nothing.
Do not allow them to search your person possessions or enter/search your home/vehicle. If the LEO has cause to search your person, possessions, home or vehicle they don’t NEED to ask you, so don’t give them permission…that mey seal your fate.
If they do search your person, possessions, etc, very simply make it state that they are doing so without your consent several times…regardless of whether or not the officers think they don’t need it at the time.
DMG, “It is not clear when that occurred. At some point it did but we’re not sure when exactly.”
Okay, well if that happened prior to the officer making contact with the passengers that would matter. At the moment the officer commanded the brother to place his hands somewhere and/or keep them out of his pockets, that would be a detention. So, if the officer has zero AS leading up to that, I think the detention would be unlawful.
It happened after they made contact and before the third officer arrived.
The threshold for as isn’t extraordinarily high. The “high crime area” and time of night (early morning, actually) are given heavy consideration.
On the high crime area, the defense did a good job disputing the notion.
First, the officer admitted no crime statistics for designation.
Second, he had only arrested less than a handful of people in the previous five years in that area.
Another officer said all of West Sac was a high crime area and Sequiera was able to turn that into a general indictment that cops could act with impunity anywhere in West Sac. I think that point may have resonated with the jury because she was able to flip it up on them.
“unless you believe the West Sac police randomly accost passersby for no reason… ”
This is exactly what you should believe. The DA’s Gang Injunction give the cops the right to randomly approach any Mexican, anyone wearing red, anyone they might believe is a gang member. Which is exactly what happened to the guy shot in the back and killed in Woodland. This guy did nothing but look like a possible gang member and now he is dead. Same excuses, high crime area, high gang activity area, his hands were in his pockets…
S Man said it is very to justify starting a contact and then when it develops into a bad situation, the cops just claim the same justifications. Not much difference than a time cops could stop anybody just to ask for their papers……
[quote]Those who do not study or remember history, are destined to repeat it.[/quote]
DMG,
“First, the officer admitted no crime statistics for designation.”
Still, the officer’s ignorance as to the actual crime data of that particular area doesn’t preclude the area’s reputation as being one that is “high crime” from being the prevailing “truth” among law enforcement in West Sacramento. Actual crime stats aren’t necessary for the reputation or conventional wisdom to exist, right?
“Second, he had only arrested less than a handful of people in the previous five years in that area.”
Which shifts was he working and what beat? If he had spent the majority of his time on another beat in the past 5 years or patrolling the area in question at a time of day/night when criminal activity is relatively low that may explain why. Despite the officers seemingly few arrests in that area, the area can still be considered “high crime.”
“Another officer said all of West Sac was a high crime area and Sequiera was able to turn that into a general indictment that cops could act with impunity anywhere in West Sac. I think that point may have resonated with the jury because she was able to flip it up on them.”
Nevertheless, the “high crime” component alone is not sufficient to warrant a detention, it’s but one factor among the totality of the circumstances.
Let me point out, regarding the Galvan’s failure to comply with the alleged commands to remove hands from pockets or put their hands up, it is not clear how much English either brother speaks (enough to say, as alleged by Officer Schlie, “we’re ok,” “we’re brothers,” but not enough to be in trial without constant interpreters).
It is not clear if Officer Schlie made his commands in Spanish…in the last trial, it appeared that these commands were only in English, but in this trial he stated that they were first in English (presumably because Fermin had answered his initial casual inquiries in English), but then he said something like “mano sorribes,” which he thought meant to take your hands out of your pockets. There was no response, so he grabbed Ernesto’s left wrist the next time it was on its way into the pocket.
RR, “The DA’s Gang Injunction give the cops the right to randomly approach any Mexican, anyone wearing red, anyone they might believe is a gang member.”
Law enforcement officers can contact anyone on a public street for no good reason and ask to speak with him or her. It’s called a “consensual encounter” and the contacted individual(s) may decline the officer’s request to speak with them, for example.
For the LEO to detain the individual(s) the officers must have more than just a hunch (ie articulable suspicion).
“Which is exactly what happened to the guy shot in the back and killed in Woodland.”
Coroner’s report indicated that the shot entered his right rear shoulder and exited out of his lower left cheek as if passing through his body sideways, which they deemed consistent with the slashing motion, using his right arm, from right to left that the deputy claimed he made.
I guess that could be considered the back, but it would seem that the trajectory was such that he wasn’t shot in the back in the sense that he was simply running from the LEO. IOW, there’s a difference between simply running away vs turning around to fend off the LEO’s by making a slashing motion with a knife and turning to run away.
“Same excuses, high crime area, high gang activity area, his hands were in his pockets…”
Totality of the circumstances and it looks like there’s quite a bit of precedent there.
“S Man said it is very to justify starting a contact and then when it develops into a bad situation, the cops just claim the same justifications.”
I’m not sure what you’re trying to say here. The fact is the cop has every right to approach the vehicle in a public space, which is what happened here. If at some point he developed articulable suspicion, he can detain them to investigate further and to protect himself.
highbeam,
” it is not clear how much English either brother speaks”
After all these trials, we don’t know their level of proficency?
Not clear to the observer, not plain in the testimony.
And the defendants have exercised their Constitutional right not to testify (almost a “given” procedure, as we referred to in the Valenzuela report). It has certainly not been clarified to this observer, by either side, that the defendants did or did not understand the commands. Which I found to be also at question in the Gutierrez-Navarro shooting.
Highbeam,
“Not clear to the observer, not plain in the testimony.”
Neither defense attorney raised the issue of whether or not the brothers could have comprehended the officers’ commands due to their inability to understand English? I find it hard to believe that this was not addressed (if they had difficulty understanding English).
If it’s true, per the officer’s testimony, that the one brother kept putting his hands back in his pocket after the officer commanded to him that he keep them elsewhere/remove them…that may serve as an indicator that the one brother understood to some degree, if not entirely.
“Which I found to be also at question in the Gutierrez-Navarro shooting.”
Agreed.
Interesting discussion about the stop and detain issue. What so many people do not realize is that the police have a lot of power over the average citizen. Police can stop and try and talk to you at any time and anywhere. If there is any “articulable suspicion” (a very loose subjective standard, that in almost every case can somehow be met by law enforcement), a policeman can then detain the person. Once there is a detention, if the person detained makes one wrong move (like putting their hands in their pockets), the entire encounter can escalate in a heart beat to an ugly confrontation that probably will not end well for the person detained.
I’m going to give you a very concrete example of this. Remember 21 year old Monica Lewinsky? 17 federal officers descended on her in the middle of the street to question her. They insisted she accompany them to a hotel room for questioning. They grilled her for several hours in the hotel room. When Kenneth Starr was questioned about the legality of the detention, his disingenuous comment was “she was always free to leave”. Now do you think a young naive 21 year old girl would have even the remotest idea she had the “right to leave” under those circumstances? Give me a break!
Even dmg is conceding here the Galven brothers did not cooperate. But had they cooperated, this whole incident probably would have had a much better outcome – unless the West Sac Police are accosting random members of the public for pure fun (not likely). The Guitierrez case is far more troubling. The guy was walking down the sidewalk minding his own business in the middle of the afternoon. He had just come from the DMV. There does not appear to be any earthly reason the police stopped him (it was not at night, there was nothing suspicious about what he was doing walking down a public sidewalk) – other than he was a Latino. This is a whole different ball game in my mind…
SM: “My sentiments are the following, first ask if you’re being detained and if the officer responds with “yes”…ask why. If detained and following the explanation of the detention, it’s best to say and do nothing.
Do not allow them to search your person possessions or enter/search your home/vehicle. If the LEO has cause to search your person, possessions, home or vehicle they don’t NEED to ask you, so don’t give them permission…that mey seal your fate.
If they do search your person, possessions, etc, very simply make it state that they are doing so without your consent several times…regardless of whether or not the officers think they don’t need it at the time.”
If you ask why you are being detained, do the officers have to answer you legally? I don’t remember from my crim law courses that they do. I would be afraid if I asked, it would irritate them.
Why do you say that allowing the police to search may seal your fate? Because you have something to hide, or bc they may plant something? I’m not sure of your reasoning here. Also, if they bring in a dog to sniff your car for drugs, I think they have the right to search your car with/without your permission.
If they start to search, what would be the purpose of your telling them they did it w/o your permission? I would think that would just irritate them all the more, and I don’t see that it serves any useful purpose. Please explain…
ERM,
“If you ask why you are being detained, do the officers have to answer you legally? I don’t remember from my crim law courses that they do. I would be afraid if I asked, it would irritate them.”
No, but if you’re unsure if you’re being detained it’s best to verbally ask if you’re free to leave. If the officer tells you “yes” then leave. Staying around may lead to trouble for you…
I think it’s good to ask politely, “am I free to go” or “may I ask why you’ve detained me” as I think it indicates to the officer that you know your rights and are checking them every step of the way. IOW, if by chance you get an officer that may try to blurry the 4th amendment lines…maybe they’ll think twice if you’re polite and show them you know what they and you can do in that particular situation.
It’s actually probably best to remain silent once the officer tells you you’re not free to go (ie detained) in general, though.
There’s nothing wrong with asking…the individual or suspect is well within their rights to question the officer talking with, detaining, searching or arresting them.
Your concern with “irritating” LEO’s, despite being well within your rights and perhaps, as in the case of your fender bender incident, seemingly in the right while the LEO is in the wrong, bothers me. I’m not saying you’re wrong, but I feel strongly the opposite as you…I’m not concerned with irritating the LEO’s especially when all I’m doing is exercising my rights and attempting to protect myself. Yes the LEO’s have a great deal of power over citizens, but citizens too have constitutional muscle…they just rarely flex them or simply have no clue that they have them.
“Why do you say that allowing the police to search may seal your fate? Because you have something to hide, or bc they may plant something? I’m not sure of your reasoning here.”
If the officers don’t have cause to search you, your car, etc and you give them consent…they find something like a small amount of cocaine you’ve just screwed yourself. In situations like that, that person could’ve possibly saved him or herself a whole lot of trouble had they simply not consented to the search.
There’s also the very real possibility that there may be things in your car, someone’s purse, coat, etc which may get you in trouble, despite your complete lack of knowledge that they are there. What usually happens when the officer finds narcotics in the car and no one in the vehicle admits to being the owner? Does the officer just say “oh geez, guess the drugs aren’t any of yours, so I’ll just let you all go along your way…?” Not usually.
Takeaway point being…even if you think allowing the officer to search your car could do no harm “because you have nothing to hide” it’s still not to your benefit to give the officer permission. Not consenting doesn’t give the LEO reasonable suspicion.
ERM,
“Also, if they bring in a dog to sniff your car for drugs, I think they have the right to search your car with/without your permission.”
I think it depends on the situation and nature of the stop. In United States v. Caballes, SCOTUS ruled that if the stop is prolonged for it’s original purpose and then they bring in a drug sniffing dog to sniff out the narcotics…that would violate the stopped individual’s rights.
“If they start to search, what would be the purpose of your telling them they did it w/o your permission?”
It’s your right, first and foremost. Further, if there’s any question as to whether or not the defendant had consented, calmly stating that you do not consent to any and all searches of your person/possession/vehicle could help your case…seeing as video/audio recorders could pick this up. Should be included in the report as well, though.
It’s a matter of being unequivocal in your denying them access to
SM: “No, but if you’re unsure if you’re being detained it’s best to verbally ask if you’re free to leave. If the officer tells you “yes” then leave. Staying around may lead to trouble for you…”
Normally I would agree w you. But I would bet my bottom dollar if you asked if you were free to leave, the officer would figure some “articulable suspicion” to detain you. Call me a cynic, or just chalk it up to my one bad experience with the Sacto Police.
SM: “There’s also the very real possibility that there may be things in your car, someone’s purse, coat, etc which may get you in trouble, despite your complete lack of knowledge that they are there.”
This is a very good point.
SM: “I think it depends on the situation and nature of the stop. In United States v. Caballes, SCOTUS ruled that if the stop is prolonged for it’s original purpose and then they bring in a drug sniffing dog to sniff out the narcotics…that would violate the stopped individual’s rights.”
But I wonder how you define “prolonged”? LOL
ERM,
“Normally I would agree w you. But I would bet my bottom dollar if you asked if you were free to leave, the officer would figure some “articulable suspicion” to detain you. Call me a cynic, or just chalk it up to my one bad experience with the Sacto Police.”
Well, the act of asking, “am I free to leave” alone is not “articulable suspicion” or reason to detain someone. I suppose the officer could “find” AS though. In either scenario, you’re still “detained” right…whether you ask and are told no or just stand there mute assuming you can’t leave? Might as well ask and if you get an officer who decides to violate your constitutionally protected rights (in the case where no AS exists, yet detained anyway)…file a complaint.
If the fear of asking if you can leave keeps you from asking at all and thus you stay, haven’t you effectively “detained” yourself, which could lead to actual articulable suspicion and possibly your arrest? I say ask, always…
“But I wonder how you define ‘prolonged’? LOL”
It’s a matter of when the drug-sniffing dog would have done its job (sniffing around car, etc) in relation to the reasonableness of the traffic stop’s length, which varies depending on the nature of the stop. Just a warning, can’t hold a person “unreasonably long” just to get a drug-sniffing dog dispatched to the scene to sniff out narcotics. As long as the drug-sniffing dog is used during the “reasonable” duration of time for the stop, whatever type that may be, it doesn’t violate the 4th amendment.