Pubdate: Thu, 26 Apr 2001
Source: Albuquerque Journal (NM)
Copyright: 2001 Albuquerque Journal
Contact:  http://www.abqjournal.com/
Details: http://www.mapinc.org/media/10
Author: Guillermo Contreras, Journal Staff Writer

JURY'S NOTE GETS HOBBS POLICE NEW TRIAL

The Hobbs Police Department has won a new trial in a lawsuit filed by
a man alleging an officer planted a small amount of marijuana on him.

U.S. District Judge Bruce D. Black this week dismissed a jury verdict
in favor of Liberato Olivas, 52, saying jurors "relied on their own
incorrect definition of planted evidence."

Hobbs Police Chief Tony Knott sees the judge's opinion as a victory,
but an attorney for Olivas views it as a delay and said part of the
matter may be appealed.

"We appreciate the opportunity to go back to trial and clarify for a
new jury the definition of planting evidence," Knott said Wednesday.

"I think at this point it's mostly a delay of the inevitable," said
Bob Cates, one of Olivas' lawyers.

Cates said that despite Black's finding, the jury awarded Olivas more
than $150,000 in damages after finding against officer Stan Durham.

Their verdict is that even if you believe officer Durham's version of
what took place, that what he did was still inappropriate," Cates said.

The jury had found that Durham violated Olivas' constitutional right
against illegal searches and seizures.

Olivas had alleged Durham planted evidence - a small amount of
marijuana - in a car where Olivas was a passenger so that he could be
arrested during a traffic stop in 1999. The marijuana was on the
floorboard under Olivas, according to trial testimony.

The jury did not find that any officer put the marijuana in the car,
but that Durham chose the wrong person to arrest on charges of
possession of marijuana.

Jose Pena, the driver of the car, was arrested on suspicion of drunken
driving.

During the trial, the jury asked why the driver, Pena, wasn't charged
with marijuana possession if it was his vehicle. Jurors also sought a
clearer definition of planting evidence.

Cates said "neither one of us could come up with a good definition to
give them ... of what legal definition there was to planting evidence."

After the jury gave its verdict, jurors sent a note to Black, which he
read aloud in open court.

It said, "the court instructed that 'planting evidence on him' is not
defined in the law. We define 'planting evidence on him' to mean
assigning possession of the marijuana to Mr. Olivas rather than Jose
Pena without probable cause. We do not find that (officer) Durham, or
any other officer, placed or introduced marijuana into the car driven
by Mr. Pena."

Black said the final jury note made it clear jurors relied on their
own "incorrect definition of planted evidence" as a basis for the
verdict. Black noted case law supports that a new trial should be granted.

"The verdict, augmented by the jury's note, demonstrates the jury
misunderstood both the factual basis of plaintiff's claim and the
controlling law," Black wrote in his opinion filed Tuesday. "The
jury's notes indicate an obvious confusion as to the meaning of
'planting evidence'."

Cates said it's not clear how to proceed in the case.

"My feeling on it is I think the judge is trying to be cautious, but
he's not leaving us with a lot of direction," Cates said. "It does
kind of leave us in a quandary of where we go from here. I don't want
to jump into a trial without having some clarification."

The clarification could come in an appeal to the U.S. Court of Appeals
for the 10th Circuit in Denver, he said.
- ---
MAP posted-by: Andrew