Pubdate: Wed, 07 Mar 2012
Source: Daytona Beach News-Journal (FL)
Copyright: 2012 News-Journal Corporation
Contact:  http://www.news-journalonline.com/
Details: http://www.mapinc.org/media/700
Authors: Raymond M. Warren and Michael Chitwood
Note: Chitwood is Daytona Beach police chief.

HOW FAR CAN POLICE GO?

On Jan. 17, Circuit Judge Joe Will dropped drug charges against David 
Beauprez of Daytona Beach. The ruling came after officers testified 
that they had told Beauprez's mother that someone had called 911 from 
her home. In fact, the police were acting on an anonymous tip that 
there were drugs in the house. Once inside, officers testified, the 
mother consented to a search -- but the woman said that the police 
did not ask permission before they opened a drawer in which drugs and 
paraphernalia were found. Will found that because officers used 
deception to gain entry, they were not credible.

Daytona Beach Police Chief Michael Chitwood, in a Feb. 21 letter, 
said that Will could have easily dismissed the charges without 
calling the officers' fundamental honesty into question. Today, we 
present Port Orange attorney Raymond M. Warren's defense of the 
judge's ruling, and Chitwood's explanation of why deception can 
sometimes be a crucial crime-fighting tool.

Judge Was Right To Question Credibility

When Judge Joseph Will recently ordered suppression of evidence 
seized from a home during a warrantless search, only one fact was in 
dispute: The officer swore he opened a drawer after gaining consent 
from the defendant's elderly mother. She denied being asked for that consent.

Some might call this a "she said, he said" scenario, but a deeper 
issue was at stake. This was an "officer said, lay witness said" 
scenario. Will appears to have based his ruling on two points. First, 
the officer admitted to an out-of-court lie used to gain entry to the 
home. Second, the state did nothing to impeach the mother's testimony.

Outraged, Daytona Beach Police Chief Michael Chitwood issued an open 
letter, through which he accused Will of bias and prejudice against 
state and federal court opinions. He also insisted that Will had 
found his officer's out-of-court lie to be perjurious, and he 
included a John Adams quote to argue, in part, that facts are 
stubborn things. According to Chitwood, Will "had no right to call 
the officers liars."

I begin with a different founding father's quote. Publius, aka 
Alexander Hamilton, in the first Federalist Paper, asked: "Whether 
societies of men are really capable or not of establishing good 
government from reflection and choice, or whether they are forever 
destined to depend for their political constitutions on accident or force."

In what many now term "checks and balances," the fledgling 
Constitution established limits on the breadth of power delegated to 
government. But which check will balance what delegated power? Is it 
Chitwood's letter, prompted by outrage? Or is it Will's order, in 
which he details a decision-making process? If good government is to 
be based on reflection and choice, who is to be empowered to reflect 
and choose? Can we trust a police chief to be the final arbiter of 
truth in a dispute between his employees and a citizen?

Our Constitution refers disputes between the police and citizens to a 
neutral and detached judiciary. Any other form of dispute resolution 
would destabilize our system of checks and balances. I believe that 
two foundation points are in order. First, while an officer is 
delegated great power, his power is limited to the concept of 
"probable cause." An officer may swear under oath that information in 
a complaint affidavit establishes probable cause, and then arrest a 
person, but his affidavit is immediately set for review by a judge at 
first appearances; it is also immediately set for prosecutorial 
review for purposes of "proof beyond a reasonable doubt," a much 
higher standard. It's the start of many checks and balances on police behavior.

Second, in Will's setting, when an officer elects to engage in a 
"knock and talk," and later performs a warrantless search of a home, 
the state carries the burden of proof to show that the search meets 
constitutional muster.

With the state carrying the burden of proof, had Will been unable to 
decide who told the truth in a "he said, she said" scenario, he would 
have had to rule against the party carrying the burden of proof.

If you read Will's order, look for language finding that the officer 
committed perjury. Will found as a factual matter that the officer, 
while testifying, met the criteria for impeachment. Perjury differs 
from impeachment. Neither of the two statutory definitions of perjury 
applies in Will's setting. Will found the officer's testimony less 
credible than the resident's testimony, which is the responsibility 
of any judge.

I am perplexed by Chitwood's statement that Will has no right to call 
his officer a liar. Will, as the fact-finder, is the only person who 
has that right. The office of the state attorney has announced it 
will formally end the prosecution. The state's decision clearly shows 
that R. J. Larizza and his staff understand Hamilton's concept of 
good government by reflection and choice, as opposed to accident and force.

Chitwood, on the other hand, prefers to work outside of the 
courtroom, in the arena of public opinion, by attacking a judge who 
faced a difficult choice. Either Will honors the rule of law by 
weighing and comparing the evidence, without bias or prejudice, or he 
surrenders his neutral and detached role and approves an officer's 
testimony over that of a lay citizen in every "officer said, lay 
witness said" scenario. Chitwood's braying letter permits no other 
option, because eventually either Judge Will or another judge will 
rule against an officer and Chitwood will launch another out-of-court 
accusation against the offending judge. Reflection and choice? 
Accident or force?

I urge Chitwood to reconsider his choice of quote for, as John Adams 
surely understood, he and his brethren ensured that no one government 
official would ever be given unlimited power for an indeterminate 
period of time. Facts indeed are stubborn things. An officer admitted 
he had lied during his investigation of a tip, for which he lacked 
probable cause to obtain a search warrant. Without probable cause, 
without a search warrant, he still chose to create a situation out of 
which the burden of proof fell against him, and in favor of the 
accused; he made his own bed.

Will did not rule in contravention of any state or federal court 
opinion. The state chose not to appeal.

I end with language from Florida's Standard Jury Instructions in 
Criminal Cases, Section 3.9 Weighing the Evidence. "You may rely upon 
your own conclusions about a witness. A juror may believe or 
disbelieve all or any part of the evidence or the testimony of any 
witness." Jurors, like judges, are the fact-finders in our criminal 
courts, not officers and certainly not chiefs of police. There exists 
no court in Florida in which officers are presumed more believable 
than any other witness, with the exception of Chitwood's court of 
public opinion.

Perhaps this founding father's quote is more apropos: "I did not lead 
a revolution against George the Third in order to become George the First."

The speaker? George Washington.

Warren is a Port Orange defense attorney.

Police Use Deception Carefully, Within Limits

Over the past several weeks, I have been repeatedly asked the 
following questions: Why is it important for the police to use 
deception? Is it legal? Why use it at all? I would like to try and 
answer those issues.

First, it is common knowledge that criminals and those who engage in 
criminality will, at all costs, use any means of subterfuge to avoid 
detection, apprehension and responsibility for their nefarious acts. 
The United States Supreme Court first recognized this in the 1973 
case Russell v. United States, where undercover federal agents 
represented themselves as drug traffickers to gain incriminating 
evidence in a sting operation.

The court recognized that the duties of the police may, at times, 
require limited official sanctioned deception during a criminal 
investigation. The court stated, "Criminal activity is such that 
stealth and strategy are necessary weapons in the arsenal of the 
police officer."

Over the next 40 years, the U.S. Supreme Court and state courts have 
issued rulings in which the use of police deception has further 
evolved. Police tactics such as the use of bait cars; drug, 
prostitution and stolen property stings; and using the Internet to 
catch sexual predators are just a few examples of deception reviewed 
and approved by the courts. In Escobar v. State, detectives falsely 
told the defendant that they had obtained physical evidence linking 
him to the murder of a Miami police officer, which led to the 
defendant's confession.

Law professor Jerome Skolnick is even more succinct in his article 
titled, "Deception by police," (originally published in the journal 
Criminal Justice Ethics) in which he states, "The hard reality of the 
criminal justice system is this: Deception is considered by the 
police -- and the courts as well -- to be as natural to detecting as 
pouncing is to a cat."

Another police tactic that has evolved over the years is the "knock 
and talk." This tactic is normally employed when police are 
investigating an anonymous crime tip or hunch, pertaining to criminal 
activity being conducted inside a certain location. The officers 
knock on the door of a residence, engage the occupants in consensual 
conversation while explaining to the occupants the reason for their inquiry.

Federal case law holds that "officers are allowed to knock on a 
residence's door or otherwise approach the residence seeking to speak 
to the inhabitants, just as any private citizen may."

The operative word in this tactic is consent. Consent is one of the 
few legal exemptions, created by the courts, from the Fourth 
Amendment's requirements in the search and seizure clause. In a 
nutshell, consent must be obtained from the party either in verbal or 
written form, must be voluntary, informed and without the slightest 
hint of coercion or duress by police. The party being investigated 
has the right to refuse to give consent and can request the police 
obtain a warrant.

In Luna-Martinez v. State, Florida's 2nd District Court of Appeals 
reviewed the use of deception while employing the "knock and talk" 
tactic to obtain consent to search their residence for contraband.

The court reviewed the "totality of the circumstances" and deemed the 
officers' actions acceptable, admitted into evidence the contraband 
recovered during the search, and upheld the defendant's conviction.

A recent ruling by Judge Joseph Will invoked a caustic reaction by 
myself because the court opined that the officers used deception to 
obtain consent to search a residence. He further opined that because 
the officers "lied" to the occupants during the knock and talk they 
had no credibility in his courtroom.

The facts are that the officers never lied to the court; in fact, 
they were brutally honest in testifying to the action they took 
during this investigation. In Will's ruling, he continued to cast his 
personal aspersions on the preceding 40 years of case law allowing 
the use of deception during investigations without officers damaging 
their credibility when testifying.

In my opinion, the purpose of the court is to review the actions of 
the police and decide if the actions of the police were legitimate or 
improper. If the evidence is tainted, it will be suppressed. In my 
view, the judge missed the target.

In his recent ruling, Will's focus should have been on the police 
officers' using a ruse of a 9-1-1 hang-up call to solicit the 
defendant's mother's consent to search her residence. The court 
should have ruled whether this ruse was justified or overbearing.

In closing, do not confuse deception with lying during court 
proceedings, falsifying official documents and evidence or lying 
during internal investigations.

No police administrator would tolerate this behavior which destroys 
an officer's ability to perform their official duties in a moral, 
ethical and just manner.
- ---
MAP posted-by: Jay Bergstrom