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TOP 10 MISTAKES BY POLICE
1. AN INVALID INVESTIG
Off-duty police officers who are neither in uniform nor in a marked vehicle are prohibited from making traffic stops by Ind. Code § 9-30-2-2. Such a stop causes the evidence obtained therefrom to be suppressed or thrown out of court. Sam Shapiro successfully argued this case before the Indiana Supreme Court in a case entitled Miller v. State.
3. AN IMPROPER ADMINISTRATION OF
The National Highway Traffic Safety Administration [NHTSA] has devised three (3) standardized field sobriety tests for citizens that the arresting officer must understand, properly administer, and properly evaluate in order for his conclusion regarding intoxication or impairment to be supported by research. A failure to properly administer or evaluate your performance regarding a field sobriety test may invalidate the test and calls the officer's opinion and proficiency into question. In fact, it may serve as the basis for reasonable doubt. 4. AN IMPROPER ADMINISTRATION OF THE BAC DATAMASTER BREATH TEST The Indiana State Department of Toxicology has chosen to purchase and place into operation a breath test device called the BAC Datamaster, manufactured by National Patent Analytical Systems, Inc. Each officer who is allowed to administer a breath test in Indiana must be properly trained and certified by the Department of Toxicology, and, must strictly follow an APPROVED METHOD developed by the Department of Toxicology. Any deviation during the administration of a breath test from the APPROVED METHOD results in suppression of the breath test result. 5. HOSTILE ATTITUDE Some officers can simply not bring themselves to be civil to suspects, defendants, or their attorneys. These ‘cowboys’ often display behavior that is unprofessional and demeaning to the entire criminal justice system. Wise-cracks during the investigation, name-calling such as ‘scumbag’, or other derogatory comments simply detract from the officer’s professionalism and the jury’s perception of the officer’s fairness. Many of these officers resent Sam Shapiro questioning their observations, behavior, and conduct of the investigation. Some even refuse to attend depositions. They do so at their peril and at the expense of the case. 6. UNFAIRNESS AND LACK OF OBJECTIVITY Some officers cannot be impartial observers and admit that a subject passed any testing administered. Often, videotapes expose the inaccuracy of these officer observations and reports. 7. FAILURE TO VIDEOTAPEThere is absolutely no excuse for the lack of a videotape of police procedures. The tape may be either in-car, at station, or both. This is the 21st Century! The Rodney King case and the recent California beating of a juvenile at a gas station are pointed reminders that a police report can be a biased, inaccurate document. It only assists a professional police officer when a videotape exists to corroborate his observations. This is a no-brainer. A win-win for everyone in the system. Here’s a thought - If jurors and judges punished officer reporting and lack of video documentation with adverse verdicts, it would not be long for videotape to be as widely accepted as the patrol car itself. Unfortunately, there is no specific legal requirement for video or audio tape, but, the lack of those items of evidence can and should certainly be brought to the jury’s attention.8. FAILURE TO DOCUMENT Amazingly, some officers destroy their field notes. They will claim that a citizen engaged in certain behavior, or, that he or she failed a standard field sobriety test. Remarkably, when the officer is asked to support his report and his conclusions with specifics, he develops a case of the ‘I don’t remembers’, or, he relies on a typewritten report that was created from memory or from field notes that have since been destroyed. Nothing in the case should ever be destroyed until the case is completed. In addition, a typed report some hours or days later is not the same as a contemporaneous field notation which, if objective and fair, more accurately documents an observation.
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On my way to Court to begin an OWI jury trial years ago, the Indiana State Police arresting officer pointed his finger at me in the form of a pistol, pulled the imaginary trigger after ‘shooting’ me, and blew the smoke from the barrel. This was before the voir dire, [jury selection] had begun! Fortunately for my client and myself, the jury did not believe that a pretty uniform, a shiny badge, a cocky attitude, and an authoritative presence translated into proof beyond a reasonable doubt. Cross examination was made easy by this officer’s blustering, posturing, and prima donna performance. A 'not guilty' verdict went a long way toward making my client, and myself, feel better. Of course, after losing, this officer blamed the ‘bad’ jury or the ‘ineffective’ prosecution for the 'not guilty' verdict. He refused to take any responsibility or believe that anything he did could ever cause a case to be lost. Easy pickings for a good lawyer. 10. INSENSITIVITY TO THE RIGHTS OF THE DEFENDANT Many many police officers view the entire criminal justice system as nothing but a game. They resent the exercise of constitutional rights at the expense of their investigation. They laugh, joke, or are disrespectful to the suspects, the witnesses, the defendant, his attorney, and sometimes even the judge and jury. Ironically, I have often marveled at the change of attitude and sensitivity that occurs when these very same officers find themselves or their family members in some kind of trouble. These same officers call upon me to use my knowledge, skill, and experience to exercise those same constitutional rights that they so often demean in the defense of themselves or their loved ones. Interestingly, I have represented police officers, politicians, attorneys, doctors, judicial family members, employees of prosecutor offices, and other citizens of all backgrounds. It’s my hope that after my representation, there is a greater respect for, and appreciation of our constitutional system of criminal justice for all. OTHER COMMON POLICE ERRORS VIOLATION OF A CITIZEN’S SEARCH & SEIZURE RIGHTSOur State and federal constitution guarantee that we are to be free from unreasonable search and seizure. Sometimes officers present deceptive, misleading, or false facts to a judge in support of a warrant. Other times citizens are entrapped into behavior they would otherwise not engage in. Still others may be coerced, tricked, or deceived into giving consent to an officer to search or seize without any advisement about the right to consult with counsel prior to consent. FAILURE TO MIRANDIZE In some cases, officers just make a mistake and ask questions without Mirandizing a suspect or defendant. In other cases, officers intentionally do not read Miranda in the hope that the matter will simply not come up or because they believe Miranda is not required. FAILURE TO MAKE AN ATTORNEY AVAILABLE In some cases, despite an unambiguous request for counsel, the officer continues the investigation without allowing the suspect defendant the opportunity to speak with his attorney. FAILURE TO KNOW THE LAW BEING ENFORCED I cannot count the number of traffic arrests I have successfully defended because the arresting officer failed to read the statute applicable to the offense and apply it to the behavior of the suspect defendant. For example, the infraction of following too closely requires a consideration by the officer of the relative speed of the two vehicles involved, and, the interval between those vehicles. The vague claim that they looked too close to be safe will not hold water in most courts. FAILURE TO LIST POTENTIAL WITNESSES AND LISTEN TO DIFFERENT SIDES OF THE STORY BEFORE THE ARREST Many times officers are too quick to arrest. They hear one side of a story, fail to ask witnesses who may be independent non-suspects and/or discount legitimate statements made by a suspect defendant who chooses to give a story. It is never an error for a citizen to proclaim his innocence. However, any specific recitation of facts which may incriminate should not be made without consultation with an attorney. IMPATIENCE Where is the fire? What is the
hurry? For example, in an OWI case an officer has 3 hours to offer as
many chemical tests as he desires to a defendant. Most officers spend
as little as ½ hour with a suspect defendant even when the allegation is
the refusal to take a chemical test.
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© Copyright 2005 Sam Shapiro Attorney At Law. All Rights Reserved |
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