THE HARRIS COLUMN

 

If Cookeville had let the press be free would Patton still be alive?

By SAMUEL JOSEPH HARRIS
Putnam Pit columnist

COOKEVILLE, Tenn. (Jan. 12, 2002) Ė A brief discussion of the law that governs police officers is in order. Most police officers do not know the law. A link on The Pit today is a telephone conversation that shows police uncertainty over the Fourth Amendment, the most significant law regarding arrests of individuals and the highest law in the land regarding arrests. True, the Fifth Amendment as interpreted by the United States Supreme Court (particularly Arizona vs. Miranda) has impact on police procedure as well but the Fourth Amendment directly defines the limits of governmental power in searching and seizing people and their property.

If the Tennessee Highway Patrol calls the stop of the Smoaks family a "textbook" stop, then Iíd like to know what textbook they are reading. The Gestapo Technique perhaps? What arrogance to call the humiliation of an innocent family a textbook stop? What dishonesty? It is the failure to admit mistakes that permeates the Good Ole Boy criminal justice system in Cookeville, in Tennessee, and indeed much of the United States of America. Is there anything more frustrating than dealing with people who evince an attitude of "I have nothing to learn and I am never wrong"?

Until the criminal justice system develops accountability, excesses will occur that will shock the average citizen who simply wants to believe an all-powerful, righteous force exists to protect them from all harm. There ainít no Santa Claus, there ainít no free lunch, and there ainít no infallible human institutions. Cookeville Police are run by very fallible human beings, capable of errors and motivated by self-interest. The Courts, the District Attorneys, the politicians, and ultimately the people must provide the checks on abuse of power by scrutinizing police action and holding them accountable. The events on January 1, 2003 was not an isolated incident.

I have read some of the letters and postings on the Internet about the stopping of the Smoaksí car. Letís set out what the law really is.

The police officers do not have qualified immunity if law is clearly established that they violated the Smoaksí civil rights pursuant in this case to the Fourth Amendment. The United States Supreme Court says to first look to the law of the circuit where the events occur. Last year in U.S. vs. Martin, the Sixth Circuit discussed car stops.

"The Fourth Amendment prohibits unreasonable searches and seizures." United States v. Obasa, 15 F.3d 603, 606 (6th Cir.1994). However, a brief investigative stop, or Terry stop, by an officer who is able to point to "'specific and articulable facts'" justifying his or her reasonable suspicion that the suspect has been or is about to be involved in criminal activity is not an unreasonable seizure. United States v. Sokolow, 490 U.S. 1, 12 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). While "the Fourth Amendment requires that the decision to stop the individual be based on something 'more substantial than inarticulate hunches[,]' ... 'the totality of the circumstances--the whole picture--must be taken into account'" in determining the validity of a challenged stop. United States v. Roberts, 986 F.2d 1026, 1029 (6th Cir.) (quoting Terry, 392 U.S. at 22).

The scope of law enforcement activities in an investigative stop depends upon the circumstances that originally justified the stop. See United States v. Obasa, 15 F.3d 603, 607 (6th Cir.1994). "Thus, the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. [Unless an M-16 rifle and shotgun suggest responding would be in oneís best interest. SJH] And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released." Id. (quoting Berkemer v. McCarty, 468 U.S. 420, 439-40, (1984) (internal quotations omitted)).

This Court evaluates the legitimacy of the investigatory stop by making a two-part assessment of its reasonableness. First, the Court must determine whether there was a proper basis to stop the individual based upon the officer's "aware[ness] of specific and articulable facts which gave rise to a reasonable suspicion." United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993) (quotation omitted). Second, the Court must evaluate "whether the degree of intrusion into the suspect's personal security was reasonably related in scope to the situation at hand, which is judged by examining the reasonableness of the officials' conduct given their suspicions and the surrounding circumstances." Id. (quotation omitted).

 

Letís apply the facts of this case to the I-40 stop of the Smoaks. These facts are taken from the "complete coverage" of the Herald-Citizen publication, which claims to have based the facts on the THPís accounting for events.

1. At 4:52 p.m., the THP in Nashville received a call from a woman in Wilson County who was traveling east on I-40. She reported "she had been passed by a green station wagon traveling at a high rate of speed and that a large amount of money had been thrown out the window." A "Be On the Lookout" call was put out to all THP cars to this effect.

OK, is this sufficient probable cause as required by the Fourth Amendment to make a warrantless arrest of the Smoaks? NO.

First, the Smoaks are not identified by the caller.

Second, the police do not know with any particularity which green station wagon was involved. Was THP going to stop every green station wagon on I-40 that night and make the occupants kneel and be cuffed at gunpoint in order to conduct an investigatory stop of an unknown, non-existent crime? No way decent people say that is reasonable.

Third, what crime has been committed that the caller actually could report? None save littering, speeding, and driving without a license; both are misdemeanors. By the way, if anyone wants to litter by throwing away cash please litter in front of me all you want. I will pick it up. No questions asked.

The police on very little information at all. After humiliating the family at gunpoint on the side of the road, just what crime did THP plan to charge the family with? Arrest first, harass second, ask questions later.

2. At 5 p.m., THP Communications Operator Shannon Pickard sent a teletype from Nashville Dispatch to all Middle Tennessee agencies inquiring whether there had been any robberies where a large sum of money might have been taken, involving a dark green station wagon bearing out-of-state tags.

This response is actually quite appropriate. No criticism here. THP is gathering information and thinking up to this point.

3. After receiving that teletype, Operator Tim McHood in the Cookeville THP office put out another BOLO to all cars. It stated that the green station wagon "had possibly been involved in a recent robbery."

Fingers to the trigger, but still this would appear to be a call for an investigatory stop not a jackbooted roadside arrest using S.W.A.T. tactics. McHood has overstated the known facts. How does littering with cash by a speeding vehicle get bumped up to possible robbery when no robbery has been reported nor has a robbery actually taken place? But how do the responding officers not consider the fact that "possible" robbery is far removed from "probable" robbery.

4. At 5:07 p.m., Trooper David Bush called in to say he had met a car matching the description and was "trying to catch up with it." Operator McHood broadcast to all vehicles that Trooper Bush "is trying to catch a dark green station wagon, possibly involved in a recent robbery involving large amounts of cash, and asked if there was a unit in the area to assist him." Trooper Jeff Phann responded.

Again the responding officers are juiced up on adrenaline during boring holiday duty and ignore the "possibly" description. But even if there had been an actual robbery, the police do not have sufficient specific and articulable facts to stop and arrest the vehicle occupants. A Terry vs. Ohio stop is required so as to develop probable cause. Is it too much to ask law enforcement to actually follow the law?

5. Trooper Bush then stated that he had caught up with the green station wagon at the 280 mile marker and asked for license tag information. It was confirmed that it was the same car reported by the motorist in Wilson County.

Well it turns out they did have license tag information. So why didnít they run a check to see who owned the vehicle and check that fact against the wallet information? Further how does a cell caller get an accurate license plate number at dusk if a car is speeding at 110 miles per hour. I guess certain useful questions were not asked of the cell phone caller. The result is that the Troopers believe that they are going to make a "felony stop." This term is a apparently a self-serving term to justify suspending the law so that the officers can react with all unnecessary force. And I thought the Blues Brothers movie was comedy.

6. The Cookeville Police Dept. was notified and backup was requested and the vehicle was stopped at the 287 mile marker. The occupants of the green station wagon were ordered out of the car, handcuffed, and as we all know, the dog, Patton, was shot by the Cookeville Police officer after he ran out of the vehicle and toward the officer.

Based on what the police officers knew at the time, why does the CPD automatically respond with shotguns and semi-automatic rifles? If this was a dangerous situation based on known information, then every traffic stop is a dangerous situation. But we know that this is not true. Yes, sometimes, rarely in comparison to the number of stops police make, the police are presented with a dangerous suspect. Still do we throw out the Constitution and the law because the very people carrying weapons with legal authority are scared all the time?

7. "When asked during our investigation why the passenger door was not closed, Lt. Jerry Andrews indicated that if he or another officer had moved to that side of the car, he would have been in the line of any potential crossfire," the THP statement says. "Remember, at this time, the troopers on the scene were still under the impression that a felony may have been committed, and were acting accordingly."

The only crossfire possible based on the events as viewed on the videotape was a shootout among law enforcement. The family was compliant. Already in cuffs, there was no need for fingers on trigger pointed at innocent human beings at night.

Nothing was reasonable about the police stop of this vehicle. I havenít even mentioned until now the bogus self-defense claim of Eric Hall. I sure wish the officers, who claim to be responding to a dangerous situation, had not turned off their video. What presence of mind to be concerned about "override" when faced with such a dangerous situation. Sure would have liked to have had that other video showing how threatening Patton was to a degree that Hall had no choice but to blow the dogs head off.

To understand how unreasonable it is for cops to just arbitrarily force citizens to kneel in a begging position at gunpoint while cuffed on the side of a road with dangerous high-speed traffic passing by and yet failing to protect the innocent familyís property (thatís too legalistic, letís just say a beloved pet, namely Patton) while all this occurred, consider this one fact, no officer knew what they were going to do with the family after the scene was secured.

Iíve only addressed part of the situation and have totally rebutted the Tennessee Highway Patrol and City of Cookeville Policeís assertion that they acted properly. Is it any wonder that outsiders are bad-mouthing Cookeville?

For those of you unfamiliar with Geoff Davidianís case against the City of Cookeville still pending in the United States Court of Appeals for the Sixth Circuit, information is listed on the Putnam Pit web site. Davidian wanted what every other website was allowed, a link to the official web page of the City of Cookeville. The City Manager (or Mismanager) arbitrarily changed the policy and stated that only websites that "promote" Cookeville' s industry, tourism, and commerce could have a web link. The only thing Shipley wanted to do was keep from providing access to Putnam Pit. The Cityís political establishment reacts to The Putnam Pit like Eric Hall at a dog show. WHY DO THE CITY OFFICIALS FEAR PUBLICATION OF CRITICISM UNLESS THEIR MANAGEMENT CANNOT WITHSTAND SCRUTINY BY AN INFORMED PUBLIC?

The following is argument was submitted last year in the Putnam Pit's Sixth Circuit brief. We estimate oral argument to be sometime this summer, probably July, 2003. Reflect on the prediction about how criticism can lead to improvement and thus promote tourism and commerce in the long run.

Are public officials able to censor the very rhetorical style of speakers and writers because they express a viewpoint or opinion in an unconventional manner? Humor and sarcasm can often be power agents for communicating ideas.

Is "promote" vague? There are many ways to encourage the advancement of a local area. Commerce, industry, tourism, and the economic welfare can be promoted by problem-defining criticism as well as by chamber of commerce cheerleading.

. . .

When The Putnam Pit publishes the restaurant scores of local restaurants, those restaurants with low score may be hurt temporarily, but in the long run they have a basis and an impetus for improving service and cleanliness. This improvement would promote their business in the long run. When The Putnam Pit publishes stories about the environment, it encourages and thus promotes a solution to an existing problem. When The Putnam Pit publishes the County budget or stories about local corruption, it promotes the exchange of information in the marketplace of ideas that creates the only business and social environment that can prosper over the long haul. America has prospered not by sweeping problems under a rug, but by free and open discussions that promote solutions and innovation.

Would consideration of the Putnam Pit viewpoint have prevented the detrimental impact on tourism and commerce in this area caused by poor management at the police department? We'll never know because the City went scorched earth to prevent a link on its website to the Putnam Pit. The letters overwhelming recognize a fundamental underlying problem that makes outsiders question doing business in Cookeville, Tennessee.

Will Shipley learn from the various mistakes of the past year or will he ignore it and move on to the next public relation disaster? History suggests that learning is not likely because of an arrogant refusal to recognize a culture of Good ole Boys in government.

Oh well, City of Cookeville government mismanagers, see you at the next lawsuit.