NMissCommentor

A regular commenter on this site, Habeas, described his experience representing the MotorHomeDiaries folk in Jones County Justice Court.  I’m elevating his comment to a post and reminding him to check out the Steve Forbert lyric in my earlier post:

I was in the Jones County Justice Court for the trial — in fact I was admitted pro hac vice as one of the defense attorneys. Dale Danks and Michael Cory, Jr. of Jackson appeared as well. We were all volunteer counsel.

One of the reasons the judge took the matter under advisement is that we raised and argued a motion to suppress evidence on the theory that the stop was illegal and the subsequent arrests were the product of that 4th Amemdment violation. [I can hear the incredulous lawyers out there already: "A motion to suppress in Justice Court???" -- echoing Harvey in Butch Cassidy and the Sundance Kid: "Rules"? Rules in a knife fight?"] We were also challenging the application of the disorderly conduct/resisting arrest statute as well as the law proscribing the possession of beer in a dry county.

The deputy who initiated the stop said he could not read a temporary out of state license tag from his position athwart I-59 in an emergency turn area. He followed but did not chose to run the plate via his dispatcher because he could not read it clearly. After he stopped the MH he was able to read the handwritten New Hampshire tag and nothing on the face of it seemed to be amiss. He ordered the driver out of the car before checking the validity of the tag via radio or computer — and from the safety of his patrol SUV. At this point the investigation “diverged” with questions about drugs, etc. [These of course being a prelude to a request for a consensual search. But no consent was forthcoming] The driver told the deputy that he had two handguns inside, but both were disassembled and in locked containers with ammunition stored in a separate locked container. In MS it is not against the law to carry such weapons in a motor vehicle. The deputy said he noticed movement inside the MH and asked the driver about other occupants. He said there were two and the deputy ordered them out and directed them to stand in designated areas separated from one another. One of the guys was recording the incident with a digital video camera and the first deputy did not tell him to stop but said he warned him not to move closer than the rear end of the patrol SUV. He also said with a straight face that he was aware of guns being disguised as video cameras and that made him uneasy — but not enough to demand that the guy show him the camera or hand it over for inspection or to turn away while he continued to question the driver. When a second deputy arrived the camera guy was arrested for [they say] refusing to obey the police order to stay in one place. By this time a third deputy had arrived and after the camera guy was cuffed and put in a police car, the first deputy (about 6 ft. 230 lbs) and the second deputy (over six feet and weighing in at about 260 lbs)both fully armed approached the second passenger and asked for his ID. It was claimed that as he was being approached by these two intimidating figures he took an “aggressive stance” (hands at side with clenched firsts and one foot behind the other; another way to look at this would be a “defensive” position) He declined to produce his ID because he could not see how he had done anything wrong. {And according to the U.S. Supreme Court a person cannot be made to produce ID without reasonable grounds to suspect he is or was engaged in criminal activity.) When he also refused to turn and put his hands on the MH (as in “assuming the position” for a frisk) he was pepper sprayed, put in a choke hold (by the 260 pounder) and thrown to the ground and handcuffed. He too was charged with DOC.

Sometime later a state police K-9 officer just happened to be driving by and stopped at the scene. He was asked by the deputies (and by this time a supervising Captain had arrived) to lead his drug sniffing dog around the exterior of the MH. He claimed the dog “alerted” near the rear of the MH and this led to the search of the interior of the MH. Absolutely no trace of any kind of illegal drug was found, but there was that other dangerous substance A SINGLE BOTTLE OF [ALLEGED] BEER in the fridge. The driver was then arrested and charged with possession of beer in a dry county. The deputy did not “tag and bag” the beer, could not remember the brand, or whether it was even alcoholic or non-alcohol beer. [By the way, we had subpoenaed any video tape made by the police from their cars, any recordings of radio traffic concerning the incident, and photos, etc. Also made a motion to preserve this stuff. It was not produced and that led to a question whether the police tape contained exculpatory material. The prosecutor said it didn’t but of course he hadn’t looked at it or even known there were such items at the time of the trial. This was another reason the judge took the matter under advisement. He said he would look at the police video to see if it had relevant information.

The guys were taken to jail and the MH towed to another location where (with no warrant or regard for inventory procedures) it was totally ransacked and damaged in another fruitless search for drugs. It was later taken to a non-secure impound lot and the video camera and the guns were left in plain view on a seat in the MH. Oh, and incidentally, the video footage taken by the passenger had been deleted — but of course the deputy had no knowledge of that even though he was the person in charge of the evidence.

Our purpose was to get the police committed to their stories and we fully expect to proceed to a trial de novo preceded by evidentiary hearings on motions to suppress, spoliation of evidence, possible Brady issues (I’m guessing that the video taken from the police car may come up missing or erased or accidentally destroyed. In any event, I am not even sure whether it would show much of the action based on where the patrol SUV was positioned at the back of the MH.

All in all, it was a very interesting day in Jones County.