This is the exact reason you need the help of a well qualified attorney like Michael McCabe to defend you vigorously.
Geoffrey Asher just returned home from buying auto parts, and after coming out of a shed where he stored the parts, a sheriff’s deputy was pointing a gun at him.
He didn’t know the deputy had followed him for speeding, and officers didn’t have the right to arrest him, then break into his home to search for evidence of crimes they had no reason to believe he even committed.
That’s what a federal jury decided this month when they awarded the Lumpkin County man $58,000 in a civil rights lawsuit.
“The damages included $45,000 in punitive awards, which is almost unheard of in a civil rights case involving law enforcement officers,” said Athens attorney Matt Karzen, who represented Asher.
“It was a loud and clear message from the jury that what happened to my client was a gross violation of his rights,” he said.
Judges routinely dismiss cases or suppress evidence because officers didn’t follow the law, mostly because they made honest mistakes, Karzen said. Authorities who trampled over Asher’s rights were exceptions, he said.
“It is heartbreaking to me, especially as a former prosecutor, when law enforcement officers break the law the way these defendants did,” Karzen said. “In addition to attacking the foundations of our personal liberties, that kind of behavior makes it difficult for the vast majority of law enforcement officers who follow the rules to do their jobs effectively.”
Karzen served nearly a dozen years as a prosecutor in Colorado and in Clarke and Oconee counties, and has been a criminal defense attorney the past five years.
The Fourth Amendment of the U.S. Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and states that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
There are exceptions, however, and police can search without warrants if they believe a crime is actively being committed, fear for someone’s safety, or get consent from the property owner.
But Asher never agreed to a search, and the Lumpkin County sheriff and his deputies spent seven hours rummaging though his home before they got a judge to sign a warrant, according to documents filed in U.S. District Court in Gainesville.
Asher, a former U.S. Army Ranger and military police officer wasn’t defiant, but held his ground even at the point of a gun because he knew his rights, Karzen said; his steadfastness made deputies think Asher was “anti-government.”
He told the deputy to holster his gun if all he wanted was to write a speeding ticket, and when the deputy threatened to shoot him in the head, Asher told him to calm down and “wait for adult supervision,” according to Karzen.
Deputies searched Asher’s pickup and found handguns, all legally owned and which he used for target shooting, the attorney said.
Lumpkin County Sheriff Mark McLure soon arrived and used a credit card to slip the lock of Asher’s front door, according to court documents.
McLure and several deputies found things inside — like drugs Asher retained from when he was a medical intern, and the sizeable collection of a firearms enthusiast — and concluded that he might be a “militia nut,” according to documents.
He was arrested and charged with several felonies, including possession of an illegal firearm, but that charge stemmed from a deputy removing a barrel extension from a rifle, making the barrel shorter than what the law allows, Karzen said.
A judge later dismissed all charges.
“Never in the thousands of criminal cases I’ve handled as a prosecutor and a defense attorney have I ever seen violations of someone’s rights this egregious,” Karzen said.
“Most of what I’ve seen were reasonable, honest mistakes by good cops,” he said. “This was the first time I was involved in a situation where law enforcement officers knowingly violated someone’s rights and lied about it in court.”
Officers sometimes conduct searches without consent or warrants, and judges often rule the searches were legal if the constitutional violation was a “reasonable mistake,” Karzen said.
But judges also cite such mistakes as grounds for dismissing cases or suppressing evidence.
For example, Karzen said, an officer might stop a car with a broken tag light then smell alcohol while speaking with the driver.
“He might have had just one beer an hour ago, and gets arrested for having the odor of beer,” Karzen said. “The judge later drops the charge because of a typical, innocuous Fourth Amendment violation.”
Anyone who has been stopped by a traffic cop or questioned by an officer was in a Fourth Amendment situation, University of Georgia law professor Donald E. Wilkes Jr. said.
“The primary purpose of the Fourth Amendment is to preserve a healthy balance between the individual and the state, to prevent the government from engaging in activities which might catch more criminals but nonetheless are unacceptable in a free society,” Wilkes said.
“At the most basic levels, the police are the most coercive force in America,” Wilkes said. “They carry guns, they have the power to arrest and to conduct searches and seizures, and the purpose behind the Fourth Amendment is to prevent police from over-awing the citizenry.
“The Fourth Amendment is there so we don’t end up with a police state.”
Athens attorney Jeff Rothman, who specializes in DUI cases, looks for Fourth Amendment violations in every case he handles.
“With the ever-increasing use of roadblocks, it’s very difficult to drive anywhere in Athens without the possibility of being stopped by police without some suspicion of wrongdoing,” Rothman said.
“We battle the Fourth Amendment war every day, arguing whether it’s reasonable to stop people without suspicion of criminal activity,” he said.
State and local police conducted a massive DUI crackdown on St. Patrick’s Day in 2009, arresting more than 140 people at checkpoints in Clarke and Oconee counties.
Rothman convinced a judge to drop charges against a couple of clients who were arrested that night because police had no legal basis for stopping their cars, he said.
“The reason they were stopped was because the officers told them they thought they were trying to avoid the roadblock, but they made legal, proper U-turns, and that does not count as sufficient reason to believe a crime was committed,” he said.