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.
“People don’t realize how important their Fourth Amendment protections are until they are intruded upon.”
NEW YORK — In May, the Rochester Police Department arrested a woman on a charge of obstructing governmental administration after she videotaped several officers’ search of a man’s car. The charge is a criminal misdemeanor.
The only problem? Videotaping a police officer in public view is perfectly legal in New York state — and the woman was in her own front yard. The arrest report of the incident also contains an apparent discrepancy from what is seen in the woman’s own video.
That video, uploaded to the Internet this week, more than a month after Emily Good’s May 12 arrest, begins by showing a black male being questioned by a police officer at about 10 p.m. The red and blue flashes of a police cruiser illuminate the scene on Aldine Street.
“I just got out of the house, man, I’m sick, man,” the man who has been pulled over says. Other police officers search his car.
Then one of the officers, identified as Mario Masic in the arrest report, turns to the camera and asks, “You guys need something?”
“I’m just — this is my front yard — I’m just recording what you’re doing. It’s my right,” Good replies.
“Actually, not from the sidewalk,” the officer replies, incorrect about the legality of Good’s actions.
“This is my yard,” Good says.
“I don’t feel safe with you standing behind me so I’m going to ask you go into your house, you understand?” Masic says.
From there, the conversation escalates into a confrontation, with Masic alleging that Good is threatening his safety, and that she expressed other, unspecified anti-police statements before the videotaping began.
“Due to what you said to me, before you started taping, I think, uh, you need to go stay in your house, guys.”
Good’s public defender, Stephanie Stare, told HuffPost she believes from her conversations with several neighbors who were present that Good made no threatening comments before the tape begins.
Ryan Acuff, a friend of Good’s who witnessed the exchange and picked up the video camera after she was arrested, agreed.
“None of us was talking to them until they came to us,” Acuff said. “The first contact was definitely on tape.”
For more than a minute of the video, the officer and Good argue about whether she is threatening his safety. Finally, it appears, Masic has had enough: “You know what, you’re gonna go to jail. That’s just not right.”
Acuff claimed that he and Good were complying with the policeman’s order to return to their porch when she was arrested.
“The real reason they arrested her was because she was videotaping,” Acuff said. Both he and Good are activists who have previously protested foreclosures in the area.
Acuff has posted his own account of the arrest on Indymedia. He said he and Good were videotaping the traffic stop out of concern about police misconduct.
The police report of the arrest contains another apparent discrepancy from what appears on the video: Masic writes that the traffic stop targeted three individuals who “were all chalkem south gang members.”
“This gang is known for drugs guns and violence,” Masic notes, underscoring the danger of the situation.
The video, while dark, appears to only show one man led out of the car. Good’s public defender says that as far as she has been able to determine, only one man was pulled over.
The Rochester Police Department did not immediately respond to a request for comment.
In a statement released to the press, Rochester Police Chief James Sheppard said that while he had “researched” the incident, “With the case still pending and my unfamiliarity with the specific details, any assumptions at this time would be premature.”
The police department has launched an internal investigation.
Good is scheduled to appear in court on Monday, where her public defender hopes the case will be dismissed.
If that doesn’t happen, Stare said, she was not afraid of bringing Good’s case to a jury trial.
“She was well within her rights.”