Note what I say about the pregnancy-disaster-in-jail baby’s early brain scan. I initially reported that the baby suffered no detectable oxygen deprivation following his traumatic birth. The subsequent scan, however, revealed some sort of potential deficit (ischemia or otherwise) according to the mother’s report.

At some point after this letter, I did receive an antidepressant in the jail.

I was removed from McCracken County Jail for my letters.

This may fix the prevailing fantasy that warehoused nonviolent inmates spend 23 hours a day in the cement cell. It is 24/7 for months on end.

March 22,2008

To: Governor Steve Beshear
700 Capitol Avenue
Frankfort, KY 40601

Dear Governor Beshear:

On 3-19-2008, I was sentenced to eight years in prison for DUI, possession of 0.144 grams of crack cocaine and tampering with evidence. I had no drugs or alcohol in my blood, nothing illegal on me or in my car, and exhibited no bad driving. Yet, I was convicted of all three. Inmates have subsequently told me never to take anything to trial in McCracken County, because everyone is convicted, but I did not know this, because I am not from here.

1. Since January 23, 2008, we have been outside our cell for recreation exactly one time. We have been to the filthy gym for recreation, exactly twice. We wait up most of the nights, hoping to get outside the cell for rec, at night. The only two times we went to the indoor gym were between 1:30 and 2:30 AM. In the night, guards go up and down the hall, banging on the hallway windows and doors yelling, “Rec, rec!”
Each night, they do this. We say we want real recreation, not recreation in a tiny chapel. The guards mark this in a book as a “refusal.” They submit the book to Frankfort, so it looks like the inmates all refuse rec every day. We get maybe one hour of rec per month if we are lucky.

2. The jails such as this one are overcrowded defacto prisons. I may be here until I meet the parole board in 19 months, because I am a nonviolent State inmate.

3. The only reading material allowed is certain types of religious materials. My family sent letters and literature that were returned because they were Catholic in nature. Only after my sister called the jail chaplain and said, “Are you all anti-Catholic? Because if you are, I am calling the Governor,” did I receive a Catholic bible that the guards make fun of.

4. No educational materials are allowed.

5. No AA or NA meetings are allowed.

6. There is no dental care.

7. I was not allowed to continue my anti-depressant medication, even though the conditions are extremely depressing.

8. A social worker tells the NPs what psych meds to prescribe. She is not licensed to prescribe anything, yet they defer to her on dosage and type.

9. The lights are on from 5 AM to 11 PM.

10. First, they said that family could send in paperbacks, news magazines, and newspapers. Then, they refused to give these items to us.

11. First, they said that family could send in self-addressed, stamped envelopes. Then, they refused to give these items to us. Then, they threatened to reseal the empty envelopes, and mail them back to family, instead of placing them in property.

12. The woman next door, six months pregnant, started bleeding. The guards ignored her. All three back cells pounded and shouted. They told us to shut-up and get to bed. They did nothing for more than one hour, then walked the pregnant woman, cuffed, out of the jail. Her placenta was 75% abrupt, she nearly lost her uterus. The baby was breached; his foot was through her cervix, she required an emergency C-section, and the baby was flown out of state. His brain scan does show potential future deficits.

13. The same woman has an incision that is infected now. The jail won’t giver her gauze. They make her use maxi-pads. But, she is on pad watch now. She is allowed three pads per day, including the pus pad.

14. They would not allow us to attend church service on Thursday night, saying that it was 12-step. When we said we were here on drug offenses, they would not let us go to the service.

15. The cells are always cold.

16. In addition to maxi-pad rationing, they now ration toilet paper. Several times, we have had to use our washcloths, or the shower, after toileting, because we have no toilet paper.

17. We get watered down disinfectant to clean the cell.

18. In the morning we get exactly two individual paper towel squares, to clean the entire cell.

19. They have put new restrictions on clergy visits.

20. No textbooks, educational classes, crosswords, number puzzles, logic puzzles, arts or crafts are allowed.

21. In the hole, medical watch, suicide watch, there is no way to wash hands, shower, or brush teeth.

22. The only time we received materials to clean the filthy cell walls and vents was because “the state” is “coming to inspect.”

Author’s note: When I mention requests for real recreation, I am referring to requests for recreation in an outdoor cage. When the guards banged on the doors at night to offer rec, their offer was for rec in a tiny chapel that was the size of a medium-sized cell.

There was also an indoor gym in the jail, but this was rarely offered.

Between January and March, we went to the outdoor cage one time, the indoor gym two times, and the tiny chapel several times, although we frequently declined to visit the chapel for rec, because it was little larger than another cell, and it was indoors.

The rest of the letter concerns Judge Craig Clymer’s behavior and actions during sentencing, trial, and on various documents. I will cover this in separate blogs.

The Obamanable President: UPDATED

Posted: December 15, 2011 in criminal justice system, Executions, law
Tags: benjamin cardozo school of law, criminal justice system, law, legal definitions and issues

President Obama has announced that he will sign the National Defense Authorization Bill that gives him and the military the authority to indefinitely detain U.S. citizens suspected of supporting terrorist activity. I am not surprised because Obama already claims to have the power to order any person in the world assassinated, no matter where situated and whether or not a U.S. citizen, if he decides that person is a terrorist or has provided material support for terrorism.

The Fifth Amendment to the United States Constitution provides:

Emphasis supplied.

Nothing explicit or implicit in the Fifth Amendment creates or justifies an exception to the Due Process Clause that I italicized, and if you carefully listen with your heart, you can almost hear our Founding Fathers shouting, “NO.”

Using post-conviction DNA testing, the Innocence Project, which was formed by Barry Scheck and Peter Neufeld at the Benjamin Cardozo School of Law in New York City approximately 20 years ago, has exonerated 282 innocent people who were wrongfully convicted of crimes. 17 people were on death row awaiting execution when they were exonerated.

“The Disturbing Case of Eddie Lowery” will be shown tomorrow night (Friday, December 16th) on MSNBC at 10 PM. He is one of those 282 innocent people. Mr. Lowery falsely confessed to a rape he did not commit and spent 10 years in prison before he was exonerated. You can visit the website for the Innocence Project and watch a preview of tomorrow night’s show here.

The Death Penalty Information Center issued a report today entitled, “The Death Penalty in 2011: Year End Report, which you can read here.

The Center reports that, while 1277 people sentenced to death since 1976 in the U.S. have been executed, 139 people sentenced to death have been exonerated (this number includes the 17 people exonerated by post-conviction DNA testing). That is more than 10% of the number of people executed.

The high number of post-conviction exonerations does not inspire confidence in the ability of the criminal-justice system to only convict the guilty and always acquit the innocent, despite due process of law.

Researchers have identified seven causes of wrongful convictions. They are:

1. Mistaken eyewitness testimony;

2. Police misconduct;

3. Prosecutorial misconduct;

4. Forensic fraud;

5. Ineffective assistance of counsel;

6. False confessions; and

7. Jailhouse informants.

To the extent we have information about the people detained at Guantanamo, approximately 80 to 90% are innocent. Most of the people detained by the U.S. military there and other places were identified by paid informants as terrorists and many of them confessed while being tortured.

There is no evidence-based reason to believe that the military is any better at only convicting the guilty and always acquitting the innocent than the civilian criminal-justice system. In fact, given the kangaroo-court-style military tribunal process, there is good reason to believe that there is a much higher probability of wrongful convictions by military tribunals.

Despite all of the well-documented examples of the wrongful conviction of innocent people accorded due process of law in civilian courts and the identification of the causes of those wrongful convictions, President Obama apparently would have us believe that he and his review panel would never make a mistake and order the assassination of an innocent person.

And now the U.S. Congress has granted him the authority to order U.S. citizens, whom he suspects of providing material support to terrorists, detained indefinitely by the U.S. military without access to lawyers and the civilian courts.

This is an egregious and unpardonable sin against the U.S. Constitution, Bill of Rights, Rule of Law, and we the people of the United States.

Given the secretive manner in which senators Carl Levin (D) and John McCain (R) cooked-up this law behind closed doors without conducting any hearings or calling any witnesses, I cannot help but believe that this law was enacted with the OWS protests in mind.

Everyone who participated in drafting, supporting, and enacting this horrific law is unfit to serve in government. They should be immediately removed from office and forever barred from serving in public office in the future in any capacity.

Let December 15, 2011 forever be known as America’s National Day of Shame.

Cross posted from my law blog.

The Curious Case of the Three Suppression Orders (Part 3) [Frog Gravy Legal Case

Posted: December 9, 2011 in criminal justice system
Tags: criminal justice system, differing writing style in third unsolicited suppression order, FROG GRAVY, Frog Gravy Legal Case, Frog Gravy legal case, I was in jail before I even heard about the third order, insolicited third suppression order, Judge Craig Clymer, JUDICIAL MENDACITY, legal definitions and issues, McCracken Circuit Court Judge Clymer, suppression denial, suppression order with nothing from suppression hearing supporting findings of fact, third order denying suppression submitted post-trial, three orders denying suppression

Written by Masoninblue and published full-text here with permission. However, I chose the music for the post. To listen as you read, simply click on the video;you do not have to watch it. By the way,if you are a judge and you are following this case,and you have seen anything like this,please emailme privately with the citation;I would like to see it. My email listed in the About section of this site. Thank you,Rachel, aka Crane-Station.

The Curious Case of the Three Suppression Orders (Part 3)

Author’s Note: Judge Clymer surprised us with a third suppression order that he issued out of the blue 3 days after the trial concluded. He did not inform us that he was considering modifying his second order and he did not schedule a hearing, request any input or allow any discussion or objections. He simply mailed it out as one might do with a letter bomb.

The order consists of the judge’s personal opinions set forth as findings of fact in a transparent effort to strengthen his order denying suppression by making stuff up and characterizing it as “unusual, suspicious, and disturbing,” even though Deputy McGuire never uttered those words at the suppression hearing. He even uses the word appellant, instead of defendant, obviously anticipating an appeal.

During my 30 years representing clients charged with felonies in state and federal courts, I never had a case in which a judge did this and I never heard of a case in which a judge did something like this.

3. The Third Suppression Order Issued Post-Trial on January 28, 2008.

In his third suppression order, the supplemental suppression order, Judge Clymer modified his first finding of fact in the second order (that correctly quoted what the caller reported to 911) by eliminating the quote and replacing it with the following statement.

The 911 dispatcher received a call from an identified public citizen, Vernon Wilkey, who reported that a white female driving a dark blue LeSabre with Washington State license plates made unusual and disturbing statements about heroin in his neighborhood.

(Finding of Fact 1)

Finding of Fact 2 states,

911 called deputies, and alerted them to the woman, her vehicle, and her suspicious drug activity.

Finding of Fact 3 characterizes the appellant’s driving and states,

The vehicle was travelling slowly in the right traffic lane of Highway 60 with the left-turn signal activated for an unusually long time for no apparent reason. The vehicle did not turn left, but continued on straight, which all appeared unusual and suspicious to the deputy.

Finding of Fact 4 (mis-numbered as a second 3) states,

The vehicle then pulled to the right side of the road and stopped without any signaling to do so by the deputy. This demonstrated additional unusual behavior by the appellant. The deputy then pulled in behind the appellant’s vehicle and activated his roadstop lights. By the time the deputy stopped, he had reasonable grounds and reasonable suspicion to approach the driver. He exited his cruiser and walked to speak to the driver.

Finding of Fact 5 (mis-numbered as 4) states in part,

The appellant failed all HGN tests. She also gave unusual responses to instructions given to her by the deputy; she appeared somewhat confused; she appeared nervous; and she appeared to the deputy to be under the influence of drugs or alcohol.

Finding of Fact 6 (mis-numbered as 5) states,

The appellant admitted to the deputy that she was on a number of medications, including Clonazepam. Clonazepam is a strong anti-psychotic medication which interferes with motor performance, including driving a motor vehicle. Clonazepam also causes abnormal eye movements.

Finding of Fact 7 (mis-numbered as 6) states,

The deputy had reasonable grounds and probable cause to arrest the appellant for DUI.

Finding of Fact 8 (mis-numbered as 7) states,

The appellant was transported to the hospital for the taking of a blood test. At the hospital a suspicious baggie was found next to the appellant’s watch in the back seat of the deputy’s patrol car. The deputy knew that the patrol cruiser did not have the suspicious plastic baggie or a watch before the appellant was placed into the back seat. The appellant admitted losing her watch. The deputy had probable cause and exigent reasons to seize the baggie. The baggie appeared to contain crack cocaine. The deputy had probable cause to arrest the appellant for tampering with evidence and possession of cocaine.

Conclusion of Law 1:

The caller who reported the appellant’s unusual interest in heroin was identified. Such a report is considered more reliable than an anonymous tip.

Conclusion of Law 2:

The deputy had reasonable suspicion and probable cause to make an investigation stop and search of the appellant and her vehicle.

Conclusion of Law 3:

Discovery of the suspicious plastic baggie in the back seat of the deputy’s cruiser was based on plain view discovery. The appellant and her vehicle had previously been detained based on the circumstances described above which proceeded (sic) the discovery of the baggie.

Author’s Note: We have previously discussed Deputy McGuire’s testimony under oath at the preliminary hearing in which he said he found the rock of crack under his rear seat while he was looking for Crane-Station’s watch that she had asked him to retrieve for her.

I was confident that the Court of Appeals would reverse on the suppression issue in this”unusual, suspicious, and disturbing” case, but it did not, and that is when I lost hope for an honest and judicious review of her case.

If this could happen to Crane-Station, it can happen to you. We are all lost when our judicial system ceases to function.

Letter From A Priest: Ricky’s World: Frog Gravy 60 Frog Gravy is a nonfiction incarceration account.

The Curious Case of the Three Suppression Orders

Posted: November 22, 2011 in criminal justice system, law
Tags: appeals, conclusions of law, crime, criminal justice system, findings of fact, Fourth Amendment, FROG GRAVY, Frog Gravy Legal Case, Kentucky Just Us, law, legal definitions and issues, motion to suppress, standards of review, suppression hearing

This article is written by Masoninblue and published full text here with permission.

Author’s note: This diary is part of the Frog Gravy legal case and will be posted in three parts beginning today and ending on Thursday, which is Thanksgiving. In this part I explain basic pretrial legal procedure that is common in criminal cases. Specifically, I explain suppression hearings, which most of you probably have heard about, but might not know some of the finer details. This information will be helpful to understanding the incredibly bizarre events that followed; events that will be the subject of the next two parts. Now, get comfortable, buckle your sealtbelt, and get ready for your ride down the rabbit hole.

If you have not already done so, I recommend you watch the embedded video, in which a 16-year-old white girl is ordered to stand trial for murder as a 300-pound black man, to get yourself in the proper frame of mind. And, now here is The Curious Case of the Three Suppression Orders

The Fourth Amendment prohibits unreasonable searches and seizures. The exclusionary rule prohibits the prosecution from using evidence against a defendant, if that evidence was seized by police in violation of the Fourth Amendment.

A suppression hearing is a pretrial hearing in which a defendant asks the court to suppress evidence that the prosecution intends to introduce at trial against the defendant. If the court grants the request and orders the evidence suppressed, the prosecution is prohibited from introducing it or referring to it during the trial.

Suppression hearings are held before trial to resolve legal issues relating to the admissibility of evidence allegedly seized in violation of the Fourth Amendment, because in many cases, especially drug cases, the prosecution would be unable to try the case, if the court were to order the evidence suppressed. If that were to happen, the prosecution would be forced to dismiss the case and there would be no need for a trial.

Normally, a court issues a written order granting or denying the motion to suppress and sets forth findings of fact and conclusions of law that support the order. Findings of fact, as the term implies, are findings regarding what happened. They are the facts of the case upon which the conclusions of law must be based.

For example, let us suppose that Archie testified that a traffic light was green and Gillian testified that it was red. Whether the light was green or red would be a disputed fact and the judge would have to find as fact one or the other. If both witnesses agreed that the light was red, that would be an undisputed fact and the judge would have to find as fact that the light was red.

Normally, there is only one suppression order and it is entered before the scheduled trial date. Usually, the prevailing party drafts the order and provides opposing counsel with a copy. If opposing counsel agrees to the proposed order, the trial court will enter it as an agreed order without a hearing, unless the judge wants to change something. When that happens, the judge will schedule a hearing to finalize the order. The prosecutor, defense counsel, and the defendant appear for the hearing, hash out their differences, and the judge makes a final ruling. In other words, the process is transparent and ex parte contact with the judge (by one lawyer without the other present) is prohibited.

When suppression orders are appealed, the appellate courts review challenged findings of fact to determine if they are “clearly erroneous.” That is, unsupported by any evidence. Appellate courts uniformly refuse to second-guess a trial court’s challenged finding of fact, as long as there is some evidence to support it, even if the appellate judges might personally disagree with the trial court. Their reluctance to second-guess the trial court is based on the well-founded notion that they are not in as good a position to judge witness credibility since they were not present when the witness testified.

Conclusions of law are reviewed de novo. That is, they are reviewed anew without any deference to the trial court.

Crane-Station’s lawyer filed a motion, which is a formal request, to suppress all of the evidence seized by police after she was pulled over while driving down the highway and arrested for driving under the influence of drugs. Her lawyer argued for suppression on the grounds that:

1. The stop violated the Fourth Amendment because police pulled her over without a reasonable suspicion to believe that she had committed, was committing, or was about to commit a crime; and even if they did have a reasonable suspicion;

2. The subsequent arrest violated the Fourth Amendment because police lacked probable cause to believe that she had committed a crime.
The suppression hearing took place on November 27, 2006. Only one witness testified, Deputy Eddie McGuire of the McCracken County Sheriff’s Department.

We have already recounted his testimony in some detail and will not repeat it here, except to briefly summarize and note that there were no disputed facts, since he was the only witness who testified. Therefore, it should have been relatively easy for a sentient being, especially an educated judge who took an oath to uphold the Constitution and impartially follow the law, to come up with a set of findings of fact that were supported by the evidence.

Alas, it was not to be.

To be continued

You Paid The Price But It Couldn’t Be Bought: Frog Gravy 58

Posted: November 21, 2011 in Artwork, criminal justice system
Tags: concrete and steel, criminal justice system, daliesque, dark poetry, FROG GRAVY, Jail, lower companionship, M and Ms, MCCRACKEN COUNTY JAIL, mental illness in jail, Nonfiction incarceration account, sick, warehousing humans, you paid the price

“Freight trained!”

“Only with a bull it’s worse…”

Before you read this post, take a look at this letter from DOC and bear in mind that I have an eight-year sentence: Roxi, my sister’s Cocker Spaniel, jail art by Crane-Station on flickr: McCracken County Jail, after the hole, January 2008

“You have to understand that you’re in jail,” says Garrison, a high-ranking McCracken County Jail officer. Garrison is wearing a crisp, white shirt. His good looks have probably assured him status in all the right cliques, from high school (football I assume) days to the present. Garrison’s soft-spoken, understated manner makes him an effective officer, I think. His demeanor commands wide-spread respect from inmates.

I have requested placement into one of the smaller cells at the back of the jail rather than one of the large overpopulated ‘population’ cells, and cited several psychiatric diagnoses to support the request.

He says, “Now, if you didn’t want to be here you shouldn’t have done all those crimes, I read the charges. This ain’t the Marriott, this is jail, and we don’t make special exceptions for anyone. We provide a safe environment with three meals a day and TV and that’s a lot more than a lot of people have on the streets…”

He is going to place me in a large population cell, and my heart sinks because I am not sure I can handle dueling screaming asylums: one in my head and the other in the environment around my head. The synergistic pitch alone could lead to a violent hemorrhagic event that would leave me bleeding from my eyeballs.

There are many Garrisons out there, who wear white shirts, because they are in the business of pest control. Where to warehouse and entomb the vermin? Where to stash society’s lower companionship? Such decisions.

However, God smiles this day, and guard Sally leads me to Cell 107. What a blessing. My prayers are answered.

I begin writing down everything I see and hear. Most of what follows is verbatim, from my notes, pages 9 through 14.
(Private joke: God divided by zero and got my notes.)

The cell is the size of a tiny garage. The bolted steel door has a hinged metal flap that is opened from the outside. After the steel door closes, I notice that a previous occupant/artist has penned three verbs that make newcomers feel cozy and right at home: “Kill. Fuck. Die.” in no-shank pen block letters. Below that a verb, then an article, then a noun: “Fuck The World.” As I have explained, the artist then outlined the small window in the door with a border to make the window look like a TV, and even added a rabbit-ear antenna. The ‘volume’ knob is labeled “valium,” and the maximum setting is labeled “10 mg.”

Three bullet-proof glass windows face the hallway. The rest is standard fare for a kennel: six people in a four-person tomb sharing one steel toilet; a lingering smell that is typical of jam-packed humans; no view to the outside; so little room that you can only do a few standing-in-place exercises or push ups against the cement wall; fluorescent lighting 24/7; ice cold that re-triggers traumatic arthritis; maniacal laughing and shouting all hours of the day and night; a man screaming, “PLEASE!!! Help Me! Let Me out!! HELPmehelpmehelpmehelpme Help!” all hours of the day and night, with the whole Daliesque, grey cement landscape dotted with focused, albeit narrow, religious pamphlets, bibles and study guides. photo by jef safi (writing) under creative commons on flickr with the explanation:

slεεp oƒ thε paranoıa-crıtıcıst rhızomε . .

Dream Caused by the Feverish Flight of a Concupiscent Pigeon Around a Daliesque Girona’s place One Second Before the Nightmare of Awakening.

I can hear in my mind, horsemen on the horizon, Ka-ka Kunk, Ka-Ka Kunk, Ka-ka kunk.

I spot an ice water thermos on a cement ledge at the entrance to the toilet. I get a drink of water. I see an M and M bag that seems to have been abandoned. I pick it up, empty out what is left of the M and Ms and eat them.

A while later, Leese is in the toilet and there is an ear-piercing shriek: “Who took my M an Ms!!! Oh my gawwwwwd, my M and Ms, they are gone, they were just here!” Leese is hysterical, on the verge of tears.

“Um,” I begin. “Man, I am so sorry, I ate them. I did not realize they were yours.”

“You fucking old-ass bitch!” she shouts. “They were my makeup! You ate my fucking makeup!”

A round of snickers in the cell.

Color me Scarlet Letter. I am now, officially, the lowest of the lowest of the low and much less. In a record-breaking ten minutes I am close to being voted off of Inmate Island. Another way of putting it, in urban slang: I am going down.

In time, we heal the relationship. I replace her Max Factor M and Ms. One day, Leese hands me a poem she has written. The poem is four pages long. She says, “Here. Put this in your book.”

The poem is titled, You Paid the Price, But it Couldn’t Be Bought.

Sick of the darkness, sick of the light
Sick of the day, sick of the night.

Sick of the quiet, sick of the noise
Sick of the games, sick of the toys.

Sick of the shoes, sick of my feet,
Sick of the cold, sick of the heat.

Sick of being happy, sick of being sad,
Sick of doing good, sick of being bad.

As I read, I can feel tears form. The tears are warm. They drop onto the cement. And the poem continues…

Investigatory Stop Or Voluntary Citizen Initiated Contact With Police? [Frog Gravy Legal Issue]

Posted: November 11, 2011 in criminal justice system, law

Written by Masoninblue, my husband, and published here, full-text, with permission.

An interesting Fourth Amendment issue arises from time to time regarding whether a police officer initiates a contact with a person operating a motor vehicle by pulling it over, or the driver voluntarily initiates the contact by stopping the vehicle and signals for assistance by turning on the vehicle’s blinking hazard lights, as might be the case for example, with a health emergency, a flat tire, or running out of gas.

With few exceptions, the first situation is prohibited by the Fourth Amendment, unless the officer has a “reasonable suspicion” that the motorist has committed, is committing, or is about to commit a crime. A reasonable suspicion is more than a mere hunch because it must be supported by an articulable set of objective facts and circumstances that would cause a reasonable person to suspect that the individual being observed had committed, was committing, or was about to commit a crime. In the standard drunk driving case, for example, an officer would have a reasonable suspicion to believe the operator of a motor vehicle was impaired by alcohol if the vehicle was weaving, crossing the center line, exceeding the speed limit, and speeding up and slowing down erratically. The courts apply a flexible totality of the circumstances test in determining whether the officer’s suspicion was reasonable in any given case. The courts will not consider information acquired after a stop because the officer did not know it prior to the stop and could not have relied on information he did not know.

The second situation is not subject to the Fourth Amendment because there is no seizure when a police-citizen contact is initiated voluntarily by the citizen, or the citizen appears to require assistance. This means that an officer does not have to have a reasonable suspicion to contact a citizen who initiates the contact, or otherwise appears to require assistance. This distinction certainly makes sense when one considers, for example, the plight of a motorist who may have suffered a heart attack, turned on the hazard lights, pulled over, and stopped the vehicle before lapsing into unconsciousness. It would not make any sense to require a police officer to have a reasonable suspicion to believe that the apparently unconscious person was committing a crime to justify stopping to check on the person.

Unfortunately, however, the distinction between an investigatory stop that requires a reasonable suspicion under the Fourth Amendment and the voluntary citizen initated contact with a police officer that is not subject to the Fourth Amendment is not always easy to determine. As with the reasonable suspicion test, the courts consider the totality of the circumstances and ask whether a reasonable person in the same set of circumstances faced by the person in the case under review would have believed that he was free to terminate the contact at any time and drive away rather than remain and submit to the authority of the law enforcement officer until released.

This issue was raised by the prosecution in Crane-Station’s case. The trial judge agreed with the prosecution and ruled that the arresting officer, McCracken County Sheriff Deputy Eddie McGuire, did not require a reasonable suspicion to pull her over because she had voluntarily initiated a citizen-police contact to which the Fourth Amendment did not apply.

Consider the following evidence, apply the legal rules that I have set forth and explained for you, and see if you agree with the trial judge’s conclusion.

At the suppression hearing on November 27, 2006, Deputy McGuire testified that he was dispatched to investigate a 911 call. After he arrived, he checked the neighborhood for a few minutes looking for a dark blue Buick LeSabre with Washington plates that was described by the caller. When he did not find it, he cleared the call and headed back toward town on U.S. Highway 60.

(Note: The content of this call has been discussed in a previous article (link). Briefly, the caller told the 911 dispatcher that the driver of the vehicle had mentioned “something about tar heroin and all that stuff” while talking to his neighbor in the neighbor’s yard and writing in her notebook. Since this information, even if true, describes what someone said to another person that may or may not have been witnessed by the caller and it does not describe a crime or an attempt to commit a crime, the call was insufficient to cause a reasonable person to suspect that the person described by the caller had committed, was committing, or was about to commit a crime. To conclude otherwise would be to hold that police officer may lawfully seize and investigate any person who mentions the name of a controlled substance to another person. Such a rule not only would dispense with the requirement that the suspected behavior be criminal in nature, it would violate a person’s right to freedom of speech under the First Amendment.)

As McGuire approached the traffic-light controlled intersection at U.S. Highway 60 and Cairo Road, he suddenly realized that he was passing a vehicle that matched the description provided by the 911 caller. After admitting that he did not know how fast he was driving as he approached and drew alongside her vehicle (Suppression Transcript p. 13), he said,

As I was passing the vehicle she had her left blinker on as if she was going to turn out in the passing lane, but she never did.

And then as I was going to go ahead and go past her, I noticed that the license plate – it was a Washington license plate was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me, and then when I pulled in behind her, she pulled over.

(Suppression Transcript p. 6)

The prosecutor asked him when he turned on his emergency lights and he said,

I just pulled in behind her, and she started to pull over. That’s when I lit her up.

On cross-examination, defense counsel asked McGuire if she “was driving appropriately.” He said,

I was going – yes. She didn’t bring my attention as far as weaving or nothing like that. Speed wasn’t a factor.

(Suppression Transcript p. 13)

Defense counsel focused on the blinking left-turn signal with a few questions.

Q: Okay. And apparently, your testimony is that she had on her turn signal?

A: She had her left-turn signal on as if she was going to come into the left lane. That’s what brought my attention to that vehicle to begin with. And then as I was passing her, I noticed it had Washington tags.

Q: So I guess there’s at least a possibility she was going to move into the left lane and –

A: Right.

Q: — saw your vehicle and elected not to?

A: Correct. That’s possible.

(Suppression Transcript pp. 12-13)

Defense counsel asked him to describe when she activated her right-turn signal. He said,

A: She turned her other turn signal on when she was going into the emergency lane just to stop.

Q: When she was getting ready to pull over?

(Suppression. Transcript p. 15)

When defense counsel asked him if he activated his lights “even before she came to a complete stop,” McGuire answered, “Correct.” (Suppression Transcript p. 14)

Q: So, technically, you did stop the vehicle?

A: I was going to, anyway, yes. When she started to pull over, I just went ahead and turned my lights on.

Q: When you fell in behind her, she pretty much –

A: She – yeah. I suppose she assumed I was going to stop her, so she went ahead and pulled over anyway.

Q: Safe assumption under those circumstances?

(Suppression Transcript 14-15)

Consider also that Deputy McGuire wrote in his Uniform Citation and Offense Report that he stopped her, which he confirmed in testimony under oath at the Preliminary Hearing and before the Grand Jury.

In addition, on October 17, 2006, Assistant Commonwealth’s Attorney (now a McCracken County District Court judge) Christopher B. Hollowell prepared and filed the Commonwealth’s Bill of Particulars declaring in pertinent part under penalty of perjury that Deputy McGuire “stopped” her vehicle.

(Note: this is also admissible non-hearsay as a declaration by a party opponent that arguably should be dispositive of the legal issue. See Part 1 of my four-part series on the hearsay rule.)

The critical question then is whether a reasonable person in Crane-Station’s position would have pulled over into the emergency lane and subsequently stopped her vehicle after a police officer, who had pulled alongside her, slowed down, fell in immediately behind her, and activated his emergency lights as she moved over into the emergency lane?

We do not believe the answer to this question is reasonably debatable, especially since the officer who pulled her over wrote in his report and consistently testified under oath at three different pretrial hearings that he “stopped” her. Finally, in the suppression hearing, he testified that he intended to stop her and he conceded that her reaction to his behavior by pulling over and stopping was reasonable under the circumstances.

He was the only witness who testified at the suppression hearing.

We believe that only outcome driven judicial mendacity by the trial judge and the Court of Appeals, aided and abetted by a strong dose of prosecutorial legerdemain in formulating an argument unsupported by the police officer, who was the only witness, could conclude on this set of undisputed facts that Crane-Station voluntarily initiated a citizen-police contact.

Author’s disclosure: Crane-Station is my wife. We were married and I was a law professor when this incident intruded into our lives.

Cross posted at my new law blog and at the Smirking Chimp.
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