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Wednesday, 05 March 2014 02:12

Officers push boundaries in quest for probable cause

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A big one got away in Cherokee earlier this year when the case against a drug dealer was thrown out by a federal judge who found Cherokee police officers had lied in a search warrant.

 

U.S. District Judge Martin Reidinger tossed out a drug trafficking case against two Florida women after finding two Cherokee police officers fudged on probable cause to help obtain a search warrant.

Officers found thousands of oxycodone, alprazolam and dilaudid tablets in the apartment where they were staying. Tips and a K9 signal for drugs during a traffic stop of the women gave them probable cause for the search, officers said, but the defense told a much different story.  

In their tale, featuring tipsters of questionable reliability and fabricated evidence, the defense cited a search warrant with “more layers of hearsay than one would see in most wedding cakes” and a “nonexistent and pretextual” basis for probable cause.

And so the case was dismissed, with a strong admonishment from Reidinger.

“Such an ends-justifying-the-means approach does not manifest good faith adherence to constitutional principles,” Reidinger’s opinion said of the officers’ conduct. 

 

The original tip

According to Cherokee police, one of their detectives got an anonymous tip that a female was selling oxycodone. Officers began looking into it and through an interview with an informant found out the woman’s name was Eudine Wilson, that she was from Florida and that she was staying at an apartment in Cherokee.

At least, that’s what officers wrote in their search warrant.

But defense attorneys for the women challenged the source of that information. 

“His affidavit is based almost entirely upon the information provided by an anonymous source and confidential informant unknown to [the officers],” the defense argued in their motion to suppress the evidence.

The affidavit never said how the officers knew the confidential informant who gave them information about the females supposedly transporting oxycodone, how the informant knew the information or whether that person ever saw any drugs, or whether officers made any attempt to verify the tip’s validity. 

There were also issues with how the officers portrayed their interview with their informant in the search warrant. The warrant states that it was through an informant that they learned the actually identity of the tipster’s female, but, Reidinger determined, that’s not what happened. According to the judge’s written opinion, the informant had only identified the suspect only as “Baby D.” Through Internet searches, officers were able to deduce that Wilson and Baby D were the same person. 

But on the search warrant, officers claimed the informant used the woman’s real name instead of nickname.

“While the reviewing magistrate may well have made the vital inference that Baby D and Defendant Eudine Wilson are the same person, it was incumbent upon law enforcement to provide the magistrate with accurate information it actually possessed at the time,” Reidinger’s opinion reads. “The affiant cannot preempt the magistrate’s judgment by presenting false information just because he assumes the magistrate will make such findings.”

 

The traffic stops

The search warrant also included a basis for probable cause gleaned from a traffic stop. Officers figured out what car Wilson drove, and on Sept. 19, 2012, they pulled it over. Officers claimed the driver wasn’t wearing a seatbelt. Wilson later denied that.

But the stop allowed officers to see Wilson’s driver’s license, linking face to name. 

Then, over the next month, officers spoke with a confidential source who further linked Wilson and another unnamed woman to oxycodone trafficking, according to the officer’s search warrant.

So, they started watching Wilson’s apartment. On Oct. 11, they followed Wilson out of the parking lot and pulled her over for crossing over the double yellow lines three times, the search warrant said. Wilson was driving and another woman, later identified as Marie Raymond, was in the passenger seat.

A drug dog from Graham County, named Beck, was on scene with his handler. The drug dog gave his signal alerting to the presence of drugs, the search warrant said, eventually leading to the women’s arrest and a search warrant to enter the apartment to recover thousands of tablets of prescription drugs. 

In the lead-up to that second traffic stop, Cherokee Detective Jeff Smith assembled a team of local law enforcement officers to help out. Altogether, he contacted six other officers from Cherokee, Swain County and Graham County, according to court documents. 

William Reed, one of the Swain County officers, set up surveillance outside the apartment and followed Wilson and Raymond when they pulled out. Smith and Cherokee Officer David Velez followed in their respective cars.

After about two miles, Reed stopped the women — supposedly for the minor traffic infraction of crossing the double yellow lines. 

 

Setup

“Until Velez heard Smith tell Wilson the reason why he pulled her over, Velez did not know the basis for the stop,” Reidinger’s opinion reads. 

As the women were providing the three officers with their licenses and rental information, Graham County Officer Matthew Cox and his K9 Beck arrived. Cox commanded Beck to sniff around the Mazda.

Cox told Smith that his dog had alerted to the presence of drugs, and officers searched the car, according to court documents. 

The problem, though, is that the K9 did not actually alert. In fact, he wouldn’t have been able to identify pharmaceutical drugs even if the car had held a ton of them, because K9 Beck was only trained to recognize marijuana, cocaine and heroin, according to court documents.

Further, video footage of the traffic stop captured by a camera on one of the cop cars showed the dog never actually gave the alert signal for drugs.

“It is undisputed that Beck never gave his trained indication,” Reidinger wrote in his decision.

However, the stop escalated when Smith asked the two women to get out of the car, after Wilson broke her phone in frustration. 

“Prior to this point Wilson had not acted angry,” Reidinger’s opinion reads. “Likewise, Wilson was not doing anything that raised any safety concern for [the officers]. She was not acting nervously, she kept her hands where Smith could see them, she was not sweating heavily, she was not using the phone in a threatening manner, and she was not acting suspicious.”

The two women were separated on opposite ends of one of the cop cars.

At about this time, dispatch told Velez that Wilson had a valid license neither women had any outstanding warrants. 

At this point, the defense contended, the women should have been released. 

“One may not be arrested for committing the infraction of driving left of center,” they wrote in their motion to suppress. 

It should have been no more than a traffic ticket, and the women allowed to go on their way.

However, Smith began to search their vehicle, according to court documents.

No narcotics were found in their car, however. 

But then, one officer observed Raymond, who was pregnant, moving her dress around and saw something protruding from underneath it.

The officers called in a female officer who was on standby and asked her to come frisk the two women. Wilson refused to comply, but the female officer detected a bulge in Raymond’s groin area.

Raymond eventually pulled out a bag holding fifty 30-milligram oxycodone tablets and fourteen or fifteen 2-milligram alprazolam tablets, according to court documents.

That’s when the women were taken to Swain County Jail, where they were strip-searched, revealing another bag of pills on Wilson. Meanwhile, Cherokee Detective Patrick McCoy was called in to help write the search warrant for the women’s apartment, mainly based on information relayed to him by other officers, Reidinger’s opinion said. 

Superior Court Judge Bradley Letts signed the search warrant application, and officers executed it soon thereafter, seizing thousands of pills, some notebooks, a computer and drug paraphernalia.

 

The outcome

So, though drugs were in fact found on the women’s body and place of residence, both were released and the case dismissed. 

Without the dog’s false alert, police would not have had reason to search the car, and no drugs would have been found on either of them. If no drugs had been found during the traffic stop, no search warrant would have been issued, and if no search warrant had been issued, none of the drugs in the apartment would have been found. 

 

Enforcement vs. ethics

The story is a classic clash between the desire to catch the bad guys and the duty to protect the rights of citizens, said Al Kopak, criminal justice professor at Western Carolina University. 

“Part of it’s political,” he said. “They make a big drug bust in the community, and the community says, ‘Yeah, go for it.’” 

But police officers occupy a delicate place in society, he said. They have to be tough, but they also have to play by the rules. 

“You don’t want the police officers to be viewed as corrupt, because then when you have cases like this, the fallout is huge,” he said. 

The temptation can be great, though, especially when it comes to drug-related crimes. Not only does the public tend to cheer on the capture of drug dealers, but law enforcement agencies can benefit financially from those busts when they seize and resell vehicles and property related to the crimes. 

“The larger issues here is the incentive to go after drug cases,” Kopak said. “They’re gonna spend their enforcement on drug-related cases more than anything else.”

At the end of the day, though, the officer’s job is to protect the innocent — which, until proof is found, include the guilty. 

“Cops have hard jobs,” Kopak said, “but some make it harder than it needs to be, I think, when they don’t do what they’re supposed to.”

The Cherokee Indian Police Department did not return a message requesting comment. 

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