Police misconduct make national headlines almost daily.  Police beatings, shootings, and killings of citizens, and other misconduct seem to pop up every news cycle.  See e.g. “Court Cases Now in Limbo in Wake of Memphis Police Abuses” New York Times, February 11, 2023; “After Another Police Killing in Chicago, We Need to Focus on Care Not Cops”;  “Oakland Police Chief LeRonne Armstrong Fired”,  NBC News, February 15, 2023

But what about all less spectacular acts of misconduct that don’t make news?  Is this the tip of the iceberg? What about the police’s handling of run of the mill criminal cases like DUI’s and Domestic Violence cases?  This blog discusses how in a typical criminal case such as a DUI or domestic violence police misconduct even if not resulting in grievous misfortune  can sometimes provide a helpful remedy  for the criminally accused.

The Advent of “Body Worn Cameras”

By 2023 most police departments in Arizona, including the Arizona Department of Public Safety,  require police officers in the field to activate their Body Worn Cameras (BWC’s)  anytime they are in official contact with public.  This would mean nearly all routine traffic stops,  or  call outs on reports of  misdemeanor domestic violence,  loud parties, and the like.  Most police departments have now enacted polices requiring their use, and the preservation of all video footage, on the basis that such recordings “promote transparency.”

The Fourth Amendment

The Fourth Amendment of the United States Constitution prohibits the police from arresting any person without “probable cause”  that he or she has committed the crime arrested for.  If further prohibits police stopping a person absent “reasonable suspicion.”  While these are fairly low barriers,  on surprising occasion, video footage will support our client’s position that there was “no reason” or at least no good reason to stop, detain or arrest our client. And we will file something called a “Motion to Suppress Evidence.”

The Exclusionary Rule & the Motion to Suppress Evidence

Most of what dominates the news concerning police misconduct, ends up in remedies through civil rights law suits for monetary damages, and  through merit selection proceedings that often result in the termination of a police officer’s employment. 

But in thousands of cases, where the defendant has been arrested, judges have fashioned a remedy for police misconduct that can and often does result in the dismissal or  net reduction of a criminal case:

Judges sometimes  sanction the police for misconduct in a particular  criminal case by “excluding” evidence from that particular case, which often has the net result in making possible a dismissal of some or all of pending charges.

This applies where police have sometimes made an inadvertent error. 

This is called the “exclusionary rule” and it is a powerful tool to wield at the right moment and in the right criminal case.  The basic idea is that if a judge finds a certain level of unconstitutional misconduct he  or she will “suppress” or exclude  some, most, or all evidence, obtained as a result of misconduct so the prosecution cannot go forward or is severely hampered

For example, if police stopped you for a pathetically weak reason like an imaginary traffic “violation” that does not pass constitutional smell test,  a judge may “suppress” or “exclude” all evidence that was the “fruit” of the illegal stop, even if their were drugs in the car, or even if you had drank too much before driving.

ARS § 13-3902

By way of another example, an Arizona statute forbids  police from using “oppressive methods  of any kind for the purpose of securing a confession or other evidence of guilt from an arrested person.”  See ARS § 13-3902.  For example if video reveals that police threatened you  with arrest  if you don’t perform certain “field sobriety tests” (I’ve seen this happen)  or otherwise trick or coerce you, you may be able to convince a judge to “suppress” the evidence.

While it is true that often judges give police “the benefit of the doubt” in Arizona the burden falls squarely on the police to prove that  their stop, detention and arrest was legal. And judges don’t like police misconduct. 

Lange v. California

Similarly, in a recent United States Supreme Court case, the court held that it was improper for the police to chase a fleeing DUI suspect onto his own property (in this case his garage). See Lange. This case is worth looking at any time the police follow you to your home or gain entry to your garage or domicile. 

What I mean to demonstrate here is that even were the misconduct doesn’t result in a civil rights suit,  a careful examination of the  ideo footage in your case, together with thorough discovery and  good lawyering, may result in the unearthing of  subtle misconduct that may merit the suppression of evidence in your case.

Conclusion

Police misconduct, or one sort or another occurs with surprising frequency, most of it never making the news.  In criminal cases, the remedy for misconduct is asking a judge to “suppress” or “exclude” evidence  from your case.  This is possible even where the misconduct was not intentional or egregious, but nevertheless violated your constitutional rights  to be free of unreasonable searches and seizures.