Sunday, November 26, 2006

Fiddling Timecards: Almost Always A Bad Idea

It was reported recently that a former Akron, Ohio police captain was convicted of theft and evidence tampering.

What makes this story notable is the fact that the officer was a woman, and with all her experience must have thought she could get away with it. She'll do ten days in jail and have a suspended sentence and the eternal scarlet letter of conviction of an offense of moral turpitude on her record. Whether she gets to keep her pension is unknown.

Apparently the scheme was that she'd doctored her work schedule so as to get paid when she wasn't on duty. I guess the $75,000 annual salary was not enough.

The takehome's quite obvious: never doctor timecards or steal from your employer-it doesn't matter what everyone else does or what other folks say they've gotten away with, and it almost always ends badly.

Former Dallas County Sheriff In the News-Again

The recently deposed Sheriff of Dallas County, Iowa was in the news again recently.

Brian Gilbert, who has denied lifting $120,000 seized in a drug stop, alleges that an as yet unidentified person showed up on his doorstep demanding the money and making various and sundry dark threats if Gilbert didn't fork over the cash. Gilbert reported the matter, the DCI is investigating, and 'Maximum Wayne" Reisseter would not comment on whether anything is going to come out of this contretemps.

See....I know how to spell "Reisseter" and it is not spelled "Reester".

Suspect In Police Custody Shoots Himself

The Associated Press reports that a person who had been stopped for traffic offenses was wanted for other violations. He was searched and drugs were found on his person. The person was cuffed with his hands behind his back and placed in the rear of a Philadelphia, Pennsylvania police cruiser.

While in the back of the cruiser, the prisoner retrieved a weapon that the patdown had not revealed, and used it to shoot himself in the head. It was not likely that he'd found the weapon in the cruiser as the Philadelphia police use one piece plastic seats.

The takehome for Iowa officers is significant. The offender's head could just as easily have been yours. In fact, one of my correspondents reported that he failed to properly search a juvenile before transporting him to the police station, at which point a fully loaded revolver was found concealed in the kid's pants. That person decided that maybe it was safer to become an attorney.

Relax. You don't know him.

Exigent Circumstances Trumps Revocation of Consent

In State v. Beckwith, No. 05-1812 (November 16, 2006), a report of reckless driving in a trailer park brought Iowa City police officers to Beckwith's door. Complainants had identified the truck as belonging to Beckwith. Beckwith consented to the entry of officers into his home.

After some discussion with the occupants Beckwith was Mirandized and admitted he'd been driving the truck. It was determined that the engine was still hot on the truck, indicating it was used recently. After field sobriety tests were administered, Beckwith consented to a breath test which showed he had a BAC of 0.190.

Beckwith moved to suppress the entry of police into his home, alleging he'd revoked his consent. The district court denied the motion to suppress, saying that the evidence that he'd revoked his consent was disputed. The district court also concluded that even if Beckwith had revoked his consent, exigent circumstances existed that trumped the revocation of consent, if such existed at all.

The Court of Appeals affirmed, finding that there was no evidence on the record that showed that Beckwith had clearly and unequivocally revoked his consent, or that he;d revoked consent prior to the damaging admissions he'd made to police.

You've Read About Allsup, Now Read About His Buddy

In State v. Kalbach, o5-1176 (November 16, 2006) Kalbach and Allsup were racing their pickup trucks when a train unaccountably intervened by occupying the space they intended to use. Kalbach was life flighted to the hospital.

Kalbach consented to give a urine sample at the hospital which showed that his BAC was 0.111.
Kalbach attempted to exclude the test results based in an incapacity to consent and a margin of error argument based on the lack of testimony on that point.

As to his incapacity the Court of Appeals held that Iowa Code 321J.7 provides that if a person is in a condition that renders them incapable of consent, if a licensed physician, physician assistant or advance registered nurse practitioner so certifies, the person is deemed not to have withdrawn the consent provided by 321J.6. In this particular case Kalbach was deemed to have been capable of consenting because he was alert and responding to law enforcement and that he was capable of understanding the consequences of a refusal to test.

As to his margin of error argument, the Court of Appeals determined that because Iowa Code 691.2 allows all DCI crime lab reports to be admissible, the 'margin of error' argument went to the weight of the evidence and not its admissibility.

Two Attorney Calls Reasonable Opportunity To Contact Counsel

In State v. Allsup, 05-1174 (November 16, 2006), Allsup and Kalbach (about whom, more anon) were racing their pickup trucks in Dallas County when they smashed into a train.

Allsup was taken to the hospital where the deputy requested a urine sample. After two attempts to contact attorneys, Allsup agreed to the urine sample which revealed a BAC of 0.141. At trial Allsup sought to exclude the results of the urine test for obvious reasons, but having failed to argue that he was incapable of consent, the Court of Appeals rejected his argument.

It was held that the deputy had complied with the requirements of Iowa Code section 804.20 which requires that a peace officer must give an arrestee a reasonable opportunity to contact an attorney or a family member. The right is limited to circumstances which will not materially affect the two hour time limit of 321J.6(2).

New Stuff On the Reporter.

Every once in a while you have sort of a quiet spell in the news department, and this has been one of those hiatuses. Due to other commitments and a general slowdown this time of the year the reported decisions have been slow in coming, and the blogging has been notorious by its absence.

But there's hope, as there are a string of new decisions from the Iowa Court of Appeals concerning Iowa's favorite outdoor sport, which is driving under the influence.

Also, I'm pleased to announce that Dave Dudley, the Iowa Law Enforcement Academy's DUI guru, has come back to us literally from death's door. Dave had a hip replacement that went dangerously wrong, and for a while there it looked like he was not going to get through it. But he did, he's recovering, and he'll be back in his usual haunt in fairly short order.

Welcome back, David. We missed you.

Read on, and I hope you all had a good Thanksgiving-hell, being alive is something to sing the praises of.