Courts find fault with DPD searches

Jul. 15, 2014 @ 07:25 PM

The Durham Police Department’s search practices have drawn two rebukes from the courts in recent weeks, with findings that officers violated suspects’ constitutional rights.

Judges from the 4th U.S. Circuit Court of Appeals in June tossed out the federal weapons-possession conviction of Dawud Ali Saafir, 37, after ruling the arresting officer used a “dishonest, reckless or objectively unreasonable” claim of probable cause to draw from Saafir an incriminating statement.

And in May, Durham Chief District Judge Marcia Morey terminated a case that began when an officer secured permission to search a house after falsely claiming to have responded to a 911 hang-up call from it.

The May incident prompted Police Chief Jose Lopez to issue an order barring officers from telling citizens they’re responding to a 911 call when in fact there hasn’t been a 911 call.

“It definitely was not a policy of this department,” Lopez said. “I went to make that clear to other officers. There’s no gray line between being able to use deception and using deception to get consent.”

The incidents surfaced as City Manager Tom Bonfield weighs requests from Durham’s Human Relations Commission and other groups that police be forced to obtain written consent for any search they conduct without having probable cause to believe there’s been a crime.

Bonfield earlier in the week said he’s “totally engulfed in working on the” commission’s recommendations, and is “spending almost all my time working with staff on that.” He’s promised the City Council a report in August.

The Saafir case technically speaking wasn’t about a consent search, but it started in 2011 with an officer’s attempt to convince Saafir to grant permission for a search of his car.

Saafir refused, but the officer claimed there was probable cause to search anyway because the ex-felon was carrying a hip flask. Asked whether there was any contraband in the vehicle, Saafir admitted there “might” be a firearm under the seat. To a federal trial judge, the admission gave the officer the probable cause needed for a valid search.

But a three-judge panel from the 4th Circuit disagreed, noting that officers never bothered to check the flask’s contents and didn’t otherwise see anything to suggest Saafir had been drinking.

That meant “there was no probable cause to search the car for any crime related to alcohol in a flask, and certainly not for any other crime,” the judges said in an unsigned opinion.

They added that “a search and seizure is unreasonable and therefore unconstitutional if it is premised on a law enforcement officer’s misstatement of his or her authority,” given a 1968 U.S. Supreme Court case that “invalidated a defendant’s consent to the search of her home after the officer stated falsely that he possessed a warrant.”

The panel included 4th Circuit Judges Andre Davis, Diana Motz and Stephanie Thacker. Motz – who was on the panel that in 2012 heard and tossed out much of the Duke lacrosse case – received her appointment to the court from former President Bill Clinton. President Barack Obama appointed Davis and Thacker.

Saafir appealed after pleading guilty in federal court in 2012 to a charge of being a felon in possession of a firearm. He received a 23-month prison sentence early in 2013.

Mayor Bill Bell has pressed local authorities, police included, to crack down on gun crime. They sometimes channel gun cases into federal court to take advantage of stricter sentencing laws there.

The 911-hang-up case surfaced after a Durham County assistant public defender, Morgan Canady, questioned an officer while she was trying to get evidence against her client suppressed.

Canady declined to say what the charged involved, though other reports indicate it was a marijuana-possession case. But the pretext for the search involved a domestic-violence allegation of some sort.

The officer testified it was “Durham Police Department policy to tell the person who answers the door that they are responding to a 911 hang-up when they are serving a domestic violence arrest warrant,” Canady said. “He further testified it’s their policy to ask for consent to look around and make sure everything’s OK.”

But Morey ruled “that consent cannot be freely, voluntarily and unequivocally given when the person does not know the real reason why the police want access to their home,” Canady said.

Lopez issued his order on June 6. He said department internal-affairs investigators have been looking into the matter.

The officer involved claimed policy backing under oath, an obvious contradiction to the chief’s comments. “Either way, somebody messed up,” Canady said.

City officials last year settled out of court a wrongful-termination lawsuit from a former Police Department sergeant who was fired in late 2009, allegedly after giving subordinates advice on how to “get around” a then-new U.S. Supreme Court ruling on search powers.