Thursday, February 7, 2008

Live and learn

Yesterday charges against one of the teenagers who was found in possession of a gun stolen from Scheel's All Sports were dropped. The dismissal of the case follows a decision about a month ago in which the court suppressed the key evidence (the gun) as the product of an unlawful search.

The details of the ruling are summarized in a Lincoln Journal Star article published a month ago today. Basically, the defendant was on probation from Juvenile Court. The probation order specified the conditions, and number 12 on that list was a requirement that the defendant "shall submit to search of his person, home, and school locker by the juvenile probation officer." The police officers spoke to the juvenile court probation officer via telephone, who advised them that they could search based on the court's order.

The District Court ruled that the officers did not have consent from the parents for the search, and that the probation officer can't transfer the authority of the Juvenile Court's order authorizing a search to a police officer. Juvenile court probation officers are not on duty, for the most part, at night and on weekends, so no probation officer was present or available when the officer's were at the defendant's home after midnight. The absence of the probation officer from the site of the search appears to be a factor in the District Court's decision suppressing the products of the search.

Though disappointing, four other defendants are still charged in connection with the burglary here in Lincoln, others are charged in Phoenix, and we have now learned something important that will help us avoid a similar problem in the future. We have generally considered probation officers to be "officers of the court." We call them at home at night with some regularity, because it is from them that we must receive authorization to hold a juvenile in the Detention Center. Now we know that the probation officer cannot delegate the search authority in a Juvenile Court probation order to the police.

No one acted in bad faith in this case. At 1:24 a.m., a police officer trying to do the right thing made what the District Court determined three months later was a mistake, by relying on a probation officer's search authority granted over the phone. In this job, you live and learn.

16 comments:

Anonymous said...

So do I gather from this that, because the probation officer isn't physically available on nights and weekends, that the people they're supposed to be supervising can do whatever they want on nights and weekends without worrying about their probation officer?

Anonymous said...

Sounded a little different on the news last night. It's good to read the "rest of the story." It seems to me that someone on probation would figure out that they are pretty safe at night and on weekends if there isn't much chance of the probation officer stopping by. I know in some places the probation officers and police officers team up for nighttime visits. Maybe that's something that should be considered here.

JoeMerchant24 said...

No worries, Chief. Based on this kid's track record so far, your officers will have ample opportunity to meet with him again on some charge.

Somehow, me thinks this did not put the fear of the law into him.

Anonymous said...

One thing every friend of law enforcement should remember is that this judge's term ends in March 2009 (about a year from now), and he'll be up for a retention vote around that time.

I know most voters just get glassy-eyed and slack-jawed, then vote "yes" on all judge retentions, the same way they do on any school bond issue, but this isn't the first questionable high-profile decision of this sort this judge has made in the recent past, so think before you vote to retain him.

Anonymous said...

Maybe the answer is to take a handfull of officers or Duty Commanders and have the state pay them a buck a year, wave the magic wand, and you have an in house juvenile probation officer.
-the poor speller

Anonymous said...

Just curious if it might be as simple as getting the Juvenile Court judges to put "probation officer or police officer" in the probation order, instead of just "probation officer."

P.O. said...

The suggestion to have the orders read "probation officer or law enforcement officer at the direction of the probation officer" is the key. That is how most adult probation orders are worded.

Anonymous said...

My sons probation officer advised us the same instruction, that police may search him at all times while the probation order is in place.

Anonymous said...

The gun is off the street, and the kid didn't kill anyone with it. That's a good result I would say. Although I do not believe that the end justifies the means when it comes to search and seizure, this looks like a good faith mistake, and the kid probably got his behind saved from something a lot more serious. Who knows where that pistol would have ended up if the cops hadn't picked it up that night.

Riddick51PB said...

A very unfortunate outcome. Next time, be assured, a judge will be the one giving the "Go Ahead" to search the suspect's property.

Ron said...

I would think that the scenario here would have fallen under the good faith exemption, making the search legal, being that it sounded like the officer took the steps necessary to attempt to make the search valid, and by their actions it seemed to be at the time a good search.

Gun Nut said...

Will his next crime take the life of an innocent person? Cause I am sure we will be seeing him in the news again.

Gun Nut

Rex Danger said...

Too bad public safety isn't given more weight in some of these judge's decisions.

Anonymous said...

Didn't the judge's order throw out the conversation with the juvenile? I can understand that maybe the fruit of the search be suppressed but why the conversation? Sorry, I don't get it...

Anonymous said...

This is an easy fix. I am a deputy chief in North Texas and we have addressed the same issue in the past. Our orders state that juvenile on probation is subject to search and seizure by a probation officer as well as law enforcement. This has been upheld by the US Supreme Court. The case is U.S. vs Knight.

Anonymous said...

One of my buddy's recently got into some trouble at a bar and the short story is he was arrested on assault charges which are ridiculous we were there and watched as a random guy came up to him punched him in the face and began repeatedly beating him. He stood up to defend himself and in the crossfire the wasted dude fell and banged his head on the kerb. The cops show up and don't want to hear us and arrest him.
It all got cleared up in the end but had that have gone to court and my friend had to have paid court bonds could he have claimed them back or even sued the police force for wrongful arrest? Also where would be the best place for getting bonded?