Part II –
Florida Should Ban DUI Checkpoints or Roadblocks
As this case demonstrates, the Florida Highway Patrol should not be trusted to help local law enforcement agencies conduct DUI checkpoints or roadblocks. In these checkpoints thousands of law abiding citizens are delayed, stopped, and questioned.
Out of the thousands of stops only a handful of individuals are arrested for DUI. Because the checkpoints are so ineffective, the officers have to bend the rules and violate the Constitution in order to make the DUI checkpoints look a little more effective. Instead, those same officers could get more drunk drivers off the road by patrolling the streets looking for careless driving or traffic infractions.
Not only are the DUI checkpoints not effective, the officers involved cannot be trusted to follow the most basic requirements in the Operational Plan. Even when a prosecutor is at the scene overseeing the entire operation, the officers still can’t get it right. The Pasco County Sheriff’s Office, the New Port Richey Police Department, the Dade City Police Department and the Florida Highway Patrol should discontinue conducting any other DUI checkpoints at least until it figures out who should be held accountable for the mistakes made in a recent checkpoint.
Why Officers Shouldn’t Video Tape Their Own Misconduct
Officers screw up a DUI checkpoint in New Port Richey, FL. The officers were required to stop every third car according to the operational plan. The officers all receive a copy of the plan. The officers all sign a piece of paper acknowledging that the officer received a copy of the plan, read the plan, and understood the plan.
The only real and objective requirement of the plan is that the officers “stop every third (3rd) vehicle” with no exceptions. It is not that hard to do. Let two cars pass through and stop the third car. The officers know that any violation is a violation of the United States Constitution. A violation makes the checkpoint illegal.
Why Conduct an Illegal and Unconstitutional DUI Checkpoint?
Despite knowing the rules, it is a slow night with not a lot of traffic. The officers want the DUI checkpoint to be a success. Randomly selecting vehicles is not very effective. The officers want as many DUI arrests as possible.
The more cars stopped the more likely it is the officers will be able to make a DUI arrest. Is this why the officers start pulling over two and three cars at a time instead of only every third car? At one point the officers stop 6 cars in a row and then let one pass through before stopping the next four vehicles.
Yes – the officers are caught on tape pulling over six vehicles in a row! [Click here to see a detailed timeline of what is shown on the video - DUI Checkpoint Video Timeline.]
The reason why the United States Supreme Court requires that the stops are random is clear. Without following the rule of stopping every nth (2nd, 3rd, 4th) vehicle the officers could target people based on their race or ethnicity or some other improper basis. The officers at the scene are not suppose to be able to pick and choose who should be stopped and who should pass through. To allow otherwise makes a joke of the Fourth Amendment.
No One Admits to Seeing the Violation – Even the Prosecutor at the Scene
A prosecutor with the State Attorney’s Office is at the scene for the entire roadblock. The prosecutor can simply look over his shoulder toward US Highway 19 and see that the one rule – PULL OVER EVERY THIRD (3rd) CAR – is being consistently violated. But no one does anything about it. The officers and prosecutor all proceed as if the rules had been followed.
Setting Up the Video Camera to Record the Misconduct
One of the officers sets up the video camera to record a DUI arrest and “inadvertently” points the camera towards the US Highway 19. You have to look carefully. In the background you can see the vehicles and the headlights of the vehicles on US Highway 19. You can see which vehicles are stopped and which vehicles are directed into the roadblock.
If you look carefully you can see that the officers are not following the rules. Three and four cars are being pulled over at a time. At one point the video shows 6 cars in a row being directed into the roadblock.
Turn the Video Over to the Criminal Defense Attorney
Not realizing that the video shows the misconduct the video is turned over to the criminal defense attorney. While watching the video of the client’s DUI arrest the attorney realizes that the video is pointed towards US Highway 19. The attorney starts counting and quickly realizes that the officers are not even attempting to follow the one basic rule.
The attorney files a Motion to Suppress. The motion alleges that the officers did not follow the operational plan including the requirement to stop every third (3rd) vehicle. The motion lists all of the officers involved in the roadblock that were in a position to see the violation.
Assign the Prosecutor who was at the Scene to Litigate the Motion to Suppress
As soon as the motion is filed, the State Attorney’s Office assigns a special prosecutor to litigate the motion – the same prosecutor who was at the scene and in a position to witness the misconduct. Amazingly, that prosecutor doesn’t realize how the video captures the misconduct even after watching the video in preparation for the hearing.
It is never a good idea to assign the same prosecutor who was at the scene of the checkpoint to litigate the motion to suppress. First of all, that prosecutor is a witness in the case. The prosecutor was at the scene. The prosecutor saw how the checkpoint was set up. The prosecutor was in a position to see whether every third vehicle was stopped or not. Why have that same prosecutor litigate the motion to suppress?
Sometimes I get the impression that prosecutors are not really listening. If a criminal defense attorney says “watch the video carefully and you will see that the operational plan was not followed” then the prosecutor should watch that video very carefully.
Turn the Tables – Accuse the Defense Attorney of Misleading the Court
On June 22nd, 2012, the prosecutor signed and filed the “State’s Motion to Strike, or in the Alternative Deny, Defendant’s Motion to Suppress and Memorandum of Law in Support of State’s Motion” (hereinafter “Motion to Strike”). Not counting the exhibits or affidavits – the prosecutor’s Motion to Strike is 18 pages long. In those 18 pages the prosecutor alleges over and over again that the rules were followed exactly and without exception.
Attorneys rarely alleged misconduct by another attorney – especially in the criminal justice setting. But for some reason in this case, the prosecutor alleges over and over again in the motion that the Defense is attempting to “mislead the court.”
After thorough review of the Defendant’s Motion, it is clear that the Defendant has presented no legal authority or evidence to supports its contention other than mere baseless and unsupported allegations. Additionally, the Defendant affirmatively alleges certain facts to this Court in its Motion which are without factual support and the Defendant has thus affirmatively misled this Court. Furthermore, although the Defendant has made such allegations, the Defendant has utterly failed to describe for this Court any specific instances of the Ops Plan being violated. As such, the Defendant’s Motion lacks merit and should be Denied. The State will now specifically address these baseless and unsupported allegations in the Defendant’s Motion at length…
(Emphasis added) See State’s Motion to Strike, pg 7.
Surprise! Right Before the Hearing the Prosecutor Watches the Video a Little Closer
Right before the hearing, the State Attorney’s Office finally realizes that the video proves the DUI checkpoint was illegal. The State Attorney’s Office drops the charges.
Everyone Denies Knowing its a Violation or Even Who Committed the Violation
Deny. Deny. Deny. When the media picks the story up – what does the Florida Highway Patrol spokesman say?
Sgt. Steve Gaskins, spokesman of the FHP, said the agency hasn’t determined which officer, trooper, deputy or volunteer violated protocol because it’s too difficult to see on the video.
“This was an inadvertent error,” Gaskins said.
See Technicality May Void Pasco DUI Arrests – Tampa Bay Times (9/9/12). The only inadvertent error was that some officer pointed the video camera towards the misconduct.
Are we to believe that none of the officers involved remember violating the “stop every third (3rd) vehicle” rule? And why is it being suggested that a “volunteer” might be to blame? Why is Sgt. Gaskins referring to an FHP Auxilary Trooper or an FHP Auxiliary Captain as a “volunteer.”
Is the Florida Highway Patrol trusting “volunteers” to select the vehicles to be stopped? If so, what non-volunteer is assigned to supervise the volunteers? The Florida Highway Patrol conducts a lot of DUI checkpoints throughout the State. One could argue that things are set up this way for a reason.
Counting to three is not difficult. Each officer at the scene signed a Pre-Operational Detail Briefing Roster which read:
I have read the Checkpoint Operational Plan, received a copy of the Checkpoint Operational Plan, and understand all portions contained within the plan.
So the failure to stop every third vehicle was not an “inadvertent error.”
Although it is true that you cannot see which officers are pulling over the vehicles at the checkpoint on the video, it should not be difficult to determine which officers should be held accountable. If the Florida Highway Patrol cannot make such a determination, then the Florida Highway Patrol should not be conducting DUI checkpoints.
The Prosecutor’s 18 Page Motion to Strike – Not a Good Idea in Hindsight
At the time the prosecutor wrote the motion he didn’t realize that the arrest video in the case showed what actually happened on US Highway 19 that night.
A spokesman says Assistant State Attorney Vin Petty missed that fact while he was at the checkpoint, and when he first watched the video, and that’s why he had officers sign the affidavits. The police agencies also claim they had no idea they were violating the law.
See Cases dropped after illegal DUI checkpoint – 10 News WTSP.
Who Did What?
Although the Florida Highway Patrol could not figure out which officers might be responsible, the prosecutor put everything in black and white. In the prosecutor’s motion to strike he was able to described the role of the various law enforcement officers involved. In this court filing the prosecutor pointed out that “[v]arious LEOs of the FHP Auxiliary were also assigned to the Checkpoint to conduct the actual vehicle count at the Checkpoint. Such LEOs included, but are not limited to: Auxilary Trooper Jerry Swartz and Auxiliary Captain Russell Paulk.” Maybe the questioning should start with those two.
The prosecutor also explains:
On December 16, 2011 through December 17, 2011, numerous agencies in Pasco County conducted a “Comprehensive Roadside Safety, DL, Tag, DUI, and Equipment Inspection Checkpoint” (Checkpoint). This Checkpoint was governed by the policies and procedures set forth in the Operational Plan (Ops Plan). See Exhibit 1, “Operational Plan, Comprehensive Roadside Safety, DL, Tag, DUI, and Equipment Inspection Checkpoint.” Pursuant to the Ops Plan, numerous Law Enforcement Officers (LEOs) were involved in the Checkpoint.
Captain Kristina Quenneville of the Florida Highway Patrol (FHP) was the Command Officer of this Checkpoint. See Exhibit 1, p. 14. In such a position, Captain Quenneville verified that the Ops Plan was followed by all Checkpoint personnel and she has attested to the fact that at no time did any Checkpoint personnel fail to comply with the Ops Plan and that she did not personally observe any failure to comply with the Ops Plan. See Exhibit 2, Affidavit of Captain Kristina Quenneville, dated June 15, 2012.
Lieutenant John Small of the FHP was the Coordinator of this Checkpoint. See Exhibit 1, p. 14. In such a position, Lieutenant Small verified that the Ops Plan was followed by all Checkpoint personnel and he has attested to the fact that at no time did any Checkpoint personnel fail to comply with the Ops Plan and that he did not personally observe any failure to comply with the Ops Plan. See Exhibit 3. Affidavit of Lieutenant John Small dated June 15, 2012.
Various LEOs were assigned as Checkpoint Line Supervisors, to include but not limited to: Sergeant Art Rowand of the Pasco County Sheriff’s Office (PSCO); Sergeant Erik Jay of the New Port Richey Police Department (NPRPD); and Sergeant Heather Glenny of the FHP. See Exhibit 1, p. 14. Each of the aforementioned LEOs who served as Checkpoint Line Supervisors have attested to the fact that at no time did any Checkpoint personnel fail to comply with the Ops Plan nor did any such LEO personally observe any failure to comply with the Ops Plan. See Exhibit 4, Affidavit of Sergeant Art Rowand, dated June 13, 2012; Exhibit 5, Affidavit of Sergeant Erik Jay, dated June 15, 2012, and Exhibit 6, Affidavit of Sergeant Heather Glenny, dated June 18, 2012.
Various LEOs of the FHP Auxiliary were also assigned to the Checkpoint to conduct the actual vehicle count at the Checkpoint. Such LEOs included, but are not limited to: Auxilary Trooper Jerry Swartz and Auxiliary Captain Russell Paulk. Each of the aforementioned LEOs have attested to the fact that at no time did any Checkpoint personnel fail to comply with the Ops Plan nor did any such LEO personally observe any failure to comply with the Ops Plan. See Exhibit 7, Affidavit of Auxiliary Trooper Jerry Swartz, dated June 15, 2012; Exhibit 8, Affidavit of Auxiliary Captain Russell Paulk, dated June 21, 2012.
Additionally, various LEOs were assigned as Checkpoint Line Officers. One such LEO was Trooper Ronald Evans of the [Florida Highway Patrol]. Trooper Evans has attested to the fact that at no time did any Checkpoint personnel fail to comply with the Ops Plan and that he did not personally observe any failure to comply with the Ops Plan. See Exhibit 9, Affidavit of Trooper Ronald Evans, dated June 15, 2012…..
The prosecutor recognized that the importance of stopping every third vehicle. The State’s Motion alleged, in part, as follows:
Pursuant to the Ops Plan, at the Checkpoint, stops were to be conducted as to every third (3rd) vehicle. See Exhibit 1, p. 5. Specifically, the Ops Plan indicated, “[e]very third (3rd) vehicle will be stopped during the Checkpoint detail.” See id. (emphasis in original). As such, there was a specific and written guideline in the Ops Plan regarding how vehicles were to be stopped. Additionally, at no point in the Ops Plan was there any section which would contradict the “third car” rule. See generally, Exhibit 1. Furthermore, a careful review of the entire Ops Plan contains explicit guidelines regarding a plan for the stopping of vehicles and it did not allow any discretion to deviate from said guidelines. Therefore, Defendant’s Motion [to Suppress] is without merit and should be Denied.
Furthermore, in the Motion to Strike, the prosecution acknowledged that no officer should have deviated from the plan.
First and foremost, the Ops Plan was explicit and in writing, detailing every possible issue that could have arisen at the Checkpoint. See Exhibit 1. Additionally, the Ops Plan was explicit and in writing, detailing every possible issue that could have arisen at the Checkpoint. See Exhibit 1, p. 5. Specifically, the Ops Plan indicated, “[e]very third (3rd) vehicle will be stopped during the Checkpoint detail.” See id. (emphasis in original). This is a neutral criteria for conducting stops, one in which is set in stone and was not subject to any ability for deviation. Furthermore, the Ops Plan discussed at length the detention and investigation techniques to be utilized at the Checkpoint. See Exhibit 1, p. 5-6, P 6-8; p. 12, Detection and Investigation Techniques.” Additionally, Duty Assignments and Duty Descriptions were set forth in detail. See Exhibit 1, p. 8-9 (Duty Description); p. 14-15, “Comprehensive Roadside Safety Checkpoint Assignments.”
And, it must be noted that an attendance roster was completed and signed by all LEOs participating in the Checkpoint, both before and after the Checkpoint, which specifically indicated that all persons had received a copy of the Ops Plan and fully understood said Ops Plan. See Exhibit 15, “Pre-Operational Detail Briefing Roster”; Exhibit 16, “Post Operational Detail De-Briefing Roster.”….
Just in case there was any question, the State’s motion then goes into even greater detail about why there is no question that the Operation Plan was followed exactly. The prosecutor asserted:
The Defendant has affirmatively alleged that Lieutenant John Small of the FHP personally witnessed a failure to comply with the Ops Plan. However, pursuant to testimony by Lieutenant Small [in the affidavit] he witnessed no such thing. See Exhibit 3, Affidavit of Lt. Small….
[P]ursuant to testimony [in the affidavit] by Trooper Evans [with the Florida Highway Patrol], he witnessed no deviation from or failure to comply with the Ops Plan. See Exhibit 9, Affidavit of Trooper Evans.
Then, the Defendant has affirmatively alleged that Sergeant Art Rowand of the PCSO [Pasco County Sheriff's Office] personally witnessed a failure to comply with the Ops Plan. However, pursuant to testimony by Sergeant Rowand. he witnessed no such thing. See Exhibit 4 Affidavit of Sgt. Rowand.
Additionally, the Defendant has affirmatively alleged that Sergeant Erik Jay of the NPRPD (New Port Richey Police Department] personally witnessed a failure to comply with the Ops Plan. However, pursuant to testimony by Sergeant Jay, he witnessed no such thing. See Exhibit 5, Affidavit of Sgt. Jay.
Furthermore, the Defendant has affirmatively alleged that Sergeant Heather Glenny of the FHP [Florida Highway Patrol] personally witnessed a failure to comply with the Ops Plan. However, pursuant to Sergeant Glenny, she witnessed no such thing. See Exhibit 6, Affidavit of Sgt. Glenny.
Finally, the Defendant has affirmatively alleged that Captain Kristian Quenneville of the FHP [Florida Highway Patrol] personally witnessed a failure to comply with the Ops Plan…pursuant to testimony by Captain Quenneville, she witnessed no deviations from or failure to comply with the Ops Plan. See Exhibit 2, Affadavit of Capt. Quenneville.
In another section of the Motion to Strike, the prosecutor goes on to emphasis the assertion that every third vehicle was pulled over and that the officers involved never deviated from that requirement. Of course, as they know now, a video taken by the officers at the scene proves that those assertions are completely false and that the officers did violate from the plan by not pulling over every third vehicle.
Had any of the officers at the scene just looked in the direction of US Highway 19, the officers would have seen the violations. Counting to three is not that difficult. Even more troubling is the lengths the prosecution goes to in asserting that no violation occurred while accusing the Defense of misleading the Court.
As the Defendant has made numerous affirmative misrepresentations to this Court as to the facts surrounding the Checkpoint, the State has supplied this Court with additional evidence in the form of affidavits of the LEOs who were actually on scene at the Checkpoint and personally observed a strict adherence to the Ops Plan. First, as mentioned above, various members of the FHP Auxiliary were responsible for flagging vehicles into the Checkpoint and counting said vehicles.
Auxiliary Trooper Jerry Swartz has testified that he was able to personally observe vehicles coming into the Checkpoint and that he never witnessed any deviations form the Ops Plan. See Exhibit 7, Affidavit of Aux. Trp. Swartz. Furthermore, Auxiliary Captain Russell Paulk has testified that the personally flagged vehicles into the Checkpoint, and at no point did he observe any deviations form the Ops Plan. See Exhibit 8, Affidavit of Capt. Paulk….
As discussed at length above, there was a written Ops Plan which controlled the Checkpoint in this case. Additionally, the Ops Plan provided strict guidance that cars would be stopped at a neutral interval of every third (3rd) vehicle. The State has provided amply testimony in the form of affidavits from LEOs that were on scene at the Checkpoint to prove that there was no deviation from the Ops Plan. The Defendant, on the other hand has provided this Court with no factual or evidentiary support for its contentions. In fact, it is clear that the Defendant has affirmatively mislead this Court as to the facts surrounding the Checkpoint in this case. As such, the Defendant’s Motion is without merit and should be denied.
(Emphasis added) See State’s Motion to Strike, pg 9-10.
UPDATE: Through a public record request, we were able to obtain an internal memo from the Assistant State Attorney, Vin Petty, to his supervisors including Bernie McCabe, Bruce Bartlett and Mike Halkitis dated July 3, 2012. In addition to the issues we raised, the memo discloses other problems that existed with this DUI checkpoint that were not disclosed to the defense in a timely manner. Although we never got a letter of apology from the State Attorney’s Office this internal memo is almost as good.
Leslie Sammis is a DUI attorney representing clients throughout the Tampa Bay area, including New Port Richey and Dade City in Pasco County, FL.