Monthly Archives: December 2016

Video Proves Austin Police Trampled Bikers Rights

By David “Double D” Devereaux

On Tuesday the 13th of December at approximately 1:15pm Cody King was the victim of a motorcycle profiling stop in Austin, Texas. Cody was stopped under the pretext of failing to properly signal while riding his motorcycle. But the real intent was to illegally detain Cody so they could violate his privacy without justification by taking pictures of tattoos all over his body. Most bikers and club members have a similar story about being profiled. But Cody went the extra step and recorded the entire incident, exactly what all bikers should do.

Why The Stop Is Illegal

Under federal law, the US Supreme Court recently explained exactly how the 4th Amendment works in terms of extending traffic stops for investigatory purposes beyond an investigation of the traffic infraction that justified the initial seizure. The majority in Rodriguez v. US (2015) writes:

“A seizure for a traffic violation justifies a police investigation of that violation” – not more — and “authority for the seizure . . . ends when tasks tied to the traffic infraction are – or reasonably should have been—completed…” Traffic stops have to be reasonably short, and unless there is reasonable suspicion of some other crime, officers can’t use the stop as a subterfuge for extraneous investigation.” 1

The extended duration of Cody’s stop amounts to a 4th Amendment violation. The moment that the APD officer confirmed that Cody would not be receiving a ticket, authority for the seizure ended because “tasks tied to the traffic infraction” were- “or reasonably should have been- completed…”

Extending the duration of the stop to take pictures of Cody absent “reasonable suspicion of some other crime” is unconstitutional “subterfuge for extraneous investigation.”

Independently, photo-stops violate an individual’s Fourth Amendment rights because an investigative technique must be “reasonably related” to the original suspicion that justified the stop. 2 Obviously, photographing Cody’s tattoos the investigative technique in this instance- is in no way “reasonably related” to the turn signal violation that justified the initial stop.

Cody Did Not Give Consent

The APD offered Cody an unreasonable choice after the traffic infraction was adjudicated. The APD was going to take pictures of Cody regardless of his consent. It’s clear that he was still being detained and not free to leave. Cody was only given the choice between pictures being taken on the side of the road or at the jail. Cody being forced to choose between two unreasonable options does not amount to consent.

Motorcycle Club Membership is NOT Reasonable Suspicion

Many comments on the MPP reveal that some believe membership in a club that authorities label a gang amounts to reasonable suspicion and even probable cause for conducting an investigatory stop. This argument is specious for numerous reasons.

First, Cody is in a motorcycle club and has absolutely no criminal record. This proves being in a club does not make you a criminal. The facts of the specific case override generalized conjecture.

Second, Membership in motorcycle clubs, including clubs labeled organized or criminal gangs by authorities, is protected by the 1st Amendment.

There is “no evidence that by merely wearing [motorcycle club] “colors,” an individual is “involved in or associated with the alleged violent or criminal activity of other [motorcycle club] members. It is a fundamental principle that the government may not impose restrictions on an individual “merely because an individual belong[s] to a group, some members of which committed acts of violence.” In fact, the Supreme Court has long “disapproved governmental action . . . denying rights and privileges solely because of a citizen’s association with an unpopular organization.” Healy v. James, 408 U.S. 169, 185-86 (1972). 3

The Austin Police Should Have Known They Were Violating Cody’s Rights.

The APD officers involved in Cody’s stop are responsible for their actions. Official APD procedures make it clear that Cody’s stop was impermissible. The APD Policy Manual is extremely precise about photographs taken in the field. Knowledge or suspicion of gang membership does not justify photos. The APD Policy Manual reaffirms Supreme Court precedent. The APD Policy Manual reads:

318.6.2 FIELD PHOTOGRAPHS TAKEN WITHOUT CONSENT Field photographs may be taken without consent only if taken during a detention that is based on reasonable suspicion of criminal activity and the photograph serves a legitimate law enforcement purpose related to the detention.

(a) The officer must be able to articulate facts that reasonably indicate that the subject was involved in, or was about to become involved in, criminal conduct.
(b) Mere knowledge or suspicion of gang membership or affiliation is not a sufficient justification for taking a photograph without consent.
(c) If, prior to taking a photograph, the officer’s reasonable suspicion of criminal activity has been dispelled, the detention must cease and the photograph should not be taken. 4

Conclusion: Motorcycle Profiling in Texas is Irrefutable

What appended to Cody is not isolated. Similar incidents have happened to thousands of bikers in Texas and across America. What happens too seldom is documenting these incidents. Filming the police in public is a constitutional right. Cody’s stop is not just an anecdotal story. Cody’s video is incontrovertible proof that motorcycle profiling is occurring in the state of Texas.

Footnotes:

1 Rodriguez v. US, 135 S. Ct. 1609 – Supreme Court 2015

2 Bruder, Molly. “Say Cheese! Examining the Constitutionality of Photostops.” American University Law Review 57, no.6 (October 2008): p. 1695

3 Coles v. Carlini 162 F.Supp.3d 380 (2015) p.28

4 APD Policy Manual, 2016, p.171 https://austintexas.gov/sites/default/files/files/Police/APD_Policy_Manual.pdf

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Why Conviction of Pagans MC Member was Overturned

By David “Double D” Devereaux

On December 2, 2016 a Pennsylvania Superior Court Order overturned the conviction and sentence of Dennis Katona, identified by authorities as a former member of the Pagans Motorcycle Club convicted for possession and the intent to distribute a controlled substance. Despite Katona’s connection, prosecutors claim he was acting alone and without the club’s involvement. 1

Essentially the court determined that evidence obtained from the search of Katona’s home was inadmissible because independent probable cause is required for each intercept of a conversation occurring in a private residence. Therefore, a warrant allowing consensual intercepts of an individual in his home over a 30 day period violates both the US and Pennsylvania constitutions.2

The Superior Court’s Decision

In a 2-1 decision, the Court majority overturned Kastona’s conviction based on the state’s Supreme Court precedent case Commonwealth v. Brion decided in 1994. The Court argued that the constitution requires a judge to approve a search warrant when a wired informant enters someone’s home as opposed to meeting them on the street, in a car or in a restaurant. In Brion, the court held:

“Because the right to privacy in one’s domain is sacrosanct, we hold that Article 1 § 8 of the Pennsylvania Constitution precludes the police from sending a confidential informer into the home of an individual to electronically record his conversations.” 3

The Superior Court reasoned that a clear and unambiguous reading of both Supreme Court precedent and enacted legislation requires independent probable cause for every intercept in a private residence under both the state and federal constitutions. 4

“Because society places a higher expectation of privacy in a face-to-face conversation taking place within an individual’s home compared to a telephone conversation, a 30-day period of time in which to obtain such in-home intercepted communications does not comport with the protections afforded by the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.” 5

Although the Superior Court’s decision is positive for advancing protections against illegal search and seizures, the decision will likely be appealed.

What Happens Next?

Deputy State Attorney General Michael M. Ahwesh, who prosecuted the case reports, “I fully anticipate we will file an appeal.” 6 The state has two appeal options — requesting a new hearing before a nine-judge panel of the Superior Court or requesting a hearing before the state Supreme Court. 7

The Katona court prefers a state Supreme Court review. The court concluded by writing, “we are cognizant of the fact that this court will not be the final word on this issue. We strongly advocate that our Supreme Court review this case and determine whether our interpretation is in line with its seminal decision in Brion. We recognize this decision has broad ramifications for law enforcement.” 8

Katona, who is currently serving 40 to 80 months in prison for his 2014 conviction on drug charges, could ask a judge to release him on bail pending an appeal. 9

Conclusions

Although dissenting Judge Eugene B. Strassburger argued that “requiring police to seek a judge’s approval each time they sent the informant into the home would be a burden”, most constitutional protections, “including the right to be free from unreasonable search and seizures, are supposed to be burdensome,” says Katona’s attorney Paul Boas. “It is burdensome to get a warrant, read a suspect the Miranda warnings, pick a jury and hold a trial.”

“This is a democracy. It’s not supposed to be easy. We’re in big trouble the day law enforcement stops complaining about how hard it is for them.” 10

Footnotes

1 Pittsburgh Action News 4, Nov.11, 2014, Former Pagans head guilty, sentenced for drugs. Deputy Attorney General says it appears Katona was dealing the drugs “on his own. We don’t think the club was involved.”

2 Com. v. Katona, D. No. 1995 WDA 2014, 2016 PA Super 269. p.3 “The crux of appellant’s suppression claim is whether the June 29th search was unconstitutional because it was based on a May 16, 2011 order signed by Judge John Blahovic that authorized consensual intercepts by a confidential informant (“CI”) over a 30-day period in appellant’s home. Specifically, as a result of numerous in-home intercepts, probable cause was established for the full search of appellant’s home. Appellant asserts that the May 16th order violated our Supreme Court’s decision in Brion, in that it allowed for unlimited intercepts in his home over a period of 30 days.”

3 Commonwealth v. Brion, [652 A.2d 287 (Pa. 1994),] and as codified in 18 Pa.C.S.[A.] § 5704(2)(iv)

4 See Supra Note 1 at p.10 “We find that, based on a clear reading and the intent of both the Brion decision and the statute, a separate finding of probable cause was required for each in-home intercept.”

5 See Supra Note 1 at p.13

6 Tribune Review Live, Court overturns conviction, sentence of former leader of Pagans, Dec.2, 2016. http://triblive.com/local/westmoreland/11578375-74/state-judge-court

7 Id

8 See Supra Note 1 at p.14

9 See Supra Note 5

10 Id.

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