U.S. judge rebukes city police after rejecting evidence

THE BALTIMORE SUN

Twice in recent weeks, a federal judge has delivered stinging rebukes to the Baltimore Police Department - saying at one point, "It's sad. We deserve better" - as he threw out evidence in two cases, including a major city heroin seizure, after finding that police had acted illegally.

In blunt remarks from the bench, U.S. District Judge Andre M. Davis voiced a growing impatience with what he portrayed as sloppy work by city officers more intent on fighting with the Baltimore state's attorney and making splashy arrests than diligently building cases that will stick, court transcripts show.

Davis ruled in one case that about $200,000 worth of heroin was illegally seized by city narcotics detectives who prepared a search warrant affidavit that contained "knowing lies." In an unrelated gun case, Davis said city officers failed to show a basic understanding of constitutional rights and added: "I think the community is entitled to a higher level of performance, to a higher level of professionalism."

"They're fumbling and bumbling, and they don't understand the law," Davis said. "They don't understand the Constitution. They don't understand the limits that the law places upon them."

Davis' wide-ranging remarks provided a rare critique of Baltimore's police force from the vantage of the city's federal bench. His comments also offered forceful support to concerns and criticisms that others - most vocally, top officials in the city state's attorney's office - have expressed about the work of Baltimore police.

Officials in the U.S. attorney's office responded to Davis' ruling in the drug case against defendant Mason A. Weaver by taking the unusual step of asking the judge to soften his sharp attack. Prosecutors did not appeal Davis' decision to suppress the evidence, but they asked the judge to amend his characterization of the sworn police affidavit as containing "knowing lies."

Federal prosecutors asked the judge to find instead that the affidavit contained "recklessly made material misstatements and inaccuracies."

Davis has yet to rule on the prosecution's request. In court papers filed last week, Weaver's defense lawyer called the government's motion an attempt to "rewrite history" in order to keep the detective who prepared the search warrant affidavit and testified about it in court "viable as a police officer."

"It is shocking that the government would not be as offended or even more offended than this court that a police officer, who the government relies on to provide its case, lied under oath," defense lawyer Kenneth W. Ravenell said in court filings.

A spokeswoman for the U.S. attorney's office declined to comment on the case. The motion asking Davis to amend the language in his ruling was signed by the prosecutor who handled the case in court and by First Assistant U.S. Attorney Gregory Welsh, the office's second-in-command.

"That goes to our overall investigative decisions, and those are internal decisions that we really can't discuss," said Vickie E. LeDuc, a spokeswoman for U.S. Attorney Thomas M. DiBiagio.

Ravenell, who represented Weaver and the defendant in the other case that Davis criticized, also declined to comment.

Called a moderate

A city police spokeswoman said Friday that Commissioner Kevin P. Clark had been made aware of the concerns Davis raised in court, after an inquiry by The Sun, and was reviewing the matter.

"At this time, I will decline to comment until the proper department officials have had an opportunity to review the circumstances related to this event," spokeswoman Ragina C. Averella said.

Nominated to the federal bench by President Bill Clinton in 1995, Davis is considered a moderate; his judicial experience reaches back 15 years and includes terms in Baltimore's district and circuit courts.

In one of his more prominent decisions as a federal judge, Davis struck down three years ago a Baltimore law requiring that 20 percent of the city's public works contracts go to minority companies.

Awakened mother

In the weapons case against Robert A. Paige, 30, federal prosecutors dismissed the indictment charging Paige with illegally possessing a handgun as a convicted felon after Davis granted a defense motion to suppress evidence and statements collected by Baltimore police.

During a hearing in the case Jan. 10, Davis noted that after encountering Paige as part of a broader drug investigation, city police went to his mother's home in the 1800 block of Baker St. at 4 a.m. and awakened her for permission to search for drugs and weapons in the house.

The judge ruled the search was illegal and called it the kind of behavior that undermines public trust in law enforcement.

"These officers seem not to understand the connection between what I'm willing to grant are good-faith, honest efforts to fight crime and the methods they use with the citizenry," Davis said.

Harsher assessment

Less than a week later, at the close of a two-day suppression hearing in the heroin trafficking case against Weaver, Davis gave an even harsher assessment of the actions of police. Davis threw out evidence against Weaver, 29 - including more than 800 grams of heroin and $3,700 in cash found in an apartment in the 5600 block of Loch Raven Blvd. in October - after finding a string of illegal steps by police in the investigation.

Davis said the problems illustrate why so many cases in state court end in plea deals or acquittals by city juries.

"The state's attorney for Baltimore City is often criticized for the manner in which the criminal justice system is operated by that office," Davis said at the Jan. 16 hearing in Weaver's case. "What people don't realize is that this is what this office has to deal with."

"Here is why they plead the cases out," he added. "This is exactly why they plead the cases out. Because with all respect to the officer present [in the courtroom], the Baltimore City police are not interested in making cases. They're fighting with the state's attorney's office."

During the hearing, Detective Thomas E. Wilson III testified that officers stopped and arrested Weaver outside a cellular phone store on Loch Raven Boulevard Oct. 9 after seeing him give an unidentified male a "pool ball"-size rock of what appeared to be heroin in exchange for a thick wad of cash.

After detaining Weaver, Wilson and Detective Keith McNeill drew up a sworn affidavit in support of a search warrant for Weaver's apartment. In the affidavit, the officers said they had received "anonymous complaints" during the "first week of October" about drug dealing in the area of Weaver's apartment. The affidavit also described witnessing the drug sale from a "covert position" and said that after the exchange, the man who bought the drugs "fled the area on foot."

In court, Wilson acknowledged that police had received a single tip about possible drug sales on the morning of the transaction - not a series of tips over the course of a week. He also said the detectives were standing on the sidewalk instead of being in a covert hideout during the drug transaction, and the individual who purchased the drugs did not flee but simply walked away.

Davis singled out each of those statements in the affidavit as "knowing lies." He also ruled that there was no probable cause for the officers to detain Weaver initially.

"These officers had no justification to seize Mr. Weaver ... handcuff him and transport him back to - I almost fell out of my chair when I heard that yesterday - transport him back from the shopping center to the apartments and, using the key they had seized from him, go into the apartment," Davis said during the hearing Jan. 16.

Roll of the dice

"Where are they learning this stuff? ... Clearly, this was a roll of the constitutional dice on the part of these officers."

Assistant U.S. Attorney Philip S. Jackson argued in court that police had made some honest mistakes, but not ones that should prove fatal to a drug seizure significant enough for the case to be moved from state court to the federal system.

"I guess we are just looking through different prisms at the same evidence," Jackson told Davis. "Where you see misstatements in the warrant as being evidence of perhaps a lack of veracity by the police, I look at it more as this was a function of police acting in a hasty fashion, being inexact, that being the function of an overworked group of police in a city with 60,000 addicts."

Jackson noted that it was late afternoon by the time the detectives sought the search warrant, and the detectives might have been inexact in their language as they hurried to finish their work.

"I think what we were looking at when we were looking at [Wilson] was somebody who is not the most adroit person with the English language," Jackson said.

"He is not Faulkner. He is never going to be Hemingway. He is not going to be confused with Buckley or George Will or Gary Wills as wordsmiths.

"He said 'fled' in a negligent, shoddy manner and now is having to eat those words."

'How they look'

Davis dismissed the idea that problems in the affidavit were evidence of haste - "I have seen enough Baltimore City search warrants to know that this is not evidence of rushing. Regrettably, most regrettably, this is no evidence of rushing. This is how they look," the judge said.

In delivering his ruling, Davis also returned to the literary theme Jackson raised.

"I don't hold these officers to Faulkner and literacy," the judge said. "I would never do that. It would be insulting to these officers. These officers put their lives on the line day in and day out. And God help us if they were not out there. But we can do better. We ought to insist on doing better."

Excerpts from Judge Davis

Excerpts from U.S. District Judge Andre M. Davis' remarks Jan. 16 as he granted a defense motion to suppress $200,000 worth of heroin evidence against defendant Mason A. Weaver, 29. In his findings, Davis said a Baltimore police affidavit used to secure a warrant to search for the drugs contained "knowing lies," and he rejected as "incredible and implausible" the testimony of narcotics Detective Thomas E. Wilson III about the events leading to Weaver's arrest.

"The state's attorney for Baltimore City is often criticized for the manner in which the criminal justice system is operated by that office. ... What people don't realize is that this is what this office has to deal with.

"And now what we see is the U.S. Attorney's Office having to deal with these kinds of cases. You stumble on a $200,000 seizure, and the powers that be say, 'Oh, okay, this one has to go to federal court.'

"Because if this case goes to state court, I am willing to bet it gets pled out. It gets pled out. The state's attorney for Baltimore city doesn't prosecute these kinds of cases, with these officers. They give the case away. And people criticize the office.

"Why do they give the case away?

"Why do they plead these cases out?

"Well, here is why they plead the cases out. This is exactly why they plead the cases out. Because with all respect to the officer present [in the courtroom], the Baltimore City police are not interested in making cases. They're fighting with the state's attorney's office."

"There is just no question that [the defendant] Mr. Weaver is a big-time drug dealer. ... I take no pleasure at all in making rulings that have the effect of making prosecution of such people more difficult.

"But that's my constitutional mandate. I am not here to protect the world against the Weavers of the world. I am here to protect everybody's constitutional rights. Everybody's. And I don't understand why the police don't understand that."

"It just weighs so heavily on my heart to see repeatedly, even three years after - I don't want to be too cynical, but this new head of the agency [former police Commissioner Edward T. Norris] came in and was supposed to bring about this new day in law enforcement in Baltimore City.

"And even now, as he has gone, as he has done his work and moved on, in October of 2002, Baltimore City police officers are still not making cases. They are not out there working for people like [Assistant U.S. Attorney Philip Jackson], to make Mr. Jackson's job a job that he can do well.

"They are not making cases. They're not building investigations. And I saw that with all respect to Detective [Keith] Gladstone [seated in court]. They are just making arrests. They are just making seizures."

Davis' remarks in the Weaver case echoed his comments during a Jan. 10 hearing in an unrelated weapons case against Robert A. Paige, 30, charged with being a felon in possession of a firearm when police found a .380-caliber handgun after awakening his mother to conduct a pre-dawn search of her home in West Baltimore. Davis granted a defense motion to suppress the evidence against Paige, and U.S. prosecutors last month dropped the case.

"Can you imagine that? Can you imagine that happening in Roland Park or Guilford or Howard Park, Ashburton?

"Can you imagine that happening in Randallstown, Catonsville, Ellicott City? Can you imagine waking up at 3:30, 4 in the morning and some guy is standing there saying, 'Excuse me, I'm a police officer and I want you to sign this form because we think your ex-con son has got drugs or guns in the basement?'

"And you know, I can't let this moment pass without saying, you know, they criticize Baltimore City jurors constantly. Constantly. They blame the crime problem in Baltimore City, some people do, on jurors in Baltimore City, the residents of Baltimore City.

"But the truth is, this is what the people in Baltimore City have to contend with."

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