Unlawful searches jeopardizing Walworth County cases
ELKHORN — Five Walworth County court cases could be in jeopardy after a judge ruled Monday that the search that uncovered a substantial piece of evidence was unlawful.
Four Delavan teens are charged with disorderly conduct, use of a dangerous weapon and carrying a concealed weapon stemming from an April 28 incident in Delavan. They are Brandon M. Knowles, 18; Elizabeth Jaramillo, 18; Shawn T. Barron, 18, and a 16-year-old boy,
But the weapon found in the vehicle they were driving in Delavan that day was obtained through an illegal search, Judge Michael Gibbs ruled.
Assistant District Attorney Zeke Wiedenfeld said the weapon was a “substantial” piece of evidence in the case and he will have to re-evaluate the charges after Gibbs’ decision Monday.
The weapon, Wiedenfeld said, also was substantial in another case against Knowles, who is charged with endangering safety by reckless use of firearm, discharge of firearm against a building, second-degree recklessly endangering safety and delinquent possession of firearm.
The charges stem from an incident in the early hours of April 28, when Knowles allegedly shot four times from a maroon vehicle against a Delavan home.
The weapon found through the search matched the bullet holes in the Delavan home, and the case could be compromised because the weapon can’t be used as evidence.
Delavan police officers who testified Monday said there was an unusual level of criminal activity in the area, and most seemed to be gang-related.
Delavan police officer Richard DeMarasse said he had seen a maroon car with the four teens earlier that afternoon. He noticed the driver wearing his hat sideways in a way that DeMarasse said is common among gang members.
He later drove to a Delavan neighborhood, where a woman reported a car driving by slowly and people in it throwing gang signs at her brother, and he spoke to four men in the area.
The men, who DeMarasse said are known for being involved in gang activity, told him that a “red-ish, maroon-ish” car was driving by the neighborhood and its riders were throwing gang signs.
After searching the area and not finding the car in question, DeMarasse drove to the east side of the city and spotted a maroon vehicle with four teens, later identified as the defendants.
He turned on his siren and attempted to stop the vehicle, and the driver, later identified as Barron, failed to stop.
The officer said he noticed unusual movement in the car and continued to pursue it until the driver stopped at the Walmart parking lot.
“I felt something was wrong in that vehicle,” DeMarasse said.
Thinking the occupants of the vehicle were attempting to hide a weapon, DeMarasse asked for reinforcements and proceeded to remove each passenger individually.
DeMarasse then conducted a search of the vehicle and found a weapon under the seat of the front passenger, later identified as Knowles.
But Gibbs said despite the criminal activity in the area, the officer’s reasoning was not enough to have stopped and searched the vehicle.
“None of it (the earlier complaints) seems to be related to these guys, this specific vehicle,” Gibbs said.
Wiedenfeld said he could not confirm whether the three teens, charged with misdemeanors, were in the car at the time of the drive-by shooting that has warranted Knowles felony charges.
The four teens are scheduled to appear in court Wednesday.
Jul 1, 2009 at 7:32 p.m.
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The car and the occupants matched descriptions of those given by people in the area who witnessed the 'Gang Flashing.' The vehicle failed to stop for an emergency vehicle with lights and siren activated. The occupants were moving about the inside of the car in a suspicious manner. Sounds like a dead ringer to me for cause. If there was any doubt that the seizure of the evidence was not going to be legal, then why didn't any of the back up officers say something (we don't know that they didn't)? A great job and fine police work Officer DeMarasse. You can go to bed tonight and sleep 8 hours knowing you did the right thing. Stay safe!
Jul 1, 2009 at 3:21 p.m.
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The officer did identify the driver and vehicle he had seen initialy in the area of the complaint and less than an hour later, saw the same exact vehicle with the same driver as he did before. I would not call that a gut instict. That would be a positive ID by the officer from the vehicle and driver he initaly saw while driving to the original complaint. When the officer first saw the vehicle it was only a couple of blocks away from the origianl complaint location and then the witnesses gave the same vehicle description as what the officer saw. I still think that would be more then enough to have at least suspicion to stop the vehicle, but I am not a judge so my opinion does not count. Remember you don't need probable cause to stop the vheicle on reasonable suspicioun.
Jul 1, 2009 at 1:36 p.m.
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How much time had passed from the initial complaint about the vehicle and when the officer saw it? Did the officer have any reason to believe the car was related to the earlier complaints besides the color and that it was occupied by teenagers? His gut told him it was probably the same car but you need more than just your gut instinct. If he had more reason to base his gut instinct on he needed to express that better. Otherwise he should have found another reason to stop the car like an equipment or traffic violation and continue his investigation from there. Usually if the facts support something but a judge disagrees it is because it was not documented clearly in the report or argued poorly by the DA.
Jul 1, 2009 at 1:27 p.m.
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Lets shed some light on this one. First the officer was sent to a residence for a report of gang members flashing signs at other known gang members. Why would they do thiss....to disprect the other gang of course. Now after this happens, what is next the gangs get verbal with one another, then a physical fight could break out. Granted this did not occur, but I think we can all imagine what could happen. To get back on track the officer sees a vehicle while on the way to the call with the suspects inside of it in the area. Then after talking with several subjects the officer believes the vehicle he saw was indeed the suspects from this call. Now the definition of reasonable suspicioun is, believe that a crime was about to be, is or was about to happen. So throwing gang signs at a rival could be considered under the violaiton of disorderly condcut. Now having this reasonable suspicion the officer sees the vehicle and attempts to stop them. While trying to stop them everyone starts to move around in an unusual manner which the officer believes is not normal in most traffic stops. The Officer believes there might be gang members in the vehicle, they won't pull over and everyone is moving around. So the officer does not approach the vheicle and makes the subjects come back to him. This is not Probable cause to search the vehicle.. understood, however there is a state statue that covers a search of a vehicle if an officer has reasons to believe there might be a weapon in a vehicle and a search for just weapons can be done. This was not a search due to arrest. Based on all the factors this is why a stop was made. I am not sure how much more you would need to make a stop. It is believed the subjects inside the vehicle were the suspects from a disorderly complaint. However the judge did not see this in the same way the officer did. If the District Attorney's office fealt that this was an illegal stop I do not think they would have proceeded with this case. This is a matter of opinions I guess. However a gun was taken off the street and that is the main point.
Jul 1, 2009 at 11:42 a.m.
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"Failure to stop gives the officer the reasonable suspicion to search the vehicle."
Not if there was not enough reasonable suspicion to stop the car in the first place. If he had based his stop on a traffic violation instead of gut instinct this wouldn't have been an issue.
Jul 1, 2009 at 11:32 a.m.
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http://en.wikipedia.org/wiki/Automobile_...
Barring evidence to the contrary, was it reasonable for the officer to obtain a warrant when he was still searching for the car? I.e. was he looking for the car for 20 minutes or for two hours? With only a vague description to work with, would have even been possible to obtain a warrant? When was Miranda given to the occupants of the vehicle? Lots of questions!
Jul 1, 2009 at 11:23 a.m.
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Failure to stop gives the officer the reasonable suspicion to search the vehicle. I am astonished that a judge found this to be an unlawful search. Why doesn't the DA appeal this decision???
Jul 1, 2009 at 11:21 a.m.
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This is why they call illegally obtained evidence "fruit of the poisonous tree". It can jeopardize the entire case -- and here we know that the weapon was the one used. But the officer had only suspicion, not probable cause, and the Fourth Amendment was something that our founders thought was important because they had experienced the power of the Crown stepping all over their freedoms.
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I'm sure this officer acted in good faith, but if we permit police to seize evidence based on simple suspicion, we give bad officers too much power, and it will be abused if history is any guide. "The corrupt tree bringeth forth evil fruit."
Jul 1, 2009 at 10:24 a.m.
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Pay very close attention to what Devilsadvocate had to say. There are very powerful reasons that the Constitution included the protections that we are afforded. Anyone who disagrees should reaquaint themselves with history.
Jul 1, 2009 at 7:19 a.m.
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A hearty "Thank You" to Officer DeMarasee; he followed his instincts and got a dangerous gun off the streets from some thugs. What the judge does, or does not do, is not up to Law Enforcement officers. Now, we know these 4 thugs are up to no good and can watch from here on out. Good work Officer! Thank You!
Jul 1, 2009 at 1:19 a.m.
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We all know where the officer was coming from, he followed his "gut" and his "gut" was correct. Unfortunately the totality of circumstances didn't add up to the "probable cause" required to search a vehicle without a warrant. The Judge's decision is correct. Many times the bad guys get away, under these type circumstances. That isn't a good thing but the abuses that could occur without constitutional protections, far out weigh the loses, in this type of case.
Jun 30, 2009 at 7:48 p.m.
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That Law sounds like it protects gang bangers. Keep doing what you are doing DeMarasse. At least they had to sit in jail till their trial. Bangers will never learn Karma is a pain in the butt.
Jun 30, 2009 at 6:59 p.m.
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Yeah, forget what the stupid CONSTITUTION says. As long as we prosecute. These kids belong in jail, but not at the cost of our freedoms.
Jun 30, 2009 at 6:56 p.m.
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Exactly RonB! Good Ole fashion police work. The technicalities now a days almost are harboring and aiding criminals. Although a simple "May we search your car" could have prevented some of the problems. Should have pulled them over for "speeding".
Jun 30, 2009 at 6:16 p.m.
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You have an officer witness a vehicle with riders with behavior consistent with known gang activity. You have bullet holes matching a gun found in said vehicle. You have vehicle not stop when sirens and lights flashing, and subsequent suspicious activity leading to a search of the vehicle uncovering the weapon.
If Michael Gibbs wants to keep criminals using deadly weapons on the streets, then perhaps it is time to recall him from the bench in the interest of public safety.
Jun 30, 2009 at 6:09 p.m.
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Sounds like good old fashioned police work to me. Good Job Officer DeMarasse!
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