Once again, Detectives Dave and Dan take a deep dive into case law that governs how law enforcement operates in this country. Today, they discuss Brewer v. Williams, which is better known as “The Christian Burial Speech”. It’s a fascinating and disturbing tale about the limits of interrogation after a suspect invokes his right to counsel: even when, or especially when, the stakes are incredibly high.Read Transcript
Yeardley: [00:00:02] Hey, Small Town Super Fam. I hope you’re all having just the best day. Today on The Briefing Room, we have our final lesson in case law. It has to do with what’s known in law enforcement as the Christian Burial Speech. This is a phenomenal episode. I actually think it’s my favorite of the case law episodes, where once again, justice creates tangible change in policing. But also in this one, we get personal anecdotes and teachable moments from Detectives Dan and Dave. So, please enjoy The Briefing Room, The Christian Burial Speech.[Briefing Room theme]
Dan: [00:00:49] Hey, Small Town Fam. Welcome to the Briefing Room.
Dave: [00:00:55] Every day in police stations across the world, law enforcement officers begin their shift with briefing. Briefings are essential to communication and allow officers and command staff to discuss calls for service, crime trends, case law, wanted subjects, training opportunities, and policy changes. Briefing rooms provide a setting where the team can speak with each other candidly and openly.
Dan: [00:01:19] We wanted to create a similar setting for our listeners. The Briefing Room series will include intimate, informal conversations about trending issues, viral videos, guidance and training from detectives, as well as commentary on other topics impacting law enforcement and the true crime community.
Dan and Dave: [00:01:36] Welcome to The Briefing Room.[Briefing Room theme ends]
Yeardley: [00:01:45] I feel we should tell our listeners that this lesson on case law about the Christian Burial Speech is actually an extension of Miranda and Escobedo which we covered in our last Briefing Room episode about case law.
Dan: [00:02:02] I remember hearing about this in one of my first college courses for criminal justice, so long time ago. [chuckles] And the Christian Burial Speech, so this case was actually Brewer v. Williams. And Brewer is actually the warden of Correctional Institution. But Williams is the suspect in this case. And here’s a little background on this case. Back on Christmas Eve in 1968, 10-year-old girl named Pamela Powers, goes with her family to the YMCA in Des Moines, Iowa, and they’re going to go watch a wrestling tournament that her brother is competing in. She tells her parents, “I’ve got to go to the restroom,” and she never comes back. So, a search begins. And there’s a guy named Robert Williams, who is an escaped mental hospital patient, and he was currently living at the YMCA. Back in the day, you could actually stay at the YMCA, right?
Dave: [00:03:03] [in a singsong voice] There’s no need to feel down. [Yeardley chuckles] [crosstalk]
Dan: [00:03:07] [in a singsong voice] There’s young man. So just after this girl disappears, Williams is seen in the YMCA lobby carrying some clothing and he’s got a large bundle wrapped in a blanket, and he encounters the doorway at the YMCA. A 14-year-old boy who’s at the YMCA helps Mr. Williams with the door, opens the doors for him so Williams can go out. And then, the boy follows Williams to his car. He opens the car door for Williams and Williams tosses in the things, the bundle and the clothing into the car, and the 14-year-old boy sees two legs sticking out of the bundle blanket. And so, Williams takes off in his car immediately and drives to Davenport, Iowa, which is about 160 miles away. Nobody knows where this girl is, or Williams is at this point. And at some point, Williams calls his attorney, a guy named Henry McKnight and basically confesses. And this is a couple of days after, so this is December 26th now.
Yeardley: [00:04:14] Did the 14-year-old tell the search party, “I think I saw the legs of the little girl,” or he just thought–?
Dan: [00:04:20] No, he did.
Yeardley: [00:04:21] He did do that.
Dan: [00:04:22] He did, but nobody knew where Williams had gone. He disappeared, but drove almost three hours away to Davenport, Iowa, 160 miles. And at some point, Williams calls his attorney, Henry McKnight, and tells him something happened. And this attorney says, “You need to turn yourself in.” The attorney goes to the police officers in Des Moines, Iowa, where the abduction occurred and says, “Hey, this guy is going to be turning himself in to the Davenport police. He has something to do with the disappearance of this little girl.” When Williams turns himself in, they advise him of Miranda and William says, “I’m not going to speak to you until I have my attorney with me.” And McKnight also tells the police, “I don’t want you talking to him either.”
[00:05:13] In the meantime, we got 160 miles between Davenport and Des Moines where this crime occurred. Williams gets an attorney in Davenport also. So now, he’s got two attorneys, and the Des Moines police are going to drive to Davenport, pick up Williams, and bring him back to Des Moines. Both attorneys in this case, McKnight and this other attorney, I think his last name is Kelly, they both tell the police officers, “Under no circumstances are you to speak to my client during the trip back to Des Moines.” The police had also said, “Hey, you’re an attorney. You’re not riding with us. It’s just going to be two police officers, two detectives, and suspect, Williams.”
Yeardley: [00:06:01] When they caught up to Williams in Davenport, did they know or suspect already that the little girl had been murdered?
Dave: [00:06:08] I think everybody thought that she was dead.
Dan: [00:06:11] So, law enforcement is under clear instructions not to question the suspect. Now, we get to the Christian Burial Speech. And on the way back, they’re not supposed to speak to Williams at all, these detectives. One of the detectives starts engaging Mr. Williams in conversation.
Yeardley: [00:06:29] Like the weather kind of thing?
Dan: [00:06:31] A variety of topics, including religion. And this detective delivers this speech which has come to be known as the Christian Burial Speech. And I’ll just read some of this.
So, this detective says, “I want to give you something to think about while we’re traveling down the road. Number one, I want you to observe the weather conditions. It’s raining, it’s sleeting, it’s freezing. Driving is very treacherous, visibility is poor. It’s going to be dark early this evening. They’re predicting several inches of snow tonight. And I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once. And if you get snow on top of it, you yourself may be unable to find it. And since we will be going right past the area on the way to Des Moines, I feel that we could stop and maybe locate the body. That the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas Eve and murdered. And I feel we should stop and locate it on the way rather than waiting until morning and trying to come back out after a snowstorm and possibly not being able to find her at all.” So, there’s the Christian Burial Speech.
[00:07:41] William says, “Well, why do you think that we’re going to pass where this girl has been buried just because we’re going back to Des Moines?” And the detective says, “Well, I have a feeling. I kind of know the area of where the little girl’s body might be. But I don’t want you to answer me. I don’t want you to discuss it any further. Just think about it while we’re riding down the road.” Kind of sets the atmosphere of the inside of that car.
[00:08:04] As the car approached a small town about 100 miles from Davenport, the suspect Williams asks the detective, “Hey, have you guys found the girl’s shoes?” The detective says, “Well, I’m not sure. I don’t know if we have.” Williams, the suspect, then says, “Well, why don’t we go over to this gas station over here, and I’ll show you where I left her shoes.” They search, they don’t find the shoes. They continue driving toward Des Moines. And Williams again says, “Hey, have you guys found the blanket?” Detective says, “Well, I’m not sure.” Williams directs the officers to a rest area. They search, they don’t find the blanket either. They continue driving to Des Moines, and as they approach this other small town, Williams says, “Okay, I’m going to show you where the body is.” He then directs the police to the body, and they find the little girl.
So, Williams gets indicted for first-degree murder, obviously. And before the trial, his lawyers say any evidence relating to or resulting from the statements made by Williams during that car ride are inadmissible. So, not only the body, but all the statements are now in admissible. The state basically argues, “Well, that’s inevitable, discovery, the body. We feel like that would have been found no matter what, this little girl’s body. So, even without his statements, it might have been a week, it might have been a month. Eventually, someone’s going to stumble across this body.”
Yeardley: [00:09:38] And was it in a place somebody might stumble across it this body?
Dave: [00:09:43] Yes, it wasn’t buried or anything.
Yeardley: [00:09:47] Even if the body is imminently discoverable, how do they prove at that time since they didn’t have DNA and there was some severe weather that Williams was the killer of that little girl?
Dave: [00:10:00] I imagine that 14-year-old boy’s testimony had a lot of gravity to it.
Dan: [00:10:06] So, initially, this goes to the Supreme Court of Iowa, and they basically say this suspect waived his right to counsel while he was in the car.
Yeardley: [00:10:17] But he didn’t.
Dan: [00:10:17] He didn’t. So, Williams’ attorneys petition for a writ of habeas corpus in the United States District Court for the Southern District of Iowa.
Yeardley: [00:10:28] Can you define habeas corpus?
Dan: [00:10:31] When a petition of a writ of habeas corpus is granted, it basically gives you another day in court. You’re given another chance to prove that you’re being subjected to unconstitutional conditions while you’re incarcerated. And the council for the state and for Williams stipulate that the case would be submitted on the record of facts and proceedings in the trial court without taking any further testimony.
Yeardley: [00:10:54] What does that mean?
Dan: [00:10:56] So, they’re just stipulating to facts that have already been established in previous hearings. They’re not bringing other witnesses in to testify. They’re just going to go on the facts that were presented at a previous hearing. Both sides agree those facts are accurate, and we’re going to go off of that record.
Yeardley: [00:11:14] Based on that record is how they’re going to try this case?
Dan: [00:11:17] Yes. And this conclusion was based on three different reasons. One, Williams had been denied his constitutional right to the assistance of counsel during this car ride. Two, he’d been denied the constitutional protections defined by Escobedo v. Illinois and Miranda v. Arizona.
Yeardley: [00:11:36] Which, just to remind you, our fabulous listeners, we talked about in our last episode on The Briefing Room about case law.
Dan: [00:11:44] Yes. And three, in any event, his self-incriminatory statements on the automobile trip from Davenport to Des Moines had been involuntarily made.
Yeardley: [00:11:54] And the point of them saying he made involuntary statements was if that officer is going to give him a speech about a Christian burial, and these are the things he should consider that that felt coercive, and that would obviously trigger a response from somebody like, “I need to do the right thing,” is that the basis of that argument?
Dave: [00:12:15] Yep. Like you know this is going to induce somebody to provide additional statements, even though they’ve invoked.
Yeardley: [00:12:22] The officer did it on purpose hoping, maybe, and because he didn’t actually ask him any questions, maybe I can skate by on this.
Dave: [00:12:29] Right.
Yeardley: [00:12:30] So, what happened?
Dan: [00:12:31] Eventually, Williams gets another trial, and his attorneys again move to suppress all the evidence stemming from the conversation during the car ride. And the judge rules that the statements given by Williams to the detectives in the car ride were inadmissible. But the judge also says that the body was admissible as evidence because it was inevitable discovery. Eventually, that would have been discovered. So, the body is still evidence that is admissible. In 1977, Williams gets convicted of first-degree murder, and that conviction was upheld by the US Supreme Court.
Yeardley: [00:13:13] Basically, the takeaway is even if you’re not asking direct questions, you cannot also set the person up to confess things based on your statements like, “Hey, I heard you’re not a bad guy. People make mistakes,” that that might make somebody feel more at ease, like, “Oh, hey, they’re on my side. Well, you’re right. I’m not a bad guy, but this happened.” You need to zip it, basically.
Dan: [00:13:43] Yeah. Especially in this case. All the ground rules have been set for this car ride. You are not to speak to my client at all, and then you do that.
Yeardley: [00:13:53] He just spoke to him anyway.
Dan: [00:13:55] If it’s just the two detectives talking, if they’re talking about sports or baseball, that’s one thing. But if the two detectives in the front seat are talking and saying, “Can you imagine what kind of monster you’d have to be if you’re not going to allow these parents to find their child?”, acting like Williams isn’t hearing it in the back seat.
Yeardley: [00:14:13] When you know full well, he’s hearing every word.
Dave: [00:14:16] And again, is that reasonable? No, that’s not reasonable. So, that word creeps into a lot of these cases, reasonableness. Anything we do as police officers, that word always creeps into our decisions. Is it reasonable? I just wanted to touch on that case, because it does have to do with Miranda and Escobedo v. Illinois, these statements that are made either coercive or without full knowledge of what they’re actually confessing to or the circumstances that a suspect is confessing. You have to be clear on all those things.
Yeardley: [00:14:58] It’s so fascinating. I really feel like on television, they throw around Miranda all the time. And as you guys have said, even suspects when you’re putting handcuffs on them, “Well, you didn’t read me my rights, your case is going to go out the window.” But in fact, there are a lot of little avenues and nuances and things that apply to it. I think it’s really fascinating.
Dan: [00:15:21] Well, yeah, and it gets challenged all the time, Miranda. There are a lot of cases that happened after Miranda. I’m just looking at this case brief that I have regarding Miranda and there are multiple links to other cases that are directly as a result of the Miranda warning and deal with what Miranda entails.
Yeardley: [00:15:44] So, cases that got thrown out because they didn’t adhere to the absolute specifics of a person’s rights?
Dan: [00:15:52] Yeah, or that’s why we talk about having to ask clarifying questions that all came out of case law, when somebody invokes their rights, that all came out of case law. And it’s constantly evolving. I’m sure there are cases that are going through court right now that potentially could be picked up by Supreme Courts or appeals courts across the country, that have to do with statements made during an interrogation, during mere contact, during a brief interview, all of those things. It’s just constantly evolving. So, as a police officer, you have to keep up with those things. And that’s part of what Dave, as a sergeant, would do during his briefings like, “Hey, some new case law just came down from the Supreme Court or the ninth circuit that directly affects how we do business out here. And we’re going to talk about it.”
Dave: [00:16:43] Being a detective exposes you to parts of the legal process that you just don’t get exposure to as a patrol officer. So, I’m sitting there, in court, during these suppression hearings, hearing the arguments from both sides. And I soaked that up. I loved that aspect. Very interesting to me, that’s why I love watching trials on TV, is there’s so much to learn there. There are some officers out there, they lose a decision, or they lose some evidence because the court rules against them, and they just don’t make an adjustment. They go, “Well, they’re wrong. So, I’m going to keep doing it the way I do it,” and I’m just like, “Well, you’re going to keep getting cases shoved up your ass. And as a sergeant, it’s kind of my job to make sure that you’re not screwing things up.”
So, I used to read reports, and I look for, “When did they mirandize? When did you give the suspect Miranda?” And as I’m reading your narrative, if I recognize that you either didn’t provide the suspect with Miranda or it’s late, I have to address that and say, “Hey, by the way.” A majority officers would say, “Oh, got it. Okay. Sorry. I’ll make the adjustment in the future.” Handful of officers who are like, “Screw you, Dave. I’ve been doing this longer than you have, and I’m not changing.” And I go, “Well, you wonder why your cases don’t get filed on over at the DA’s office because you’re stubborn and you’re not agile enough to make an adjustment.”
Dan: [00:18:19] And on those note files too, Dave gets to see why these cases get no file because the DA’s office actually sends over the notice to the sergeant of that shift. And then, the sergeant hands that notice out to the officers whose cases are getting no file. It always states the reason for the no file. And if it says ‘illegally obtained statement’, or sometimes it would say, “Should’ve Mirandized at this point, and you didn’t, everything after that is inadmissible. We don’t have enough to obtain a conviction beyond a reasonable doubt,” or improper search all of these things, it matters.
Yeardley: [00:19:00] Have either of you, Dan or Dave, ever been in a situation, maybe early in your career where your encounter with a suspect got brought up in a suppression hearing because the defense is arguing that you violated that suspects rights?
Dan: [00:19:18] Oh, yeah.
Dave: [00:19:19] As a detective, in my caseload, I would say almost every case that made it to trial or was approaching a trial date had a suppression hearing, either for certain evidence or statements, the defense did not want included in a trial.
Yeardley: [00:19:38] Does the defense base that on, “My client said they wanted an attorney, and you didn’t listen,” or what was the argument against the evidence you had gathered?
Dan: [00:19:47] In my experience, and I would say probably the same for Dave, Dave and I were so careful when the L word, lawyer or attorney came up, that we would ask the clarifying questions. If there was any doubt in my mind, I would stop the interview. There was one case that I had where it regarded the ‘attorney’ word. I had arrested a guy for DUI, and he and I did not get along real well. He was one of those guys that says, “I pay your salary.” And I was like, “Well, so do I, because I pay taxes too.” [Yeardley chuckles]
[00:20:20] When I got him back to the police station in the Intoxilyzer room, that’s the breathalyzer machine. Intoxilyzer 8000, I think is what it was back in the day. They probably have a new one now. I had offered this gentleman the opportunity to use a phone to call an attorney. And I said, “Are you going to call an attorney because if you are, I’m going to step out of the room and allow you privacy while you speak to your attorney.”
Yeardley: [00:20:44] Which is the law.
Dan: Which is the law. So, he says, “Yes, I am going to call an attorney.” And I said, “That’s great. There’s a phone book right here. If you want to use a phonebook–” mind you, it’s like 1:30 or 2:00 in the morning. I said, “You can use the phonebook. Or if you have the number in your phone, I can open up your phone and you can write the number down, but I’m not going to allow you to call him on your cell phone. You have to use this phone right here.”
Yeardley: [00:21:10] How come he can’t use his own cell phone?
Dan: [00:21:12] It was a policy in my department and it’s just another way to control that environment. I mean, he’s an inmate at that point. He’s in custody. So, he says, “Okay. Yeah, I’m going to call my attorney.” So, I leave the room. I walk about 15 feet away down a hallway. He’s still my prisoner, mind you. And there are pens, there are other things that he can use as weapons that are available to him. So, he’s not going to just have unfettered access to the back part of my police station. So, I leave the door cracked. And this guy gets on the phone, and he is yelling and screaming. And I can hear a female voice yelling and screaming back to him. And I’m 15 feet away down the hall around a corner with the door cracked. And I can hear almost every word he’s saying, because he’s so loud. If he was talking in a normal voice, I might have heard noise coming, but I wouldn’t have been able to understand what he was saying. But he was screaming so much so that people were coming back to the area that I was at, and going, “Is he okay?” [Yeardley chuckles]
[00:22:23] Anyway, I can hear him for a good three or four minutes. He’s just yelling and screaming and saying, “You got to fucking bail me out. It doesn’t matter where I was tonight. I’m coming home tonight. You’re bailing me out. Get your ass down here.” It was all stuff like that.
Yeardley: [00:22:39] So, that doesn’t sound like the attorney.
Dan: [00:22:41] He’s not talking to his attorney. He’s talking to his girlfriend. Finally, I go back there. And I offered him a reasonable amount of time to make that phone call. I’d say four minutes. I go back in there, and I go, “Hey, man, are you on with your attorney?” And he goes, “Yeah,” and I go, “You’re on with your girlfriend, aren’t you?” And he goes, “Well, I was going to call my attorney after this.” And I go, “Dude, we’re done.” Because the other part of this is I’ve got dissipating evidence–
Yeardley: [00:23:10] Oh, from that breathalyzer.
Dan: [00:23:12] Yes. So, I’m not going to wait all night. “I’ve given you an opportunity. You’ve wasted it. And we’re done.”
Yeardley: [00:23:19] So you have not taken his breath test yet?
Dan: [00:23:22] I have not. And I explained that to him, like, “I gave you an opportunity and you blew it. You called your girlfriend a bitch at her and tell her to come bail you out. We could have had that conversation after you called your attorney. Whatever your attorney told you to do, I was okay with. I can’t force you. I mean, I can write a warrant to take your blood.” Also, on the ride back to the police station after I’d originally arrested him for DUI, after I’d mirandized him, he told me on the ride back that he had had a DUI in the past in the past three years. So, I had that in my report. So, we go to trial. He ended up not blowing into the breathalyzer machine, by the way, which actually, you get $1,000 fine for that one too, for not blowing into the breathalyzer in my state. We go to trial. Right before trial, we have a suppression hearing, and what gets suppressed is the previous DUI statement gets suppressed.
Yeardley: [00:24:17] Him telling you in the car that he had a previous DUI.
Dan: [00:24:21] That gets suppressed, and I’m like, “Okay, that’s fine.” What doesn’t get suppressed is basically his attorney argued that I didn’t offer him a reasonable chance to contact an attorney. I basically tell the court, as I’m on the stand, the same story I just told, is, “I gave him at least four minutes. People were coming. He was loud. He was obviously not on the phone with his attorney. I tried to offer him privacy.” That was the other thing that they argued, that I didn’t give him privacy because I was within earshot. And I’m like, “Well, I could have been 50 feet and I still would have been within earshot, because he was so loud and upset.” So, that did not get suppressed. And the court said, “No, Officer Dan did offer this suspect a reasonable chance to contact an attorney.”
Yeardley: [00:25:14] And reasonable privacy.
Dan: [00:25:16] Yeah. And then, we went to trial. I remember when that got suppressed, I was in the courtroom when the previous DUI statement got suppressed. And I drew a line through it in my report, just like that’s no man’s land, can’t go there. When I was on the stand in the actual trial, the prosecutor asked me, basically the question that the answer would have been that statement about him saying, “I’ve had a previous DUI in the last three years.” And I stopped, I looked at the judge, and I looked back at the prosecutor, and I looked over at the defense attorney. And the defense attorney, “You can see the anticipation on his face like, “Oh, he’s going to fucking blow it right here. He’s going to blow it.” Would have been a mistrial.
[00:26:01] I look at look back at the judge, look at the defense attorney, look back at the prosecutor, and I say, “Are you really sure you want me to answer that question?” And the judge says, “We’re going to take a short recess. Jury, you can go back to the jury room.” They all walk out. And the judge looks at this prosecutor and says– and it was a first case this prosecutor ever done. So, it was like the FTO stage for prosecutors. Judge looks at this prosecutor and says, “This officer right here just saved us from a mistrial. You need to be way more careful on the questions you ask and show this court some respect.” And I was like, “Ooh shit.[laughter]
Yeardley: [00:26:39] Go Detective Dan. Saving the day. [chuckles]
Dan: [00:26:43] And I remember looking over at the defense attorney, he’s like, “Ah, God.” I know he’s thinking billable hours, billable hours, billable hours.[laughter]
Yeardley: [00:26:53] So fascinating.
Dan: [00:26:58] I’ve got another one too. And so, this guy, Arliss. Arliss and I didn’t get along either the first day we met. And I ended up arresting him. He was basically running interference, because I was trying to catch up to one of his bicycling partners. And he ran interference, and he cut me off and basically, he stopped his bike in front of me, so I couldn’t pursue. So, I got out and I contacted Arliss, because Arliss seemed to want police interaction that day. So, Arliss, he was not happy with me. He was yelling at me, and he was filming me too. And he’s like, “Did you stop me?” And I said, “Yeah,” and he goes, “Well, your lights aren’t on,” and I said, “My lights don’t have to be on for me to be stopping you. I’m telling you right now, you’re stopped.” And he goes, “You didn’t stop me. I fucking stopped you.” And I was like, “Okay, well, semantics. Here we are, Arliss. What do you want to talk about?” I was like, “Give me your ID, man.” And I ended up arresting him for a few things, interfering, resisting arrest. He was on a stolen bicycle. And then, the original person that I tried to contact came back, and he saw them, that person when I was putting Arliss in handcuffs. We’re on the ground, we fought, he fought, didn’t want to go in handcuffs.
Yeardley: [00:28:17] Dude number one comes back and sees you and Arliss on the ground after a fight.
Dan: [00:28:21] Yeah. And Arliss says, “Take my backpack.” He’s yelling, “Take my backpack.” The backpack is kind of spilled out into the middle of the roadway. And the friend comes up and tries to grab it. While I’ve got Arliss on the ground, I reach out and I grab the shoulder strap of the backpack, and we’re in a brief tug of war. And I said, “Let go right now or you’re under arrest,” and they let go and they took off. And I was like, “A bird in the hand is better than two in the bush.” Because if I take off after that person, where’s Arliss going? Arliss is leaving with my handcuffs. And then, I get to charge Arliss with theft as well.
[00:29:02] Anyway, Arliss is saying, “You cannot search my backpack. You can’t search my backpack.” And I was like, “Oh, yeah? Well, watch me.” And I opened his backpack up because I thought I knew everything that I was doing was right. And I opened his backpack and there was an ounce of methamphetamine in there and baggies and cash, and I seized it all. And we went to trial. And that backpack search got shoved up my tailpipe.
Yeardley: [00:29:27] Really?
Dan: [00:29:28] Yep. I needed a warrant. So, I learned from that. Actually, at the first trial, the first suppression hearing, the court ruled that that was inevitable discovery, and that I did not need a warrant to search through that backpack, which was my understanding. To me, it’s no different than wearing a jacket.
Yeardley: [00:29:46] And you would be able to go through my jacket as in patting me down, so you’re considering the backpack and extension on my clothing?
Dan: [00:29:53] Yeah. So, I searched his backpack and at first, the court was like, “No, you’re good to go. That’s inevitable discovery. You would have gotten in there anyway.” That court went to appeal, and that got reversed. And I learned a valuable lesson then.
Dave: [00:30:11] That’s why it’s important to have a very stout inventory policy when you are storing things in your evidence locker, that nothing is armful, hazardous, dangerous, etc.
Yeardley: [00:30:25] What do you mean stout inventory policy?
Dave: [00:30:28] Well written, robust.
Dan: [00:30:31] Yeah. The inventory policy can’t be overly broad. So, that backpack doesn’t go with him to the jail. I have to lodge it into our evidence locker because it’s too big to fit in the jail lockers.
Yeardley: [00:30:45] But you still can’t search it until you get a search warrant?
Dan: [00:30:48] Well, I could. If our inventory policy would have been a little more specific and clear, then I would have been okay.
Yeardley: [00:30:56] I see. So, you’re saying your department’s inventory policy was too broad, too lax, and therefore it didn’t protect you in searching this backpack without his consent.
Dan: [00:31:05] Right. That’s what they attacked, was the inventory policy. Technically, they attacked my search. But more broadly, it was because of the inventory policy, because that’s the reason why I was citing, but I also thought, I’m like, “To me, it’s no different than a jacket.”
Yeardley: [00:31:19] Did they update your inventory policy after that?
Dave: [00:31:22] Yeah. So now, it’s nothing gets lodged in our evidence locker without being searched, because we have two civilian employees that handle all of our evidence on the other side of the evidence locker, and you can’t put dangerous items into their secured area. It could be explosives, animals. I’ve found cats and bunnies in backpacks. And you think about not searching that backpack, it goes into evidence, and this guy gets released four weeks later. And now, you’ve got a dead bunny in the backpack.
Dan: [00:31:59] Perishable food.
Dave: [00:32:01] Uncapped needles.
Dan: [00:32:02] So, you have to address all that.
Dave: [00:32:03] All kinds of stuff.
Dan: [00:32:05] And firearms. If you have a loaded firearm in there, and somebody’s just handling the backpack and they hit the trigger, they could be shot. So, that’s why we have that. But I’ve been in not as many suppression hearings as Dave, but those just roll off the top of my head, those ones right there.
Yeardley: [00:32:22] It’s just part of the job. And so, you do your job well enough to protect against as many of those scenarios as you can.
Dan: [00:32:29] I had several run-ins with Arliss after that. And eventually, Arliss and I were on speaking terms. I always treat him with respect, but I didn’t take any of his shit either. Arliss died in a drunk driving accident where he was sober driving, and a drunk driver hit him.
Yeardley: [00:32:47] Oh, my.
Dan: [00:32:48] And he died.
Yeardley: [00:32:49] Wow.
Dan: [00:32:49] Yeah.
Yeardley: [00:32:50] That is some cruel irony.
Dave: [00:32:53] I’ve had a few instances. Most of them have been about statements, like in Wolf. In Wolf, I started talking to suspect about the computer, because I want to get into the computer. So, anything around that discussion at trial was cut out of my interview. So, you’d have these little skips that were two minutes long, because the defense attorney smartly attacked that part of my interview and said, “That’s going to be way too prejudicial for my client.” And the judge agreed. And so, we had to go through and basically scrub that long interview of any mention of those things.
Yeardley: [00:33:31] And they’re showing that interview tape to the jury.
Dave: [00:33:34] Correct.
Yeardley: [00:33:36] I mean, you do feel like these guys have done terrible, horrific things. The prejudice, you brought it on yourself.
Dave: [00:33:45] One of the most thorough, and for me, very annoying pieces of work was done by Lyssa.
Yeardley: [00:33:53] We should tell the listeners who Lyssa is. Lyssa is a phenomenal defense attorney in Dan and Dave’s jurisdiction. We actually have done an episode with her, and I can’t wait for you to hear it if you haven’t heard it yet. Anyhoo, Lissa takes no prisoners.
Dave: [00:34:10] Yeah. And the other attorney on our team, Brian, they went after one of my cases and wrote over a dozen suppression motions. They wrote motion after motion after motion, attacking the investigation. And I don’t take that personally. They’re doing what they’re supposed to do. And they did a good job of it. I mean, there were some motions where I was like, “Ah, this ain’t going to fly. No way.” They were successful in a couple of them, I don’t remember specifically. One was to get a trial. I had three victims. One of the victims was severed from the other two cases, but very thorough. Talk about billable hours. Lyssa and Brian, they went through a lot of ink. [Yeardley laughs] And I’ll never forget that, Brian and Lyssa, if you’re listening. [Yeardley laughs]
[00:35:00] Some guys, they miss the forest for the trees and don’t understand the big picture. There are situations where when I came out of detectives and went back to patrol as a sergeant, I would show up to people’s calls or traffic stops, and there were decisions being made that just absolutely boggled my mind. Somebody repeatedly telling an officer, “No, I do not give you consent to search my car.” He doesn’t have to say it six times. The first time was enough. And you can try all you want, different routes to get to searching the guy’s car, but he already told you no. So, when you keep doing that, all you’re doing is repeating your mistake. And anything that you seize out of that car is going to be inadmissible. And I don’t understand why that’s so difficult to grasp.
[00:35:55] And they’d say, “Well, even if the search is going to get thrown out, I still got his bag of drugs off the street.” And I’d say, “Great. What if during that search, you also came across a gun that was associated with a murder? That gun’s also gone too. So, how about you put your big boy pants on. Don’t be so stubborn, be smart, and do it the right way.” There’s no payoff for being dirty like that. Do it the right way. Live to fight another day. Don’t get potential evidence thrown out, because you don’t like when someone says no when you ask them for consent. That’s a contempt of cop issue that is a huge hot button for myself, and any other cop worth their weight. If you get upset and huffy, because someone tells you no, I used to call it contempt of cop. “Well, I’m going to find a way to fuck with this guy anyway.” You’re doing it wrong.
Dan: [00:36:51] I had an FTO very early, I’d probably been a police officer for less than eight weeks. His name was Mark. And I had a guy who refused to identify himself one time. He was leaving a house and I didn’t have a lawful right to detain him or identify him. I said, “Hey, man, what’s your name?” And he goes [chuckles], “Fuck you, pig.” That’s what he said to me. That was the first time I’ve been slapped across the face with an “F you, pig.” And I was like, “Hey, get back here.” And my FTO Mark, he goes, “What are you doing? You’ll come across that guy again. And the next time you’ll own him, but you don’t own him right now. So, watch him walk away. There’s nothing you can do about it.” And about a week later, I caught that guy breaking into a car and I was like, “Mark was right.” You always come across them again, but the tables have turned.
Dave: [00:37:46] And Dan going on the radio and was like, “Station One, can you run one for wants and warrants?” And he said, “Last of Pig, first of Fuck You. What’s your date of birth, Fuck You?” [Yeardley laughs] If you don’t take the job personally, there are times where those are really funny when you say, “Hey, man, what’s your name?” And he’s like, “Go fuck yourself.” “Oh, is that the common spelling?”
Yeardley: [00:38:08] [laughs] Sure.
Dan: [00:38:09] “Go Fuck, is that your first name? Or is it Go and then Fuck and then Yourself?”
Yeardley: [00:38:14] That’s so good. Oh, you guys.
Dan: [00:38:16] I will say the one thing that Miranda and these cases have done for law enforcement is if you are just relying on a confession before these cases, I can see how it might lead some police officers to being a little lazy when it comes to their investigations if you’re just going to rely on the confession. I got confessions fairly regularly, but you have to do an exhaustive investigation. You have to turn over every rock and find the evidence there, because what if your confession gets thrown out?
Dave: [00:38:50] Well, a confession has to be corroborated for it to be a valid confession.
Dan: [00:38:56] Absolutely.
Yeardley: [00:38:57] Same with DNA. Like DNA is a huge tool, but it’s not the one and only.
Dan: [00:39:01] Yeah. Absolutely. Sometimes, DNA can be explained away.
Yeardley: [00:39:05] Right. That is such a fantastic primer on how you guys stay within the bowling lane bumpers in order to do your job the right way. Thank you for that.
Dan: [00:39:17] You’re welcome.
Dave: [00:39:18] Enjoyed it.[Briefing Room theme]
Yeardley: [00:39:22] Well, that was delicious. Here’s how it happened. Just like our main episodes, Small Town Dicks on Patreon is produced by Gary Scott and me, Yeardley Smith, and coproduced by Detectives Dan and Dave. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our editors extraordinaire are Logan Heftel and Soren Begin. And Logan also composed our Patreon theme music. So, that’s fancy. And finally, our books are cooked, and cats wrangled by Ben Cornwell. The team is forever grateful for your support.[Briefing Room theme concludes]
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