Funny how Superior Court judge Brian Hill now sites the Constitution for his actions. But had no problem with an Unconstitutional ex parte motion that was filed by the Santa Barbara D.A.'s office. We can no longer allow Judge Hill pick and chose when he follows the law and protects the Constitution.
Lance case dismissed : Judge Brian Hill rules traffic stop ran afoul of the US Constitution
By SCOTT STEEPLETON NEWS-PRESS CITY EDITOR
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| Peter Lance, left, with his defense attorney Darryl Genis after their legal victory Tuesday. |
| STEVE MALONE/NEWS-PRESS |
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| Officer Kasi Beutel arrives at the Department of Motor Vehicles office in Ventura earlier this year for a hearing into the Peter Lance DUI matter. |
| SCOTT STEEPLETON/NEWS-PRESS |
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November 16, 2011 5:59 AM
Calling a New Year's Day traffic stop that resulted in the DUI arrest of investigative journalist Peter Lance unconstitutional, a judge on Tuesday dismissed the case against the 63-year-old.
At the heart of defense motions to suppress all evidence against Mr. Lance and dismiss charges altogether was this question: Did Officer Bruno Peterson of the Santa Barbara Police Department have probable cause to stop Mr. Lance for waiting several seconds at a green light on Santa Barbara Street before driving off in the early-morning hours of Jan. 1?
Santa Barbara County Superior Court Judge Brian Hill told the court he was "educated" on case law pertaining to such stops by a brief filed by defense attorney Darryl Genis that cited several out-of-state cases involving police officers stopping motorists who, like Mr. Lance, hesitated a few seconds - and in at least one instance 10 seconds - at a green light or stop sign before taking off.
"In each of the cases, without exception," said Judge Hill, "the court granted the motion to suppress."
"Every case found that there was a violation of the Fourth Amendment."
In a nod to the term of art that goes into such findings, Judge Hill followed suit.
"Motion to suppress is granted," he said. "The case is dismissed."
Mr. Genis, seated at the defense table to his client's left, gave Mr. Lance a pat on the back; the men then shook hands.
In the back of the courtroom, an out-of-uniform Officer Kasi Beutel, who made the arrest and whose actions on duty and before she became a police officer five years ago have come under fire over possible illegalities, shot a quick look at her husband, Officer Mark Corbett.
The defense eventually filed out into the hallway, followed moments later by Deputy District Attorney Michael Carrozzo. After about 10 minutes, lead prosecutor Sanford Horowitz came out, followed by Officers Beutel and Corbett.
"Judge Hill made a just and courageous decision," Mr. Genis said afterward.
The criminal case may be over, but numerous questions raised by Mr. Lance - who turned his case into an investigation of government misconduct and published his findings in the News-Press after he says his signature was forged on a document waiving his right to a retestable blood sample - remain: Did Officer Beutel, Officer Corbett and another officer "witness" alleged forgeries on blood-test waivers in this case and others?
How is it that Officer Beutel was able to provide extended interviews on this matter to the prosecution in September while at the same time being deemed unavailable to meet with the defense on this matter?
Other questions the public may never get answers to include: Did then-accountant Kasi Beutel, prior to becoming a cop five years ago, commit bankruptcy fraud? And, did she, during the interview process to become a Santa Barbara cop, disclose her bankruptcy?
Another unknown is how the judge would have ruled on a motion filed by Mr. Carrozzo, perhaps in a state of exasperation with the defense, that seemingly would have ordered anyone who ever mentioned anything about the Lance case online to scrub the Internet of all case-related content. (Higher-ups defended the motion for its intent, which essentially was to silence out-of-court comments by Mr. Lance and Mr. Genis even though the case was still in the pre-trial stage.)
Judge Hill got Tuesday's hearing going with a sort of boxing-match advisory to the attorneys and Mr. Lance to keep it clean.
"Under no circumstances are the attorneys to speak to each other," he said. "You are not to raise your voice, engage in hyperbole and don't use metaphors that are inappropriate for court."
"I'm just not going to tolerate having to manage the behavior of attorneys in this courtroom," he said.
Some in court probably thought the judge was directing his words at Mr. Genis, whose zealous defense of clients sometimes results in the very things Judge Hill was trying to avoid.
But about 90 seconds into the judge's discussion of his research into case law about police stops, one couldn't help but wonder whether it was Mr. Horowitz whose gasket he was anticipating blowing.
The judge retraced testimony by Officer Peterson and his partner, Officer Heather Clark, who both said under oath that while Mr. Lance did hesitate three to five seconds on a green and then several more even after they pointed a light at him, there was nothing about his driving for the next couple of blocks or so before he was stopped that would give rise to a stop. He didn't swerve, didn't speed, didn't cross into oncoming traffic.
Mr. Lance's hesitating apparently didn't even bother the motorist behind him, said the judge, noting, "There was no toot of the horn."
Judge Hill weighed whether the so-called community caretaker standard was enough for Officer Peterson to pull Mr. Lance over. After all, depending on whose accounts of that morning you believe, Mr. Lance's head was either drooping so that his chin touched his chest or he was simply looking down.
A droop may have indicated a medical problem, but looking down may also have been a sign he was reaching for a soda between his legs, or for some other inconsequential reason, got momentarily distracted.
And everybody's done that, right? said the judge.
The judge also noted that when he did drive away, Mr. Lance was followed by Officer Peterson for a period lasting longer than the time Mr. Lance hesitated on the green. That was enough time for the officer to note any moving violations, any signs of a motorist suffering a medical ailment or observe anything related to a possible DUI.
But neither Officer Peterson nor Officer Clark noted any such thing, because Mr. Lance committed no violations, they said.
Nor did Mr. Lance make an unsafe turning movement, which Officer Beutel wrote in a report was the basis for the initial stop. Not only did she know this to be an error of fact, according to Officer Peterson, Officer Beutel did nothing to correct the error.
It was only after the questionable stop that Officer Peterson said he noticed the smell of alcohol on Mr. Lance's breath and called for backup - Officer Beutel, at the time the head of the department's Drinking Driver Team and a star among cops who arrest people suspected of driving impaired.
A breath test indicated Mr. Lance blew a .09, one-tenth over the legal limit. But Mr. Lance challenged the way the test was administered by Officer Beutel, claiming she covered one of the testing unit's ports to ensure a higher BAC reading. (That's another question the dismissal leaves unanswered.)
Judge Hill said other courts have found four or five seconds to not be an extended period of time to wait at a green light. "Three seconds is very, very short and does not give rise to reasonable suspicion that criminal activity is afoot," he said.
While the judge in an earlier portion of the hearing invited Mr. Horowitz to cite cases showing the opposite of where this all seemed to be going, the end for the prosecution truly was near when the judge said, "I'm not certain that it's fruitful for the district attorney to give time to researching cases."
There simply aren't any.
Mr. Lance still has the Department of Motor Vehicles to deal with. His driving privilege hangs in the balance, because the DMV is not bound by Judge Hill's decision.
Still, a proper hearing in that arena could require Officer Beutel to appear, and history shows she has not always been available to do so.
Mr. Horowitz did not respond to a request for comment after the hearing.
His immediate supervisor, Chief Deputy District Attorney Gordon Auchincloss, told the News-Press that Judge Hill took guidance in his ruling from out-of-state cases because there's little California law to turn to.
But the judge didn't have to go that route.
"Out-of-state cases are not binding authority on California courts," said Mr. Auchincloss. "When we do our research, our focus is generally on California law and federal law, so a judge can cite out-of-state cases, but there's no compunction for him to follow them at all."
"The amount of weight that a judge gives to an out-of-state case is dependent on the judge and how much weight he wants to give it."
At the end of the hearing, Judge Hill said prosecutors could appeal the ruling.
"Whether we will is another question," said Mr. Auchincloss. "It depends on the circumstances."
Mr. Genis disputed this notion.
"That would be a very interesting appeal," he said. "Had the judge stopped at the suppress motion, yes, they have 30 days to appeal."
"But the judge also said case dismissed," Mr. Genis added. "If the judge had held in abeyance the dismissal, they would have had time to appeal. Because they didn't say we're thinking of appealing, they waived the objection and invited the error, and they cannot now complain about it."
Mr. Lance emerged from court Tuesday with a smile. But behind it was an angered man. "I'm thrilled, but there are so many remaining issues."
"I came in today not expecting a dismissal based on the way the DA has handled this from the beginning," Mr. Lance said. "It showed there was misconduct from the beginning."
Misconduct, said Mr. Lance, that began with the traffic stop and continued with Kasi Beutel.
"It shocked me to see my signature on the Trombetta waiver, the blood waiver," he said. "I said to myself, 'Is this just my case or are there other cases?' "
While the judge made no ruling about officer credibility, a handwriting expert working with the defense determined that nine instances of forged blood waivers trace back to Officer Beutel and others.
"Why is she back on the job now with this dark cloud hanging over her, with her credibility hanging over her?" said Mr. Lance.
Later in the day, District Attorney Joyce Dudley issued a statement touting the fact that Judge Hill "did not find any misconduct on the part of any of the involved officers ... or any member of the District Attorney's Office."
Mr. Genis called the statement misleading, because after answering the constitutional question, it became unnecessary for the judge to rule on "all the other sins and transgressions of Officer Kasi Beutel that have been called into question by Peter Lance's investigation.
"The intent of her press release is to suggest that by his ruling Judge Hill somehow vindicated the offic
S.B.C.C.C. The place where COMMON SENSE never goes out of style!
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November 30, 2011 at 12:40 p.m. (Suggest removal)