August 25, 2013

‘You don’t need my name’

Rocky Face man takes Fourth Amendment claims to federal court

Rachel Brown

— Michael Keith was drunk. That much he admits.

The Rocky Face resident knew he was drunk, too. He knew it when he climbed inside the silver Ford F-150 late on Nov. 5, 2011, and sat in the passenger seat so a friend could drive him home. Then he did something that set off a chain of events that eventually landed him in jail.

He leaned outside the truck and vomited on the road — right on the pavement on U.S. Highway 41 just a short distance from the Dalton bar he’d just left. A Dalton Police Department officer spotted him and turned on his blue lights, then pulled the truck over.

“You gonna be OK, buddy?” Officer Jason Robinson asked Keith as the driver rolled down her window.

“I’m fine,” Keith is heard replying on a police department’s patrol car camera recording of the incident. “Just let her drive me home.”

What happened next is the basis of a lawsuit Keith filed in federal court in Rome alleging Robinson and other officers who responded violated his Fourth Amendment rights by demanding his identification when he says he had broken no laws. Keith was arrested for public intoxication, though the charge was later dropped.

In the lawsuit, Keith asks the court to declare “that a traffic stop may only be initiated when an officer observes a driver in violation of the law” and that individuals “may not lawfully be detained without probable cause or reasonable articulable suspicion.” He’s also asking for a ruling that he is “under no obligation to provide identification to anyone while he is the passenger in a vehicle and is not suspected of being in violation of law.”

‘You don’t need my name’

The lawsuit was filed last fall. Norman Marshall Sawyer Jr., an Alpharetta-based attorney representing officers Robinson, Jennifer Jeffries and Tyler McBrayer, declined to comment. The three officers declined to comment, police department spokesman Bruce Frazier said. Frazier also declined to comment directly on the case.

Court records show Sawyer sought several times to have the case dismissed on numerous legal grounds, including the fact that the officers have immunity because of their jobs. Keith, a computer programmer who is representing himself after he said he talked to several attorneys who did not want to sue the officers, is asking for summary judgment, an immediate ruling in his favor. Both parties are awaiting a decision on that request, which is expected by early September.

During the traffic stop, after Keith tells Robinson to just let his driver take him home, Robinson asks for Keith’s identification. Keith refuses. Robinson asks him again. Keith says he doesn’t have to present it. The argument continues for several minutes with the officer also asking for Keith just to provide his name.

“You don’t need my name,” Keith says, arguing that because he is only a passenger during the traffic stop and isn’t suspected of committing a crime, he doesn’t have to submit to demands for identification.

“How old are you? Because you’re obviously intoxicated. It doesn’t matter if you’re driving, you’re drinking, I need to verify your age,” Robinson tells Keith, who is in his 30s.

Keith asks if they’re being detained and on what charge. Robinson says “possibly underage consumption.” Keith proceeds to argue that he just left a bar that obviously has to check his ID to serve him.

The arguments continue, and Robinson calls for backup. Keith is suing backup officers Jeffries and McBrayer — who like Robinson have been with the police department for seven years — because he said they had a duty to stop Robinson from violating Keith’s rights but did nothing. Frazier said that of the three officers, only McBrayer has ever had a citizen-filed complaint against him. That was in 2011. An internal review found the complaint for rudeness was unsubstantiated.

During the stop, Keith continually maintains that as a passenger he doesn’t have to give up his ID.

“It doesn’t matter if you’re driving, OK? I’m investigating,” Robinson says. He tells Keith he’s “publicly intoxicated.”

“Publicly?” Keith replies. “I’m inside my car.”

Unreasonable search and seizure?

Fourth Amendment issues — concerning constitutionally protected rights against unreasonable searches and seizures — have increasingly crept into the public eye in recent years.

Whistleblower Edward J. Snowden’s leaked information on the federal National Security Agency’s alleged violations of its own rules governing privacy when it comes to gathering intelligence continues to garner national attention.

Weeks ago, Middle Tennessee State University student Chris Kalbaugh drew outrage from some and criticism from others when he posted a video of a DUI checkpoint in which he refuses to comply when a law officer demands he roll down his window to a level the officer finds acceptable. Kalbaugh tells the officer he has “a constitutional right to travel freely without being randomly stopped and detained.”

Frazier wouldn’t comment directly on Keith’s situation, but he said someone who hasn’t committed a crime in some cases might still be required by law to cooperate with police.

“Let’s say that police are investigating you as a suspect in a murder. You haven’t committed a murder. That doesn’t mean that you don’t have to present your ID to an officer during the investigation,” Frazier said. “When an officer is investigating you for the possibility of committing a crime, then yes, you are required to identify yourself. In a situation where you are not suspected of a crime, you do not have a requirement to show an officer your identification. That does not mean that you cannot be asked for your identification. Any person can ask any other person for their ID in any situation.”

District Attorney Bert Poston said there’s no law against being drunk in public per se, but there is one against “acting drunk” and that can be a reason for an officer to step in.

The incident happened at night, and the video recording doesn’t clearly show what happened when Keith vomited on the road. Robinson alleges several times that Keith’s body was outside the truck. Keith says he just rested his face on the door and aimed outside.

Vomiting on a public road illegal?

The District Attorney’s Office dismissed Keith’s charge about two weeks after his arrest — an act Keith said speaks in his favor. Yet Poston, who was an assistant DA at the time and handled the case, said it appeared from Robinson’s report that the officer had a legitimate reason for the arrest.

Prosecutors don’t go to court with every case that comes to them, Poston said. Some “relatively minor” cases are dismissed, even if the evidence would support a conviction, as prosecutors have the discretion to prioritize their caseloads and to weigh other factors, such as whether the defendant has a history of breaking that particular law, Poston said.

“I did not document a reason for dropping the charge and don’t recall this specific case,” Poston said, “but the evidence outlined in the report certainly supports the arrest. The charge of public drunkenness requires that a person be intoxicated in a public place and that the intoxication be ‘made manifest’ by one or more behaviors including ‘indecent condition or act.’

“The officer’s report indicates that Mr. Keith was ‘hanging out of the passenger side of the vehicle,’ which would constitute being in a public place. He readily admitted he was intoxicated, and his vomiting on the roadway would constitute an indecent condition or act.”

So is it illegal to be drunk inside your own vehicle?

It depends, Poston said.

If someone is inside their car, minding their own business, they’ve broken no laws, Poston said, but if a drunk person starts “hanging out the window,” things can change.

Keith suing officers

 as individuals

The driver with Keith that night was not charged. Keith said she has since moved away, and he doesn’t plan to call her as a witness.

Frazier said all three officers are still working at the police department and that there was no internal or external investigation into Keith’s arrest. Keith didn’t ask for one. He said he wants an impartial review and believes the courts are more likely than the police department to give it to him.

Keith said he doesn’t want money for damages in the lawsuit, but he does want an official apology. He’s also upset at the fact the city’s insurance carrier, Traveler’s, is providing legal aid to the three officers by paying for Sawyer’s services.

Keith said he intentionally sued the three police officers in their individual capacities rather than in their official capacities so taxpayers wouldn’t have to shoulder the burden of defending the suit. Sawyer states in a court document responding to Keith’s complaint that he would represent the officers in a lawsuit that stems from something they did on the job regardless of whether they were sued as officials or individuals.

“I don’t want to sue the city,” Keith said. “I don’t want the city’s money.”

Frazier said the police department as of Wednesday had paid about $4,800 to Traveler’s to defend the case. He said that amount was paid from a portion of the budget set aside every year for such cases and is “well within” that budget.

‘he wants to cause a stink’

Keith said he believes Robinson was just fishing for something to charge him with when he wouldn’t provide his ID. Robinson didn’t settle on the charge until late into the traffic stop after first suggesting possible charges of underage consumption and littering. Before he made the arrest, he radioed someone to ask for advice.

“What is the ... I know there’s something that says they must present their ID or their name when asked to,” Robinson is heard saying on the video.

There is a pause.

“He’s saying he’s not going to give me his name, he’s not going to give me any information. I mean, have I got anything to ... public intoxication? Well, it’s in an indecent manner, don’t you think? ... Whenever he stuck his head out the window and was puking all over the place. And basically I was stopping him to see if he was OK, but he wants to cause a stink and tell me he doesn’t have to present his ID and he doesn’t have to tell me his name.”

At the end of the video, Robinson is heard talking to the driver and saying he likely would have let Keith go if he had just cooperated.

“You understand why I stopped you, right?” Robinson says to the driver.

“Yeah, he was hanging out the window.”

“Had he been compliant, I would have said, ‘Thank you for being a responsible person,’” Robinson said.