Kansas City Highway Shootings Probable Cause Statement Analysis

April 21, 2014

Monday, April 21, 2014

Good morning:

I write today regarding the affidavit for probable cause in the Kansas City highway-shootings case. I conclude the affidavit contains sufficient information to establish probable cause to believe that Mohammed Pedro Whittaker shot at 12 victims in their vehicles on highways in the Kansas City area between March 18th and April 6th of 2014.

The affidavit by Detective Dawn McCamish of the Kansas City, Missouri Police Department identifies 12 victims in 11 vehicles who were shot at while exiting highways in the Kansas City area.

Three of the victims were wounded (victims 1, 9 and 11 in the affidavit). Victims 1 and 9 were shot in their right arms with the shots passing through the front seat passenger side windows. Victim 11 was shot in the lower left leg with the shot passing through the door on the driver’s side. All three are males.

Five of the 12 victims are females. Victims 3 and 4 are a mother and daughter who were in the same vehicle with the mother driving and the daughter sitting in the back seat behind her.

Bullets were recovered from each of the 11 vehicles. According to ballistic analysis, all of the bullets were fired from the same weapon, a .380 caliber handgun.

Only two of the victims saw the shooter. Victim 3, the mother driving with her daughter in the back seat, saw a black male wearing a hoodie pull beside her on the left before the shots were fired. She was unable to provide a description of the vehicle that he was driving.

Another victim, who is not identified by number, told the police that he saw a dark metallic green sedan pull alongside him driven by a male wearing a black hoodie, ski mask and dark sunglasses. The window on the passenger side of green sedan was down and front door on the driver’s side of the victim’s vehicle took the shot.

The affidavit also references tips received from three callers an April 8th and 9th.

The first tip on April 8th reported a dark green sedan, possibly a Dodge Neon with Illinois plates followed the caller.

The second tip on April 9th reported seeing a mixed race male in his early 20s wearing a black hoodie and ski mask while driving a green Dodge Neon with Illinois plates.

A third tip received on April 9th reported an encounter that she had with a person driving a light green or turquoise vehicle with damage to the rear bumper. She stopped behind the vehicle at a stop sign. The driver stared at her. He was wearing a gray hoodie and a cloth mask that covered his face.

She followed him after he pulled away from the stop sign and stayed behind him even though he hit the brakes and slowed down as if to allow her to pass him. She remained behind him until she reached the I-71 on ramp. Then she took the on ramp to get away from him.

She reported the vehicle license as Illinois plate G86 5203.

This encounter occurred on March 20th at 1900 hours when the temperature was 70 degrees. She said all of the windows in his vehicle were down.

Police ran the plate. It came back to a white Buick registered to the suspect’s father, who resides at 9624 Beacon.

Police ran an incident search on the white Buick and obtained three hits.

On August 31st, 2013 it was reported parked in front of 9624 Beacon.

On August 30th, it was parked in front of 9622 Beacon.

On August 22nd, it was parked in front of 9622 Beacon with a dark green vehicle parked behind it.

Police ran an incident search on 9622 Beacon and obtained a hit dated October 11th, 2013. On that date, the residents of the house directly behind 9622 Beacon reported that someone fired a shot into their house. The bullet was a .380 caliber.

On April 9th a witness contacted police and reported finding a plastic Walmart bag containing spent .380 caliber casings and empty boxes of .380 caliber ammunition. He found the bag beside a highway while he was searching for his cell phone that he lost.

Police identified the suspect’s fingerprint on the bag.

Police located the suspect’s green Dodge Neon on April 10th and began following him.

On April 11th they saw him contact a male and attempt to purchase a .380 caliber handgun with a laser sight. The male refused to sell the gun because the suspect said he did not have ID. The male provided police with the suspect’s cell phone number. He was able to provide the number because the suspect had texted him to express interest in purchasing the gun, which the male had advertised for sale.

Police were able to determine where the suspect was living from the cellular service provider’s GPS locator.

On April 12th, the police followed him to a parking lot where he parked and left the vehicle. While he was gone, they walked around the vehicle and noted the damaged rear fender reported by the caller who had followed him and obtained his license plate number. From outside the vehicle, they saw a hoodie and a mask in the pocket of the passenger seat.

While following him on April 13th, they saw him remove plastic covering his windows and subsequently engage in erratic driving speeding up and slowing down in his vehicle. At one point, he swerved suddenly and almost struck a Honda that he appeared to be following.

Police obtained search warrants for his residence where they found masks and a .380 caliber handgun that fired the bullets that were recovered from the 11 vehicles.

The suspect’s father told police that he gave the license plate to the suspect.

When the police interrogated the suspect, he waived Miranda and agreed to answer their questions. When they accused him of the shootings, he denied being the shooter at the Jewish Community Center. They told him that they were not talking about those shootings. They said they were talking about the highway shootings.

He denied responsibility for those shootings and then claimed to be one of the victims.

I note parenthetically that the first victim was driving a green Dodge Neon. Probably only the victim and the shooter knew that, so it seems like he was claiming to be the first victim which reminds me of the stealing-the-victim’s-scream strategy used by Zimmerman and Pistorius.

The test for probable cause is whether reasonable grounds exist to believe that the suspect shot at the 11 vehicles.

Based on the information contained in Detective McCamish’s affidavit, I believe there is probable cause to conclude that Mohammed Pablo Whittaker is the person who shot at the 12 victims in the 11 vehicles.

Probable cause is not proof beyond a reasonable doubt. Only two of the victims saw the shooter and his car. All of the cases are tied together by the ballistics evidence and the shooter’s modus operandi to draw next to a potential victim who is committed to an exit lane or on ramp and shooting at the victim who cannot then follow the shooter, if the victim survives the shooting.

Modus operandi evidence is admissible regarding uncharged misconduct pursuant to Rule 404(b) and here there are several instances of his erratic driving in an apparent attempt to line up a potential victim. One incident involved the woman who reported his license plate to police. Another, with police watching, involved the Honda that he nearly ran into.

Appears to be little doubt that he intended to shoot people, not just cars, since he wounded three victims and subsequently attempted to improve his aim by purchasing a .380 caliber handgun with a laser.

Not an airtight case, but close.

Safe to say,

Bring lawyers, guns and money cuz I’m in a helluva jam.

If you appreciate what we do and have not already made a donation this month, please do so today.

Fred


The Decision From Hell (Part 1)

December 27, 2011

The Kentucky State Court of Appeals issued its decision affirming Crane Station’s conviction on January 21, 2011. Her motion for reconsideration was summarily denied without an explanation. Her motion for discretionary review is pending in the Kentucky State Supreme Court.

I call the 3-0 opinion written by written by Judge Lambert and joined by judges Henry and Taylor the decision from hell and will now take it apart. First, here is a link to the decision.

The Court begins by making two fundamental errors that invalidate the conclusion it reached affirming the circuit court’s denial of the motion to suppress evidence. The two errors are:

(1) It relied on after-acquired information, including trial testimony and the dispatcher’s tape, which is prohibited by the United States Supreme Court and the Kentucky Supreme Court; and

(2) It stated that the appellant had failed to challenge any of the findings of fact in the three suppression orders, which is absolutely false.

In United States v. Hensley, the Supreme Court held that trial courts must decide the constitutional validity of investigatory stops of civilians by police officers (i.e., whether there was reasonable suspicion or probable cause to justify the stop) based on the information available to the police officer before the stop. Information acquired after the stop cannot be used to justify a stop that was not supported by reasonable suspicion or probable cause because that would eliminate the rule.

The Supreme Court also held in Hensley that, even if a police officer stops a suspect acting in good faith on mistaken information provided by a dispatcher, the stop nevertheless violates the Fourth Amendment, if the correct information did not constitute a reasonable suspicion.

Therefore, the proper legal analysis under Hensley is to determine whether the information supplied by the 911 caller constituted a reasonable suspicion to justify the stop. The caller said,

And there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early ’90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard and everything and writing stuff down, and she’d talked to him and mentioned something about tar heroin and all that stuff.

The caller did not describe suspicious activity, much less criminal activity. He described a conversation between his neighbor and a stranger in which the stranger mentioned the word heroin. So what?

This is not complicated. Absent information that the caller witnessed a purchase or sale of a controlled substance, or possibly a request to purchase or sell a controlled substance, there is nothing to investigate.

A reasonable suspicion is more than a mere hunch or suspicion. The hunch or suspicion must be reasonable. That is, it must be supported by articulable objective facts and circumstances that would warrant a reasonable person to conclude that a crime has been committed, is being committed, or is about to be committed. That did not happen.

Now, the stop would violate the Fourth Amendment, even if the dispatcher had innocently altered what the caller said and told the deputy that the caller had reported witnessing a drug transaction between his neighbor and a stranger and the officer stopped the stranger to investigate.

Why? Because the dispatcher cannot create a reasonable suspicion that did not already exist, even if the dispatcher does so by committing an innocent mistake. In other words, good faith reliance on mistaken information provided innocently by a dispatcher cannot create a reasonable suspicion where none existed. Therefore, the dispatcher’s information is irrelevant under Hensley.

But even if we consider what the dispatcher said, there still is no reasonable suspicion. He said,

Suspicious person complaint, the 4000 block of Queensway Drive off of Lester Harris and Bottom Street. A white female in a dark blue LeSabre that’s out walking around asking people about 218A.

(218A is a reference to the Kentucky State Uniform Controlled Substances Act)

Again, so what? A person walking around asking people about a drug statute is not illegal activity.

I am not saying that the caller’s tip should not have been investigated. I am saying that the proper procedure would have been to contact and interview the caller to obtain additional information regarding what he observed, which the deputy did the following day. However, even if the caller provided additional information such as, “I saw the woman buy some heroin from my neighbor,” the information could not be considered for the purpose of determining whether the deputy had a reasonable suspicion to stop Crane Station because he acquired that information after he stopped her. Therefore, it is irrelevant.

But the caller did not say anything like that. He said,

On 6-28-2006, a Lady driven a Buick LeSabre stoped at my driveway and ask me if I would sell 2 berrlles and i said they belong to my Naber. She had her painst unbuttoned and unzipped. She acted like she was under the Influence of something. She was a dirty Blonde wereing Blue shirt and Blue Jeans. (Spelling and grammatical errors in the original)

(incidentally, her jeans were not unbuttoned and unzipped in the in-dash video)

Asking someone if they are willing to sell two barrels is not criminal activity. (The barrels were made out of oak and split in half across the middle so they could be placed on a deck and used as planters) In addition, the statement does not mention heroin or any other drug. Finally, the description he provided and the conclusion that she appeared to be high on something falls far short of “sufficient articulable objective facts and circumstances that would warrant a reasonable person in concluding that the person had committed, was committing, or was about to commit a crime.”

Also, since the caller provided the statement after he knew about the arrest, his perspective would have necessarily changed and we cannot know whether he would have said the same thing, if he had been interviewed before the stop. The bottom line is this information should not have been considered.

Additional information that came to light at subsequent pretrial hearings or the trial itself would, of course, also be irrelevant on the issue of reasonable suspicion because it would have been after-acquired. Therefore, to the extent that the Circuit Court and later the Court of Appeals relied on such information to enter findings of fact, such findings are necessarily invalid, as a matter of law under Hensley.

A consideration of the deputy’s observations of Crane Station’s driving prior to the stop is not prohibited by Hensley. To find out what he observed, the Circuit Court should have watched and listened to the deputy testify at the suppression hearing and the Court of Appeals should have watched the video and read the transcript of his testimony at the suppression hearing. Evidently the judges did not do this because the deputy testified that her driving was exemplary, she violated no laws, and he pulled her over as soon as he realized that she and her vehicle matched the description provided by the caller. He did not pull her over because of her driving; he admitted that he pulled her over because he suspected she possessed heroin.

The deputy was the only witness at the suppression hearing. Therefore, there were no disputed facts. No he-said-she-said differences for the trial judge to resolve. He merely had to enter findings of fact based on what the witness said, but he did not do that.

Instead, he made-up some facts, such as Crane Station initiated a voluntary citizen-police contact that is not subject to the Fourth Amendment, when the deputy testified that he pulled her over. He also relied on trial testimony, which was after-acquired information, including testimony by the deputy that directly and materially contradicted his testimony at the suppression hearing.

It is difficult to know what the hell was going on when the deputy and the trial judge were making stuff up.

The Court of Appeals added to the mess by ruling that the appellant is stuck with the invalid findings of fact because she did not challenge them on appeal. That is absurd because her lawyer challenged all of the materially false facts. There is no doubt. Read her opening and reply briefs, if you do not want to take my word for it.

Finally, the Court of Appeals ignored Hensley. Ignored Crane’s argument that the HGN should not have been considered because it was improperly administered. Concluded that despite “not driving erratically or weaving” and passing a portable breath test, the invalid HGN, when considered together with nervousness, glassy eyes, her admission that she was taking prescribed Clonazepam, and other unspecified “odd behavior,” the deputy had probable cause to arrest. Apparently, despite quoting the product insert warning for Conazepam, which does not say that people who take the drug should never operate machinery or a motor vehicle the Court of Appeals believes that, as a matter of law, a police officer has probable cause to arrest anyone who takes the drug and operates a motor vehicle whether they drive properly or not. The Court also ignored federal and state cases cited by Crane’s lawyer, which hold that nervousness is not a valid or reliable indicator of impairment because people who are not under the influence of drugs or alcohol typically also exhibit nervousness when stopped. They require additional evidence of evasive behavior to establish probable cause to arrest and there was no evidence of that in Crane’s case.

So, did the judges on the Court of Appeals read her briefs?

Difficult to conclude that they did, because I do not see how they could honestly claim that her lawyer failed to challenge any findings of fact, if they had read it.

On the other hand, if they wrote an opinion affirming the conviction without having read her briefs, they should be defrocked and disbarred.

Either way, they have a lot of splainin’ to do.

I will deal with the rest of the Decision From Hell in Part 2 tomorrow.

Until then, Court will be in recess.


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