“So in this case,” Talon summarized, “you pulled over a car, not for illegal activity, but because if it had been doing anything illegal, you wouldn’t have been able to identify it?”
“It is illegal not to have a working license plate light,” Flaherty reaffirmed.
Talon ignored his response. She had other plans.
“Do you expect to find illegal activity in South Tacoma?” she asked. “Is that why everyone down there has to have a working license plate light?”
Flaherty thought for a moment, clearly trying to decide how to phrase his answer. “We patrol everywhere in the city. But yes, South Tacoma is a high crime area, so we patrol there more actively than some of the other neighborhoods.”
“You don’t drive around the Proctor District,” Talon expanded, naming one of the most affluent neighborhoods in Tacoma, “looking for cars with faulty license plate lights, do you?”
“If I saw a vehicle in the Proctor District with a faulty license plate light,” Flaherty answered, “I would stop it and issue a ticket.”
“You would?” Talon challenged. “Or would you just give them a warning?”
Flaherty frowned but then conceded, “I might give them a warning.”
“But you’d get their name and driver’s license info first, right?” Talon asked.
Flaherty nodded. “Right.”
“So you could run them for warrants?” she asked. “And check their driving status?”
“Yes.”
“And if there were warrants, you’d arrest them, right?” Talon asked.
“Yes. I would have to.”
“And if their driving status were suspended, you’d arrest them for that too, right?” Talon continued.
Flaherty nodded again. “Yes.”
“What’s the most common reason a person’s license gets suspended?” Talon moved forward.
“There are a lot of reasons,” Flaherty answered. “A DUI conviction, failure to pay child support.”
Talon put a hand on her hip and looked at Flaherty disapprovingly. “The most common reason a person’s license gets suspended is for unpaid tickets, isn’t that true?”
Flaherty hesitated, but then admitted, “Yes. I think that’s probably the most common reason.”
“If I can afford a house in the Proctor District,” Talon said, “I can probably afford to pay a hundred-dollar speeding ticket, can’t I?”
Flaherty shifted in his seat. “I suppose so.”
“And if I’m homeless, couch-surfing, just trying to get through each day in South Tacoma,” she said, “I’m probably not using that hundred bucks to pay some speeding ticket I got. I’m using it to buy food, right?”
“I don’t know,” Flaherty answered.
“Or drugs?” Talon offered.
“Maybe. I don’t know.”
“So when you pull over some Lexus S.U.V. in the Proctor District for a faulty license plate light,” Talon said, “you’re almost certainly going to just give them a warning, because they paid their tickets and their license isn’t suspended. But if you pull over some piece of crap 1980’s American sedan in South Tacoma with a license plate light out, you expect you’re going to be arresting the driver for driving on a suspended license, right?”
“I, I don’t know,” Flaherty stammered.
Talon looked him straight in the eye. “Yes, you do.”
She turned and walked back to her table. “No further questions.”
Alcott stood up.
“Any redirect examination?” Judge Haroldson asked her.
She thought for a moment, but decided against it. Redirect by her only invited recross by Talon. She decided to plow ahead. “No, Your Honor. This witness may be excused. The State next calls Officer Shelby Ruck.”
Flaherty stepped off the witness stand and made his way out of the courtroom. Ruck entered as he left and strode down the aisle to take his place. After another promise to tell the whole truth, Alcott gave her a copy of her report and led her through her part of the arrest and search.
Ruck was Flaherty’s backup. They always waited for backup when contacting a driver in South Tacoma. Once the defendant was arrested, Flaherty took control of him and it was Ruck’s responsibility to conduct any searches pursuant to arrest. Such arrests were conducted without a warrant but were allowed because of officer safety concerns. They could search for weapons on the suspect’s person, in his clothes and pockets, and anywhere in the vehicle that was within whatever the officer determined was a ‘lunge zone.’ She did that and she found crack cocaine in the suspect’s pocket and a loaded semi-automatic Glock pistol under the driver’s seat, magazine full, chamber empty. The items were seized, marked, and checked into the property room after the suspect was transported to jail.
“No further questions,” Alcott announced again, and turned the floor over to Talon.
“You were searching for weapons?” Talon started.
“Yes,” Ruck answered. She was short, and looked even shorter with the bulky bulletproof vest expanding her horizontal dimensions, but she had a fierce look, with her blonde hair pulled back in a tight ponytail and naturally ruddy cheeks.
“Because you need to be safe?” Talon followed up. “That’s the whole purpose of the search, right?”
“Yes,” Ruck agreed. “But if we run across contraband, we don’t have to ignore it.”
“Oh no, no, no. Of course not,” Talon agreed a little too much. “You start with a pat down, right? Patting the pockets for anything hard or possibly sharp?”
“That’s correct,” Ruck answered.
“Because if you just start shoving your hand into random pockets, you might get stabbed by a knife or a needle, right?”
Ruck nodded. “Correct, ma’am.”
“You know what a gun in someone’s pocket feels like, right?”
“Yes, ma’am,” Ruck answered. “They’re usually large and heavy, with a distinctive shape.”
“Even a small handgun, like a .22?” Talon encouraged.
“Yes, ma’am,” Ruck confirmed,
“Likewise, you know a knife when you feel it, correct?”
But Ruck tilted her shoulders a bit. “It depends. Most people don’t keep fixed-blade knives in their pockets. That doesn’t mean I’ve never encountered it, but it’s more normal to encounter a fixed-blade knife in a belt holster that I can see. If a knife is in someone’s pocket, it’s usually a folding knife, and those can come in all different shapes and sizes.”
“Sure, sure,” Talon agreed. “But again, a folding knife is going to be hard and probably a rectangular or elongated shape, correct?”
Ruck thought for a moment. She was getting comfortable in the minutiae of weaponry. “I think that’s fair to say.”
“And there are other weapons, correct?” Talon went on. “Brass knuckles, wooden clubs, even exotic things like throwing stars, right?”
Ruck nodded. “Yes, ma’am.”
“Tell me, officer,” Talon again looked her witness in the eye, “what sort of weapon does a plastic baggie feel like?”
Ruck cocked her head. “I don’t understand your question.”
“You said you were searching my client for weapons,” Talon said, gesturing toward Ezekiel Frazier. “And you said you found a plastic baggie with cocaine in it. So what type of weapon did you erroneously think the baggie was?”
Ruck blinked a few times. “I didn’t think it was a weapon. I was searching him for weapons and found the baggie of drugs while I was doing that.”
“But you said you don’t just stick your hand into a pocket unless you know what’s inside,” Talon reminded her. “Did you know it was a plastic baggie of drugs when you stuck your hand into my client’s pocket without a warrant, or did you think it was some sort of weaponized plastic bag?”
“Objection,” Alcott finally interrupted. “Counsel is badgering the witness.”
“I’m asking a fair question,” Talon replied. “The witness should be made to answ
er it.”
Haroldson’s frown had been joined by narrowed eyes. “Rephrase the question, counsel,” he instructed. “There’s no jury here to impress with your cleverness.”
Talon nodded up to the judge, then turned back to the witness. “When you reached into my client’s pocket and removed the baggie of drugs, did you think it was a baggie of drugs or did you think it was a weapon?”
“I didn’t know what it was,” Ruck answered.
Talon thought for a moment. Then she decided that was good enough. Time to address the gun.
“Do you always book every defendant arrested for a crime?” she asked. “Or do you sometimes cite and release them?”
Ruck thought for a moment. “I book some. I cite and release others.”
“And that’s in your discretion as the arresting officer?” Talon asked.
“Yes.”
“You would never cite and release someone you arrested for murder, though, right?” Talon confirmed.
“No, of course not.”
“Likewise, you probably cite and release a lot of people for petty crimes like being in a park after hours or smoking at a bus shelter, correct?” Talon asked.
“I haven’t had many cases like that,” Ruck answered. “But no, I wouldn’t bother transporting someone and booking them into the jail just for being in a park after closing or for smoking at a bus stop.”
“Even though those are both misdemeanors, correct?”
“They are both misdemeanors,” Ruck confirmed.
“And driving while your license is suspended for unpaid tickets is also a misdemeanor, isn’t it?” Talon followed up.
“It is.”
“Do you usually book on that charge?” Talon asked.
Ruck shrugged. “Sometimes yes, sometimes no. Depends.”
“On the neighborhood?” Talon suggested.
But Ruck frowned at the suggestion. “No. On the suspect. If it’s a first offense and they’re driving to work in the morning, I probably don’t book them. Some people don’t even know they’re suspended because they didn’t get the notice. But if it’s after dark and they have a bunch of convictions for driving while suspended, then I might book them.”
“Whose decision was it to book Mr. Frazier for driving while suspended?” Talon asked.
“Mr. Frazier was booked for unlawful possession of drugs and unlawful possession of a firearm,” Ruck answered. “Not for driving while suspended. Those are both felonies.”
“But you didn’t know about the drugs or gun until after he was arrested,” Talon reminded the officer.
“Correct,” Ruck replied, “but we did know that before we decided to book him.”
“So why did you need to search the vehicle, without a warrant, I might add,” Talon asked, “if you weren’t going to let him back in the vehicle anyway? He couldn’t lunge for a gun with his hands cuffed behind his back, could he?”
“We hadn’t made a determination as to whether he was going to be booked,” Ruck insisted, “so officer safety concerns dictated that we search the lunge area of the vehicle. We’re allowed to do that,” she asserted.
Talon grinned darkly. “Maybe.” She turned and paced slightly in front of the witness as she approached the conclusion of her examination. “Let’s assume you didn’t find drugs on Mr. Frazier. And let’s assume you decided not to book him on the driving while suspended. Would you have let him drive away, knowing he was suspended?”
Ruck obviously didn’t trust Talon, but had to answer, “No. He wasn’t legally eligible to drive.”
“So you would have had him lock up the car and call a friend to pick it up later, right?”
“That would have been one option, yes,” Ruck agreed.
“You also have the authority to tow a car when someone’s arrested for driving while suspended, correct?” Talon continued.
“Yes,” Ruck answered.
“But if you did that,” Talon pointed out, “you couldn’t search it without getting a warrant, right? Because no more officer safety concerns when the vehicle is locked inside the Tacoma Police Department impound lot, huh?”
“There wouldn’t be any reason to seek a warrant, if someone was arrested just for driving while suspended,” Ruck said.
Talon nodded. “Exactly. So if you towed Mr. Frazier’s car, you wouldn’t have been able to get a warrant and you never would have found the gun.”
“By the time we searched Mr. Frazier’s vehicle, we had already located the drugs on his person,” Ruck explained. “So he wasn’t being arrested just for driving while license suspended.”
“And unlawful possession of a controlled substance is a felony, right?”
“Yes, ma’am.”
“He wasn’t getting cited and released?”
“No, ma’am.”
“Once you found those drugs in his pocket, he wasn’t getting back in that car and driving away that night, was he?”
“No, ma’am.”
Talon stopped her pacing. She squared her shoulders to the officer. “So, why did you search the car without a warrant?”
But Ruck didn’t seem to get it. “Officer safety. We don’t need a warrant.”
Talon considered arguing more with the officer, but it didn’t actually matter if she got it. It mattered if the judge got it. And Talon was pretty sure he did. “No further questions.”
Haroldson looked over to Alcott. He didn’t ask her if she had any redirect. Instead he strongly suggested against it. “May this witness be excused?” he asked her.
Alcott, who had stood up, either to redirect or to address the court, took a moment, then took the hint. “No, Your Honor. Thank you.”
The judge dismissed Officer Ruck, then looked again to Alcott. “Any further witnesses?”
“No, Your Honor,” the prosecutor answered.
Haroldson looked to Talon. “Does the defense have any witnesses?”
Talon stood up. “No, Your Honor.” Of course not. The entire hearing was about the propriety of the cops’ conduct. They would get to her client’s conduct later, and then he might—might—testify. But not now. Right to remain silent and all that.
“Do the parties wish to make argument?” Haroldson asked through what had become a definite scowl. He was definitely upset with someone. Talon hoped it was the officers. She suspected it was her.
“Yes, Your Honor,” Alcott answered, and she jumped right in. It was basically the same as her opening statement. She went through each step the officers took, explained why, at that moment, such step was lawful, and how each lawful step led to the discovery of the drugs and gun. “Therefore,” she concluded, “we ask the Court to deny the defendant’s motion to suppress. Thank you.”
Talon stood up next. She had three audiences, she knew. The first was the judge. There was the smallest chance he might actually suppress the evidence. Smaller than small, but if her advocacy could make that happen, she had to try. Suppression would equal dismissal. Absolute victory.
The second audience was Alcott. Assuming the judge did not dismiss a third strike case on a preliminary motion, then they would soon be locked in battle during the actual trial. Alcott was sizing Talon up and Talon wanted Alcott to be both scared of her, and not fully aware of everything Talon would bring to bear when they were in front of a jury. She had to keep some of her powder dry.
The third, and in some ways most important audience, was her client. Ezekiel Frazier was facing the prospect of spending the rest of his life in prison. The only person who could possibly prevent that from happening was his attorney. His life was in her hands. She wanted him to have confidence in her. She’d need that when the trial started and she’d have to make split-second decisions without the time for a full consultation with her client.
It was time to impress, to frighten, and maybe, just maybe, to win.
Or not.
“Miss Winter,” Judge Haroldson interrupted her before she could even start. “I don’t want to hear anything about how th
ese two officers are racists. Or about how the criminal justice system is racist. Or how it’s racist that Black people live in South Tacoma and White people live in Proctor. I’m White and I live in Proctor, but I expect the police to enforce the law there like anywhere else in the city. If you have arguments as to why an officer can’t stop a vehicle for an equipment violation, why an officer can’t arrest a suspect for driving on a suspended license, or why an officer can’t make sure a suspect doesn’t have access to a weapon that could injure or even kill the officer, then I would love to hear it. Otherwise, I believe I’m ready to make my ruling.”
Talon wasn’t sure how to respond. She’d already lost the first audience. Her second audience knew she was going to win so probably wouldn’t be listening anyway. She turned and looked to her third audience.
“You were right,” he whispered to her with a shake of his head. “We’re gonna lose.”
She thought for a moment, then turned back to look up at the court. “If Your Honor isn’t going to listen to my arguments, then I won’t waste the Court’s time. Or mine.” And she sat down. She was going to keep all of her powder dry. And hope like hell they didn’t draw Haroldson for the trial too.
The judge harrumphed but didn’t respond to Talon’s statement. Instead he pulled his reading glasses back on and read from his notes. Talon wondered if he’d written his ruling before they’d even started the hearing.
“In the matter of the State of Washington versus Ezekiel Frazier,” he read aloud, “it is this Court’s ruling that the officers had lawful authority to stop the defendant’s vehicle. It is this Court’s ruling that the officers had lawful authority to arrest the defendant. And it is this Court’s ruling that the officers had lawful authority to search both the defendant’s person and the defendant’s vehicle. Accordingly, the defendant’s motion to suppress evidence is denied.”
CHAPTER 19
“God damn it!”
Talon threw her briefcase across the lobby of her office. It bounced off one of the waiting room chairs, knocked a decorative knick-knack off the table behind it, and landed on the floor spilling files and pens in front of Hannah’s desk. She looked up from her computer, down at the briefcase, then timidly at Talon.
Talon Winter Legal Thrillers Box Set Page 33
