Interdepartmental Correspondence Sheet
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Interdepartmental Correspondence SheetDate: January 5, 2017 To: Board Members, Citizen Complaint Authority From: Kim Neal, Director Subject: Narrative Summaries – January 9, 2017 Board Meeting # 1
Incident Date: May 15, 2016 Time: 10:30 a.m. Location: 1011 Dayton Street CCA Receipt Date: July 29, 2016 On May 15, 2016, Specialist Alfred Gober on routine patrol, in uniform and driving a marked cruiser, observed Mr. John Kinsella standing outside of his vehicle with the driver’s side door open on Dayton Street. Specialist Gober noted that there had been multiple complaints regarding drug trafficking/usage on Dayton Street. Specialist Gober drove around the block approximately three times, and after observing Mr. Kinsella sitting inside and then stand outside his vehicle, Specialist Gober pulled his cruiser behind Mr. Kinsella’s vehicle. Specialist Gober exited his cruiser to conduct an investigation and determine why Mr. Kinsella was in the area. Mr. Kinsella informed him that he was picking up a friend to play soccer. While Mr. Kinsella stated he was dressed in soccer apparel, Officer Gober said he was not, and therefore, he believed Mr. Kinsella was being dishonest. Mr. Kinsella stated that at this point, Specialist Gober replied, “That is the biggest load of [expletive] I’ve ever heard.” Specialist Gober informed Mr. Kinsella that there had been numerous drug complaints in the area, and requested to see Mr. Kinsella’s identification. Mr. Kinsella attempted to enter his vehicle without producing his identification. Specialist Gober was not sure what Mr. Kinsella’s intentions were or if there was a weapon on him or in the vehicle, and so he placed his right hand on Mr. Kinsella’s back and held him against his vehicle. Specialist Gober patted Mr. Kinsella down to check for weapons. After the pat down, Mr. Kinsella produced his identification from his pocket. Specialist Gober conducted a query and returned Mr. Kinsella’s identification. Mr. Kinsella was subsequently released. Mr. Kinsella’s friend never appeared. Mr. Kinsella alleged that Specialist Gober was discourteous when he used profanity toward him. He alleged that after being pushed against his vehicle, Specialist Gober used excessive force when he twisted his arm behind his back, and then improperly searched his pockets. Specialist Gober stated that he did not use profanity toward Mr. Kinsella, he did not search Mr. Kinsella’s pockets, nor did he twist Mr. Kinsella’s arm behind his back. CCA received the complaint via CPD.
CPD Procedure § 12.554, Investigatory Stops, permits the "Terry" type encounter, where an officer has reasonable suspicion to believe the citizen is committing or has committed a crime. Based on this reasonable suspicion, the officer may forcibly stop and detain the citizen for a brief investigatory period. Specialist Gober while on routine patrol observed Mr. Kinsella sitting in his parked vehicle in an area where there had been numerous complaints of drug usage. After circling the block approximately three times and noticing Mr. Kinsella was still present, Specialist Gober pulled his cruiser behind Mr. Kinsella’s vehicle in order to conduct an investigation. Mr. Kinsella’s reasoning for being in the area further made Specialist Gober reasonably suspicious. CPD Procedure, § 12.545 Use of Force maintains that a police officer’s right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion, or threat thereof, to effect it. When Mr. Kinsella failed to identify himself or produce identification, and then attempted to re-enter his vehicle, Specialist Gober did not know if Mr. Kinsella had a weapon in the vehicle. Pursuant to CPD Procedure § 12.554, Investigatory Stops, every "Terry" type stop does not automatically authorize a frisk. If a frisk is conducted, the officer must be able to articulate specific facts which led them to believe the individual could be armed and dangerous. For safety reasons, Specialist Gober held Mr. Kinsella against his vehicle and patted him down to ensure he did not have any weapons. Officer Gober stated that he never “searched” Mr. Kinsella’s pockets as Mr. Kinsella alleged. There were no witnesses or any other evidence to refute or support Mr. Kinsella’s improper search allegation. The Manual of Rules and Regulations Section 1.06A specifies how members of the department should always be civil, orderly, and courteous in dealing with the public, and avoid the use of coarse, violent or profane language. Mr. Kinsella alleged that Specialist Gober used profanity toward him, which was an allegation that Specialist Gober denied. There were no witnesses, video or audio to substantiate either side’s accounts of the events. CPD Procedure § 12.537, Mobile Video/Digital Video Recording Equipment, maintains that all officers operating DVR equipped vehicles will wear the microphone or wireless transmitter supplied with each system and that the officer will use DVR equipment to record all portions of traffic stops, including the investigation of a vehicle and occupants already stopped or parked. Per the policy, Specialist Gober should have activated his MVR/DVR equipment in order to record the incident but he failed to do so until later in the encounter. Consequently, only a portion of the incident was recorded. Had Specialist Gober followed the procedure, the entire incident would have been recorded, and a more definitive outcome could have most likely been reached. CPD Procedure § 12.554, Investigatory Stops, further maintains that a Contact Card must be completed for any vehicle passenger or pedestrian detention which meets the definition of a “Terry” stop. After a full review, CCA was unable to find a Contact Card associated with this stop. Conclusion CCA has concluded that based on the evidence provided, there are insufficient facts to decide whether the allegations of Discourtesy, Excessive Force and Improper Search occurred. However, CCA has determined that Specialist Gober was in violation of CPD’s policies, procedures, and training when he failed to activate the MVR/DVR upon his investigation of Mr. Kinsella, and he failed to complete a contact card.
Specialist Alfred Gober – Discourtesy There are insufficient facts to decide whether the alleged misconduct occurred. NOT SUSTAINED Specialist Alfred Gober – Excessive Force There are insufficient facts to decide whether the alleged misconduct occurred. NOT SUSTAINED Specialist Alfred Gober – Improper Search (Person) There are insufficient facts to decide whether the alleged misconduct occurred. NOT SUSTAINED Specialist Alfred Gober – Improper Procedure (MVR/DVR) The allegation is supported by sufficient evidence to determine that the incident occurred and the actions of the officer were improper. SUSTAINED Specialist Alfred Gober – Improper Procedure (Contact Card) The allegation is supported by sufficient evidence to determine that the incident occurred and the actions of the officer were improper. SUSTAINED ■ # 2
Date: May 18, 2016 Time: Approximately 3:30 p.m. Location: 8th Street off Linn CCA Receipt Date: September 14, 2016 On May 18, 2016, Officer Kevin Broering was on routine patrol, in uniform and driving a marked cruiser, partnered with Specialist Smith. Officer Broering observed a vehicle with dark tint and initiated a traffic stop at the intersection of 8th and Linn Streets. Upon approach, Officer Broering observed Mr. Javonte Dawson as the driver and smelled marijuana emanating from the vehicle. Mr. Dawson was ordered out of the vehicle. Officer Broering stated that Mr. Dawson was upset and that Mr. Dawson informed him he was going to be uncooperative. Due to Mr. Dawson’s comments, Officer Broering had Mr. Dawson exit the vehicle and handcuffed, searched, and placed him in the rear of the cruiser. The vehicle was searched and nothing was found. Mr. Dawson was cited for violation of Ohio Revised Code (ORC) § 4513.241, Using Tinted Glass and Other Vision Obscuring Materials; ORC § 4513.263, Occupant Restraining Devices; and Cincinnati Municipal Code (CMC) § 503-55, Blurred Windshield. Pursuant to a review of the Hamilton County Clerk of Courts records, Mr. Dawson paid all citations. Mr. Dawson alleged his vehicle was improperly searched. Mr. Dawson also stated that he is being harassed and improperly stopped by Officer Broering who he alleged stopped him approximately ten times. CCA received the complaint via CPD.
CPD Procedure §12.205, Traffic Enforcement, maintains that officers should take appropriate enforcement action whenever a violation is detected. Officer Broering initiated a traffic stop for window tint, cracked windshield and failure to wear a seatbelt, all of which were traffic violations that allowed the officers to initiate a traffic stop. During the stop, Officer Broering smelled an odor of marijuana emanating from Mr. Dawson’s vehicle. Based on the automobile exception as prescribed in Carroll v. United States, a search was conducted of Mr. Dawson’s vehicle. CCA believes that the motor vehicle exception, allowing the search of a vehicle without a search warrant normally required by the Fourth Amendment to the United States Constitution, applies. This exception as noted in Carroll v. United States, 267 U.S. 132 (1925) allows an officer to search a vehicle without a search warrant as long as he or she has probable cause to believe that evidence or contraband is located in the vehicle. The exception is based on the idea that there is a lower expectation of privacy in motor vehicles due to the regulations under which they operate. Additionally, the ease of mobility creates an inherent exigency to prevent the removal of evidence and contraband. The scope of the search is limited to only what area the officer has probable cause to search. This area can encompass the entire vehicle including the trunk. The motor vehicle exception, in addition to allowing officers to search the vehicle, also allows officers to search any containers found inside the vehicle that could contain the evidence or contraband being searched for; the objects searched do not need to belong to the owner of the vehicle. Per Officer Broering, due to Mr. Dawson’s comments of refusing to cooperate with the search of his vehicle, Officer Broering handcuffed and placed Mr. Dawson in the rear of the cruiser. According to CPD Procedure §12.600, Prisoners: Securing, Handling, and Transporting, to ensure the officers safety, it may be necessary to temporarily handcuff citable persons or persons under investigation. Mr. Dawson alleged Officer Broering has stopped Mr. Dawson ten times. A review of the Hamilton County Clerk of Courts records showed Mr. Dawson has been stopped approximately thirteen times by eleven different officers since 2008 for various traffic violations. The citations involved a multitude of traffic and criminal violations including tint violation involving multiple vehicles. After a review of CPD records, it was determined that Officer Broering stopped Mr. Dawson five times for various violations. CCA also reviewed Hamilton County Clerk of Court records. The reviews further revealed that multiple vehicles were involved during the stops, and the stops occurred on different days and at different times. Officer Broering stated he has had several encounters with Mr. Dawson, but is not harassing him. “Mr. Dawson frequents the area he works and he associates with people who commit crimes.” It appears from a review of the Hamilton County Clerk of Courts records many of the stops have occurred in District 1, which does not appear to be the district that Mr. Dawson resides. The stops were random, on different dates, at different times of the day and by different officers. Conclusion CCA concludes that the search of Mr. Dawson’s vehicle and the handcuffing of Mr. Dawson were in compliance with CPD’s policies, procedures, and training. Based on the facts provided, CCA could not determine if Officer Broering intentionally harassed Mr. Dawson.
Officer Kevin Broering – Improper Procedure (Handcuffing) A preponderance of the evidence shows alleged conduct did occur, but did not violate CPD policies, procedures, or training. EXONERATED Officer Kevin Broering – Search (Vehicle) A preponderance of the evidence shows alleged conduct did occur, but did not violate CPD policies, procedures, or training. EXONERATED Specialist Shawn Smith – Search (Vehicle) A preponderance of the evidence shows alleged conduct did occur, but did not violate CPD policies, procedures, or training. EXONERATED Officer Kevin Broering – Harassment There are insufficient facts to decide whether the alleged misconduct occurred. NOT SUSTAINED ■ # 3
Date: May 25, 2016 Time: Approximately 8:30 a.m. Location: 449 Whiteman Street CCA Receipt Date: September 28, 2016 On May 25, 2016, Ms. Leonna Larkins’s son D.D. (minor) took her two nephews, one being J.L. (minor), and a niece to the bus stop, which is located at the intersection of Linn and Whiteman Streets. Mr. James Omaar Childress, who lives on Whiteman Street, noticed children on his property waiting to catch the bus and throwing wood and concrete blocks from a wall into his yard and the street. Mr. Childress attempted to speak to D.D., but when he displayed a negative and disrespectful attitude, Mr. Childress called the police. Officer Eric Carpenter was originally dispatched, but Specialist David Kennedy was closer and the first to arrive. Specialist Kennedy arrived on scene and spoke to Mr. Childress, who complained that the children were destroying a wall in his yard. Mr. Childress pointed to the children whom he said were involved. Specialist Kennedy asked one of the minor children their name, and D.D. said, “you don’t have to say anything at all…don’t talk to him.” At this time, other officers began to arrive on scene. According to Ms. Larkins, D.D. informed her that Specialist Kennedy stated to him, “White kids are better than black kids because they are smart, black kids are always getting into trouble.” After this was said, D.D. commented he planned to call his mother, and Specialist Kennedy commented, “that’s all they do is run and call their momma.” D.D. called Ms. Larkins, and she responded to their location. When she arrived on scene, Specialist Kennedy was still addressing the children. She asked J.L. and D.D. what occurred. Specialist Kennedy told them to be quiet before he took them to the Hamilton County Juvenile Justice Center (HCJJC). Ms. Larkins stated that in her presence, while D.D. talked back to the officer, he was not disrespectful. Ms. Larkins replied, “Do what you have to do, you going to do it anyway, he’s never been in any trouble.” Ms. Larkins was upset at the way the children were treated. Mr. Childress declined to press charges. The other children were allowed to enter the bus for school. D.D. and J. L. remained with Ms. Larkins. Specialist Kennedy advised Ms. Larkins she was free to leave and asked that the children not damage the wall anymore. Everyone departed. Ms. Larkins alleged Specialist Kennedy made racial comments and was discourteous toward D.D. and J.L.
Mr. Childress observed several children throwing wood and concrete blocks in his yard damaging his fence as well as into the street. Mr. Childress called the police. Specialist Kennedy was on routine patrol when he responded to the dispatched radio run. Specialist Kennedy’s approach initially began as a consensual stop. CPD’s Procedure §12.554, Investigatory Stops, maintains that a police officer may approach any person in a public place and request to talk to them. Specialist Kennedy attempted to investigate by talking with the children. His investigation was based on the dispatched radio run that he received. During the interaction, D.D. relayed to Ms. Larkins, who was not present, that Specialist Kennedy made racial and discourteous comments to him. CPD’s Manual of Rules and Regulations requires officers to always be civil, orderly, and courteous in dealing with the public, and shall not express any prejudice concerning race. Specialist Kennedy denied the allegations. The cover officers and Mr. Childress concurred with Specialist Kennedy. As a result, CCA is unable to determine if Specialist Kennedy made racial comments or was discourteous toward any of the children, including D.D. or J.L.. Conclusion CCA concludes that there is insufficient evidence to determine if Specialist Kennedy made racial comments and was discourteous as alleged.
Specialist David Kennedy - Discrimination There are insufficient facts to decide whether the alleged misconduct occurred. NOT SUSTAINED Specialist David Kennedy - Discourtesy There are insufficient facts to decide whether the alleged misconduct occurred. NOT SUSTAINED ■ # 4
Incident Date: June 23, 2016 Time: 6:15 p.m. Location: 13th and Jackson Streets CCA Receipt Date: June 29, 2016 On June 23, 2016, Officers Aaron Roach and Dewayne McMenama, in uniform and a marked cruiser, worked an off duty detail when they responded to the area of 13th and Jackson Streets. They were there to investigate possible drug trafficking based on intelligence they received from undercover officers. The undercover officers provided the description of a vehicle and its license plate number. Upon observing the vehicle, Officers Roach and McMenama conducted a traffic stop. Officer McMenama approached on the driver’s side and detected an aroma of marijuana. He requested that the driver exit the vehicle. The driver (who is unknown and was not cited) was handcuffed and placed in the rear seat of a marked cruiser. Officer Roach approached on the passenger’s side and also detected an aroma of marijuana. Mr. Robert Eubanks sat in the front passenger’s seat. Officer Roach asked Mr. Eubanks to exit the vehicle, handcuffed him and asked him if he had anything on him. Mr. Eubanks replied that he had a “nickel bag of weed.” Officer Roach patted him down, using the blade edge of his hand, and found the marijuana. Officer Roach inquired if there was anything else on him, and Mr. Eubanks replied “No.” Mr. Sean Patterson sat in the rear seat. Officer McMenama asked him to exit the vehicle, handcuffed him, and patted him down. Officer McMenama also found marijuana on Mr. Patterson. Mr. Patterson and Mr. Eubanks stood on the sidewalk as the vehicle was searched. After the search, they both were cited and released. Mr. Eubanks’s recollection of the incident was consistent with Officer Roach’s until the point Officer Roach asked Mr. Eubanks for the second time if he had anything on him. Mr. Eubanks replied “No”, at which point Officer Roach commanded him to “squat.” Mr. Eubanks complied and squatted. Officer Roach pulled down his pants and used his undergarment “as a glove to go up in my butt with his fingers.” Officer Roach then commanded Mr. Eubanks to stand up. Officer Roach commanded Mr. Eubanks to “squat” again. Mr. Eubanks protested but complied. As Mr. Eubanks squatted for the second time, Officer Roach commanded him to “cough.” Mr. Eubanks questioned Officer Roach’s command but complied. Officer Roach inserted his hand down the back of his shorts again to feel for contraband in his anal cavity. Officer Roach denied commanding Mr. Eubanks to squat and cough, pulling Mr. Eubanks’s pants down or inserting his fingers into Mr. Eubanks’s anal cavity to feel for contraband. Mr. Eubanks was charged with Ohio Revised Code § 2925.11 Possession of Controlled Substances. Mr. Eubanks alleged that Officer Roach improperly searched him.
CPD Procedure § 12.554, Investigatory Stops, maintains there are three levels of police/citizen contact. The second level is the "Terry" type encounter. Here the officer has reasonable suspicion to believe the citizen is committing or has committed a crime. Based on this reasonable suspicion, the officer may forcibly stop and detain the citizen for a brief investigatory period. Officers Roach and McMenama stopped a vehicle based on intelligence they received from undercover officers. The basis for the stop was based on reasonable suspicion of drug trafficking. Upon stopping the vehicle, Mr. Eubanks was identified as the front passenger in the vehicle. He admitted possession of marijuana during questioning, and the contraband was seized. Mr. Eubanks was charged with Possession of Controlled Substances. CPD Procedure § 12.600, Prisoners: Securing, Handling, and Transporting, maintains that when searching prisoners, officers are to use the blade edge of the hand. Even if an officer is approved to do a strip search, the officer conducting the search will not, under any circumstances, insert their finger or any other instrument into a prisoner’s orifice during the strip search. Based on Mr. Eubanks’s description of the search, if it occurred as he alleged, it would be the equivalent of a strip search by CPD definition. Both officers denied that Mr. Eubanks was strip searched. Officer Roach maintained that the search of Mr. Eubanks followed CPD procedure using the blade edge of his hand. Furthermore, he stated that he never pulled Mr. Eubanks’s pants down nor did he insert his fingers into his anal cavity; Officer McMenama also corroborated Officer Roach’s actions.
Pursuant to CPD Procedure § 12.554, Investigatory Stops, a Contact Card must be completed any time an officer stops a motor vehicle or conducts an inquiry of individuals in a stopped motor vehicle. Officer McMenama told CCA that he completed the contact cards; however, CPD or CCA were unable to locate any contact cards. CPD informed CCA that due to the routing process Contact Cards are sometimes lost. Conclusion CCA concludes that there were insufficient facts to determine if the alleged misconduct of improper search by Officer Aaron Roach occurred. The weight of the evidence does not favor one side or the other. The video of the traffic stop was recorded but there was no audio. Officer McMenama and Officer Roach should have removed the microphones from the docking station and activated the microphones upon their exit from the cruiser. Officer McMenama stated that he filled out the Contact Cards. CPD and CCA were unable to locate the contact cards. Therefore, we find that Officer McMenama also failed to complete the contact cards. Recommendation CCA has concerns that Contact Cards are sometimes lost due to the routing process. The applicable policy and procedure was implemented to keep track of the number; types and other demographic information for stops conducted by CPD. If officers are diligent and state that they completed the Contact Cards, but the contact cards cannot be found, that presents a problem for CPD. Not only can this pose a problem for the officer, but signals a larger systemic issue that has potentially legal and public policy implications. CCA strongly recommends that CPD review the contact card process from creation to file maintenance to ensure the intended impact regarding the accurate collection of data in addition to the impact on CPD officers.
Officer Aaron Roach - Improper Search There are insufficient facts to decide whether the alleged misconduct occurred. NOT SUSTAINED Officer Aaron Roach - Improper Procedure (MVR/DVR) The allegation is supported by sufficient evidence to determine that the incident occurred and the actions of the officer were improper. SUSTAINED Officer Dewayne McMenama – Improper Procedure (MVR/DVR) The allegation is supported by sufficient evidence to determine that the incident occurred and the actions of the officer were improper. SUSTAINED Officer Dewayne McMenama – Improper Procedure (Contact Card) The allegation is supported by sufficient evidence to determine that the incident occurred and the actions of the officer were improper. SUSTAINED ■
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