Post by KC on Sept 1, 2006 23:20:44 GMT -5
Sept. 01, 2006 - A constitutional-rights battle could be brewing between police and prosecutors, and a defense lawyer over a ``conspiracy theory'' involving a Santa Fe man charged with driving while intoxicated.
The issue came to a head Wednesday when state District Court Judge Stephen Pfeffer reiterated his order that a Santa Fe police officer must turn over a record of calls made from his personal cell phone. The order covers a six-minute, 35-second period during the July 17, 2005, arrest of Marty Ortiz when a videotape recorder in Officer John Boerth's patrol car was not activated.
Public defender Earl Rhoads asked for access to all electronic, oral, telephone or written communications between Boerth and ``any other person during this incident'' after the videotape Rhoads received from Boerth's patrol car showed Ortiz wasn't driving erratically when he was stopped, according to court documents. Because of that and the six-minute, 35-second ``gap'' in the tape before he pulled over Ortiz, Rhoads wrote in a motion he believes the stop was illegal, the documents state.
Prosecutor Donna Bevacqua-Young, however, claimed in another motion
that an officer's personal cell-phone records are constitutionally protected, and Boerth has a ``reasonable expectation of privacy,'' court documents state. She also wrote that Rhoads has not demonstrated the records are relevant or material to the case. Finally, during Wednesday's hearing, Bevacqua-Young told Pfeffer that Ortiz gave Boerth a fake name when he arrested him, and the officer didn't know it was fake. ``So we have a conspiracy theory that doesn't really make sense,''
Bevacqua-Young said.
Pfeffer disagreed.
``Here's the way I see it -- the police officer is an arm of the state; he's on duty,'' the judge said Wednesday. ``He could use my telephone and I would find it relevant. I don't know what the officer is talking about (on his cell phone) that he's embarrassed about.''Boerth, who is now a detective, filed an affidavit, which appears in the court file, in which he says he has a privacy interest in his cell-phone records and does not consent to the court order to provide them.
Rhoads couldn't be reached for comment Thursday, so the exact nature of the conspiracy being alleged was unclear. Bevacqua-Young also couldn't be reached for comment Thursday.
Although Pfeffer signed an official order filed Wednesday that says the cell-phone records must be produced, he agreed to hold another hearing to listen to another argument Bevacqua-Young brought up Wednesday. However, he warned her that if her argument that Rhoads didn't follow disclosure procedures in the U.S. Electronic Telecommunications Act didn't apply, he will want the records provided.
``I find it relevant for discovery,'' he said.
Santa Fe Police Chief Eric Johnson said Thursday that Boerth never spoke to anyone on his cell phone about Ortiz, didn't conspire with anyone to have Ortiz arrested and didn't know Ortiz.
``I've known Officer Boerth since he started, and he's always been a very professional officer,'' Johnson said. ``I don't believe he would do anything like that.''
Further, he said, he's worried the precedent that could be set by Pfeffer's ruling could not only open up officer's personal lives, but ``could have a major impact'' on the way officers now conduct business. The department cannot afford to provide cell phones to all officers and detectives, and currently members of the department often use personal cell phones for police business. The ruling could mean that every time an officer needs to make a business call, he or she will have to return to the police station.
As for the ``gap'' in the videotape of Ortiz's arrest last summer, Johnson said, the officer switched on his lights and sirens first to respond to a possible medical-assistance call about people performing cardiopulmonary resuscitation on a woman at a convenience store. When such emergency equipment is activated, the car's videotape recorder is automatically activated, he said.
When Boerth arrived at the convenience store, witnesses told him the people performing CPR on a female had left in a white car, Johnson said, and Boerth then switched off the equipment, which turned off the camera.
The officer then began searching for the car and ended up behind it, though he wasn't sure it was the vehicle he was looking for, Johnson said. But the car's driver showed signs of driving while intoxicated and Boerth pulled him over, which engaged the camera again, he said. That accounts for the so-called ``gap,'' Johnson said. ``It's a simple explanation,'' he said.
Ortiz is charged with DWI, driving with a suspended or revoked license, careless driving and concealing identity. He was convicted of DWI in May 2003 and May 2004 and of conspiracy and receiving stolen property in 2004, according to District Court records.
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