Weekly Legal Update: Who Said It’s Not All In The Words?

Reports can seem like a tedious and time-consuming part of policing that you try to push off as long as possible, but sometimes report review and documentation can make all the difference. In a recent Federal District Court case, U.S. v Ortiz Cruz¹, Officer Luis Granado realized that correct reporting and review could have saved him a lot of headache in the long run. Due to his neglectful review of a report documenting his encounter with the defendant Ortiz Cruz, Granado caused another agent to file a misleading criminal complaint, several supplementary documents needing to be filed and a loss of credibility in his own statement, which ultimately led to a legal battle that did not need to happen. It is always important to review a report that is being filed, especially if you have another officer write the report for you and here’s why:

FACTS

Border Patrol Officer Luis Granado was patrolling a rather desolate area around West Kootenai, Montana due to a recent uptick in illegal crossings in the area. Shortly after 2:00 AM Officer Granado observed a white van traveling at high speed. He decided to follow the van without lights and siren. The van then turned off the highway onto a dirt road and picked up speed in an apparent attempt to elude the officer. The resulting dust cloud obscured the van and Granado lost sight of the vehicle. After a long search, Granado found the van turned off on an unmaintained, forest road with its lights off.

Granado pulled up behind the van, activated his lights and approached the vehicle. The driver, defendant Ortiz Cruz, advised the officer that the window would not roll down. Granado then requested the defendant’s license and registration and the defendant reached down between the seats. Fearing Cruz was reaching for a gun, the officer drew his weapon and ordered Cruz to show his hands. Cruz explained that he was simply reaching for his wallet. During their subsequent conversation the officer learned that Cruz had illegally entered the country and only had Mexican identification.

Granado then asked Cruz if he had any weapons in the vehicle and Cruz explained that there was a handgun in the jack compartment. The officer inspected the rear jack compartment and secured a gun and ammunition in his cruiser. Cruz was arrested and transported to the holding facility by another Border Patrol officer. Granado then secured the gun back in the jack compartment of the van and had the van towed to a secure facility. Granado then explained his actions to Officer Brenda Lapage who completed a police report for Granado. Granado signed the report without reading it.

Unfortunately, the report failed to fully document the officer’s actions and the information received from the defendant. The report failed to document the fact that Granado had pulled out his firearm or the discussion between Granado and the defendant concerning the gun. The report also omitted Granado’s search of the vehicle and the fact that he found the weapon.

In the meantime, Agent Salminen conducted a search of the vehicle with his canine at the station and discovered the handgun in the jack compartment. The officer secured the weapon and ammunition in the property room. Agent Bybee was assigned to the investigation and completed a criminal complaint relying on the information in the report completed by Lapage leading Bybee to believe and document that the gun was found after the canine sniff.

Four days after submitting the criminal complaint, Agent Bybee interviewed Officer Granado and learned that there were discrepancies between the facts contained in the criminal complaint and the actual events that transpired on May 14th. Agent Bybee completed a supplemental report on May 28th outlining the discrepancies and on June 1st, Officer Granado completed a supplemental report that accurately described his actions on the night of May 14th.

Prior to trial, Cruz filed a motion to suppress the weapon and ammunition on several grounds. The defendant claimed that the various reports and discrepancies between the various government agents dramatically undercut the credibility of the officer’s testimony, the encounter became custodial at the point Granado pointed his service weapon at Cruz, and finally that the warrantless search of Cruz’s vehicle was improper.

COURT FINDINGS

The court addressed each issue in turn: first, the court accepted Granado’s testimony as credible despite the discrepancies in the various police reports. Based on Granado’s rendition of the incident, the court found there was reasonable suspicion to stop the vehicle. The court noted the following factors as forming the basis for reasonable suspicion:

• The officer observed a van with out of state temporary plates at 2:00 AM within two miles of the Canadian border.

• The vehicle passed the cruiser at a high rate of speed and turned off onto a dirt road in a cloud of dust.

• Cruz attempted to conceal the vehicle on an unused dirt road.

Second, with respect to un-holstering his weapon, the court found that the officer was in fear of his life, which he explained to the defendant and then re-holstered the weapon in less than a minute. Under these circumstances Cruz was not in custody for purposes of the Miranda requirements. Finally, since Cruz advised the officer that there was a firearm located in the vehicle the officer had ample probable cause to search the jack compartment for the weapon. The court then denied Cruz’s motion and will most likely proceed to trial.

TAKEWAYS

The court referred to this case as a “close call”. It certainly didn’t need to be. The officer was well within his legal authority to make the stop, conduct an inquiry of Cruz’s activities, and secure the firearm. Luckily the court saw that Granado had reason to make a warrantless search, but this may not always be the case. Proper reporting and documentation could have saved everyone involved a lot of time and anxiety in the long run. It also would have saved Granado and Bybee from writing supplemental reports.

With the latest Report Writing systems, many departments have gotten away from dictation systems or systems like we had here at the Border Patrol. At the Daigle Law Group Policy Center, we have several policies that deal with report writing procedures because it can save police agencies from a legal battle. Too often a police officer has to face a jury with less credibility simply because they did not properly review or report an encounter with a defendant. It will save you and your lawyer a lot of time and frustration in the long run if you just take the time to properly document every detail in your report.

Simply put, it is of the utmost importance that officers clearly document the details of their encounters, read their reports, and make necessary corrections to assure a proper foundation for their testimony. Take the time to review your reporting procedures. It may seem tedious now, but I assure you it will help everyone in the long run.


¹ U.S. V Ortiz Cruz, 2018 WL 3825902 (D. Mont 2018)

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