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49.04 + 37.09 = NOLLE; Police Video Exploits

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On July 23, 2011, C.O. was arrested for DWI by Harris County Sheriff’s Deputy Anthony Aulds. According to the report, Deputy Aulds received a call about a Chevy Silverado following an intoxicated driver westbound on Gulf Pump Road. The call slip said the Toyota had run off the road three or four times.[1]

At 02:08 hrs, Deputy Aulds caught up to the Toyota and stopped it in the 6900 block of Sheldon Road. He reported that C.O. was the driver, that she had the strong odor of an alcoholic beverage when he made contact. He also reported that when C.O. got out of the car, she stumbled and lost her balance. He subsequently administered the SFST, and placed C.O. under arrest. She was read the DIC-24 at the scene and consented to a breath test. C.O. was then taken to the Wallisville substation (HCSO District 3) and at 03:24 hrs, an Intoxilyzer test showed 0.12% BAC. Both the SFST results and the 15-minute observation time were thoroughly documented.

At first glance, it looked like a pretty good case for the State. There was a civilian witness who observed dangerous driving facts, a good report, and the proper 15-minute observation time for the breath test. But 178 days, 13 motions and 2 Brady hearings later, the case was dismissed. The Motion to Dismiss read, “witness testimony and admissions during PTRC create issues making it impossible to prove beyond a reasonable doubt.”

Initial Problems

The Harris County Sheriff’s Office employs a video system that comes on automatically when the emergency lights are turned on. The system also comes on automatically when the patrol unit exceeds 83 mph. Also, when the lights come on, the system records the 30 seconds immediately prior. This allows for recording of the traffic violation that leads to the stop.

Despite the fact that Deputy Aulds turned on his emergency lights and initiated the traffic stop at 02:08, the only video available began at 02:35 hrs and contained an abbreviated SFST which did not include the HGN test, and ended at 02:47. This was the first indication something was amiss.

The next glaring problem was when Deputy Aulds read C.O. the DIC-24. He appears to comply with the statutes until he asks her if she is willing to provide a specimen of her breath. When she inquires as to what happens if she doesn’t, Deputy Aulds deliberately removes the remote microphone from his belt and mutes it.[2] The video records an apparent animated discussion for the next two minutes before he escorts C.O. to the car. Thirty-seven minutes later, she provides a breath specimen.

When I watched the video with C.O., I asked her to tell me what was going on. She explained that Deputy Aulds told her that if she didn’t comply, she would be taken downtown and blood forcibly drawn from her. She was told that she was going to give a specimen tonight and she could do it the hard way or the easy way. Her consent had been coerced.

Coupling the video evidence with the coerced consent, I knew I could get the breath test suppressed. As C.O. looked fairly good on video and had extensive medical records to support any problems with the SFST, I thought I could get in an out on the case fairly quickly. Surely, the prosecutor would see what I had seen.

Boy was I wrong.

There’s Nothing Sinister Here

I didn’t see any reason to hide the ball. I told the prosecutor that he could see the deputy turn his microphone off, that the consent had been coerced, and that absent the breath test, he couldn’t make the case. The prosecutor noted my concerns on the front of the file and told me he would evaluate the case and get back with me.

JD pic 1

About to turn the microphone off (in his right hand). ‘M’ still displayed

When the prosecutor did get back with me, he told me, “I talked with the Deputy and he said he thinks the battery might have gone out on the microphone. There’s nothing sinister here.” (And the prosecutor has now become a witness to this untruthful statement.) I argued that it was an amazing coincidence that just when Deputy Aulds took the microphone off his belt as C.O. asked about refusing, the sound cut off. The prosecutor said he didn’t see that. Right then I knew I would have to set it for trial.

Microphone has been turned off (No ‘M’ displayed) as he allegedly obtains consent

Brady & Video

I filed a Brady/Kyles Motion specifically requesting the unredacted video along with any other Brady material. I also issued subpoenas for both the video custodian and the video.

Judge Smyth granted the Brady/Kyles Motion and on December 9th held a hearing on the record. Aaron Harsha, the custodian for video records from the patrol cars, was more than helpful. He did a thorough search of his database and recovered a second video. This previously hidden video was from 02:08 to 02:18 and contained the initial stop and contact between C.O. and Deputy Aulds. This video was clearly exculpatory as it showed C.O. had not committed a traffic violation in the deputy’s view, and had stopped in the middle of the road only because there was no shoulder and in response to the deputy’s emergency lights, and C.O. neither stumbled nor lost her balance when she got out of the car. (All of which contradicted the police report.)

JD pic 3

“Stopped in a moving lane of traffic” – RF indicates Rear & Front emergency lights on

Furthermore, Harsha produced an email from Deputy Aulds asking that ONLY the video file from 02:35 to 02:47 be archived. This is the portion with the abbreviated SFST and the DIC-24 being read.

While Harsha was on the stand, the following information came to light:

  • Deputies can turn remotely turn the camera on, but cannot turn it off.
  • They can mute the microphone at any time.
  • When the video is evidence in a criminal case, the deputy has to upload the video from the car to the server via a WiFi hotspot at various locations. The deputy then sends an email to “Fleet Operations” asking a specific video file be archived.
  • The camera can only be turned off from inside the car. If the camera is turned off, and then turned back on, the deputy has created two video files. For both to be archived, both must be noted in the email to Fleet Operations.
  • In this case, Deputy Aulds created two video files but only requested that one be preserved as evidence.
  • HCSO’s normal practice is to destroy all video after 90 days unless instructed the video is to be archived.
  • Deputies have the ability to review the video in the cars.
  • Cars two years old or newer should have the cameras.
  • Supervisor cars probably will not have the camera.

Harsha’s diligence led to a second Brady hearing which was held on December 15, 2011. In that hearing, Deputy Aulds took the stand. Deputy Aulds testified:

(After refreshing Auld’s memory with his email to Harsha)

Q:        And what time did you tell them to archive that?

A:        Approximately 02:35 hours.

Q:        And you didn’t tell them to archive at 02:09 did you?

A:        Apparently not.

Q:        Okay. Was that your decision to conceal that evidence?

A:        No.

Q:        Whose decision was it?

A:        It may have been an error.

Q:        How did you get 02:35?

A:        Because that was the time of – – the second video, I guess, was the SFST’s.

Q:        So you reviewed the video before learning the time, correct?

A:        I had to have, yes.

Q:        And you were aware the camera records the stop from the moment you turn the lights on, correct?

A:        Yes.

Q:        And yet, you didn’t tell the video custodian to archive from 02:09 did you?

A:        That’s correct.

Q:        And that was your decision?

A:        Yes.

Q:        And are you aware that is evidence in a criminal case?

A:        Yes.

Q:        And you deliberately concealed it?

A:        I didn’t deliberately, but it was concealed.

Later in the hearing…

Q:        How many DWI cases have you filed?

A:        I don’t have an exact amount.

Q:        Give me a guess.

A:        Ten, fifteen, somewhere in there.

Q:        How many of them have you edited the videos?

A:        I don’t have the ability to edit videos.

Q:        How many have you stopped the camera?

A:        I don’t remember.

Q:        So, you have done it in the past?

A:        I don’t remember if I have or haven’t.

Q:        Think hard. This is very important Deputy. Have you stopped the camera in the past?

A:        I’m sure I’ve stopped it.

Q:        So, this is not the first time you have concealed evidence in a criminal case, is it?

A:        I would say no.

Finally…

Q:        So, it wasn’t – – and you testified you reviewed the tape to determine what time the abbreviated SFST was conducted, correct?

A:        Yes.

Q:        And, so, you were well aware at the time you sent that email that there was a tape available from 02:08?

A:        Yes.

Q:        And are you also aware that tapes are destroyed after 90 days?

A:        Yes.

Q:        Did you make any effort to preserve that tape?

A:        No.

I was confident that since the case was fatally damaged the State would dismiss. When the judge asked if I had anything else, I looked at the Chief Prosecutor and asked, “You got a motion?” She said, “No.” Incredibly, they declined to dismiss the case and requested time to review additional records. It seemed they might be trying to determine if the video problem was systemic. (They weren’t concerned about that though as it turns out.)

We had our last hearing on January 17, 2012, and the prosecutor finally dismissed the case.

Lessons Learned

You cannot get on the preservation of evidence fast enough. We were lucky that Harsha was able to retrieve the video. It should have been destroyed on or about October 23, 2011. You also have to obtain the call slip from dispatch and the email from the video custodian and then compare them for time discrepancies. You also need to subpoena all the video from all the units at the scene. Sometimes officers will only submit the best video. We’ll call that the “Director’s Cut.” We have found exculpatory evidence in the other unit’s video on several occasions.

To the best of my knowledge, the District Attorney’s office has yet to provide any Brady notice(s) related to HCSO Deputy Anthony Aulds.

 

 

[1] Subsequent to the initial call, the Toyota stopped and the male switched drivers with the female (C.O.).

[2] What I have noticed on Harris County video (SO & Constable) is that when a deputy mutes the microphone, the ‘M’ icon which indicates the microphone is recording will continue to be displayed for another 30 seconds before disappearing.


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To Blog or Not to Blog?

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Well, that’s always the question!  I have so often thought about blogging.  Some people say blogging will increase your business.  I believe this to be false and thus have no intention of blogging about increasing business at my law firm.  Rather, trends and practices change so rapidly within the law that I believe this will be a good means of sharing that information.  I’ll let you in on a little secret: I love to teach.  In fact, as a child I wanted to grow up to be a teacher.  Somewhere along the way though I found the law.  Now I’d like to “teach” you a little about the law and what we trial lawyers do.


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