Virginia Lawyers Weekly VA Lawyers Weekly
Viral videos of police violence. Damning evidence of driver intoxication. An officer’s redemption by camera.
As cameras have grown smaller and easier to use, the proliferation of video recordings of police encounters with civilians is changing the nature of law enforcement. Citizens are using the camera feature on cell phones to document police practices, while police agencies are equipping their officers with clip-on cameras for the same purpose.
As cameras have become standard equipment in police cars and, increasingly, on officers themselves, there have been some bumps in the road.
One officer’s apparent distaste for the camera led a Fairfax County judge to toss out four separate DWI cases in one hearing this month.
The judge viewed video clips from four traffic stops by Officer L.F. Martinez. In each one, the audio track was silent and the officer led the suspect driver out of the camera’s field of view before performing field sobriety tests, according to Fairfax defense lawyer Eric E. Clingan.
The judge concluded the drivers’ rights were violated in all four cases.
A silent movie
Clingan said he had no inkling of such a pattern when he first got his client’s case.
On the night of Dec. 8, the client had a dispute with his girlfriend and went out to his car to calm down, Clingan explained. The client turned on the car to run the heater, the lawyer said. He was tagged for DWI while sitting in the idling car.
Clingan declined to identify the client, but court records showed the defendant was Daniel E. Nannucci.
Clingan requested the video of the traffic stop from Fairfax County Police, and he noticed two peculiarities in the recording.
First, there was no sound to be heard. The county police video rigs included a microphone to be worn by the officer during the traffic stop, but this video had no sound, Clingan said.
“You can hear nothing that is being said by the officer or by my client,” Clingan said.
Secondly, the sobriety tests all took place out of the camera’s frame.
“The officer walks him basically back toward the car and then outside the view of the camera,” Clingan said. “You can’t see anything at all.”
Similar cases
When his client disputed the officer’s written account of the field sobriety tests, Clingan wondered whether the unhelpful video might be part of a pattern. He looked up other DWI defendants charged by the same officer and called their defense lawyers.
Clingan found three other lawyers who said their DWI clients also were field tested outside the view of Martinez’ camera. The lawyers managed to schedule all four cases on the same date.
Clingan said he adapted a motion used by another lawyer based on a similar fact pattern. The other lawyers prepared similar motions.
The motions all came on for hearing on May 8 before General District Judge Ian M. O’Flaherty, once described as a maverick on DWI issues. In 2005, O’Flaherty reportedly dismissed a number of DWI cases based on his view that the state’s presumption of intoxication was unconstitutional.
O’Flaherty declined to consider all the cases at once, but he allowed Clingan to show all four videos to establish a pattern of conduct by the officer in his case. The videos all lacked sound and all showed the officer walking the suspect out of the camera’s view before administering sobriety tests, Clingan said.
Clingan pointed to general orders of the county police department that called for testing the recording microphone at the start of each shift. The officer testified he did not test the microphone, Clingan said.
The orders also called for officers to reposition the camera if possible to catch the officers’ encounters with the public.
The prosecutor did not present any credible explanation for the failure to reposition the camera, Clingan said. Moving the camera should have been possible once a second officer arrived at the scene, Clingan contended.
Clingan said he did not press for any admission of misconduct.
“I was intent on not asking a ‘why’ question. I was intent on establishing a fact pattern,” he said.
Clingan said O’Flaherty accepted his arguments based on both the standards established by the police department general orders and a defendant’s constitutional right of access to helpful material in the hands of the state.
Having viewed the video of the four arrests, O’Flaherty dismissed all four of the cases.
Police video can help or hurt state’s cases
“This has been a recurring issue from time to time since the equipment was installed,” Clingan said.
He said the cameras are as much for protection of the police as for criminal and traffic evidence. “I think the county wanted to allow the extra layer of protection in case there’s a dispute about what happened,” he said.
He said a recent case in Colonial Heights illustrates his point.
There, a police camera recorded an officer’s shooting of a woman who emerged from her car and pointed a gun at the officer in an incident in August of last year. The video clearly showed the visible threat to the officer.
The woman was charged with attempted capital murder of a police officer, but was found not guilty by reason of insanity.
Police also benefited from a dash-cam video this year in California. An actress who claimed her son was a victim of racial profiling in a traffic stop had to apologize after Glendale police video showed the son was stopped for a clear traffic violation and was treated politely by the officer.
In a case that paralleled the Fairfax dismissals, a prosecutor dropped a DUI charge against a former Florida State University football standout in April because police dash-cam video failed to show most of his encounter with police officers.
Officers testified about signs of intoxication, but the FSU officer’s police camera was pointed elsewhere during the actions described in the case of P.J. Williams.
In Utah, a highway patrol trooper resigned after dash-cam video called into question his report about field sobriety tests. As many as 40 cases could be dismissed.
Sensitive to such outcomes, some South Carolina legislators are working on legislation in that state to keep drunken driving cases from being tossed just because of bad video from police dash cams. The proposal is expected to be considered next year.
A statewide study panel is considering guidelines for the use of police body cameras in Virginia. Public Safety Secretary Brian Moran says the group is weighing when officers would turn cameras on and off, how to protect privacy of bystanders and what happens with the recordings afterward.
The panel is expected to present recommendations on police cameras, license plate readers and airborne drones in time for the 2016 General Assembly session.
Requests for comment to the Fairfax County Police Department and to Commonwealth’s Attorney Raymond Morrogh were not responded to as of press time.
