Pubdate: Thu, 26 May 2005
Source: Commercial Appeal (Memphis, TN)
Copyright: 2005 The Commercial Appeal
Author: Kemper B. Durand
Note: 1 Of 5


I have a copy of the written ruling made last week by Criminal Court Judge 
Paula Skahan (May 21 article, "Drug bust is erased by judge/ Says suspect 
with 33 pounds of cocaine not nervous enough"). Your letter writers (May 
23-24) seem justifiably concerned that this ruling suppressed the seizure 
of a large amount of cocaine as evidence in the case. However, what they 
overlook is that it is the duty of the courts -- the judicial branch of 
government -- to protect citizens from excessive and abusive behavior by 
police -- part of the executive branch of our government. This is the 
classic check-and-balance our state Constitution provides.

In the case, it was proved that Eric Berrios was stopped only for driving 
eight miles an hour over the speed limit. He was then locked in the back of 
the patrol car for almost 40 minutes (7:41 p.m. to 8:20 p.m.) while an 
illegal search was conducted. Tennessee law is absolutely clear that a 
police officer can detain a person only temporarily, and then no longer 
than necessary to carry out the purpose of the stop. In this case, the stop 
was to issue a speeding ticket. Very few of the questions from the Shelby 
County Sheriff's deputy related to the traffic offense. He began 
questioning Berrios without even starting to write the ticket.

The court found that the officer exceeded his legal authority and 
unreasonably extended the length of the detention.

The officer testified that the only basis for any suspicion was that the 
defendant was nervous. After listening to the officer's testimony and 
looking repeatedly at the video recording of the event, the judge found 
there was nothing "on camera to suggest a reasonable suspicion of criminal 
activity." In addition, the judge pointed out that it would be normal to 
show nervousness as a result of being locked in the back of a police car 
while the officer keeps his driver's license.

Having illegally detained Berrios, the consent to search given by him to 
the police officer was also illegal. Tennessee law again is clear: If a 
consent to search is given after an illegal search and seizure, evidence 
found by police pursuant to the consent must be suppressed unless there are 
other factors that were not present in this case. This is what Skahan ruled.

Perhaps the most important part of her ruling was this: "We have no choice 
but to find ... that the cocaine resulting from that search should be 
suppressed." This is not the pronouncement of a judge happy to find that 
the police violated the law; this is not the ruling of a judge delighted to 
free someone connected with drugs. Rather, it is a courageous, 
well-reasoned decision that upholds Tennessee law against excesses of 
police, even when well-intended.

Your letter writers' outrage is based only on the "headlines" reporting of 
the case, not a reading of the ruling. Skahan protected them from illegal 
police action. Her courageous position should be praised, rather than 

Kemper B. Durand

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