Mistakes by Police Dispatchers
February 12, 2023 - Posted by Ed Esposito
Recently, evidence found on a defendant was suppressed after an equal protection claim was raised on appeal that the dispatcher committed a constitutional violation by providing an unsupported description of his race in a BOLO that the officer’s relied on to stop the defendant. The ruling was published by the Appellate Division in State v. William L. Scott, Docket No. A-0529-21 (App. Div. 2023).
The defendant appealed the denial of his motion to suppress an imitation handgun and the victim's cell phone found in his possession after he was stopped and frisked by police. The officers detained the defendant because he fit a BOLO description of a person who had committed a robbery in the vicinity just minutes earlier. The BOLO described the suspect as a Black male wearing a dark raincoat. According to the Court’s decision, “the victim did not provide the race of the perpetrator when she reported the crime.” Id. The defendant contended that “the dispatcher assumed the robber was Black based on racial prejudice” and the State acknowledged that “it does not know why the police dispatcher included a racial description of the robber in the BOLO alert.” Id.
The Court reiterated that “[u]nder the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 1, Paragraphs 1 and 5 of the New Jersey Constitution, a person's race may not be considered as a basis for making law enforcement decisions other than when determining whether an individual matches the description in a BOLO alert.” Id. (Internal citations omitted). It is important to note that when the race of an individual is known, it can be used in a BOLO and it can be relied upon. However, according to the Court in this matter, “the prosecutor did not investigate the circumstances of the dispatcher's decision and certainly never called the dispatcher as a witness at the three-day-long suppression hearing or introduced other evidence to explain why she included a racial description in the BOLO alert.” Id.
In this case, the Court extended its ruling in State v. Handy, 206 N.J. 39, 44–45 (2011), where “a police dispatcher mistakenly informed the police officer of a warrant for the defendant's arrest, even though the first names were spelled differently and the date of birth for the person subject to the warrant was different from the defendant's birth date.” Id. at 41-41. In the Handy case, an arrest was made based on the information provided by the dispatcher and a search incident to that arrest resulted in the discovery of illegal items. The Handy Court concluded that “the dispatcher's error was attributable to [the] police and, on that basis, found the arrest was unlawful, triggering the Fourth Amendment exclusionary rule.” Id. at 42. The Handy Court reasoned that although the arresting officer's conduct was objectively reasonable, "the dispatcher's actions were plainly unreasonable . . . in light of what the dispatcher actually knew." Id. at 47. (Emphasis added).
In extending the ruling in Handy to its decision in the recent case, the Court stated, “[w]e see no reason to limit the Court's rationale to violations of the Fourth Amendment—especially since the Attorney General Directive banning racially-influenced policing expressly applies to “sworn officers or civilian employees of a police agency acting under the authority of the laws of the State of New Jersey.”” State v. William L. Scott. (Quoting AG Directive 2005-1). The Court ruled that “[b]ecause [the] defendant presented a prima facie case of racial discrimination and the State failed to meet its burden of production, we conclude defendant established selective enforcement in violation of Article I, Paragraphs 1 and 5.” Id.
The Court also determined that the independent source and inevitable discovery exceptions to the exclusionary rule do not apply under these circumstances. Remember, the purpose of the exclusionary rule is to deter unlawful police conduct. In the course if their opinion in this case, the Court said, “the need to deter discriminatory policing is even more compelling than the need to deter Fourth Amendment violations because of the enormous societal costs associated with racially-influenced policing.’ Id. (Emphasis added). The Court ruled, “[g]iven the heightened importance of deterring equal protection violations and the imperative to send the strongest possible message that discriminatory policing will not be tolerated, we deem it necessary to establish a more restrictive formulation of the inevitable discovery exception when Article I, Paragraphs 1 and 5 rights have been violated. We hold that for the inevitable discovery exception to apply to racial discrimination violations under the New Jersey Constitution, the State must prove by clear and convincing evidence that the constitutional misconduct was not flagrant.” Id.
As a final word, our Courts have ruled that police dispatchers are an “integral link in the law enforcement chain” and that dispatchers are “literally a co-operative in the arrest along with the officer on the scene.” Id. (Quoting Handy). Most notably, the Court sated, “the more restrictive formulation of the inevitable discovery doctrine we adopt today for racial discrimination cases will not only provide greater incentive for police departments to train their sworn and unsworn employees to guard against implicit bias, but will also provide prosecutors with greater incentive to promptly and fully investigate racial discrimination claims to help ensure the exclusionary remedy is tailored to the nature and seriousness of the constitutional violation.” Id. (Internal citations omitted; emphasis added).
Recently, evidence found on a defendant was suppressed after an equal protection claim was raised on appeal that the dispatcher committed a constitutional violation by providing an unsupported description of his race in a BOLO that the officer’s relied on to stop the defendant. The ruling was published by the Appellate Division in State v. William L. Scott, Docket No. A-0529-21 (App. Div. 2023).
The defendant appealed the denial of his motion to suppress an imitation handgun and the victim's cell phone found in his possession after he was stopped and frisked by police. The officers detained the defendant because he fit a BOLO description of a person who had committed a robbery in the vicinity just minutes earlier. The BOLO described the suspect as a Black male wearing a dark raincoat. According to the Court’s decision, “the victim did not provide the race of the perpetrator when she reported the crime.” Id. The defendant contended that “the dispatcher assumed the robber was Black based on racial prejudice” and the State acknowledged that “it does not know why the police dispatcher included a racial description of the robber in the BOLO alert.” Id.
The Court reiterated that “[u]nder the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 1, Paragraphs 1 and 5 of the New Jersey Constitution, a person's race may not be considered as a basis for making law enforcement decisions other than when determining whether an individual matches the description in a BOLO alert.” Id. (Internal citations omitted). It is important to note that when the race of an individual is known, it can be used in a BOLO and it can be relied upon. However, according to the Court in this matter, “the prosecutor did not investigate the circumstances of the dispatcher's decision and certainly never called the dispatcher as a witness at the three-day-long suppression hearing or introduced other evidence to explain why she included a racial description in the BOLO alert.” Id.
In this case, the Court extended its ruling in State v. Handy, 206 N.J. 39, 44–45 (2011), where “a police dispatcher mistakenly informed the police officer of a warrant for the defendant's arrest, even though the first names were spelled differently and the date of birth for the person subject to the warrant was different from the defendant's birth date.” Id. at 41-41. In the Handy case, an arrest was made based on the information provided by the dispatcher and a search incident to that arrest resulted in the discovery of illegal items. The Handy Court concluded that “the dispatcher's error was attributable to [the] police and, on that basis, found the arrest was unlawful, triggering the Fourth Amendment exclusionary rule.” Id. at 42. The Handy Court reasoned that although the arresting officer's conduct was objectively reasonable, "the dispatcher's actions were plainly unreasonable . . . in light of what the dispatcher actually knew." Id. at 47. (Emphasis added).
In extending the ruling in Handy to its decision in the recent case, the Court stated, “[w]e see no reason to limit the Court's rationale to violations of the Fourth Amendment—especially since the Attorney General Directive banning racially-influenced policing expressly applies to “sworn officers or civilian employees of a police agency acting under the authority of the laws of the State of New Jersey.”” State v. William L. Scott. (Quoting AG Directive 2005-1). The Court ruled that “[b]ecause [the] defendant presented a prima facie case of racial discrimination and the State failed to meet its burden of production, we conclude defendant established selective enforcement in violation of Article I, Paragraphs 1 and 5.” Id.
The Court also determined that the independent source and inevitable discovery exceptions to the exclusionary rule do not apply under these circumstances. Remember, the purpose of the exclusionary rule is to deter unlawful police conduct. In the course if their opinion in this case, the Court said, “the need to deter discriminatory policing is even more compelling than the need to deter Fourth Amendment violations because of the enormous societal costs associated with racially-influenced policing.’ Id. (Emphasis added). The Court ruled, “[g]iven the heightened importance of deterring equal protection violations and the imperative to send the strongest possible message that discriminatory policing will not be tolerated, we deem it necessary to establish a more restrictive formulation of the inevitable discovery exception when Article I, Paragraphs 1 and 5 rights have been violated. We hold that for the inevitable discovery exception to apply to racial discrimination violations under the New Jersey Constitution, the State must prove by clear and convincing evidence that the constitutional misconduct was not flagrant.” Id.
As a final word, our Courts have ruled that police dispatchers are an “integral link in the law enforcement chain” and that dispatchers are “literally a co-operative in the arrest along with the officer on the scene.” Id. (Quoting Handy). Most notably, the Court sated, “the more restrictive formulation of the inevitable discovery doctrine we adopt today for racial discrimination cases will not only provide greater incentive for police departments to train their sworn and unsworn employees to guard against implicit bias, but will also provide prosecutors with greater incentive to promptly and fully investigate racial discrimination claims to help ensure the exclusionary remedy is tailored to the nature and seriousness of the constitutional violation.” Id. (Internal citations omitted; emphasis added).