U.S. Capitol Building

Trial transcript:  Exposing your rookie partner to firearm

Jamison KoehlerTrial Advocacy, Uncategorized

Q:     Okay.  Now, on this particular day, you said you were on routine patrol, right?

A:      On patrol.

Q:     On patrol.  There had been no radio calls in connection with my client, right?

A:      No.

Q:     No 9-1-1 calls.

A:      No.

Q:     And there was no reason to suspect Mr. Smith of any illegal activity, right?

A:      No.

Q:     He was there on the sidewalk. 

A:      Right.  There were a few other people too. 

Q:     Okay.  Now you testified he appeared to be drinking out of a green glass bottle?

A:      Yes, sir.

Q:     And to your mind, that was a Heineken or a Molson?

A:      Yes.  Heineken.

Q:     Did you see the label on it?

A:      I could not.

Q:     But you assumed it was some type of alcohol?

A:      Yes.

Q:     Heineken but not Molson.

A:      Yes.  I thought it was a Heineken.

Q:     You’re aware that there are other green bottles that don’t contain alcohol, right?

A:      I don’t drink, to be honest.

Q:     I see.  Well, have you ever had a Pellegrino, for example?

A:      No.  I don’t know what that is.

Q:     Have you ever had a 7-up?  Don’t know that either?

A:      I do.  But it’s in plastic.

Q:     I see.  Plastic.  But in this case you assumed it was alcohol; a Heinken or a Molson, right?

A:      Heineken.

Q:     Okay.  So this is possession of an open container of alcohol, right?

A:      Yes, sir.

Q:     So you could have arrested him at this point?

A:      This was during Covid.  It would have been a warrant case.

Q:     So you didn’t arrest him right then and there because you didn’t have a warrant?

A:      Right.  This was during Covid.  I was following D.C. Superior Court rules at the time.

Q:     I see.  Let me ask you.  After he was arrested, did you ever go back to find the green bottle?  You know, to prove that it was alcohol?  To prove that it was a Heineken?

A:      Yes, sir.

Q:     Where did you look for it?

A:      Same place.  Right there where he was standing.

Q:     You went back personally?

A:      Yes. 

Q:     Did you ever find it?

A:      No.  By the time I got back it was gone.

Q:     Going back to your initial encounter.  At the time he put this bottle on the wall, you were already out of the car at this point, right?

A:      Yes.

Q:     So too was your partner, Officer Gonzalez?

A:      Yes.  We were both out of the car.

Q:     Now, around the same time, you testified you saw an upside-down-shaped L in his waistband, right?

A:      Yes.

Q:     So now, in addition to the open container of alcohol, you now have a concealed weapon?

A:      What appeared to be.

Q:     What appeared to be.  So you didn’t know at this point what it was?

A:      Yes.

Q:     Right?

A:      No, I didn’t know what it was.

Q:     Okay.  So at this point did you call for backup?

A:      No.

Q:     Why didn’t you call for backup?

A:      That’s how I work, sir.

Q:     I’m sorry?

A:      That’s how I patrol.

Q:     I see.  You have nine years of training, right?

A:      Ten now.

Q:     Ten years.  Don’t they normally – don’t they have a procedure for situations –

A:      I have a partner.  That’s my backup.

Q:     I see.  And Officer Gonzalez was a rookie partner, someone you were still training.

A:      Yes.

Q:     Typically, officers, when they see a firearm, officers are trained to use a code word, right?  To signal the other officers that they might be in danger?

A:      That’s only in the specialized units.

Q:     I see.  So then the two of you approach him.  You ask to speak with him, right? 

A:      Yes.

Q:     He says he lives there, right?

A:      Yes, while he’s walking away.

Q:     So he is walking away, basically asserting his right to walk away?

A:      Yes, sir.

Q:     So the two of you get back in the car, right?  Both of you?

A:      Yes.

Q:     At this point, you suspect him of POCA and possession of a firearm and you’re asking him to speak to you, right?

A:      Yes sir.  We are continuing our investigation.

Q:     Your body worn cameras are still running.  So we can hear what you are saying.  And you would agree with me that, once back in the car, the two of you do not talk about what you have seen?

A:      That’s right.

Q:     So you don’t know if Officer Gonzalez has also seen the firearm at his waist?

A:      I assume he saw the same thing I did.

Q:     But you don’t bother to confirm?

A:      No.

Q:     At this point you tell Officer Gonzalez to get out of the car to pursue him on foot?

A:      Yes.  That’s because I was the one who was driving.

Q:     This is your rookie partner who is still in training?

A:      Yes.

Q:     You don’t bother to confirm that Officer Gonzalez was aware of the firearm?

A:      He saw the same thing I did.  He is trained –

Q:     — but you didn’t confirm just to make sure?

A:      No.

Q:     So Officer Gonzalez starts pursuing my client on foot?

A:      Pursuing?  No.

Q:     Well, he starts walking after him.

A:      Okay, right.

Q:     And my client continues to walk, right?

A:      Yes.

Q:     And you testified twice, and made a point of this, that before he started to run, Mr. Smith grabbed the front of his waistband, right?

A:      Yes, sir.

Q:     Okay.  This isn’t something Officer Gonzalez told you.  This is something you saw for yourself, right?

A:      Yes.

Q:     Because you’re driving along as my client’s walking, Officer Gonzalez’s walking; you’re driving along and you witness as Mr. Smith grabs his waistband, right?

A:      Yes.

Q:     Could you stand up and demonstrate for the Court exactly the movements he made?

A:      He would use his right hand to make a full grip and then he ran.

Q:     Indicating for the record, that he used his right hand to grab the front of his pants at the waist.  You can sit down again, Officer.  And then he began to run?

A:      Yes.

Q:     Officer, I would like to direct your attention to the monitor.  Are you able to see my screen?

A:      Yes, sir.

Q:     I’m marking this as Defense Exhibit 4.  Do you recognize what I am showing you?

A:      It appears to be a still shot from Officer Gonzalez’ body worn camera . . .

Q:     I am now at 16:35:36 on Officer Gonzalez’ body worn camera.  I am going to play the video of the officer walking after Mr. Smith.  When you see Mr. Smith grab his waist, please say so and I will stop the video right there.  Okay?

A:      Yes.

[Video played.]

Q:     I have now stopped the video at 16:35:55.  Did you ever see Mr. Smith grab his waist before he started to run?

A:      Not at that time.

Q:     Shall we watch it again?

A:      Please.

Q:     I will restart the video at 16:35:36. 

[Video re-played]

Q:     Did you see him grab his waist this time?

A:      In this video I did not see that, but the video is not really clear enough.  If you pause it –

Q:     I see.  Well, let me try to be clearer.  I have still shots from the body worn camera.  They go frame-by-frame . . .

[Still shots marked and moved into evidence]

Q:     . . . Officer.  Based on the still shots I have just reviewed with you, do you see anywhere where Mr. Smith grabs his waist before he starts to run?

A:      No.