Rob Douglas: A not so hot pursuit

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Former Oak Creek Mayor Kathy "Cargo" Rodeman has no living peer in Routt County as a woman of controversy. Ms. Rodeman has amassed a public and private record exhibiting a bottomless capacity for good judgment and bad - sometimes within the same nanosecond.

In the past, notorious acts by Ms. Rodeman often have been mitigated by acts of compassion for those in need or distress. Ms. Rodeman frequently has given of herself to her community in ways more meaningful and significant than those who routinely pelt her with ridicule and scorn.

However, if the charges surrounding Ms. Rodeman's arrest by Oak Creek Police Sgt. Erik Foster on traffic and misdemeanor offenses Saturday stand, she again will land on the infamous side of life's ledger. But, just as Ms. Rodeman's actions will be fodder for the courts, so will the conduct of Sgt. Foster.

Sgt. Foster's pursuit of Ms. Rodeman into her home raises serious legal and public policy issues, including warrantless entry; officer and civilian safety; Taser use; and investigation and review of Sgt. Foster's actions.

Oak Creek police Chief Russ Caterinicchio asserted this past week that no warrant was needed to enter Rodeman's home because of the law of hot pursuit. In a phone conversation I had with the chief on Monday, he told me "a warrant is not required when an officer is in hot pursuit" and indicated it made no difference what the underlying suspected crime is. In the chief's view, any violation of law in an officer's presence would allow hot pursuit into a citizen's home.

The chief then suggested I look at the case law in Colorado. I did so with assistance from noted Colorado attorney Jeralyn Merritt. To put it mildly, the chief's understanding of the law of hot pursuit is inaccurate.

The Supreme Court of Colorado recognizes three categories of exigent circumstances justifying warrantless entry into a home: "Hot pursuit" of a fleeing suspect; risk of immediate destruction of evidence; or, an emergency threatening the life or safety of another. To date, the chief has staked Sgt. Foster's entry into the Rodeman residence on hot pursuit.

But hot pursuit is not, in and of itself, legally sufficient to allow warrantless entry into a home. The court applies a balancing test consisting of a number of criteria to determine whether the exigent circumstances rise to the requisite level necessary to thwart the constitutional prohibition against warrantless search and seizure.

The court, in People v. Miller and again more recently in People v. Aarness, listed the criteria as: 1) Whether a grave offense is involved, particularly a crime of violence; 2) whether the suspect is reasonably believed to be armed; 3) whether there exists a clear showing of probable cause to believe that the suspect committed the crime; 4) whether there is a strong reason to believe the suspect is in the premises being entered; 5) the likelihood that the suspect will escape if not swiftly apprehended; and 6) whether the entry is made peaceably.

While a court may have the final say on the warrantless entry by Sgt. Foster after evaluating the facts in light of the criteria above, it is a stretch to see how the alleged actions by Ms. Rodeman justified a warrantless entry as only one of the six criteria is apparently satisfied.

There was no grave offense or crime of violence involved; there was no reasonable belief of an armed suspect; absent a grave offense or crime of violence, the question of probable cause is moot; Sgt. Foster knew Ms. Rodeman was at the residence; the likelihood of Ms. Rodeman escaping was nil as more police were minutes away; and, entry by the officer was not peaceable.

So, unless a court finds driving under the influence or misdemeanor eluding police a grave offense, it is hard to see how the warrantless entry stands. But here's a prediction. Look for more serious felony charges to be brought against Ms. Rodeman as police and prosecutors attempt to bolster a weak hot pursuit case by claiming Ms. Rodeman was fleeing from more serious crimes than those initially charged.

As stated at the outset, beyond the warrantless entry into the Rodeman home there are serious issues of officer and civilian safety, Taser use and incident review.

Sgt. Foster, by not waiting for additional police support, demonstrated reckless disregard for his own safety and the safety of possible innocent occupants at the Rodeman residence.

As the deployment of Tasers has grown across the U.S., so have the number of questions concerning their safety. There have been hundreds of deaths associated with Tasers in recent years. And, as the seller of the Taser is also certifying police instructors such as Sgt. Foster, there is an inherent conflict of interest.

Chief Caterinicchio is not qualified to conduct the investigation and review of Sgt. Foster's actions. The chief has almost no experience as a police officer and his statements in the Steamboat Pilot & Today this week demonstrate he has already pre-judged the actions of the also inexperienced Sgt. Foster. The Oak Creek Town Board should bring in an outside, independent authority to review the conduct in question.

As wrong-headed and potentially illegal as Ms. Rodeman's actions may have been Saturday, she is entitled to the protections of the U.S. Constitution and the Colorado Constitution as much as the rest of us.

As the D.C. Circuit said in Dorman v. U.S. - the case relied upon by the Colorado Supreme Court in establishing the criteria for hot pursuit - "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."

Comments

Dukebets 6 years, 5 months ago

Nice article, Rob.

I find it interesting that Russ challenged you to look up the law. He basically set himself up, which is hilarious.

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Scott Wedel 6 years, 5 months ago

I was so interested by this article that I also searched legal databases and read opinions. I think you are wrong on the Hot Pursuit aspect. People v Aarness states there are "three situations in which exigent circumstances justify a warrantless search: (1) the police are engaged in a "hot pursuit" of a fleeing suspect; (2) there is a risk of immediate destruction of evidence; or (3) there is a colorable claim of emergency threatening the life or safety of another." and then goes on to determine if #2 or #3 or other exigent conditions were met. It specifically does not attempt to deal with Hot Pursuit.

When I search on Hot Pursuit then articles I found made it obvious that if a police officer observes a crime and the suspect enters a house to avoid arrest then the officer does not need a search warrant to enter the house for suspected felonies or if evidence is at risk. Needing to get a blood alcohol content is considered emergency evidence in some states. But some states say that the suspected crime has to be a felony. In this case, where the suspected crime is a misdemeanor is something which I cannot find a Colorado Court decision. Also, courts have raised the criteria needed to enter at night without a warrant. Idaho v Wren said there must be an additional emergency beyond the hot pursuit to allow warrantless search.

Thus, I think this is a serious question for a constitutional lawyer.

I think Erik Foster was very wrong to attempt to enter a house to arrest 3 people without backup. There was no reason to think waiting until backup arrived would allow the suspect to destroy evidence related to the possible missed turn signal or DUI.

I think it is highly likely that had there been proper backup that Cargo's "cowering and falling away" would not have resulted in officers using a TASER.

Lastly, Chief Russ has made public comments that state his support and approval of officer Foster's action even while acknowledging he had not seen important information such as 911 tapes. When the results of the investigation are stated prior to even a quick review of the relevant facts then the investigation cannot be trusted. He should be reprimanded for his comments indicating bias prior to completing the investigation. A third party should review officer Foster's actions that night.

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SVT 6 years, 5 months ago

Hot pursuit or not... are we forgetting that she was over the legal limit obviously impaired and could of hit and killed somebody? There is no excuse for drinking and driving.

That Said...

I think that the hot pursuit is going to come down to a matter of opinion based on the judge's interpretation of the law as displayed by the article.

I do agree with Scott that Russ should not have given an opinion before an investigation was completed and that an outside party needs to be consulted to do the final investigation. That can be chalked up to lack of experience.

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ColoNative 6 years, 5 months ago

all that sounds good but I found the following info:

(i) Hot Pursuit

Hot pursuit occurs when there is a continuous chase of a suspect who enters private property immediately ahead of the police. You need not have actually seen the offense, as long as you are chasing someone who has committed a recent crime for which you have probable cause to arrest. If you are in hot pursuit of such a suspect, you may continue your chase onto the private property to apprehend him and prevent the destruction of evidence. The key concepts in hot pursuit are: (1) no unnecessary delay in beginning the pursuit; and (2) continuous and uninterrupted pursuit (but this does not have to be continuous visual surveillance of the suspect or continuous knowledge of his whereabouts); and (3) the short lapse of time between the suspect's entry and your entry. Hot pursuit is based upon the concept that you are merely continuing an arrest process that began outside.

For each and every viewpoint, there is going to be something to support our viewpoint.

None of us are lawyers and yet it sounds like all are trying to give our own interpretations of legal standards. Let the courts do it and not us.

I think the Sgt did a good job.....

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id04sp 6 years, 5 months ago

I think that a person who willingly engages in an attempt to avoid being stopped by the police by fleeing in an automobile, taking refuge in a dwelling which certainly may contain firearms, and forcefully resists the entry of a pursuing officer has done a WHOLE BUNCH of stuff that blows away the arguments against entering in hot pursuit.

When a person submits to a traffic stop, and further evidence of a crime is suspected, the officer can call for help to get the vehicle searched, etc. When somebody tears home, runs in the house, and has the opportunity to flush evidence down the toilet, that's an "exigent" circumstance.

Now, I think the officer may have over reacted in the heat of the moment, and should have waited for backup, but when someone starts slamming a door on you, that's assault.

As for the taser, at least no shots were fired. Cops might want to think twice about doing something like this again, because who's to say there's not a shotgun waiting on the other side? This whole thing could have gone down much differently if other people were involved. Everybody is lucky.

Bottom line; when you flee from the police, I'm pretty sure that's a felony. Correct me if I'm wrong. If a felony was committed by fleeing, then all the rest of it does, indeed, meet the criteria for hot pursuit, no matter how ineptly it was conducted after that point.

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housepoor 6 years, 5 months ago

She's an idiot no doubt, but given the recent issues facing the OCPD he was certainly overzealous and his judgmentmotive should be questioned. He knew it was Cargo so he chose to force his way in. If it was an unknown suspect he could easily have been shoot not waiting for backup. She's guilty and he needs to be reprimanded and educated or find a new line of work.

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Dukebets 6 years, 5 months ago

id - all charges were misdemeanors. That's why every article has stated all charges were misdemeanors. 'Somebody tears home'............Your intrepretation seems skewed. Cargo drove 1 1/2 blocks to her house and I bet the speed of her car did not exceed 20 mph's. And, the door was slammed because of some uninvited guest (Foster) trying to enter.

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aufait 6 years, 5 months ago

Didn't one article say something about failure to use a signal?

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ColoNative 6 years, 5 months ago

Under C.R.S. 18-9-116.5 (Criminal Code) - eluding is a class 5 felony if the driver operates the vehicle in a 'reckless manner" and it is a class 2 misdemeanor under C.R.S. 42-4-1413 (Traffic Code).

So, which did the Sgt charge? Seems to me that if a person is drunk driving, with two passengers, and trying to elude, the cops might be able to say "reckless manner" but I don't know.

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JazzSlave 6 years, 5 months ago

Should be fun to watch. One of the previous stories said Sparky had been arrested a dozen times before. It would be interesting to know how many (if any) were DUIs, and if her priors will be used against her in court.

I think we have fodder for prime time gold here: Oak Creek, 80467. Tori Spelling can play Sparky.

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Ed Miklus 6 years, 5 months ago

Rob, a very good article and nicely written and researched. In viewing our Constitution I take a constructionist position. Those who view it liberally, revisionist or in an interest balancing approach should be careful what they give up. They too could have the sanctuary of their home violated by a miscreant police officer in an alleged "hot pursuit." Perhaps the Oak Creek P.D. would go back to Writs of Assistance.

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geek101 6 years, 5 months ago

anyone read the classifieds today????

Classified (published 07/25/2008)

CARGO DEFENSE FUND Administered by Bob Baker Money will only be used for legal expenses. Contribute to First National Bank of the Rockies, Account #10742.

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justathought 6 years, 5 months ago

Seems to me if she hadn't ran the cop would not have had any reason to enter her home. The cop was probably wondering WHY was she eluding and running into her home, to get rid of something maybe? After all it was originally just a traffic stop, she turned it into a three ring circus.

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Matthew Stoddard 6 years, 5 months ago

Okay-

1) Failure to signal, which is a possible sign of drunk driving, especially at 1am, close to last call.

2) Whoopee lights go on, subject flees from police.

3) Police pursues fleeing subject, not know why they would flee, but fleeing is also against the law and gives cause for hot pursuit.

4) Subject stops, exits vehicle with 2 other people, fleeing into private residence.

5) Since this is possible DUI suspect, as muckermania had posted on another thread, subject has the possibility to crack open a cold one and drink in the house, thereby providing an alibi.

6) Officer tries to enter house to avoid #5 from happening.

From Rob's research, printed above:

"The Supreme Court of Colorado recognizes three categories of exigent circumstances justifying warrantless entry into a home: "Hot pursuit" of a fleeing suspect; risk of immediate destruction of evidence; or, an emergency threatening the life or safety of another. To date, the chief has staked Sgt. Foster's entry into the Rodeman residence on hot pursuit."

"risk of immediate destruction of evidence." Drinking in the house to provide an alibi for BAC.

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OneFly 6 years, 5 months ago

DEFENSE FUND??

The fund is already in place and it's for the poolice to defend us from people who choose to drive drunk and it worked.

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madmoores 6 years, 5 months ago

Hot pursuit or not, flushing evidence or not, armed to the teeth or not...are you all saying that you would chase 3 people into their house...by yourself...not knowing who or how many await you...holding what or how many weapons, for a turn signal violation? How is he assured what is awaiting him on the other side of the door? That...is just crazy. Unless he had previous knowledge before the alleged incident, how the did he know she was drunk, oh that's right, she forgot to signal? If the rule were "non usage of signal device is an indicator of intoxication", then half of the planet ought to be pulled over and given the roadside. Some people think the turn indicator lever is an option these days so you can't tell me that not using the signal automatically means your drunk. The "no signal, must be drunk" theory, IMO, is unrealistic. Then we have "eluding" or "fleeing", what??? By the reports in the articles and in these posts(which is all I have to base my theories on) she had less than 3 blocks to "flee"...WOW...must have been a "hot pursuit" of a whopping what, 30mph? I'm not supporting anything that Cargo or her friends did whatsoever, if they were in the wrong then they should pay for it. However I just cannot imagine any officer being so adrenaline filled that they would forget basic life safety, starting with themselves, and put themselves into a potentially deadly situation. NOT good common sense. Just be glad there is not a funeral being had for a dead cop.

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SoRouttNative 6 years, 5 months ago

Mr. Douglas,

As far as Ms. Rodeman is concerned. I cannot speak personally to her nefarious behavior relating to historical arrests, prosecutions, usage of drugs or alcohol other than what would be public record and hearsay. Nor can I comment on whether or not the usage of a taser or forced entry as an appropriate method to subdue a suspect of multiple infractions as I am not an attorney. On this note, I will not comment.

I can only speak to the treatment that I recently received from both the Chief of Police in Oak Creek and Officer Foster; neither of which have I had any contact with outside of the one incident that I describe below as I no longer live in Routt County but was enjoying a weekend in the area I still prefer to call home.

Earlier this Summer I was having dinner in Steamboat and had had a beer with dinner... my pasenger had something stronger. On my way home I was pulled over just outside of Oak Creek for another possible traffic violation (could not see my license plate).

Because Officer Foster smelled alcohol in the vehicle (he was at the passenger window due to the narrowness of the road) he asked my passenger and myself if we had any alcohol to which I responded affirmatively. He then asked me to submit to a roadside sobriety check to which I dutifully complied with the Chief present. After all, we have all seen recent events where failing to comply causes much bigger problems if you are not drunk.

At the end of the myriad of tests he bid me a safe journey as I showed no signs of impairment and provide me with a business card if I had any questions; a relative non-event.

Interesting how two different individuals can have VERY different experiences with the same officer isn't it?

I am not trying to justify the actions of Officer Foster but do ask that readers and those commenting only post based upon what they know as FACT that can be substantiated or those that have an understanding of Colorado Law and are able to intelligently relay to those of use who are uneducated laws that would apply in these situations.

Mr. Douglas, while I respect your opinion we must remember that it is just that. It is not the testimony of an expert schooled in these matters IN COLORADO.

This whole thing is a circus and commentary like yours is not only irresponsible it only helps to ensure that Ms. Rodeman may find difficulty receiving fair unbiased justice.

To the Pilot; shame on you for publishing as it only puts a fan under the fire that has been smoldering.

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rsssco 6 years, 5 months ago

sorouttnative the way i read the story he talked to "Colorado attorney Jeralyn Merritt" about the law stuff. did u miss that?

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Scott Wedel 6 years, 5 months ago

I found another reference and those 6 standards are called the Dorman Standard which is to be used when there is not hot pursuit and even then it is not considered an absolute standard, but as an indication of the seriousness of the situation which would allow warrantless entry into a house without an arrest or search warrant.

Sorry Rob, but your lawyer would get thrown out of court with that argument.

A far more relevant case with lots of citations is United States. O'Brien. v. City of Grand Rapids http://www.altlaw.org/v1/cases/495305

This appears to be the most relevant section (citations omitted to make it easier to read - go to link if you want the citations)

"Exigent circumstances," something of a term of art, denotes the existence of " 'real immediate and serious consequences' " that would certainly occur were a police officer to " 'postpone action to get a warrant.' " The phrase has been understood by the Supreme Court to comprise, generally, two separate sets of circumstances: 1) "the imminent destruction of vital evidence," and 2) the " 'need to protect or preserve life or avoid serious injury,'

Failing to signal a left turn would fail that test. There are other rulings that say getting a blood alcohol test before the alcohol dissipates is vital evidence, it would be a stretch to say that failing to signal gives probably cause for DUI. It is my understanding that an officer would need to smell alcohol or other signs of being intoxicated before giving a roadside sobriety test. Thus, failing to signal would probably not be considered sufficient reason to believe a delay would destroy vital evidence.

The story around OC is that Cargo says the patrol car's lights did not come on until she got home and that she and friends went inside so that other police would arrive and basically protect them from Officer Foster. (How does Cargo know warrantless entry law better than Rob Douglas's "expert" lawyer? Well, I suppose she does have more firsthand experience with being arrested than most).

It would seem that if her version of the attempted traffic stop is true then she is absolutely correct that the police would not have the right to enter her house without a warrant. They could write her a failing to signal ticket the next day.

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Scott Wedel 6 years, 5 months ago

As for suing for damages, the law appears to be (from that same Obrien v Grand Rapids ruling): The O'Brien v Grand Rapids also describes the circumstances under which a citizen can sue government for violating constitutional rights of the citizen. O'Brien won against the officers and the city.

From the ruling: Generally, qualified immunity protects a police officer from being sued for his discretionary actions as long as the officer neither " 'knew [n]or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights ... affected, or ... took action with the malicious intention to cause a deprivation of a constitutional right....' " The question whether an official is protected by qualified immunity does not turn on the subjective good faith of the official; rather, it turns on the "objective legal reasonableness" of his actions, assessed in light of the legal rules that were "clearly established" at the time the actions were taken.

it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Sec. 1983.

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Ms_E_Bronte 6 years, 4 months ago

There are those of us in Oak Creek who are just like the rest of the world--we work for a living, raise our families, try to instill values and morals in our children (that include respect and integrity), and teach that we are accountable for the choices we make. It really is sad that a few people shed such a disparaging light on this quaint little town, and that the media jumps on the bandwagon to fuel the fire.

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id04sp 6 years, 4 months ago

Bronte,

I can only agree with you, but have to ask, why does OC keep letting these few people be in charge of running the place? Apathy or failure to act when a duty is apparent is also an immoral act.

Madmoores,

Failure to signal is probable cause to make a traffic stop. Once the stop is made, an odor of alcohol is cause to conduct an investigation for DUI.

The question of the degree of the crime here is very easy for us all to debate after the fact. If you were paying for ice cream cones and somebody grabbed a $20 bill off the counter and ran away in plain sight of a law officer, does the fact it's a midemeanor crime mean that the cop can say, "Sorry, it's a misdemeanor. Hot pursuit is not authorized." Do any of you really believe that law enforcement should let people get away with a crime just because it's not a felony under the strict definition? I also think that resisting arrest is an issue here, and somewhere along the line, slamming a door on a cop who's in hot pursuit after observing an infraction of the law must add up to assault.

One of the criteria for hot pursuit is that it is begun when the action is observed and continued to the conclusion of an arrest. Closing the door on a cop in hot pursuit and refusing to open it sounds like obstruction of justice. It's not like the cop used lethal force against anybody, or inappropriate force against people who were actively engaged in fleeing from the police in order to avoid arrest, or destroy evidence, or whatever.

We already have a precedent for DUI prosecution based on evidence observed by law enforcement officers, without BAC evidence to back it up, so Cargo can probably kiss her license bye-bye anyway.

Kielbasa, you are spot on.

rsssco -- anyone who has dealt with an opposing attorney knows that they cloud and color the truth to suit them. They only agree with the law when it agrees with their client's agenda; the rest of the time, they find ways to claim the opposite, and leave it to be decided in court, at great expense, to the delight of the attorneys involved. They get away with this because their actions fall under the very broad category of seeking a "new and unique interpretation of the law." So, basically, they can just lie about it and we pay the bills to put it in front of a judge who, hopefully, will follow the law. From personal experience with six of the ones who've held office locally since 1990, the judges don't follow the law either.

Justice around here all comes down to who has the most money to spend on lawyers. $40,000 to Kris Hammond to defend a teenager on an assault charge is a perfect example that's easy to verify.

One wonders; did the officer recongnize Cargo's car and attempt the stop because it was her? If everyone who failed to signal was stopped, there'd be a traffic jam for 50 miles in both directions all the time.

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rsssco 6 years, 4 months ago

Rumor has it the cop staked out the car for two hours waiting for Cargo to get in it.

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rsssco 6 years, 4 months ago

Matt--yup--rumor, that's why I wrote rumor. Obviosly we'll have to see what the police report says if it says anything about how long Foster was watching Cargo's car. Time will tell. It is curios that the newpaper hasn't printed any of the police reports on this case.

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Matthew Stoddard 6 years, 4 months ago

And rumor has it that Cargo tried to ram Foster patrol vehicle 4 times, while the other 2 waves shotguns out the windows.

See? It's that easy to start a rumor that has no basis in fact whatsoever. That happens a lot in these forums- one of the reasons for the new posting policy starting 4AUG. This is why there is an internal investigation going on, and probably why the other threads were locked. When the internal investigation is over, I'm sure we'll find out the facts in better detail.

On that note, it's probably why the Pilot hasn't printed any other info- they haven't been given any. One of the articles said they filed a Freedom of Info Act petition, so they're on it.

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SoRouttNative 6 years, 4 months ago

Still say it was irresponsible of Rob to submit and irresponsible of the Pilot to pring. Oak Creek is a small town and the rumors he said/she said is already flying... why add to it. It only helps to ensure that Cargo will not receive unbiased justice in Routt Couty.

It is still more irresponsible to post rumor on a public forum. Hope the Pilot locks this one down too.

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colowoodsman 6 years, 4 months ago

I would like to interrupt this debate to bring y'all an important news update.....While it is obvious that RqDq has received his desperately needed AI chip, it has just been discovered that this new chip has been infected with the dreaded 'j-cochran' virus which causes the infected CPU to 'think' it is endowed with 'legal expertise'. In this case the 'host' has been so severely infected that it is even trying to get a position on Cargo's 'Dream Team' of defense counselors (Hammond, Baker and Maynard). Stay tuned for further updates!

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Scott Wedel 6 years, 4 months ago

As for the example of the person that steals $20 and runs home - can the police then kick in the front door to catch the person?

Supreme Court and other court rulings would suggest the answer is no. Idaho v Wren stated that the police do not have the right to follow someone seen disturbing the peace into their house without a warrant.

In a couple of other cases related to DUIs in which the reason to enter was to get a BAC test from the suspect (aka evidence), the courts ruled that the police could not follow someone suspected of a crime that would result in civil (fines) penalties into the suspect's house, but could follow someone facing criminal (jail) punishment.

The 4th amendment to the Constitution actually means something. Also, it appears that police some where at some time have used "hot pursuit" to target a suspected drug dealer or such from a trivial crime such as jaywalking to their home and then use that as an excuse to enter the house. So the courts have said that unless there is an urgent need to preserve evidence related to the suspected crime or bodily injury that a person can stay in their home until the police get an arrest warrant.

If Chief Russ thinks there is an absolute right to follow a suspect into their house during a hot pursuit then he is poorly informed and poorly trained. That sort of thinking is not far from that shown by the Grand Rapids police dept and O'Brien won damages from the city. That case said that the officers involved did not know better and were not liable, but that the Chief and the City should have know better when developing police policies and were liable. (City had relied the advice of an officer from a bigger city as the sole legal advice on when a warrant is needed).

BTW, I was at the Town Board meeting in which Chief Russ stated one of his accomplishments was to have reviewed the OCPD polices manual and it was good. So he has taken responsibility for any errors in those policies.

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Scott Wedel 6 years, 4 months ago

Also, the "destroy evidence" reason for entering a home has to be evidence directly related to the observed crime. The police cannot say they believed drugs or such would be destroyed to justify entering a house in pursuit of a traffic violation.

The courts have ruled that running away from police is suspicious enough to justify stopping and talking to the person. I have found no court ruling on whether a person running from police is sufficient suspicion to pursue them into their house.

They would have to shown how immediately entering the house was needed to preserve evidence related to failed to signal or maybe failing to stop.

One fact will be crucial - when did Officer Foster turn on his police lights indicating that Cargo was to pull over? I'm told police procedure is to call that in immediately. So if Officer Foster followed procedures then he radioed dispatch that he is making a traffic stop, then that the driver is failing to stop and then that the driver and occupants went inside their home. So if his first call to dispatch was Cargo's entryway then it is going to be real hard to prove eluding by Cargo.

Lastly, it is not the newspaper that makes a spectacle of Oak Creek. It is the people that refuse to compromise or listen. At the March 5th police community relation meeting, there was every opportunity for the police and police commissioners to admit that if so many people are upset then something must be wrong and let's try to figure out how to fix it. Instead police commissioner Chuck Wisecup gave a speech basically said the town needs police and this is what you get with police. And then next OC community police meeting only allows comments supporting the police dept.

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TrunkMonkey 6 years, 4 months ago

Hope you got your facts straight on what Wisecup "basicically said" Scott, cause that's not the way I remember it. He may threaten to sue you for slander and defamation such as the last time you spouted off something that was not true, and you had to retract your statment and apoligize. A copy of this post and a copy of the letter he handed out at that meeting would give him all of the evidence he'd need for a court case. I think I'll print him off a copy.

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Scott Wedel 6 years, 4 months ago

Go ahead. The first defense in a case of slander is that the comments were not spoken. Maybe you meant libel. A defense in libel is that the statements are true. At that meeting did Chuck say that he thought OC needed a police dept? I believe he did. Did he say that he thought there were serious problems in the OC police dept that he was going to fix? No. He said something to the effect that the sorts of issues that people brought up at the meeting were to be expected when there is a police dept.

Quoting from the handout at the second meeting: Please keep in mind this is an opportunity for POSITIVE interaction between the Citizens of Oak Creek and their Police officers. This WILL NOT be a venue for negative accusation regarding personal interactions with our officers.

Looks to me like only positive comments are going to be allowed.

And I think Chuck Wisecup is more likely to be concerned with Kris Hammond going through all actions of the police commissioners looking to see if they did anything contrary to proper procedures which could then make them personally liable for contributing to create the situation which lead to the proper procedures not being followed by Officer Foster when he entered Cargo's house without backup or a warrant.

Read that O'Brien v Grand Rapids decision - there is no claim or hint that anyone in the city thought they were doing anything wrong. Simple little mistake of listening to a tactical officer from another jurisdiction on when a warrant is needed instead of getting what should have been recognized as a legal issue, the advice of a lawyer.

Is anyone all that sure that the Town made no mistakes in handling complaints or any other aspect of overseeing the police dept? I'm told that there was one OC meeting where an OC government official said that there were no complaints. A citizen responded that that is not true because he had personally made a complaint. And then the complaint box was opened and a few were found. That itself is could be a violation of procedure because presumably the complaint process stats that the complaint box is to be checked foe complaints!

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Scott Wedel 6 years, 4 months ago

I think the law is pretty clear on warrantless entry for traffic offense. Not legal. The facts in these cases involve car seen weaving then speeding, a car left in a field or walking home after a car accident and yet no warrantless entry because observed crime was not jailable misdemeanors. I'd be surprised if local DA even files charges against Cargo.

More cases: New Jersey v. Bolte Car is weaving, officer suspects dui, turns on lights, guy drives .6 of a mile, then goes around the block 4 times, each time faster, then drives into his garage and goes inside. Officer follows into the house. Suspect arrested, BAC test shows intoxicated. Court rules all officer had was misdemeanor traffic and that is not enough to enter house.

People v. Strelow, 96 Mich. The hot pursuit doctrine excuses strict adherence to statutory notice and demand mandates in order to prevent police from being unduly burdened in their efforts to arrest criminals guilty of serious offenses. Preventing the escape of a fleeing felon may necessarily prevail over the interests the statute was designed to protect. Employing the same balancing test, the less serious nature of a misdemeanor offense militates against extending the hot pursuit exception to justify unannounced entry into a private residence to make such an arrest. Important interests such as privacy expectations and prevention of unnecessary violence must, in this instance, prevail.

US Supreme Court: Welsh v Wisconsin: The warrantless, nighttime entry of petitioner's home to arrest him for a civil, nonjailable traffic offense, was prohibited by the special protection afforded the individual in his home by the Fourth Amendment. (a) Before government agents may invade the sanctity of the home, the government must demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Moreover, although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense has been committed.

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weallnutz 6 years, 4 months ago

Hey Scott, "Civil Non-Jailable Offense," and Dui are not in the same category in Colorado., Colorado Revised Statutes(42-4-1401), jail time is part of a DUI sentance. DWAI 2 Days-180 days, DUI 5 days-1 year jail time, both are listed as criminal offenses as well as traffic/civil offenses in COLORADO. So was the hot pursuit/entry based on failure to signal or Probable Cause for DUI, or Eluding(also a criminal/jailable Offense) might be the question. Betcha it is found to be a legal entry...but we'll see.

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justathought 6 years, 4 months ago

Wedel says"there was every opportunity for the police and police commissioners to admit that if so many people are upset then something must be wrong and let's try to figure out how to fix it". WHY not look at it this way, "if so many people" DO NOT show up because they have no reason to complain, maybe there is nothing wrong so nothing needs fixing. There was definitely more citizens NOT in attendance than those there to complain.

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Ms_E_Bronte 6 years, 4 months ago

justathought -- Your statement is quite accurate. My opinion was the bulk of the first meeting was just another bashing (pretty viscious at times)...am I entitled to have this opinion in OC? Didn't attend the second meeting -- had my fill at the first one.

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OneFly 6 years, 4 months ago

Accurate statements the two just above are. Most have grown weary of this drama and it is the same minority as always.

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deadhead 6 years, 4 months ago

I would like to applaud the Pilot's call for an independent and unbiased inquiry into this incident. Based on the interested expressed in this blog there is a an obvious public need for clarification of the facts. The Oak Creek Town Board, as elected representatives of the town's interest, should establish the inquiry as soon as possible. An unbiased inquiry would help to end the speculation and ungrounded gossip, which is creating bad feelings within the town, as well as restoring the communities trust and confidence in the OCPD.

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Sewerra 6 years, 4 months ago

Unfortunately this is not simply a case of good cop vs. bad drunk-driver. It is very easy to assume that running equals guilt, but it is a complicated world my friends, and we humans are complicated creatures. There are many lenses through which you could view this case and because the pilot has done such a good job of viewing it from the police department's point of view, I would like to focus on the citizen's side of the story (Gasp! You mean there's actually another side to the story?)
First, a question for all of you: Which laws, if any, protect a citizen from a police officer that makes them feel unsafe? Some of you may answer, "How could a cop make someone feel unsafe? Cops are inherently good and only have the people's best interests in mind, what a silly question!" But some of you, know exactly what I'm talking about: a badge does not automatically make someone a saint. Let's suppose for a minute that when Cargo was pulled over by Eric Foster in her own driveway (yes, Cargo and other witnesses say that Foster's lights did not turn on until the car was already parked safely in the driveway), she did not feel safe. Not unreasonable considering that more than one complaint has been filed against Sgt. Foster for excessive use of force in his short time in Oak Creek. What do people generally do when they feel threatened or unsafe? They try to remove themselves from the situation. Cargo and her passengers chose to run into the house where Sgt. Foster found them on the telephone with 9-1-1, and I don't think they were calling to turn themselves in for running from an "officer of the peace", no they were calling for help as they were being chased and threatened by a man wielding a lethal weapon. A man that forcibly entered her home then proceeded to use said lethal weapon not once as Chief Caterinicchio would have you believe, but twice and she has the scars and the pictures to prove it. By his actions, Foster confirmed Cargo's fears, he would just as soon act violently against three defenseless women doing the only thing within their grasp to keep themselves safe, fleeing. Again I ask you, which laws protect the civilian if they feel unsafe or threatened by the ruling authority, or is it every law-abiding citizen's duty to blindly accept the injustices being commited against them and their community by the people with the weapons? Let me just repeat the bare facts of this case, CARGO WAS TASED FOR NOT USING HER TURN SIGNAL!!!! For those of you that don't know, a Taser gun releases 100,000 volts of electricity and has been known to be lethal. If that was Foster's first reaction for a traffic violation I hate to imagine what he would do if his life was really threatened. It is a great coward that will hide behind a symbol of peace and public service and use it to perpetrate violence. While Cargo may have "cowered" in the corner to get away from the deadly weapon being used against her, she most definitely is not a coward.

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id04sp 6 years, 4 months ago

So, what you're saying, is that if Gary Wall had driven home, gone inside the house and slammed the door, he would have been justified, because he KNEW the CSP officers who stopped him were gunning for him. Cool.

So, if I get stopped, and I don't feel safe, I can just run for home, go inside, have a quick stiff pull from a bottle of Scotch, then call 911 and report that I've been targeted for assassination by a rogue cop? Cool!

So, basically, you're saying the cops should leave everybody alone unless they're committing a violent felony. That's what Sheriff Warner's guys did. I guess it worked back then, so it should work now, too.

And, in the event that the cop pursuing me should call ahead and set a roadblock, that would be unnecessary force! I like this better all the time.

I thought the Gary Wall matter was all ####ed up, but boy, this one takes the prize.

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dundalk 6 years, 4 months ago

didn't she have a high BAC level upon her arrest? if she was in her driveway, was her key in the ignition?

just curious

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dave reynolds 6 years, 4 months ago

I bet reality TV would eat this up..I have alot of good friends that live in Oak Cheek but when oh when is the saga gunna end

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Ms_E_Bronte 6 years, 4 months ago

I think it's all about the bright halogens shedding a different light on anyone who "knows exactly" what happened!! Could have been the swamp gasses, though!

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ColoNative 6 years, 4 months ago

Sewerra - your facts are somewhat wrong. Tasers are 50,000 volts and extremely low amperage. It's not the volts that kills but the amps. all people who are certified to use tasers also have to be shocked by them prior to certification, so all of them know how it feels. People have died after being tased but most of them have died from excited delirium, which is caused usually by cocaine or methamphetamine use and the heart rate is up.

Sparky was tased for running from the cops and fighting with the cops when caught in her house after being chased, not from failing to use a turn signal.

I personally know some guys who have been tased several times and who think it is a "thrill" to get shocked when they get arrested. So Sparky "cowered" in the corner because she was trying to stay away from the mean cop who was enforcing the law...... Bull!

Sparky lost the fight and is now whimpering because she lost.

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littercleanup 6 years, 4 months ago

Looks like thugville clean up is progressing well. Averages measurable progress in 2 week increments it seems. Erik once again has proven he will go the limit to serve and protect any and all citizens. This PD team is the one I would want in my worst moments of need.

Routt county has much to finally be proud about concerning its lower end of the county. Likely with the new OC code enforcer even more accomplishments to coming. Keep up the excellent work ,listen for those with prior criminal records to squall ..........if not squalling the PD failed. Its a measurable note. Crimnals hate the Law period.

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Dukebets 6 years, 4 months ago

litterbrain - I and everyone else from the 'lower end of the county' challenge you to a spelling contest. We would also like to challenge you to a 3rd grade English contest. The majority of Oak Creek residents would most likely exceed 45% in the proper English sentences category. Your score was 44.4% on the last post. Your worst needs may be a lack of education.

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justathought 6 years, 4 months ago

If dukebets is correct, it appears that even the citizens that lack education are smart enough to want law and order and a safe place to live. It also appears that some citizens lacking education are smart enough to NOT abuse drugs and alcohol. I am very glad to see that dukebets was elected to speak for "everyone else" from the "lower end of the county" but why would anyone's "needs" be "a lack of education"?

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Dukebets 6 years, 4 months ago

justathought - You evidently need help with your reading skills.

Everything I posted was in reference to the comments made by littercleanup.

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justathought 6 years, 4 months ago

I read just fine, thank you. You accused litter of a lack of education because you didn't like his/her spelling or grammar and most likely didn't agree with his/her support of law enforcement. I applaud you for your high level of education and your grammatically correct posts but someone that has to prove superiority over another by attacking their education is living proof that education does not always mean intelligence.

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Dukebets 6 years, 4 months ago

I don't believe I mentioned a thing about the support of law enforcement displayed by litter.

I was responding to the rude and sarcastic remarks that litter posted about Oak Creek.

If a person can not perform simple English skills, they probably should not place others below them.

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littercleanup 6 years, 4 months ago

dukebets

Have u ever heard of a lower end called the southern end? Also who cares about spelling/grammer on blogs? No one has time for it unless Eng. Lit. is there major eh? Dukebets/Steve.

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littercleanup 6 years, 4 months ago

dukebets

Also if u do not mind please share with us ur background. Any criminal history? or arrests? or none?

Biased opinions usually float out someones unusual behavior and why they take a ridiculous stand against what is good and honest.

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Dukebets 6 years, 4 months ago

Sweet...............I have baffled a baffoon. I follow OC and Steamboat news because I have many close friends that reside in those 2 cities and I visit them often. And, my response to the background question is none. I am not an English major, but I do have the capacity to form a proper sentence. As does my 9 year old.

Nice recovery on your lower end comment. However, OC is not the Southern end of Routt County.

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cmducks 6 years, 4 months ago

The Soroco high school in Oak Creek (Soroco is an acronym for SOuth ROutt COunty) will be pissed to learn that they aren't in the south part of the county.

Thanks for clearing that up for us there Rand McNally.

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Dukebets 6 years, 4 months ago

End would refer to last, final, tip or bottom. Add in a directional reference such as Southern, the meaning would refer to the Southern most tip.

Low refers to less, under or beneath, which is the term litter used. That is the point I am trying to make.

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aufait 6 years, 4 months ago

Check out your map. There are towns in the county that are farther south than Oak Creek that are part of the school district. Oak Creek is in the northern part of SoRoCo.

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littercleanup 6 years, 4 months ago

dukebets

Ever heard of "LODO" in Denver? On the news alot for events and meetings. Means "Lower Down Town--LODO". The lower end of Denver as compared to the Northern/uppermost end.

Take a stand for something that matters in life. Always bashing respectable law enforcement is not doing much for ur self proclaimed education level. Has been my experience those that tell u how smart they usually are not. At one point in all our lives including ur's none of us could even spell our own name let alone begin to write it.

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Dukebets 6 years, 4 months ago

I have heard of LoDo....................It is most definitely the nastiest part of Denver.

The hole is getting deeper.

And, the respectable law enforcement comment was hilarious. You evidently don't know too many people if that's your idea of respectable.

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cmducks 6 years, 4 months ago

Baton Rouge isn't in the south, because there are much further south places?!?!?!

The logic here is blowing my mind right now.

I started out to be a smart a-s-s, but now am just amazed.

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littercleanup 6 years, 4 months ago

dukebets

Consider putting time into solid accomplishments. Being a cop basher or cargo salute or gullable follower would get myself nothing.Therefore my stand in general reaps benefits for all , it always has. Thoughts of naysayers is respectably considered and helps aline one at times but mostly their personal agendas keep popping in.

The name Duke implies a leader. All seen thus far is a follower. Right or wrong? A leader would be spending time helping OC and could careless about what dukebets currently stands behind. Might think about realignment caster,camber and toe leading nowhere. Wake up and help out with some much needed town projects. Quit critiquing stupid items.

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colowoodsman 6 years, 4 months ago

Poor Cargo-If only she had known- all you have to do to avoid arrest is simply say 'no hablo ingles' and the cops just let you go free!

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