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Rob Douglas: A not so hot pursuit

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.”