Defendant
freed after strip search on street; DA looks into other reports
By
Gina Barton of the Journal Sentinel
Allegations
of an illegal body cavity search by a Milwaukee police officer have led to the
dismissal of cocaine dealing charges against a Milwaukee man.
The
case against the 31-year-old man could be the first of many to be compromised
amid a wide-ranging investigation into whether seven officers and a supervisor
broke the law while conducting strip searches in District 5, according to
experts.
The
defendant, who previously served prison time for dealing drugs, was allowed to
plead guilty to second-offense marijuana possession and sentenced to just three
days in jail after his attorney filed a motion to suppress the evidence in the
case.
"During
the search, officer Michael Vagnini inserted his fingers into the anus of (the
defendant) to retrieve a plastic baggie of cocaine," the motion says.
"This was done with the defendant's pants and underwear pulled down,
exposing the buttocks and thighs of the defendant to the passers-by."
The
Journal Sentinel is not identifying the man because the paper does not name
victims of sexual assault.
The
man's assertion resembles numerous other complaints that officers sexually
assaulted people and violated their civil rights while conducting body cavity
searches for drugs on the street. If the allegations are proved, officers could
be criminally charged, the city could be on the hook for damages in civil
suits, and more drug offenders could go free, according to experts.
"It
sounds like the tip of the iceberg at this point. There could be scores of
cases out there," said David Rudovsky, a senior fellow at the University
of Pennsylvania Law School. "Where officers are shown to repeatedly engage
in improper practices, it can certainly affect pending cases and could
ultimately affect convictions in the past. In addition, it would certainly mean
that people who were subjected to these unconstitutional searches could sue the
officers and potentially the city."
Additionally,
the fact that Milwaukee County prosecutors have launched a John Doe
investigation into the complaints against police also could pose a conflict of
interest for prosecutors if they simultaneously pursue cases in which those
officers are witnesses, he said.
The
John Doe - an inquiry in which prosecutors can compel testimony and subpoena
documents without public knowledge - is not the only investigation under way.
The civilian Fire and Police Commission and the Police Department's internal
affairs division are reviewing complaints about potentially illegal searches
dating back a couple of years. The Common Council has passed a resolution
urging the department and the commission to publicly report their findings
within 30 days of completing those investigations.
"Without
transparency and information sharing, I believe the public will likely have
very little faith in the integrity of the investigations," Ald. Milele
Coggs said when she introduced the resolution.
The
FBI and the U.S. attorney's office are closely monitoring the local inquiries.
If federal authorities are not satisfied with the outcome, they could launch a
criminal investigation of their own, as they did after the 2004 beating of
Frank Jude Jr. by a group of off-duty officers. If federal officials discover a
pattern of civil rights abuses, a 1994 law gives them the authority to penalize
the entire Police Department.
Rules
of evidence
The
U.S. Constitution requires judges to throw out evidence if a defendant can
prove it was obtained illegally, according to Stanley A. Goldman, a professor
at Loyola Law School in Los Angeles.
"How
many times are you going to cavity-search all sorts of innocent people in order
to come up with one person who actually had drugs?" he asked. "How
many cavity searches do you do before you find one you can prosecute? If you
admit that evidence, then what you've done is create an incentive for the
police to do that to anyone they want."
The
31-year-old Milwaukee man was charged in October with possession with intent to
deliver cocaine, a felony with a maximum prison term of 12½ years.
But
in March, shortly after news of the strip-search investigation was first
reported, attorney Ann T. Bowe filed the motion to suppress the evidence.
Both
state law and Milwaukee Police Department policy prohibit officers from doing a
cavity search under any circumstances. Such searches, which involve
penetration, require a warrant and can be performed only by a doctor, physician
assistant or registered nurse.
"Upon
information and belief, Officer Vagnini has no medical credentials,"
Bowe's motion says.
Vagnini
was among the officers forced to turn in their badges and guns as a result of
the strip-search investigation, according to police sources. The supervisor who
was set to testify if the case had gone to trial was Sgt. Jason Mucha, who also
has been stripped of his police powers pending the internal investigation.
Neither Vagnini nor Mucha responded to emailed requests for comment.
After
Bowe filed the motion to suppress, the district attorney's office amended the
charge to the lesser marijuana felony. The defendant, who had admitted
possessing marijuana at the time of his arrest, pleaded guilty to that charge,
which carries a maximum penalty of 3½ years in prison. He was fined $3,500,
sentenced to three days in the County Correctional Facility-South and given
credit for the time he had already served. He walked out of the courtroom a
free man.
The
man has hired civil attorney Jonathan Safran to pursue a possible lawsuit
against the city, Bowe said.
Whether
drugs were found during an illegal search is irrelevant in a civil case. An
Illinois teenager who had marijuana hidden in his underwear recently reached a
$265,000 settlement with the City of Beloit on civil claims of an illegal
search and police brutality.
Milwaukee
County Chief Deputy District Attorney Kent Lovern declined to discuss the
Milwaukee man's case or to answer questions about its broader implications.
"At
this point, it is premature to project what impact the investigation will have
on cases currently in the system," Lovern said in an email. "However,
these questions are legitimate ones that will be addressed at the appropriate
time."
Trying
to prosecute drug cases in which the targeted officers are involved "gets
very tricky for the prosecutor," Rudovsky said. "Even if the officer
testifies, you probably don't want your main witness taking the Fifth
Amendment. The proper thing to do is either dismiss or not try those cases
until there is a final resolution."
Goldman
said now is the time for the prosecutor's office to deal with the issue.
"I
can't see pursuing a (drug) case on one hand while investigating a star witness
on the other," he said. "It puts you in a rather difficult position
ethically, and lawyers are not supposed to place themselves in those
positions."
The
district attorney's best alternative would be to ask an outside agency, such as
the Department of Justice, to conduct the John Doe, according to Goldman.
State
Rep. Leon D. Young (D-Milwaukee), a former Milwaukee police officer, also
believes the Justice Department should be involved. Young wrote a letter last
week to state Attorney General J.B. Van Hollen, asking him to investigate the
searches and other recent allegations of abuse and excessive force by officers.
Community
relations
Meanwhile,
state Sen. Lena Taylor (D-Milwaukee) said she plans to push the Fire and Police
Commission to take a broader look at how Milwaukee police officers treat
citizens.
"This
is an opportunity for the Common Council and the Fire and Police Commission to
strengthen the (police) relationship with the community," Taylor said.
She
said she was talking about "the level of respect you have for the decency
of the citizens," starting with such things as the way officers tell
suspects to sit down on curbs. She said relatively minor examples of disrespect
are the first step down the road toward more serious incidents, such as the
strip searches.
Milwaukee
Police Chief Edward Flynn said this month that the district attorney's office
opened the John Doe investigation at his request.
"It
was our feeling this unprecedented move would guarantee we can get to the truth
more rapidly than any other method available to us," Flynn said at a news
conference April 11.
Veteran
sensitive crimes prosecutor Miriam Falk is leading the inquiry, according to
several sources involved. Falk and other prosecutors on the sensitive crimes
unit focus on sexual assault and child abuse. There has been no indication the
cavity searches were done for sexual gratification, but that is not a
requirement under the state's sexual assault statute. That law also prohibits
actions done for sexually degrading or humiliating purposes.
Falk
is perhaps best known for her prosecution of former Milwaukee Police Officer
Steven J. Lelinski.
At
a 2007 trial, Lelinski was convicted of second-degree sexual assault and
attempted second-degree sexual assault, both felonies, and fourth-degree sexual
assault and lewd and lascivious behavior, both misdemeanors. He is serving a
prison term of more than 20 years.
From
1996 to 2005, nine women - many of them prostitutes or strippers - accused
Lelinski of sexual misconduct. He was not charged until 2006, when Falk decided
to take the case. Because many people who have alleged illegal searches have
criminal records or were in possession of drugs and therefore have credibility
issues similar to Lelinski's victims, Falk may choose a similar approach in the
current investigation.
Bowe,
the defense attorney, said judges tend to trust police officers more than
defendants. Her client, she said, felt "violated" by the search but
didn't think he had any recourse.
"He
said, 'This goes on in the streets all the time, and we had no idea it was
illegal,' " Bowe said.
