Not guilty. Officer Robilard was vindicated by a jury of his peers. When asked why they returned a not-guilty verdict, the jury replied, “A complete lack of evidence.” For 18 months he had been on administrative leave from his department and under the scrutiny of the District Attorney’s office. He suffered the stress and shame of being a criminal defendant. If, as the jury declared, they were presented with no evidence of criminal conduct on Officer Robilard’s part, then why was he prosecuted?
Known Facts
Officer Robilard was patrolling his beat–a gang-infested lower income area of town dotted with bars, liquor stores, gas stations and motels. In the late afternoon hours, Officer Robilard observed a young adult female (whom I will refer to using the alias “Tina”) walking along the sidewalk several blocks from where a gang shooting had taken place only days earlier. Upon seeing Officer Robilard, Tina quickly looked away and appeared to conceal an item in the waistband or pocket of her pants.
Officer Robilard made a u-turn and pulled to the curb next to Tina. Looking out his passenger window, he initiated a conversation with her. (Tina speaks Spanish only, and Officer Robilard is fluent as well.) Officer Robilard had not activated his red light or siren, nor did he order her to stop. There was no evidence to indicate that the contact was anything other than a consensual encounter at this time. Officer Robilard stepped from his car, and after a brief conversation, conducted a Terry-frisk.
After interviewing Tina and detecting no weapons, contraband, or illegal activity, Officer Robilard placed her in the back seat of his patrol car and drove her less than two miles to her home. He let her out of the vehicle, and went back to patrolling his beat. After some apparent contemplation on her part, Tina disclosed the encounter to two family members. She complained that she was inappropriately touched by Officer Robilard. The first family member did not believe her story. Tina then changed some of the details of her narrative and told the second family member. This relative found her story credible and advised her to call the police to report the incident.
The Initial Investigation
The police department’s patrol division was the first to receive the complaint from Tina’s family. They immediately launched an investigation, notified command and executive staff, and called in the detective unit in charge of sexual assault investigations. The investigators conducted a lengthy taped interview with Tina, and her clothing was taken as evidence.
The investigators determined which officer Tina was accusing of misconduct and conducted a photo line-up. Tina identified Officer Robilard as the officer who contacted her. The investigators then accessed the GPS tracking information for Officer Robilard’s patrol car, recovered his radio transmissions, patrol activity and his MDT messages.
The Allegations
Tina told the investigators that she was walking on the sidewalk when she was stopped by Officer Robilard. She stated that he asked her if she was associated with a gang, if she used drugs, or if she had any contraband on her. She told him no. He then directed her to place her hands onto the hood of his patrol car, and he searched her. According to Tina, Officer Robilard reached inside her top during the search and made skin-to-skin contact with his palm on her breast. When Officer Robilard searched her pants, he placed his hand into her front pocket. With his hand still in the pocket, he moved it over her vagina and fondled her.
The Follow Up
Officer Robilard was placed on administrative leave. Since the criminal investigation takes precedence over an internal investigation, and Officer Robilard has a 5th amendment right to remain silent, he was not compelled to make a statement. Since no arrest was made, Officer Robilard had not completed a report of the incident.
The investigative package was presented to the District Attorney’s office. The DA reviewed the case, the evidence, and Tina’s taped interview. The DA decided to file sexual battery and unlawful imprisonment charges against Officer Robilard.
The Prosecutor
After filing the case, the DA contacted me for expert consultation. As the developer and lead-instructor of the Defense and Arrest Tactics program for my agency, I was consulted as a subject matter expert in detentions, policy and procedure related to detentions and transportation of females, Terry-frisks in general, and Terry-frisks of female subjects in particular.
I met with the DA and the assigned case detective in the DA’s office. The prosecuting attorney first asked about department policy regarding notification to dispatch of an officer’s intent to conduct a pedestrian stop. What difference, if any is there between stopping a male versus stopping a female? When can an officer conduct a Terry-frisk? Can a male officer frisk a female suspect? How is such a search conducted? What is the department policy regarding transportation of the subject to another location?
In response to this series of questions, I explained that absent unusual circumstances officers should broadcast their location and actions prior to taking them. In this case, normal procedure would have been for Officer Robilard to advise dispatch that he intended to conduct a pedestrian stop (10-95), and where the stop was taking place. The radio code, if the subject stopped is a female, is modified to: 10-95X.
An officer can conduct a Terry-frisk for weapons when he has reasonable suspicion to detain, and reasonable suspicion to believe that the detained person is armed or dangerous. Of course, an officer can also ask for consent for said search.
Technically, there is no legal difference between searching a male and searching a female. Male and female officers are allowed to search both genders, except in cases of strip or body-cavity searches. However, while searching a female, officers are taught to use the back or knife-edge of their hand when searching the breast and crotch areas. Likewise, when searching the crotch area of males, officers are to use the back or knife-edge of the hand. These stipulations are applicable to both male and female officers.
Generally, officers advise dispatchers of their intent to transport a subject prior to the transportation. In the case of female or juvenile subjects, the officers should advise their starting mileage and when possible their intended destination. Upon arrival, the officers update dispatch with their ending mileage.
The DA then gave me a brief overview of the case and a synopsis of the complainant’s story. Tina stated that the officer directed her to place her hands on the hood of the patrol car. Then, while searching her, Officer Robilard touched her inappropriately. This touching included direct skin-to-skin contact between the officer’s hand and the complainant’s breast.
Additionally, she stated that he placed his hand into the front pocket of her pants and then moved his hand over her vagina. I asked the DA what type of pants Tina was wearing, and he replied, “Sweat pants.”
I thought, “Well, some sweat pants have pockets and if the pants were loose enough, then the described vaginal groping could be possible.” No sooner did this thought cross my mind that the police investigator corrected the DA and told him that she was wearing tight blue jeans. I then asked if the clothing was with us in the office so I could look at the pants, however they were not. I asked if anyone had looked closely enough at the pants to determine if the alleged fondling was even possible. Neither the DA nor the investigator could answer my question.
I then asked them to provide me a description of how the breast touching was reported to have occurred. Once again, the DA and the investigator differed in their recollection of Tina’s portrayal of the search.
The DA then accessed the recorded statement and fast-forwarded to the segment where Tina referenced the upper-body search and breast fondling. As I don’t speak Spanish, the DA translated. He did not interpret word-for-word, but rather gave me a running synopsis. However, several times he pointed out that her story changed slightly and had inconsistencies. For the second time in as many minutes I was troubled. I then inquired as to whether or not they had her demonstrate exactly what happened on another party. They stated that she had not. At this time I pointed out to the DA what he already knows–no attorney worth his salt asks a question in court to which he does not already know the answer.
I also pointed out that officers at Robilard’s agency have never been taught “wall” or “car-searches;” and, in fact, they are aggressively discouraged. I suggested that they conduct another interview with Tina. In this interview, place her clothing on a mannequin and have her demonstrate to the best of her ability exactly what transpired. After brief consideration, the DA and the investigator believed it best that they not re-interview her, and let her on-stand testimony clear up any confusion.
The Strategy
The DA went to trial firmly believing that Officer Robilard violated the law. Yes, he was assigned the case and told to prosecute by his superiors, but he was convinced that Officer Robilard committed the crimes of false imprisonment and sexual battery. He believed Tina’s account of the event.
Over several meetings with the DA, I came to understand that he was exasperated by several issues. First, if Officer Robilard believed that Tina was concealing a weapon why would he speak to her while he remained seated in his vehicle and she leaned in through his passenger window. Second, he believes that Officer Robilard violated department policy and practice by not notifying communications of the stop and the fact that the stop involved a female subject.
Many agencies have a policy that officers must notify dispatch of the transport of a female, the starting location, the time, the starting mileage, and the location, time, and mileage upon arrival. Officer Robilard’s agency has these policies as well. In the DA’s mind, the violation of these policies and the allegation that he asked her if she had a boyfriend or a cell phone, demonstrated Officer Robilard’s criminal intent.
The only tangible evidence in this case was the clothing worn by Tina at the time of the contact, and the GPS system that showed Officer Robilard’s vehicle track. Other than that, the jury would decide this case based upon their perceived veracity of Officer Robilard’s and Tina’s depiction of events, as well as testimony presented by expert and character witnesses.
At a pre-trial meeting between the DA, defense counsel, investigators, and expert witnesses, the defense attorney asked if he could examine Tina’s pants. He reached into the pocket of the tight blue-jeans and attempted to move his hand around. He looked at the DA and said, “If the pants don’t fit, you must acquit.” This was my first exposure to Tina’s pants as well. As I expected when in the meeting in the DA’s office, it appeared that touching Tina’s vaginal area with the hand in the pocket would be difficult or impossible.
Although I do not have first hand knowledge of how the DA used the GPS tracking information in his trial strategy, I do know that this non-testimonial evidence disclosed that Officer Robilard drove directly from the location of the stop to Tina’s residence. He did not detour, he did not take an extended route, he did not take an inordinate length of time, and he made no stops while enroute.
The Trial
After opening arguments, the DA presented his case. Witness number one: Tina. Those present at the trial told me that she could not coherently describe what had occurred. She was inconsistent in her explanation of events. While she was treated with great dignity and respect by both prosecution and defense attorneys, Officer Robilard’s attorney demonstrated that the veracity of her story was questionable.
Several expert witnesses on both sides of the case testified at the trial. With regards to the search methodology, all experts agreed. If Officer Robilard had conducted himself as initially described by Tina, then he violated the law. The jury clearly did not believe her account.
This leaves us with the prosecutor’s bias because of the apparent policy and procedural violations. Although the DA is an extremely ethical attorney and competent litigator, this case was on a shaky foundation from the start. He may very well have simply been acting as a “good soldier” and following his supervisor’s directions. In my private meetings with him he seemed to display a level of anxiety over this case. Perhaps he was personalizing the case and believed that Officer Robilard was “out of line” in his behavior with Tina. However, out of line does not criminal conduct make.
The Outcome
Most involved in this case accept that Tina believes that she was stopped and touched inappropriately. I haven’t spoken with anyone who believes that she maliciously concocted a story. Tina was a young naive individual from Mexico. A surprise, of which neither prosecution nor defense counsel was aware, was disclosed during her trial testimony. She had made accusations of sexual improprieties against a family member in the past. Her relatives did not believe her and her account was ignored. I’ll leave it to the psychological professionals to opine if this was a contributing factor in her allegations.
Now that the criminal case has concluded, Officer Robilard will face an administrative investigation by his department’s internal affairs unit to determine if he violated any policies or procedures.
In my 29 year career, I have yet to meet the aggressive officer who claims that he broadcasts every stop he ever makes. In agencies with a great deal of activity, it is not unusual to find it difficult to get “clear air” on the radio. We all know that opportunities are often fleeting. The violation is observed, the officer determines it best to make an immediate stop, yet the radio is filled with other traffic. What does the officer do? What have I done countless times? We make the stop as safely as possible, and if possible we find a quiet moment on the radio to notify dispatch of our activity.
Does this violate the “best practices” of officer safety? Of course it does. But most law enforcement officers are “goal-driven” beings. As retired police sergeant, attorney, and expert witness for the defense, Jeff Martin made clear at trial, unfortunately, officers regularly place their safety at risk.
“Because their ‘value-system’ often places protecting the public and arresting criminals over their own security, it is not unusual for experienced officers to sacrifice their officer-safety in order to, for instance, demonstrate that their contact with an individual was consensual- even when they clearly have reasonable suspicion for a detention.”
Could this explain why Officer Robilard began his contact with Tina by stopping next to her and initiating a consensual conversation? And, only after that initial contact did he then determine that he should continue a more thorough investigation? Read the FBI’s reports of Law Enforcement Officers Killed and Assaulted and you will find that many tragic outcomes started in very similar fashion. Faulty “value-system?” Perhaps, but should this lead to a criminal prosecution of an officer who is trying to aggressively perform his sworn duty?
The Lessons
Officers Robilard was fortunate. According to retired police Lieutenant Dave Grossi, a frequent expert witness in both civil and criminal cases, “Once an officer violates his department policy, it’s my belief that the odds of his winning his case in either a criminal or civil trial are reduced by about 50%.” It is important to understand that an aggressive prosecutor may place a great deal of weight on policy and procedure violations; perhaps more consideration than given the laws of detention, arrest, search and seizure and the “reasonable officer” standard.
You have to play both sides of the ball. You must be able to defend your lawful conduct. When instructing police officers, I tell them to “think like the opposing attorney” when you write your report- be it a crime report or a “subject resistance” report. Dave Grossi emphasizes, “Every contact between a law enforcement officer and a citizen has the potential to turn into a criminal or civil rights allegation.” It’s critical to keep that in mind.
From a field-strategy perspective, you never know when a DA might disagree with you and decide that you did not have reasonable suspicion for a detention or probable cause for a search or an arrest. Likewise, you cannot predict when the US Supreme Court might reverse itself on long established bright-line rules of vehicle searches as it did recently in the Gant case. Therefore, the “defensive” officer will when practicable ask for consent even when he believes he has sufficient legal standing to act.
An interesting note in this case is posited by Jeff Martin. He observed, “Should officer Robilard have made an arrest in this case and documented the details in a crime report, the same Prosecutor’s office that tried him would have done their best to demonstrate that he had reasonable suspicion for a detention, reasonable grounds to conduct a Terry frisk, and probable cause to affect an arrest.”
Policy and procedural manuals exist for a reason. We may agree with parts or all of our department policies, or we may not. However, we must do our best to follow those policies. Some may say that their sole purpose is for the protection of the agency. Some may say they exist to protect both the agency and the officers. You can judge for yourself.
However, everyone would agree that prior to transport of a female, we must find a way to communicate such action to the dispatcher. If the airway is too busy, switch to another channel. If other radio channels are busy as well, use your in-car computer. If you have no such computer, call your dispatch center with your cell phone. Or, take your time and wait to get on the radio. As demonstrated by this case, your liberty and your career may very well depend upon it.