15-Day Suspension Overturned

On September 12, 2022, HPOU General Counsel Aaron Suder represented a Westside patrol officer in his arbitration appeal of a 15-Day Suspension, which was issued on December 21, 2021, by Chief Troy Finner.  The officer was alleged to have failed to conduct a proper search of a prisoner, in violation of General Order 500-01, which resulted in a weapon being found on the prisoner at the jail.  The City was represented at the arbitration by HPD attorneys Kyle McCauley and Rhonda Reece.  The case was heard by Independent Hearing Examiner Lori LaConta.

At the arbitration, the Union presented testimony and evidence to establish that the officer did not, in fact, violate General Order 500-01.  At the time of the incident, the officer and his partner were driving back to Westside after interviewing a witness in the medical center, when they came across an accident on Highway 59S near Chimney Rock.  No police units were on the scene and there was no control of traffic, as cars were whizzing by the accident scene on the freeway.  The officer and his partner contacted the dispatcher to have a Midwest unit respond to the scene and then stopped to assist in traffic control and assess the medical needs of the parties involved.

While he was on the scene, the officer came into contact with one of the drivers, who showed signs of intoxication.  The officer decided to detain the driver on suspicion of DWI and place him in the back of his patrol car, for the driver’s safety, until the primary unit could arrive and conduct a full DWI investigation.  Pursuant to the investigative detention, the officer conducted a Terry pat-down of the suspect’s outer clothing prior to placing him in the patrol car, as permitted by Department policy and U.S. Supreme Court caselaw.

The primary unit arrived within two minutes of the suspect’s detention, took custody of the suspect and moved the accident scene to a nearby gas station to conduct a proper DWI investigation, complete with Field Sobriety Tests.  After developing probable cause, the primary officer then arrested the suspect and transported him to jail.  Unfortunately, the suspect was discovered to be in possession of a sub-compact, semi-automatic handgun when he was strip searched in the jail.  The weapon was apparently well-hidden in the suspect’s groin area and was only discovered when he had to remove his clothing.

After discovery of the weapon in the jail, Chief Finner issued a 15-Day suspension to both the primary officer and the Westside officer, for allegedly failing to conduct a proper search.  The Letter of Suspension alleged that the Westside officer should have conducted a full systematic search of the prisoner prior to placing him in the patrol car.

However, as the Union pointed out in the arbitration, a full systematic search of the suspect was not permitted under the circumstances for the Westside officer because he had only conducted an investigative detention of the suspect, not a full custodial arrest.  According to both General Order 500-01 and U.S. Supreme Court caselaw, beginning with Terry v. Ohio (1968), the officer was only legally permitted to perform a Terry pat-down of the suspect’s outer clothing, which he did.  The officer was not justified in performing a full search incident to arrest.

The arbitrator agreed with the Union’s position and issued an award on October 16, 2022, overturning the 15-Day suspension in its entirety.