Wednesday, July 26, 2017

My nephew, Blake M. Shuler, faced a harsh lesson of American life: Driving erratically, with a chemical substance on board, is a good way to get arrested -- even if it's part of a dubious search in tiny Clever, MO

Blake M. Shuler
How did my nephew, Blake M. Shuler, manage to get in trouble with the law, in the tiny burg of Clever, Missouri (pop., 2,400; and it seems smaller than that)? The answer reminds me of perhaps the No. 1 lesson I drew from my unlawful five-month incarceration in Shelby County, Alabama.

Blake's story, however, has a twist, suggesting he might have been the target of an unlawful -- and not so clever search -- in Clever, MO. (Feel free to groan; it's a bad joke.)

What about my own lesson from life behind bars? Well, inmates have a lot of time on their hands, so they tend to sit around and ask each other, "Why are you in here?" My answer -- that I was "arrested for blogging" -- never failed to bring howls of laughter. "Oh, you're the blogger guy," a newbie invariably would say. "I've already heard about you. You're famous." I never knew I was all that funny, or famous, until I went to jail.

Time and again, inmates would answer the "Why are you in here?" question with a story that had at least two components: (1) They were driving, or riding in, a vehicle that somehow attracted the attention of cops; (2) Somebody had a "chemical substance"  in the vehicle, and cops found it when they searched the car.

That usually drew this response from me: "Well, did the cops have grounds under the Fourth Amendment to search the vehicle?" (I'm a law geek, even in jail.) That usually put looks of "Hell if I know" on the faces of assembled inmates. Their attitude tended to be: "The cops searched my vehicle, whether they had a right or not, and now I'm in here, so what difference does it make?" Good point. Even inmates -- maybe especially inmates -- understand that our rights are being eroded, and there's not a damn thing you can do about it in many jurisdictions.

What, you're going to find a lawyer to fight for your rights? Hah, don't make me laugh. Heck, I was arrested for blogging, which only violated more than 200 years of First Amendment law, and I couldn't find a lawyer to fight for me.

Anyway, Blake M. Shuler ran afoul of the law because of the two factors noted above. This is from a Clever PD (not be confused with a clever PD) incident report: (The report is embedded at the end of this post; BTW, my apologies for using the same bad joke twice.)

On 3/17/2016 at approximately 2330 hours I, Officer Thompson (DSN 1803) was patrolling south bound on State Highway P when I observed the white Toyota Avalon driving in front of my patrol car cross the yellow line of the Highway on two separate occasions. I activated my emergency lights and sounded my siren to perform a traffic stop. The Avalon stopped south of Highway 14, on Highway P.

I exited my patrol car and made contact with the driver, Blake Shuler, and the front-seat passenger, Chelsea Cox. Upon contacting the occupants of the Avalon, I smelled the odor of what, based on my training and experience, to be consumed alcohol. I informed Shuler the reason for the stop and asked if he had been drinking. He said, yes, one beer. I asked what they were doing out tonight. He said we have been downtown and I am dropping my girlfriend off. I told the occupants to stay in the vehicle and I would return.

When reading this, my first reaction was, "Ah, c'mon Blake, you can make up a better story than that. How many drivers in human history, upon being pulled over, have told cops, 'I had one beer.'" But wait, it might have been true in this case, and that raises this question: Was my nephew the victim of an unlawful search? Here's more from the incident report:

I walked to my patrol car and requested Officer Bennett (DSN 1804) to respond to my location with a preliminary breath tester. While he was en route I requested Christian County Dispatch to run a record check on Shuler and Cox. They returned with a valid license and no [warrants].

Officer Bennett arrive on scene and we approached the driver's door of the Avalon. I instructed Shuler to step out. I told him I had reason to believe he was operating a motor vehicle under the influence of an intoxicant and requested he take a preliminary breath test; he agreed to take the test. The test returned positive for the presence of alcohol. I informed Shuler of the results and advised him of Missouri implied consent. He agreed to take Standardized Field Sobriety Test. Shuler and I went to the paved area of Bumper to Bumper Auto Parks, where he performed the sobriety testing. He failed three portions of the test. I placed Shuler under arrest for suspicion of driving while impaired. I transported him to the Clever Police Station while Officer Bennett remained on scene with Cox and the vehicle.

OK, things don't look so good for Blake at this point. But here is where it gets interesting, raising constitutional questions:

We drove to City Hall, where Sergeant Stoops (DSN 1802) administered a breathalyzer test on Shuler. The test returned negative for alcohol.

Well, what do you know? My nephew wasn't drunk. And he might have been the first driver in history to tell the truth about having only one beer. This story has a happy ending, right, with Blake and his girlfriend being sent on their merry way -- Blake having been proven innocent of the "offense" for which he was arrested? Not exactly. The report continues:

I transported Shuler back to his vehicle, where Officer Bennett informed me he had located what he believed to be marijuana and paraphernalia inside the Avalon. I informed Shuler that I had 364 days to charge him with a crime for the recovered contraband. I told Schuler (sic) he was free to leave and he exited the scene.

Now, wait a minute. How does that happen? My nephew was arrested for "driving while impaired," and the official breathalyzer proved that he was not impaired -- at least not by alcohol. In fact, that test came back "negative for alcohol"; it didn't even prove he'd had one beer.

So, get this: While Blake M. Shuler was proving his innocence of the charge for which he was arrested, an officer from the Clever PD -- a different officer from the one who stopped Blake and found probable cause to arrest him -- was going through Blake's vehicle and found what he "believed" to be marijuana and paraphernalia.

Let's review what these cops did: One of them took Blake away from his vehicle, to administer a breathalyzer test that proved Blake was innocent. Meanwhile, a second cop -- who apparently never smelled the "consumed alcohol" that caused Blake's problems in the first place -- took it upon himself to search the vehicle. What happened? While one cop was learning that Blake was innocent of the charge in question, a second cop was finding evidence to hit him with another charge.

Does that sound fair to you? It doesn't to me. Does it sound like cop No. 2 sort of jumped the gun on his vehicle search? I would say he sure as hell did. Here's more from the report:

I returned to Clever City Hall and logged the recovered contraband into evidence. On 3/23/16, I issued Schuler (sic) citation # 150535206 for possession of marijuana and citation #150535207 for possession of paraphernalia. I sent him the citations via the United States Postal Service.

End of report.

What happened next? What constitutional issues might have been in play? Did anyone stand up for Blake M. Shuler's constitutional rights?

Stay tuned.

(To be continued)


Anonymous said...

There are a few things I would like to know, but I'm sure we will never find out. Why was there no blood test? If he failed the sobriety tests and there were drugs in the vehicle, why didn't they assume there were drugs in his system. Were the drugs in plain view? Did Chelsea consent to the search of the vehicle? Was this a search incident to arrest? Was it an inventory search? Where were the drugs in the vehicle? Were they obviously the driver's or could the passenger have put them there. Why wasn't Chelsea charged? Did Blake admit they were his?

legalschnauzer said...

@8:23 --

Those are all good questions, and I would like to know the answers, too. I can shine light on a few of them:

(1) Records show that Blake pleaded guilty to the drug charges, without a lawyer. My brother-lawyer, David Shuler, then got involved and had the guilty plea withdrawn, but Blake wound up pleading guilty to "peace disturbance," so he still appears to have a criminal record -- although not one involving drugs.

(2) Clever is a very small police department, and I'm guessing the officers did not have ready access to advanced testing. Perhaps they could have gained access to such tests through the Christian County Sheriff's Office, but chose not to go that route.

(3) Blake was arrested on "suspicion of driving while impaired," so officers probably would argue this was a search incident to arrest. But Blake then passed the advanced breathalyzer test at City Hall, with a showing of "negative" for presence of alcohol, proving his innocence on the charge for which he was arrested.

(4) My concern is that Cop No. 2 went ahead and searched the vehicle, as Blake was being proven innocent. It doesn't appear that Blake gave consent to search the vehicle, and it's not clear if the passenger did.

I have at least one more post coming up on this subject.

Anonymous said...

I didn't see that plot twist coming. Interesting.

Anonymous said...

Sounds to me like the cops -- after going through the stop, the field tests, the City Hall test, etc. -- didn't want to walk away with nothing to show for their troubles. The kid should have been let go, with no charges. But that probably wouldn't have looked good on the cops' time sheets.

Anonymous said...

I'm guessing Blake pled guilty to the drug charges, without an attorney, to keep his parents in the dark. Perhaps something arrived in the mail that clued them in, and that's how your brother-lawyer got involved?

legalschnauzer said...

@10:17 --

That sounds like a reasonable scenario to me.

Anonymous said...

Good reporting, LS. This has turned out to be an interesting story. I'm sure your nephew would have preferred it stay underground, but it should be pretty darned educational for a lot of folks.

legalschnauzer said...

@11:06 --

Thanks. Traffic stops probably are the No. 1 avenue for the public to come in contact with law enforcement, so issues surrounding such stops are very important, in my view. From a personal standpoint, I've been the target of two unlawful traffic stops in Alabama, so these matters raise an eyebrow with me.

Anonymous said...

Blood test for drugs are not hard to obtain. All they had to do was transport to a hospital and have blood drawn. Maybe there was a consent issue or cost was too high. Either way, I would expect the cops to try and prove their field test were accurate. How can you let someone who can't pass field test later drive away. Seems like a huge liability to me.

legalschnauzer said...

According to the police narrative, Blake consented to everything they asked. Not sure why he wouldn't consent to a blood test for drugs. There is no indication they attempted, or asked about, blood test. They did try to prove their field tests were accurate regarding alcohol, and it turned out they weren't. Blake turned up negative for that. Based on my reading of the narrative, he should have been returned to his vehicle and told he was free to go, with no charges.