[Note: This is an excerpt from a larger cross that occurred during a motion to suppress evidence. In this excerpt, there are two points that I’m trying to establish: 1) that the police did not have probable cause to enter Janet Smith’s apartment, and 2) that Smith’s consent was not voluntary. All names have been changed.]
Q. Officer, I want to begin by discussing your conversation with Hugo Cabret. Understand?
A. Yes, sir.
Q. That happened the morning of the 4th?
A. That’s correct.
Q. Essentially, Mr. Cabret told you that he had been beaten by two guys?
A. That’s correct.
Q. He told you he didn’t know their names, but they went by J.P and Brooklyn?
A. That’s correct.
Q. You didn’t know anyone by those nicknames?
A. No, I did not.
Q. Now, did you just testify that you learned those two people lived in the apartment complex?
A. He believed they lived there.
Q. And specifically that they lived at 1610 Elm, is that what he told you?
A. No, he did not.
Q. He didn’t say that. He told you that he didn’t know if they lived there, right?
A. He assumed they lived there.
Q. Didn’t he tell you that he saw them in that area alot?
A. Correct.
Q. Be he didn’t know exactly which apartment, or even if they lived in the apartment complex?
A. He told me that they lived in the complex.
Q. Didn’t he give you two addresses of where they might live?
A. No, he did not.
[The officer has gone off-script here. His report says something different from his testimony. This is an opportunity to impeach with a prior inconsistent statement, but you still go through the ARC process because you’re impeaching the officer with his own report (as opposed to impeaching him with another witness that you’d call later).]
Q. You’ve been a police officer for what, nine years?
A. Correct.
Q. You’re a detective now?
A. I am.
Q. That’s a pretty high position in the police department, isn’t it?
A. I would guess so.
Q. You’ve written how many police reports in nine years?
[Here, we are entering the “accredit” phase of ARC.]
A. Approximately three to four hundred.
Q. Why do you write police reports?
A. To memorialize things that occurred during my investigation.
Q. Is that important?
A. Yes.
Q. Is it important to write truthful reports?
A. Yes.
Q. Is it important to write reports that contain all of the information that might be important to the case?
A. Yes.
Q. Did you write a report in this case?
A. Yes, I did.
Q. In your report, didn’t you say that Cabret told you that either 1610 Elm or 1234 Spruce might be the addresses where the attackers lived?
[This could have been done better. I skipped over the “recommit” and went straight to the confront. I think I did this because it was a motion and I figured that the judge knew what I was doing. Still, I should have recommitted. Also, the confrontation was sloppy. I should have quoted from the report directly. Now here’s a question: what if the officer had denied the contents of the report? What if he had said, “no. My report doesn’t say that?” I don’t know. Under the rules of your jurisdiction, you might be able to get the report admitted as substantive evidence – if you can at least get the officer to acknowledge that he wrote it. It’s an interesting question, but it’s never come up in my practice.]
A. Mr. Cabret told me that he thought the gentlemen lived at 1610 Elm. However, he often saw them visiting females at 1234 Spruce.
Q. That’s not what your report says. Doesn’t your report say that Cabret identified 1610 Elm and 1234 Spruce as buildings the subjects might reside in?
A. That’s correct.
Q. It doesn’t say that the the subjects’ girlfriends may reside in? It doesn’t say that?
A. No, it doesn’t say that.
Q. It says that Mr. Cabret identified one of two possible buildings where these people might live, right?
A. Correct.
[Notice all the leading!]
Q. Based on that, you went to the apartment complex office?
A. Correct.
Q. And you got information on 1610 Elm?
A. That’s correct.
Q. You didn’t get any information on 1234 Spruce?
A. I only asked about 1610 Elm.
Q. You knocked on that door?
A. That’s correct.
Q. Now, about 90 minutes passed between when you talked to Mr. Cabret and when you knocked on that door, correct?
A. Yes.
Q. In that time, you applied for zero warrants?
A. Correct.
Q. You’ve been an officer for many years, haven’t you?
A. Yes.
Q. You know how to apply for warrants?
A. Yes.
Q. Nonetheless, you knocked on that door without one?
A. That’s correct.
Q. And there were four other police officers with you?
[This is the beginning of chapter 2: Lakesha’s consent was involuntary. I probably should have signalled the start of this new chapter by saying something like: Officer, I’m now going to ask you some questions about what happened when Lakesha opened the door.]
A. Yes.
Q. With guns?
A. Holstered guns, yes.
Q. Janice Smith answered the door?
A. Yes.
Q. And you asked her where J.P. and Brooklyn were?
A. Yes.
Q. And she said she didn’t know.
A. Yes.
Q. And you told her you were going to apply for a warrant and, if you found them in her apartment, you’d charge her with a crime?
A. I said I would apply for a warrant, and that if I found that she knew they were in the residence, she could be arrested for obstructing justice.
Q. That’s a crime, isn’t it?
A. It is.
Q. A felony?
A. I believe so.
Q. So, you threatened to send her to prison?
Prosecution. Objection: mischaracterization.
The Court. How is that a mischaracterization?
Prosecution. That’s not what the officer threatened her with. He did not mention prison.
Defense. Obstructing justice is punishable by a term in prison, Your Honor.
The Court. The question calls for speculation as to what Janice Smith would know with regard to the penalties to that offense. On that basis, the objection is sustained.
Q. You threatened her with a crime, because you wanted her to consent to your entry into her apartment. Isn’t that true?
A. No.
Q. Well then, why tell here that?
[A non-leading question, but I thought it was okay, because the answer is obvious. By asking a leading question here, I’m really just giving the officer rope with which to hang himself. And he did. His answer was ridiculous.]
A. Because I knew her from before. I knew that she had no idea what was going on, or I assumed that she possibly had no idea what was going on. I tried to provide her with as much information as I could, and I had some concerns for her and the future of her child.
Q. You told her that she needed to think of her child?
A. Yes.
Q. Why would you tell her that?
A. Because I had concern for her and her child.
Q. Were you suggesting that you were going to take her from her child?
A. No. I was suggesting that if she were arrested, that yes, she may be removed from her child …
… and so on.