Expert: JPSO appears to violate suspect's Constitutional rights
Dave Cohen Reporting
The Jefferson Parish Sheriff's Office is defending a deputy's action seen in a video posted to social media. In the video a man being arrested begs to know why he is going to jail and pleads with the deputy not to shoot him. A law professor says it appears his rights were violated.
Here is the video (note it incorrectly refers to the deputy as a New Orleans Police officer):
JPSO says Don Rell Breaux is the man seen being arrested in the above video.
Sheriff's Col. John Fortunato issued a statement that says, "On March 30, 2014, around 2:50 PM, our 911 Center received a call from a citizen who resides in the 200 block of Marmandie Avenue in River Ridge. The complainant told the operator he needed the police because a black male subject at 207 Marmandie was cursing at him."
The email says that when the officer arrived he met with the complainant who said that he and his wife were sitting outside of their home with their children when their attention was drawn to their neighbor's home at 207 Marmandie.
"It was there, the complainant reported hearing the individuals using profanities. He also believed he could smell the odor of marijuana coming from the area where the individuals were standing. After asking the men numerous times to stop cursing in front of he and his wife, one of the men, described as a black male began directing profanity laced sentences specifically at the both he, his wife and children," Fortunato wrote. "He continued by saying he felt threatened at that time, thus, he chose to call 911. The complainant expressed his desire to pursue charges against the black male who cursed at he and his family. He then directed the officer to the area where the male subjects were standing."
The colonel explained that the deputy planned to issue the neighbor a misdemeanor summons.
"As the officer approached the subjects, he too could smell the odor of marijuana. The officer requested identification from Don Rell Breaux. He was told by Breaux that he had none, however, he might have an ID inside. As the officer walked with Breaux towards the door he told him he was under arrest. As the officer followed him into the doorway with his handcuffs in hand, Breaux attempted to close the door on the officer. The officer continued into the home where a brief struggle ensued. The officer did in fact tell the suspect he was under arrest for resisting an officer, as indicated in the video. Breaux was eventually placed in handcuffs and taken into custody," according to Fortunato.
He says that Breaux was booked with disturbing the peace by cursing, resisting arrest and battery on a police officer.
"Breaux has a prior criminal history with an arrests for: Terroristic Threats & Acts at a school in Georgia, Reckless Conduct, Manufacturing, Distribution & Possession of Marijuana, Simple Criminal Damage to Property and a Probation Violation," Fortunato said in the statement.
Eric Banegas shot the video of the incident and posted it online.
He says on his facebook page, "The jpso report is false in so many areas. They're trying to bring up old charges like that has any relevance to the situation. They need to stop trying to protect these dirty cops and making excuses...the real evidence is on the cameras but I doubt my neighbor will give up his footage..sign of guilt??"
When he posted the video initially, he commented, "This Jefferson parish officer over steps his boundaries..it's a shame that police can pick and choose who they serve an protect."
Breaux says in the video, "You are scaring me. I didn't do anything. "
"You are under arrest," the deputy says.
Breaux asks, "For what."
"For resisting an officer," the deputy replies.
At one point during the video, it sound like the deputy tells Banegas to "get out of here... do not record."
Banegas does not leave nor stop recording.
"I am scared," Breaux says. "Please don't shoot me."
Breaux has since explained that he thought the arrest was "unlawful."
He also claims that the deputy is a friend of the neighbor who called the police.
Constitutional experts have questioned the deputy's right to enter the home and conduct the arrest. Loyola Law Professor Dane Ciolino says the deputy does not appear to use improper force, but the Constitutional law expert does question if Breuax's rights were violated.
"It does not appear the officer affecting this arrest used excessive force," the professor told WWL First News. "I do have serious questions about whether the officer should have entered the subject's house to affect the arrest without having a search warrant."
He says it appears to be a violation of the 4th Amendment to the U.S. Constitution.
"Typically the 4th Amendment requires a search or an arrest warrant to affect an arrest inside of a home... there does not appear to me to be any exception to that warrant requirement that justifies a warrantless entry," Ciolino said. "There doesn't seem to be any compelling reason."
He says the deputy would typically need involve "hot pursuit or a threat of harm to the officer or the public." He says there also does not appear to be the risk of any loss of evidence or escape of the arrestee.
The professor says it does not appear any of that existed in this case. He says the officer should have gone to a magistrate and secured an arrest warrant after showing probable cause.
Listen to Ciolino:
"I don't see any exigency that really called for a warrantless entry," Ciolino said.
He does feel there was probable cause for the officer to believe that Breaux had committed a misdemeanor.