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  • Writer's pictureDavid A. Cmelik Law PLC

Criminal lawyer: police reports wrong?

What to know: police reports are not evidence but they are a roadmap to the prosecution. Moreover, legal conclusions in police reports, like "plain view," are not the final word on Fourth Amendment issues like the plain view exception to the warrant requirement. Police officers are trained to write a certain way to bolster the prosecution and their reports will reflect that style.

Law enforcement and defendants often disagree on the official versus the unofficial version of events. Interspersed among undisputed facts, e.g., “I Officer Friendly was on patrol at 1300 hours on January 1 and traveling southbound on Highway 123” are opinions and speculation subject to interpretation. It will take a trained eye to discern them and their importance. For example, an officer may suggest that he saw, right there in “plain view” contraband of some kind or that some fact reflecting poorly on the defendant “should be noted."

“Plain view” is a legal conclusion for which the officer’s opinion is not the last word. Warrantless searches are per se unreasonable to the Courts in Iowa. If a defendant challenges the assertion that an officer seized alleged contraband “in plain view,” the State is required to come into Court and prove the contraband and its criminal nature was truly plainly apparent. That doesn’t stop the officer from asserting “plain view” legalese in his or her report. It’s self-serving.

Which is another reason why police reports are themselves not admissible in the courtroom before the jury. Like a bag marked “EVIDENCE” in big, bold letters, police reports are officious self-serving documents prepared in anticipation of litigation with all the prejudice that entails. State's evidence is not what the police says it is; it’s what the judge says it is, as in, all State exhibits marked, offered, with proper foundation, are offered by the State, but subject to Defendant’s objection, and the review and final scrutiny of the Court. Only when the Judge says that an exhibit is admitted is it evidence and the bag that suggests that it’s evidence ahead of time is merely police wishful thinking posing as fact.

It reminds me of the Grant Wood painting, “Posted: No Hunting Aloud.” We’ve all seen these signs that are “posted.” The humor lies not only in the mistaken homonym but the officious nature of the posting that announces itself as “posted.” The act of posting something doesn’t need narration. Actually posting it is enough. Otherwise, I would start every sentence with “I’m writing down right now something that I want you to know. Here is that tidbit of knowledge: [said tidbit of knowledge].”

These officious law enforcement assertions are not limited to legal assumptions like “evidence” and “plain view.” I once represented a woman who was accosted by a police officer in her own home. In the officer’s so-called “law enforcement narrative” (“law enforcement narrative” is to “police report” what “vehicle” is to “car” in the translation of fancy police language to everyday talk), the officer suggested that “it should be noted” her house was in disarray and that toys were not picked up.

First, this officer was obviously not the primary physical caregiver for a child under the age of ten. If he had checked the refrigerator to see if the milk were expired, I would have misidentified him as a social engineer employed by child protective services, a closely related species.

As a defense attorney, whenever a police officer dictates in his report that “it should be noted,” my ears perk up. That’s because an officer who uses the utterly passive voice phrase “it should be noted” is really saying, “just so you know, I’m right about this defendant and here’s some circumstantial evidence of which I am aware, and of which you should immediately take note. It may not be legally binding, or really even logical, but, hey, it should be noted.”

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