Welcome to Audit the Audit, where we sort out the who and what and the right and wrong of police interactions. This episode covers probable cause, excessive force, and vehicle searches and is brought to us by Police Activities Channel. Be sure to check out the description below and give them the credit that they deserve. On December 5th, 2020, Virginia National Guard Lieutenant Caron Nazario was driving in a newly purchased vehicle when Officer Daniel Crocker of the Windsor Police Department attempted to initiate a traffic stop for a potential license plate violation. Lieutenant Nazario activated his turn signal and slowed down, but rather than pull over on the side of the dark road, he continued driving for about a mile until he stopped at a well-lit gas station. Officer Joe Gutierrez had joined during the pursuit, and the officers exited their vehicles, drew their firearms, and pointed them at Lieutenant Nazario. DRIVER, ROLL THE WINDOW DOWN. PUT YOUR HANDS OUT THE WINDOW. TURN THE VEHICLE OFF. PUT YOUR HANDS OUT THE WINDOW. PUT YOUR HANDS OUT THE WINDOW AND TURN THE VEHICLE OFF. PUT YOUR HANDS OUT THE WINDOW. HE'S NOT COMPLYING, JEFF. Come around your side. Let me see your hands. HOW MANY OCCUPANTS ARE IN THE VEHICLE? What's going on? How many occupants ARE IN YOUR VEHICLE? It's only myself. Why are your weapons drawn? What's going on? Open the DOOR SLOWLY AND STEP OUT. OPEN THE DOOR. I'M NOT getting out the vehicle. What's going on? Get out the car. What's going on? GET OUT OF THE CAR, NOW. OPEN THE DOOR AND GET OUT THE CAR. KEEP YOUR HANDS OUTSIDE THE WINDOW. are right here. What's going on? Get out OF THE CAR, NOW. GET OUT OF THE CAR. NOW. WHAT'S GOING ON? GET OUT OF THE CAR, NOW. GET OUT OF THE CAR, NOW. I'M SERVING THIS COUNTRY and this is how I'm treated? You know what? GUESS WHAT? I'M A FEDERAL, TOO. I KNOW TO OBEY. GET OUT OF THE CAR. What's going on? What's going on? You're fixing to ride the lightning, son. I'm sorry, what? GET OUT OF THE CAR, NOW. WHAT'S going on? Get out of the car, NOW. WORK WITH US AND WE'LL TALK to you. GET OUT THE CAR. YOU RECEIVED AN ORDER. OBEY IT. I'm I'm a I'm honestly afraid to get out. Can I Yeah, you you should be. Get out. What's going on? Get out of the car. GET OUT, NOW. not committed any crime. You did stop for a traffic violation. YOU'RE NOT COOPERATING AT THIS POINT RIGHT NOW. You're under arrest For a traffic detained, okay? You're being detained for a traffic violation. Officer Gutierrez informs Lieutenant Nazario that he's being detained for a traffic violation and obstruction of justice. Under section 46.2-715 of the Virginia Code, quote, "License plates assigned to a motor vehicle shall be attached to the front and the rear of the vehicle." And section 46.2-716 requires that license plates, quote, "Be securely fastened to the motor vehicle in a position to be clearly visible and in a condition to be clearly legible." Although Lieutenant Nazario did have a cardboard temporary plate taped to the inside of the rear window, Officer Crocker claimed not to see it when he initiated the traffic stop due to window tint. After the encounter, Lieutenant Nazario filed a lawsuit against Officer Gutierrez and Officer Crocker. And in a decision resolving the parties' motions for summary judgment, US District Judge Roderick C. Young concluded that the officers had probable cause to stop Lieutenant Nazario for potentially violating the license plate statutes. Additionally, according to section 46.2-817 of the Virginia Code, quote, "Any person who, having received a visible or audible signal from any law enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal or who attempts to escape or elude such law enforcement officer is guilty of a class two misdemeanor." In his opinion, Judge Young referred to several out-of-jurisdiction cases, including the 2018 case of Manners versus Canella, where the 11th Circuit Court of Appeals held that probable cause existed to arrest an individual for violating a similar eluding statute when he continued driving for 2 minutes after a police cruiser turned on its lights and sirens in order to stop at a well-lit gas station. And Judge Young ultimately determined that the officers had probable cause to charge Lieutenant Nazario with eluding. Finally, section 18.2-460 of the Virginia Code states that, quote, "If any person without just cause knowingly obstructs any law enforcement officer in the performance of his duties or fails or refuses without just cause to cease such obstruction when requested to do so by such law enforcement officer, he is guilty of a class one misdemeanor." In the 2007 case of Collins versus Commonwealth, the Virginia Court of Appeals upheld a conviction under this statute based in part on a driver's refusal to comply with a lawful order to exit her vehicle. And in the 2005 case of Coffee versus Morris, the US District Court for the Western District of Virginia concluded that there was probable cause to arrest a passenger who failed to obey an officer's order to remain in her vehicle during a traffic stop. Citing these cases, Judge Young held that the officers had probable cause to arrest Lieutenant Nazario for obstruction because he, now quoting, "Refused to comply with a lawful order to exit his vehicle." Big violation. I do not have to get out the vehicle. You haven't even told me why I'm being stopped. Really? Get your hands Get out of the car, now. Get out the car. Get your hands off me, please. Get your hands off me. You know what? Back up there. I didn't do anything. Don't do that. Sir, get out the car. Don't do that. Hey, sir, get out of the car, now. Don't do I'm trying to talk to you. I'm trying to talk to you. Get out. Just get out the car. you please relax? I'm actively serving this country and this is how you're going to treat me? fingering I didn't do anything. Whoa, hold on. What's going Hold on. I Watch it. I have four OC's. The fourth Get out of the car. GET OUT OF THE CAR, NOW. YES. STOP. SIR, JUST GET OUT THE CAR. I'M trying to breathe. Get up. Get out OF THE CAR. GET OUT OF THE CAR, NOW. YOU'RE GOING TO GET A TICKET. GET OUT OF THE SEAT BELT AND GET OUT OF THE CAR. LOOK, I WAS JUST going to just please You're going to do as you're told. Get out of the car. Look, my hands are out. Take your seat belt off and get out the My hands are out. Don't be swerving. Don't hit each other. My hands are out. Please. My dog is choking and my dog is choking right now. Get out of the car. TAKE YOUR SEAT BELT OFF. WHAT ARE YOU, A SPECIALIST CORPORAL? Are you? I'm a lieutenant. LIEUTENANT, GET OUT OF THE CAR. YOU'RE MAKING THIS WAY MORE DIFFICULT THAN IT HAS TO BE. YOU JUST COMPLY. GET OUT OF THE CAR. I'M REACHING for my seat belt. Fine. Take your seat belt off and get out of the car. Straight out on the ground. Is your commander available? Get on the ground. Get on the ground. talk to me about what's going on? WHAT'S GOING ON? GET ON THE GROUND OR YOU'RE GETTING SPRAYED AGAIN. GET ON THE GROUND. CAN YOU PLEASE TALK to me about what's GOING GET ON THE GROUND. GET ON THE GROUND, NOW. CAN YOU PLEASE TALK TO ME ABOUT WHAT'S GOING ON? Get on the ground. Why am I being treated like this? Why? not cooperating. Get on the ground. This is really Come on, sir. Sir, what Just Just what It's really It's Stay flat. I don't know why I'm being treated like this. And I'm GET DOWN. LAY DOWN. YOU'RE GOING TO GET TASED. STOP. PUT YOUR HANDS DOWN ON YOUR BACK. This is I agree. All you had to do was listen. When Lieutenant Nazario fails to comply with the officers' orders to exit the vehicle, Officer Gutierrez pepper sprays him multiple times and orders Lieutenant Nazario to exit the vehicle or he will be sprayed again. Once Lieutenant Nazario exits the vehicle, the officers order him to get on the ground. And when he does not comply, Officer Gutierrez knees him twice. And the officers eventually succeed in forcing Lieutenant Nazario to the ground and hand of Graham versus Connor whether or not an officer's use of force is excessive depends on whether it is, now quoting, "Objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." In the Graham case, the court outlined three non-exclusive factors that courts must weigh when determining if force is excessive. Now quoting, "The severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Additionally, in the Fourth Circuit, which includes Virginia, courts also consider the extent of the plaintiff's injuries, as the Fourth Circuit Court of Appeals noted in the 2019 case of Hupp versus Cook. In his decision regarding summary judgment in Lieutenant Nazario's lawsuit, Judge Young weighed these four factors and determined that the first and third factors weighed in favor of Lieutenant Nazario, that the fourth factor weighed in the officers' favor, and that, now quoting, "The second factor can favor either party, depending on in whose favor the evidence is viewed." Ultimately, Judge Young concluded that he could not determine whether or not the force was excessive at the summary judgment stage, as, quote, "The reasonableness of an officer's actions is a question for a jury." But ultimately granted summary judgment to the officers, finding they were entitled to qualified immunity because, now quoting, "There is neither controlling authority nor a consensus of persuasive authority for the proposition that there is a clearly established right prohibiting the aiming of firearms, the use of threats, or the use of OC spray against a suspect who has repeatedly refused to comply with lawful commands to exit a vehicle." Stop. Can you open up the window for my dog? I am choking. Can you open up the window, please? Yes. Yes, we will. Stand up, McCray. Is there any weapons on you, sir? No. Okay. Any weapons in the vehicle? Yes. Okay. Why why didn't you do what we asked, sir? Why didn't you do what we asked? complying, man. No, you weren't. My partner put his blue lights on. Yes. You didn't stop. I was pulling over to a well-lit area for my safety and yours. I have respect for law enforcement. No, you don't. No, you don't. Sit Sit right on this curb right here. Okay. Turn around. Come sit on this curb. What's backwards? Why didn't you stop? Why didn't you stop? It's a simple traffic stop. It's dark over there. Those areas are dark. I did not feel comfortable Areas are dark. I didn't feel comfortable over there. Where are the medics? They're here. I I I need them to talk to me. What's What's going on? beside you. I didn't commit any crime. I'm leaving tonight. I'm not going to jail. I need something to be done for my eyes. Nothing I can do to help you with your eyes. Wipe my face or do something. Let me talk to him. Come talk to the sergeant. Then you need to get out. We asked you to come out. You don't try to take off on us. We'll keep the handcuffs on you for your safety. We'll sit here till I can figure out what's up or why you didn't want to stop for them. They'll probably leave you alone. It's a dark area. I'm pulled over to a well-lit place. That's fine. You didn't tell him that. I told him that, and that's why I don't understand why I'm still in the car. how do you say your last name? Nazario. Can you please take the cuffs off me? No. There's nothing going on. There's nothing wrong. Come on. Well, obviously there is cuz you wouldn't comply with us. All we did was ask you to get out of the car. So, hold on. Before we get to that, my medics are still here. You still need my medics? Yes, let me stay here. We'll stand by you. Look, I can stay here as long as you need us. We'd be done by now. Cuz it's a simple traffic It's a traffic violation. Driving all the way down here here and you you felt like you passed a well-lit parking lot there, but look here. You felt Hold on. You felt uncomfortable here, okay? Coming here was not the problem. The problem is when you refused to get out of the car. When you We got here and you stepped out of the car, I can promise you this would have been over by now. All right. Well, specifically, he was asking about weapons. What kind of weapons you got in there? They're right there. I'm sure he's sorry already. No, I mean, you just got a handgun or you got a long gun? have a handgun. I got it. It's not a firearm. Simple. Where is the sergeant? Can you get him out? Officer Crocker enters Lieutenant Nazario's vehicle and searches for his firearm. After he locates the firearm and exits the vehicle, he radios the serial number to dispatch. And when dispatch confirms that the firearm is not stolen, he returns it to the vehicle. Although there are situations officers may conduct a warrantless search of a vehicle incident to the arrest of a recent occupant, as the Supreme Court outlined in the 2011 case of Davis versus United States, such a search is only constitutional, quote, if the arrestee is within reaching distance of the vehicle during the search, or if the police have reason to believe that the vehicle contains evidence relevant to the crime of arrest. Likewise, under the so-called automobile exception to the warrant requirement, which was established by the Supreme Court in the 1925 case of Carroll versus United States, officers may search a vehicle without a warrant if they have probable cause to believe it contains contraband or evidence of criminal activity. And under the so-called plain view doctrine, which the Fourth Circuit outlined in the 2012 case of US versus Davis, officers may seize an object without a warrant if, quote, the officer was lawfully in a place from which the object could be viewed, the officer had a lawful right of access to the seized items, and the incriminating character of the items was immediately apparent. In his lawsuit, Lieutenant Nazario argued that Officer Crocker's entrance into his vehicle to search for the firearm and his examination of the firearm for its serial number both constituted illegal searches. Judge Young determined that the search of the vehicle was not justified as a search incident to arrest because nothing in the vehicle was in Lieutenant Nazario's, quote unquote, reaching distance as he, now quoting, was handcuffed, surrounded by a police officer and two medics, and his arm was being held by Defendant Gutierrez throughout the search. And because, now quoting again, the firearm was not relevant evidence for the crimes of eluding or obstruction of justice, which were the crimes of arrest. Likewise, Judge Young concluded that the automobile exception and the plain view doctrine did not apply because all the facts apparent to the officers at the time would have pointed to Lieutenant Nazario's possession of the firearm being lawful as Officer Crocker knew that Lieutenant Nazario had a concealed carry permit. Accordingly, Judge Young ruled that the search of the vehicle was unlawful and granted summary judgment to Lieutenant Nazario as to his claim that Officer Crocker violated his Fourth Amendment rights through an illegal search. However, Judge Young also determined that, quote, the separate act of calling in the serial number was not an unlawful search because Lieutenant Nazario, now quoting, did not have a privacy interest in the serial number. Now, in reaching this conclusion, Judge Young relied on the 1992 case of US versus Kenny, where the Fourth Circuit Court of Appeals noted that, quote, the only fact that officers could determine from the serial numbers was whether the guns were contraband, which, now quoting again, cannot be the source of a privacy expectation that our society is prepared to consider reasonable. All right. Now, I have no chest pain and I'm short of breath. Now, is my dog okay? Yes, sir. Yeah, my partner's checking on him. You all right if I pop the trunk? Yes, sir. Hey, Paul. Sergeant, what happened? Why wouldn't you comply? I looked out the mirror and I saw guns drawn. I put my hands out. And we told you we identified ourselves. We told you to step out of the vehicle. All you had to do was comply and we'd have been done by now, okay? All right, Mr. Nazario. It's just looking out the mirror and seeing your guns out already. That's why I was asking like, what's what's going on? I was just All right. How's your eyes doing today? Better. We can either sit here with you until you get your eyes back where you can see, and I mean at a good distance you're safe to drive, okay? Go do your deployment. Go continue serving my country, which I respect and I thank you for, okay? Or we can push the issue, write you tickets for no uh license plate displayed, and for resisting or not resisting, obstructing of justice. I don't even need to go that route because that route makes the army get involved, and I know how they are. But if you plan on making this a career or even 6 years or whatever, it's up to you. I don't care. There's no need to get this on your record. I have I do have a good rapport with my command, so I wouldn't tell Not talking to nobody, That's entirely up to you. I'll put it this way then for you. They're going to hear it from you. They will not hear it from us. It's always better for your command to hear it from you first than somebody else. Especially with law enforcement. That's never a good thing. Pray to let him know. Once Lieutenant Nazario was able to drive, the officers allowed him to leave without any citations, and no charges were ever filed against him. On April 11th, 2021, approximately 4 months after the encounter and less than a week after footage of the traffic stop went viral, Officer Gutierrez was fired for failing to follow department policy during the interaction with Lieutenant Nazario. While discussing the termination, Windsor Police Chief Rodney Riddle told the press that he, quote unquote, lost faith in Officer Gutierrez's ability to serve the community, and that due to social media posting and media coverage of the stop, there was no way that Officer Gutierrez could engage in the community in an effective manner anymore. Although he admitted that the officers, now quoting, missed opportunities to verbally de-escalate that situation, to engage Mr. Nazario in a positive manner, and use language to gain compliance from him, Chief Riddle defended his decision to keep Officer Crocker on the force, explaining that, now quoting again, Officer Crocker had just graduated from the police academy back in October and was still in his field training phase, and noting that Officer Crocker made several attempts to de-escalate verbally. A criminal investigation was launched into Officer Gutierrez's conduct, and special prosecutor Anton Bell determined that although Officer Gutierrez should be investigated for potential civil rights violations, he should not be criminally charged. In a letter dated July 29th, 2022, the special prosecutor wrote that, quote, although I find the video very disturbing and, frankly, unsettling, Gutierrez's use of force to remove Nazario did not violate state law as he had given multiple commands for Nazario to exit the vehicle. Virginia's attorney general also launched an investigation after this incident, and on December 30th, 2021, filed a lawsuit against the town of Windsor based on evidence of discriminatory, unconstitutional policing allegedly uncovered during the months-long investigation. According to the attorney general, the investigation revealed, quote, huge disparities in enforcement against African-American drivers and a troubling lack of policies and procedures to prevent discriminatory or unconstitutional policing. As of the date of writing this episode, this case is still pending. As we discussed earlier in this episode, Lieutenant Nazario filed a federal lawsuit against Officer Gutierrez and Officer Crocker on April 2nd, 2021, alleging that the officers had violated his constitutional rights during the stop. In addition to arguing that the officers had used excessive force and illegally searched his vehicle, Lieutenant Nazario claimed that the officers had unreasonably seized him in violation of the Fourth Amendment by aiming their firearms at him, giving conflicting commands, and making threatening statements, and that they had violated his First Amendment rights by threatening to arrest him if he chose to exercise his freedom of speech by complaining or arguing about their behavior. Lieutenant Nazario's complaint also included state law claims for assault, battery, false imprisonment, and illegal search. On August 9th, 2022, Judge Young issued an opinion regarding the parties' respective motions for summary judgment, which we've discussed several times in this episode. In his decision, Judge Young granted summary judgment to the officers on the unreasonable seizure, excessive force, and First Amendment claims, concluding that the officers were entitled to qualified immunity, and granted summary judgment to Lieutenant Nazario on the federal and state illegal search claims against Officer Crocker, but not Officer Gutierrez. The remaining claims went to trial after Lieutenant Nazario turned down a $100,000 settlement offer from Officer Gutierrez and a $50,000 settlement offer from Officer Crocker. And on January 17th, 2023, a jury awarded Lieutenant Nazario $2,685 in compensatory damages from Officer Gutierrez after finding him liable for assault and $1,000 in punitive damages against Officer Crocker for his illegal search on the vehicle. The jury also determined that neither officer had falsely imprisoned or battered Lieutenant Nazario, that Officer Crocker did not assault him, and that Officer Gutierrez was not liable for the illegal search of the vehicle. Lieutenant Nazario filed an appeal with the Fourth Circuit Court of Appeals on June 15th, 2023, and as of the date of writing this episode, the case is still pending. Overall, Officer Gutierrez Crocker get an F for unnecessarily pointing their firearms and using pepper spray, illegally searching Lieutenant Nazario's vehicle, and discouraging Lieutenant Nazario from complaining about their conduct by threatening to arrest him if he did. Now, although Judge Young may have concluded that the officers were entitled to qualified immunity for much of their conduct, this does not mean that it was professional, ethical, or even constitutional. And as Chief Riddle pointed out, the officers missed several opportunities to verbally de-escalate rather than use force or simply bark commands. Even though Lieutenant Nazario refused to get out of the vehicle, he did not appear to be a threat as he kept his hands outside the window and explained that he was afraid to exit. And Officer Gutierrez even agreed that he should be before immediately ordering him to comply with his orders. Had the officers attempted to respond to Lieutenant Nazario's repeated requests for an explanation and talked to him like a human being, well, they may have been able to convince him to step out of the truck or even resolve the underlying traffic stop while allowing Lieutenant Nazario to remain in the vehicle. Instead, they insisted on total compliance with their commands. And acting out of a seemingly bruised ego, Officer Gutierrez used pepper spray on a non-violent army lieutenant in uniform who already felt unsafe in the situation. Lieutenant Nazario gets a B for failing to pull over immediately for the traffic stop and refusing the officers' commands to exit the vehicle. Now, while I understand Lieutenant Nazario's apprehensions about pulling over on a dark road and exiting the vehicle, the unfortunate reality is that Virginia law likely did not allow him to decide where he would pull over or whether it was safe to comply with the officer's order to get out of the truck. That being said, Lieutenant Nazario certainly did not deserve to be pepper sprayed, and I commend him for maintaining a calm and respectful demeanor throughout the encounter and taking steps to defend his rights by filing a lawsuit. This interaction highlights how the law fails to account understandable concerns about potential police misconduct that exist in the minority community, and often requires individuals to ignore their internal sense of safety to blindly comply with officer commands. Let us know if there is an interaction or legal topic that you would like us to discuss in the comments below. Thank you for watching, and don't forget to check out my second channel for even more police interaction content.