Learning the Job 

By Detective (Retired) Martin Swirko

Manchester NH Police Department

I never thought that being a good cop required a high degree of formal education beyond high school and certainly not a college degree. Looking back at my career, I came to the conclusion that the most important characteristics needed were common sense and experience. Both cannot be overstated. Much of what you learn about police work and the law in general comes with experience, which equates directly to time on the job. Naturally, as you go through your career you are constantly going to school to learn updated technical skills and current court decisions regarding things like search and seizure, the use of force, ever-changing duties and standards of care and conduct. You must how to apply those updates to what you do on the street daily. It goes without saying that integrity is paramount, and we could certainly delve into other attributes that are necessary for any cop to succeed and have a meaningful police career.  

However, no matter how much education and training you may have, there are just somethings you learn by trial and error, and you hope that at the end of each shift, you can look yourself in the mirror and know that whatever decisions you made during that shift, you did so in good faith, and that you made what you believed at the time was the correct decision. And when we make these decisions, often without a lot of time or information available at the time, we do not only look at legal aspects, but also have to insure your decision was ethically and morally correct.

Stated another way, you not only have to learn the law, but you must also develop the ability to apply the law in each an every situation in the way it was intended by the legislature. And I can assure you that there are times when a law may be applied to a specific situation, but when that law was applied, it was not what the legislative intent or spirit of the law intended. But mistakes in judgement are unavoidable, and when you consider the number of decisions that a patrol officer makes during his or her eight hour shift, these mistakes are inevitable. At times, the best we can hope for is that any mistake we made didn’t cause any unintended problems or consequences for those who were affected by the mistake, whether a victim, perpetrator or bystander. Finally, once you are aware of a mistake you must learn from that mistake and never repeat it. So, my story today is about mistakes I made during an arrest early in my career. As you continue to read, please understand that the mistakes made in this case were honest mistakes and in no way intended to take a short cut or otherwise circumvent any law or constitutional protection just to make a case against the suspect we ultimately arrested. 

I had probably been on the job for about two years or so (in my world  a cop isn’t considered a veteran policeman until he or she has at least 5 years on) so however salty I may have felt at the time, I still had a lot to learn. 

On this particular day I was working in Patrol on a route that was just north of downtown Manchester, NH. I was working 330 PM-Midnight, and I found it to be a typically busy weekday afternoon after I got out of roll call and called into service. 

I hadn’t been out very long when I overheard a BOLO (Be On The Lookout) for a particular car that had been involved in a hit and run collision on the Amoskeag Traffic Rotary which was on the west side of the city. Someone at the scene had obtained an accurate plate number (highly unusual) and description of the suspect vehicle which had fled the scene a short time earlier. The address and name of the registered owner was also broadcast along with where the damage to the hit and run vehicle would most likely be. Well, the address where both suspect and car lived was on my route.  

The address was, I believe, on  Pearl St, only a few blocks east off of Elm St. For anyone who doesn’t knows the area, those streets are separated by back alleys that run in between and in rear of the houses on adjacent streets. Often, and it was in this case, there were older garages in the alleys that belong to the houses nearby and residents could park their cars in these garages rather than on the city streets in front of their buildings. So, I headed for that address in the hope I could intercept the driver and car if it had headed home from the crash site after it fled. 

When I arrived, I cruised the neighborhood looking for the suspect car. No luck, initially. As I cruised the alley behind the house that the car was registered to, I saw a row of attached garages directly across the rear alley where the suspect lived. I got out on foot, and I found most of the garage doors had windows in them which allowed me to peek inside form the alley. 

Bingo! The suspect car was parked in one of the garages, facing inward, so I was only able to see the back of the car. I do not recall if I could read the rear license plate on the car from outside or not, but thinking about it, I don’t think it mattered in the end. Despite that, I was pretty sure I had the correct vehicle. The driver made it home without being stopped by the police and hid the car. I radioed to the investigating officer at the crash scene and told him that I had found his car. I stood by and waited for him to clear the collision scene and head over to my location. 

The officer who was handling the call was an older, more experienced cop who I had a lot of respect for. He arrived, and when I took him to the garage, he tried the door and I was surprised it was unlocked. Without hesitating, he then raised the door entered the garage and inspected the car further. 

Now initially, my instinct was that perhaps we needed a search warrant to enter that garage. But he went into the garage immediately with no time for discussion and I followed him in if for no other reason than to cover his back incase our suspect or someone else happened to be hiding there.

There was no one in the garage, but we could confirm from the plate and description, and the damage on the front end of the car, that this in fact was the suspect vehicle. We also noted that the windshield was “spiderwebbed’ on the drivers side (something that we couldn’t have observed from outside the garage) and that kinda changed the complexion of the investigation because we now had reason to believe the driver had been injured, possible seriously. I believe there was hair and a bit of blood on the windshield as well. We also noted a couple of beer bottles in the front on the floor, some open and empty, others unopened. This was certainly evidence of DUI. Also, we found the car was unlocked. We went on to take various photos of what we had found (the car, damage and beer bottles) then removed the bottles from the car for evidence. I did have a brief discussion with him at one point, and he felt that because we could see the car from outside of the garage, in other words, because we were lawfully present when we discovered the evidence inside, we could seize the evidence with a search warrant. I knew that what he was saying was true on it’s face, so I relied on his judgement and experience and we continued to note our observations and take evidence from the scene. 

Now just a word now about Search and Seizure law. Evidence of a crime can be seized by police without a search warrant if 1) The evidence is in plain view and is obvious at the time it is evidence of a crime and 2) If the officer who observes the evidence is lawfully at the location when he or she first observed the evidence. There are exceptions to that rule based on exigency and other issues, but generally speaking, those two points I make here allows police to seize evidence without a search warrant. When a cop seizes evidence without a warrant (or occasionally with a warrant) and that seizure is later ruled by the courts to be unlawful, the standard remedy (as long as the cop did so in good faith) is applying the “exclusionary rule” and the evidence is thrown out and not allowed to be presented in court. 

The search and documentation of the car and it’s contents then being complete, we had the task of trying to locate the owner of the car, who was the suspect. We went to his apartment, and not only did we find the rear entrance to his kitchen unlocked, it was partially open. We announced ourselves before we entered the apartment, but there was no response. Since we had reason to believe the suspect may have been injured and possibly in need of medical attention, we decided to search the apartment for him. I had no issue entering his apartment at this point based on the fresh information we had and the circumstances present. I believed then that the entry was lawful, and still do. Once inside, we found the suspect passed out in his bed. We roused him from what I believed at the time was an alcohol induced slumber and got him out of bed. 

The first thing we noticed was a bump and small bruise on his forehead. This generally appeared to me to match up with the damage to his windshield and directly tied him to the collision he fled. The second thing we noted was that he appeared to be very drunk. We asked the suspect if he was alright and offered to call an ambulance to have him checked out. He said he was fine and declined our offer. The officer I was then started to question him about the collision, fleeing the scene, then conducted a field sobriety test inside the bedroom. The suspect failed the field sobriety test miserably. 

Once completed, the officer placed the suspect under arrest and charged him with DUI and fleeing the scene of an accident (known under NH law as Conduct After and Accident) We got the keys to the apartment, locked it up for the suspect, and called for a wagon. It was the other cop’s call and arrest, so he went into the PD to process the prisoner and do the paperwork. In my mind, we certainly developed enough evidence beyond a shadow of a doubt that this guy was the culprit who fled the scene. In fact, the reason he fled the scene was most probably because he knew he was drunk. I thought it was a good arrest. As the case made it’s way through the system, I learned the suspect would not take a plea, and so several months later the case went to trial. 

The day of the trial came, and I noted that a particular judge who wasn’t assigned to Manchester District Court but often filled in there was hearing this case. I had been before her many times in the past and found her to be a very polite judge to all parties involved and very respectful. However, I had come to judge her as defendant’s judge and therefore soft on criminals for many reasons I won’t go into here. Therefore, based on my previous experience and observations I wasn’t confident that our case would be as “Open and Shut” as I thought it would be. 

What normally happens during trials is that the witnesses that are to testify to the crime are sequestered on the day of the trial, in this case that meant that once the trial began the other cop and I could not talk to each other about the trial, the case, or the testimony we gave or heard. It also means and we can’t be in the courtroom during the trial other than when we were actually giving testimony. Once being sequestered, I, along with other cops involved always scrupulously followed those rules. So it was that when it was my turn to testify later in the day, I had no idea what had transpired before I got on the stand.  

Once I was sworn in, the prosecutor took me through my involvement and observations that day, and when he finished with me, the defense attorney started to question me. He took me through the whole thing, step by step, questioning me about everything I did, everything I saw and why I did what I did. I’m sure he was probing for inconsistencies between my partner’s and my testimony as well as my reports. Finally, after about an hour , maybe more, of answering his questions, the defense attorney asked me if I believed at the time that I was conducting a lawful search when I entered the garage without a search warrant. 

I thought for a brief moment. I realized what the attorney was fishing for as he questioned me, and what his defense was for his client. I figured I was in a tight spot, and the case was on the line. I then answered with the following statement:  “WELL, IF I HAD TO DO IT OVER AGAIN, I WOULD HAVE OBTAINED A SERACH WARRANT BEFORE ENTERING THE GARAGE”. Which was certainly true, especially after I realized this arrest and case would be based on the legality of the search we made when we entered the garage which was private property.  

My answer appeared to surprise and take the defense attorney aback for just an instant. It was apparent to me that he wasn’t expecting that answer. I think he was hoping to make me appear incompetent and at worse, paint my actions in a nefarious light. After a pause, the defense attorney changed his demeanor. The seconds ticked by as I waiting for this attorney to pounce on me and really sink his teeth into me and my actions. After giving some thought, he then made the following statement to me: “WELL, THAT’S FAIR ENOUGH.” He then told the judge that he had nothing further for me. It was apparent that he felt he got what he needed from me and I was always thankful he didn’t turn my testimony into a real shit show. The prosecutor and defense attorney made their closing arguments and the judge came to a rapid decision, but took some time and trouble to explain her reasoning on each issue presented at the trial. 

Ultimately, the judge found the defendant not guilty of all the charges. The reasons she gave for doing so went a long way to guide me through similar circumstances and cases for the rest of my career. 

The judge ruled that once I observed the car through the window of the garage, I should have then stopped, and obtained a search warrant (or permission form the suspect) to enter the garage. Furthermore, she ruled that once in the garage, we should have obtained a further search warrant (or permission from the suspect) to enter his car. I’m not sure I agree with that second ruling, since the items we saw in the car were in plain view and could be recognized immediately as evidence of a crime. In any case, she disallowed any evidence or observations we made once we entered the garage without a warrant. 

Furthermore, the judge then went on to invoke the Fruit of the Poisonous Tree Doctrine of constitutional law. This legal principle states that ANY and all evidence or information obtained / gained from an unlawful search cannot, under any circumstances be introduced as evidence in a trial. Therefore, when we relied on that evidence to then continue our investigation and use it for probable cause or even use it in developing probable cause for arrest, anything we gained from the suspect could not be used against him because it was fruit of the poisonous tree, the unlawful search. 

The judge went on to say that even if the search of the garage and car were carried out legally, our observations of the suspect, his condition or behavior were not evidence enough to convict him of DWI in this case. 

The judge noted there was compelling evidence to believe the suspect hit his head, therefore his behavior during the field sobriety test could reasonably be attributed to head trauma, and we certainly did not provide any evidence to dispel that possibly. The burden was upon us to prove that wasn’t the case, not on the defendant to prove it was.

Furthermore, regarding the strong smell of alcohol on the suspects breath at the time we made contact with him, we had to prove that he was intoxicated at the time of the accident, and enough time had passed that unless we could prove he didn’t consume alcohol after he arrived home, there was no proof he was actually under the influence when he drove his car into the garage, never mind the accident he was alleged to have caused. 

Finally, the judge noted that regardless of the issues mentioned, and even if we assume his car was involved in the hit and run, we presented no evidence that he was driving the car at the time of the accident and he was the one who fled. There was no ID made by the victims or any other witness, and not that it would have been admissible in this case, the suspect himself did not admit to us that he drove the car or even was involved in the accident. 

You may be able to imagine how disheartened I was as the judge just went down the list and ticked off the reasons we screwed this case up. However, there was one bright spot as I sat in the courtroom and felt publicly humiliated.

The judge called me out by name, saying that, in spite of the outcome of the case, in her opinion Officer Swirko would have been derelict of duty, knowing what I knew, regardless of whether or not I had obtained a search warrant, had I not entered the suspect’s apartment and insured that the suspect was not injured or in need of immediate medical care. She emphasized (possibly for the defense attorney, and possibly for the other cops present) that we have a duty to follow up and ensure that members of the pubic are not injured or need care, even if we enter or force entry into an abode without permission under certain circumstances, and this was certainly on of those cases.

In the end, I walked out of the courtroom well chastised but feeling a little better about the day. It was obviously important to the judge to make that final statement, for whatever reason, and it certainly made me feel less of a heel after getting my you know what whacked for executing a search and arrest that the judge deemed unconstitutional. 

I made many DUI arrests during my career, but the lessons I learned that day were invaluable to me and I applied them to every case I became involved with. I never made those mistakes again. The judge’s assertion that I had a duty to enter and check on the well being of the suspect guided me throughout my career when confronting those situations. Many times I found it prudent to force entry into apartments to check on the occupants well being when I had a valid reason to do so. Appellate court decisions throughout the years that followed only bolstered that judges assertions during that trial. 

Today, when I think about it, that court case really educated me on many levels and immediately had an effect on how I did my job from that day forward. That is one reason I choose to write about and share this experience. With one exception, that case turned to be the only DWI case I ever lost during my career, and as I think about it, this really wasn’t my case or arrest in the first place. I eventually came to the conclusion that if the arresting officer did his or her job correctly when making a any DWI arrest, the case would always end in a conviction and very difficult for any defense attorney, no matter how experienced or high priced that attorney may be. I certainly never held any anger or hard feelings towards that attorney, he did his job and did it well, unlike my partner and I did that afternoon. 

As for me, I am just happy that I made those mistakes in a case where no one was seriously injured and the charges were misdemeanors. No one’s life was negatively impacted. Of course the suspect had been arrested and needed to hire a lawyer so he was certainly inconvenienced.  Other than minor damage to her car, and whatever hoops her insurance company put her through, the victim was OK in the long run. But hey, in the end, we all knew, including the judge, that the suspect did what he was accused of doing, so I don’t feel overly sympathetic to him. I hope he thought better of drinking and driving after that experience. And, if I had done my job better, we would have obtained a conviction.