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  1. #1
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    Default Probable Cause Statement and Wrongful Arrest

    This is regarding criminal and perhaps civil/tort law in the state of NM

    About 2 months ago I was arrested for assault on a household member. Since I was arrested, obviously the officer filed a criminial complaint that was noted on the probable cause statement.

    My question is what info is required in a probable cause statement to validate arresting someone for assault on a household member. Is the lack of certain facts sufficient to invalidate a probable cause statement and therefore be considered wrongful arrest/false arrest.

    I know officers are individually given qualified immunity in cases where the final disposition is a non-conviction. But is there anyway to sue the state police dept or anyone for an arrest that didn't meet the thresold for probable cause?

  2. #2
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    Default Re: Probable Cause Statement and Wrongful Arrest

    Yes. You can't sue the individual officer unless you have evidence of gross misconduct, but you can always sue the state for wrongful arrest. (That's assuming it was the state police; depending on which department it was, you may have to sue the city or county instead.)

    Keep in mind, however, that suing the state, city, or county is much harder than suing an individual. You may be required to file specific documentation within a short timeline. Without it, your only recourse will be a federal civil rights lawsuit, which can limit the claims you can make and the damages you can recover.

  3. #3
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    Default Re: Probable Cause Statement and Wrongful Arrest

    Update:

    I had my pretrial conference last week. Not much happened......I rejected the token plea from the DA. So it seems the case is headed to trial.

    The state doesn't have much leg to stand on since the alleged victim and other witnesses are ready to testify on my behalf that the probable cause statement is filled with false quotes attributed to the alleged victim. My attorney filed a. Motion for Discovery about 2 months ago when he made his entry of apperance.
    Don't know when they are required to present it to us or if it is standard for police to record all conversations or if they convieniently deleted the tapes. At any rate the allege victim is eager to testify along with witnesses who observed the police interview. We also plan on reviewing the 911 tapes. The police officer claims he was dispatched about a "domestic" in his probable cause statement. I have spoken to the independent individual who made the call and she claims the call was not about a "domestic". Trying to determine if that is the case.....if the police had any right to enter our residence without a warrant and/or probable cause of a crime. They simply walked in.

    I also discovered that the arresting police officer was biten by one of our family dogs at some point in the investigation at our residence. Don't know if that plays a factor in the judgement,impartiality, and/or motive in the officer decision making

    My question is is it best to ask my attorney to present a motion for dismissal, wait to see if the DA dismisses, or play it all out for an acquittal with facts/evidence on record. I do plan on filing a tort claim once the criminal case is resolved and I am wondering if I can transfer evidence used in the criminal case towards a potential cival case.

  4. #4

    Default Re: Probable Cause Statement and Wrongful Arrest

    Quote Quoting dmartin
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    The state doesn't have much leg to stand on since the alleged victim and other witnesses are ready to testify on my behalf that the probable cause statement is filled with false quotes attributed to the alleged victim.
    Then it'll come down to which version the jury finds to be more credible; the police officer, or the victim (who, the DA will inform them, will lie or deny everything under the sun in 90% of DV cases to protect the accused).


    My attorney filed a. Motion for Discovery about 2 months ago when he made his entry of apperance. Don't know when they are required to present it to us or if it is standard for police to record all conversations or if they convieniently deleted the tapes.
    Most agencies these days don't use tapes anymore. Electronic versions have become the norm and are typically kept for a year or longer, depending on both state law and the department's policy (could be much longer).

    The police officer claims he was dispatched about a "domestic" in his probable cause statement. I have spoken to the independent individual who made the call and she claims the call was not about a "domestic".
    The classification was made by the dispatcher who took the call. If there's some sort of disturbance between people who live together or have a child together, even if it's not physical, it's a "domestic". It's not about WHAT is happening, it's about WHO it involved in the incident.


    Trying to determine if that is the case.....if the police had any right to enter our residence without a warrant and/or probable cause of a crime. They simply walked in.
    Given that "domestics" have a high rate of danger to parties concerned, exegent circumstances may have existed that allow police to enter without knocking or seeking a warrant. Keeping in mind the reasonableness of that action isn't based on what was ACTUALLY happening, but rather what the officer, given what they knew at the time, could reasonably suspect. If the dispatcher is telling the officer that there's yelling, screaming, sounds of a struggle, or lots of other things, police have a duty to act to quickly intervene and separate parties.

    I also discovered that the arresting police officer was biten by one of our family dogs at some point in the investigation at our residence. Don't know if that plays a factor in the judgement,impartiality, and/or motive in the officer decision making.
    Your attorney can certainly introduce that as a factor.

    My question is is it best to ask my attorney to present a motion for dismissal, wait to see if the DA dismisses,
    The DA obviously thinks they have a case, or they woulnd't have brought it. If a motion to dismiss is filed, it's the JUDGE, not the DA who'd be doing the dismissing.


    or play it all out for an acquittal with facts/evidence on record.
    Your attorney, who is familiar with the judge, the prosecutor, and similar cases before your local court, is the ONLY person who should answer that question for you.


    I do plan on filing a tort claim once the criminal case is resolved and I am wondering if I can transfer evidence used in the criminal case towards a potential cival case.
    Typically yes, including the transcript of the criminal case.

  5. #5
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    Default Re: Probable Cause Statement and Wrongful Arrest

    Quote Quoting aardvarc
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    Then it'll come down to which version the jury finds to be more credible; the police officer, or the victim (who, the DA will inform them, will lie or deny everything under the sun in 90% of DV cases to protect the accused).
    True.....but in criminal cases for a conviction isn't there such a thing as "beyond a reasonable doubt" rather than "preponderence of evidence". I don't think the DA can simply accuse the victim of lying unless she has evidence to the contrary. Lastly it won't be up to a jury. I choose a bench trial instead.

    Quote Quoting aardvarc
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    The classification was made by the dispatcher who took the call. If there's some sort of disturbance between people who live together or have a child together, even if it's not physical, it's a "domestic". It's not about WHAT is happening, it's about WHO it involved in the incident.

    Given that "domestics" have a high rate of danger to parties concerned, exegent circumstances may have existed that allow police to enter without knocking or seeking a warrant. Keeping in mind the reasonableness of that action isn't based on what was ACTUALLY happening, but rather what the officer, given what they knew at the time, could reasonably suspect. If the dispatcher is telling the officer that there's yelling, screaming, sounds of a struggle, or lots of other things, police have a duty to act to quickly intervene and separate parties.
    I understand. But the contents of the 911 call could determine if the officer had any suspicion that a crime was occuring. From what I understand, the officer/ambulance made two visits that evening. The first visit was based on the 911 call that someone thought I had taken aspirins. Before anyone could arrive....I left the scene because I wasn't gonna pay for an ambulance visit when I never made the call or wasnt in need of medical attention. So I left because I can and because I felt like it. Thus I am not aware of what was communicated during that first visit and if it warranted a 2nd visit later. I returned home after about 2 hours and then the officers returned a 2nd time. Alot of muddy waters and circumstances.....so i guess that is what my lawyer is for to determine the basis of the call. Is it a criminal affair or a medical affair. Probably the contents of the 911 call and/or other police multimedia recordings will clarify alot.

    Bottomline I know there are different pieces to the puzzle when it comes to any case and/or police action. Some may stick and some may not. I know that. Police might have had certain rights to some of their actions and then they might have over stepped their legal boundries in others.

    Without getting off my intial topic regarding probable cause. In the officer's probable statement it stated that the alleged victim was "afraid" and wanted "info" on a restraining order. It stated I was "arguing" with family members. Once again I have independent witness(es) who observe the entire situation and the police interview with the alleged victim and can testify. The officer convieniently forget to mention that while the alleged victim was "afraid" it was not for herself but rather my own medical well being. Don't believe simple arguments with other family members or scaring someone is sufficient for probable cause on a assault on a household member arrest in the state of New Mexico unless that individual is in immediate danger of a battery/attack on herself. I would classify assault as "chasing someone, making threats to harm an individual, throwing objects, confronting folks in an intimidating manner, etc...".

    Perhaps some law experts can refute or confirm that.

    Here is the statute in NM:

    http://law.justia.com/newmexico/code...3-12-c507.html

    30-3-12. Assault against a household member.

    A. Assault against a household member consists of:

    (1) an attempt to commit a battery against a household member; or

    (2) any unlawful act, threat or menacing conduct that causes a household member to reasonably believe that he is in danger of receiving an immediate battery.

    B. Whoever commits assault against a household member is guilty of a petty misdemeanor.




    The whole basis on an arrest relies on what is attested to in the Probable Cause Statement and thus my aim in this thread is to cover all of my tracks with potential mistakes and/or false assertions by the police officer. My eyes are looking ahead for the civil/tort portion rather than the criminal case. But my attorney has told me we have to get the criminal case dispositioned first before we filing civil.

  6. #6

    Default Re: Probable Cause Statement and Wrongful Arrest

    Quote Quoting dmartin
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    True.....but in criminal cases for a conviction isn't there such a thing as "beyond a reasonable doubt" rather than "preponderence of evidence". I don't think the DA can simply accuse the victim of lying unless she has evidence to the contrary. Lastly it won't be up to a jury. I choose a bench trial instead.
    Yes, the judge would have to find that the charges levied are met beyond a reasonable doubt. But the DA doesn't have to "accuse" anyone of lying. It's simply an understood dynamic of DV cases. Judges know this as well as anyone else. Therefore, expect the judge to dismiss the victim's statement in court to a great degree and rely more on utterrences given by the victim at the time - both to 911 and to police on scene - which were given BEFORE they had a chance to calm down and plan a strategy to deal with aftermath, and are thus typically are considered MUCH more reliable statements.


    But the contents of the 911 call could determine if the officer had any suspicion that a crime was occuring. From what I understand, the officer/ambulance made two visits that evening. The first visit was based on the 911 call that someone thought I had taken aspirins. Before anyone could arrive....I left the scene because I wasn't gonna pay for an ambulance visit when I never made the call or wasnt in need of medical attention. So I left because I can and because I felt like it. Thus I am not aware of what was communicated during that first visit and if it warranted a 2nd visit later. I returned home after about 2 hours and then the officers returned a 2nd time. Alot of muddy waters and circumstances.....so i guess that is what my lawyer is for to determine the basis of the call. Is it a criminal affair or a medical affair. Probably the contents of the 911 call and/or other police multimedia recordings will clarify alot.
    If it's a medical issue that involves a potential mental health issue (ie overdose or suicide attempt) then it automatically becomes a joint medical/police matter. I agree that knowing how many calls were made and what was said in those calls will be VERY important for your case. But having been a police dispatcher myself, they don't dispatch them as domestics unless there is some reason to do so, and certainly not over asprin. However, if there had already BEEN a prior call regarding the possibility of an overdose, there's your absolute reason for police to enter without a warrant.

    Without getting off my intial topic regarding probable cause. In the officer's probable statement it stated that the alleged victim was "afraid" and wanted "info" on a restraining order. It stated I was "arguing" with family members. Once again I have independent witness(es) who observe the entire situation and the police interview with the alleged victim and can testify. The officer convieniently forget to mention that while the alleged victim was "afraid" it was not for herself but rather my own medical well being. Don't believe simple arguments with other family members or scaring someone is sufficient for probable cause on a assault on a household member arrest in the state of New Mexico unless that individual is in immediate danger of a battery/attack on herself. I would classify assault as "chasing someone, making threats to harm an individual, throwing objects, confronting folks in an intimidating manner, etc...".

    Perhaps some law experts can refute or confirm that.
    No, it doesn't have to include physical action or threat that involves and object - those would be charged as a battery or an aggrevated assault.


    Here is the statute in NM:

    http://law.justia.com/newmexico/code...3-12-c507.html

    30-3-12. Assault against a household member.

    A. Assault against a household member consists of:

    (1) an attempt to commit a battery against a household member; or

    (2) any unlawful act, threat or menacing conduct that causes a household member to reasonably believe that he is in danger of receiving an immediate battery.

    B. Whoever commits assault against a household member is guilty of a petty misdemeanor.

    It's very easy for ANY level of arguement to be charged as an assault, particularly when a man who just the same night may have exhibited destructive behaviors, even against only himself, and the target of the yelling is a woman. Politically correct or not, guys are bigger and more physical - so if you're yelling and she's scared of what you might do next, and there's the potential mental health issue on the table due to the PRIOR visit about a potential overdose, that's an easy arrest to make. Twenty years ago, police probably would have told you to take off and go somewhere else for the night. But that's now how things work these days, thanks to much stronger legislation combined with public outcry when police DON'T arrest and people end up dead.

    The whole basis on an arrest relies on what is attested to in the Probable Cause Statement and thus my aim in this thread is to cover all of my tracks with potential mistakes and/or false assertions by the police officer. My eyes are looking ahead for the civil/tort portion rather than the criminal case. But my attorney has told me we have to get the criminal case dispositioned first before we filing civil.
    I'm just not seeing anything for a civil tort. Of the several hundred officers I know, I can't imagine, given what you've described, that any one of them would NOT have arrested you that night (or alternatively put you on a 72 hour mental health hold, depending on the exact circumstances regarding the asprin incident).

  7. #7
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    Default Re: Probable Cause Statement and Wrongful Arrest

    Quote Quoting aardvarc
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    Yes, the judge would have to find that the charges levied are met beyond a reasonable doubt. But the DA doesn't have to "accuse" anyone of lying. It's simply an understood dynamic of DV cases. Judges know this as well as anyone else. Therefore, expect the judge to dismiss the victim's statement in court to a great degree and rely more on utterrences given by the victim at the time - both to 911 and to police on scene - which were given BEFORE they had a chance to calm down and plan a strategy to deal with aftermath, and are thus typically are considered MUCH more reliable statements.
    Interesting. I would think statements made at the scene are filled with emotion and not logic and therefore fragmented and left to interpretation. Being in a right state of mind comes into question. If someone is "scared" are they scared for themselves or for the health/well-being of the alleged individual who was they assumed was taking aspirins.

    Quote Quoting aardvarc
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    If it's a medical issue that involves a potential mental health issue (ie overdose or suicide attempt) then it automatically becomes a joint medical/police matter. I agree that knowing how many calls were made and what was said in those calls will be VERY important for your case. But having been a police dispatcher myself, they don't dispatch them as domestics unless there is some reason to do so, and certainly not over asprin. However, if there had already BEEN a prior call regarding the possibility of an overdose, there's your absolute reason for police to enter without a warrant.
    You make some good points. Since there was mulitple visits....I guess it comes down to the contents of that 911 call. There was only one call during that event. During the 1st visit, I was not at the residence. I am curious how the police came the 2nd time a few hours later.....when no 911 call was made and if probable cause exists to enter the residence and if a medical issue can be tied in

    Quote Quoting aardvarc
    View Post
    No, it doesn't have to include physical action or threat that involves and object - those would be charged as a battery or an aggrevated assault.
    It's very easy for ANY level of arguement to be charged as an assault, particularly when a man who just the same night may have exhibited destructive behaviors, even against only himself, and the target of the yelling is a woman. Politically correct or not, guys are bigger and more physical - so if you're yelling and she's scared of what you might do next, and there's the potential mental health issue on the table due to the PRIOR visit about a potential overdose, that's an easy arrest to make. Twenty years ago, police probably would have told you to take off and go somewhere else for the night. But that's now how things work these days, thanks to much stronger legislation combined with public outcry when police DON'T arrest and people end up dead.
    Just to clarify. I was not yelling. In fact myself and the alleged victim were under the silent treatment and had no contact. Although I believe she observed me take the aspirins and made the assumption that I had taken the pills and had a panic attack of her own.

    Interesting that arguments can be probable cause enough for an arrest on a assault. Since everyone in this nation argues with one person or another.....wouldn't we have more arrests to talk about. Reading the statute in my earlier post on this thread.....wouldn't the household member have to reasonable believe they are in danger of receiving an immediate battery. I guess more reason to listen to any police transcripts and/or alleged victim/witness(es) testimony of what was said.


    Quote Quoting aardvarc
    View Post
    I'm just not seeing anything for a civil tort. Of the several hundred officers I know, I can't imagine, given what you've described, that any one of them would NOT have arrested you that night (or alternatively put you on a 72 hour mental health hold, depending on the exact circumstances regarding the asprin incident).

    Fair enough. I haven't given you the word-for-word details of the probable cause statement or a copy of exactly what it says. I am merely summarizing the contents of it to avoid identifying myself on a public forum. I agree if they have sufficient evidence that I was suicidal, a 72 hour hold may have been justified. But that wasn't the case. Medical personnel and EMTs confirmed I didn't ingest anything and that the whole 911 call was based on an assumption by the the 911 caller. The officer arrested me for a criminal offense.

    All I can say is my attorney is doing my criminal case pro bono under the condition I hire him for my civil tort under his 40% cut. Maybe I am being over confident. But it seems my attorney is seeing some form or basis for a civil tort. If he believed I didn't have a civil tort I am sure he would be charging me for services rendered in this criminal case. I understand most civil cases don't go to full trial. But a settlement is something I have seen in most cases and local police agencies in my jurisdiction have been in the media for similiar wrongful arrest situations that have been settled.

  8. #8
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    Default Re: Probable Cause Statement and Wrongful Arrest

    Think what the officer was just right considering the fact he found an open can.

    NYC defense attorney

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