By Dan Huff
A MAN'S HOME IS HIS CASTLE, but you can bet that hoary
little adage won't prevent the cops from entering your home whenever
they please, on the slightest pretext.
And if you're living in the Pleasantville surroundings known
as the Town of Oro Valley, you might as well kiss goodbye the
whole silly notion of a Fourth Amendment protection against unreasonable searches and seizures. Because, for all practical purposes, the amendment guarantees
no such protection, at least not unless you're willing to fight
a long and expensive court battle--perhaps several--after the
fact. Furthermore, you can get your ass in a heap o' trouble if
you're uppity enough to assert such an inconsequential "right"
in the face of Oro Valley police might.
That's what Andy Roaché will tell you.
Roaché, a trim, well-groomed man of 28, says he moved
to Oro Valley because "it's a little nicer, a little cleaner.
It was an area where I thought I could be at peace.... Of course,
I learned differently."
Roaché is currently facing prosecution--for the second
time--in Pima County Superior Court on an assault allegation stemming
from an early morning invasion of his apartment by four OVPD officers.
It happened in May 1998, about a week and a half after Roaché
received a minor citation.
That supposedly routine event occurred in the parking
lot of his North Oracle Road apartment complex, just as Roaché,
in a suit and tie, was returning from a long, hot day selling
real estate.
"I pulled into my parking spot," Roaché
recalls, "and I got out of my car, and I was going toward
the stairs of my apartment when I noticed an officer a little
farther down the lot fingering me to come over and talk to him
by his patrol car."
According to Roaché, the officer, Daniel Krueger, announced
he was writing a citation for expired tags. Roaché says
he tried to explain that he'd already passed the emissions test
and just needed to obtain his new tags, but simply hadn't found
the time. Roaché showed him some documentation to back
up the story. Krueger went back to his car and made a call, then
came back to say he was writing a ticket because Roaché
lacked proof of registration.
But there was something far more bothersome about the encounter,
according to Roaché. He claims his license plate, on the
rear of his shiny black Mustang, was well out of Krueger's angle
of view that day.
"And so I asked him, 'Am I under investigation or
something? Because you haven't told me how you know my car's the
one driving around here with expired tags.'
"He had to have looked at it before," Roaché
maintains. "That's what I was getting at, but he refused
to answer the question."
In less than two minutes, Roaché says, "a white
van with no markings pulled up, and a plainclothes officer got
out."
The two officers talked for a few minutes, then the plainclothes
cop approached Roaché.
"He said, 'I want to ask you some questions.' I said,
'I have nothing to say to you. I am not a criminal, I've committed
no crime, and I don't have anything to say. Officer, I have committed
a traffic infraction, if that. That is not a crime. So I suggest
that you catch yourself a criminal and leave me alone. I haven't
done anything wrong.' "
The two officers discussed the situation for a couple of
minutes, Roaché recalls, "then they came back and
began snooping around my car. I said, 'Look, I sell real estate.
I sell homes. In the back of my car are real-estate signs. I don't
sell drugs, I sell real estate. That's the only thing I sell.'
"And the officer got a little upset. And he said, 'Well
I'm just trying....'
"And I said, 'I understand what's going on here, and
I have nothing to say. I have nothing to hide. If you want to
search my car, search it for drugs and guns, you go ahead and
do that. I'm going to give you the permission to search my car.'
"
They poked around a bit, and then the plainclothes officer
stepped back, leaving Krueger to write up the fuming Roaché's
citation.
"We had a little joust," Roaché recalls. "He
wanted me to sign the citation before he gave me back my license.
It was connected to his clipboard. So when he handed me the clipboard,
I actually took my license out, then I signed it. It was a little
joust. No big deal."
Apparently just one of the simple pleasures available to a
black man in Oro Valley, USA.
SO IMAGINE ANDY Roaché's pleasant surprise nine
days later, when, after a loud and prolonged banging on his door
shortly after 4:30 a.m., he was awakened from a sound sleep to
find Krueger and another officer firmly planted on his apartment's
tiny landing.
The cops had their tape recorder running. According to the official
transcript, it sounded like this:
Roaché: Hey. What do you want?
Krueger: We had a complaint that, uh, there was some sobbing...
Roaché: Somebody...
Krueger: ...or crying coming from your apartment.
Roaché: Come on. Are you serious?
Officer Dziezynski: Yes.
Krueger: Um, I'm really serious, sir, or I wouldn't be
here at four in the morning.
Roaché: (Inaudible). Did you hear anything come
out of my apartment?
Krueger: I'm here because somebody heard that, and they
called us, and we're here to check on it.
Roaché: Well, do you hear anything coming outta
here?
Krueger: Not currently.
Roaché: (Inaudible).
Dziezynski: We need to check to make sure nobody's dead
in there, or something like that.
Roaché: Well, that's not happenin' tonight. That's
not happening. I'm going to sleep. So...
Krueger: But...
Roaché: I'll see you later...
Krueger: If there's no problem...
Roaché: I'll see you later.
Krueger: ...in there, then you...
Roaché: I'll see you later.
Krueger: ...wouldn't have a problem letting us in.
As Roaché tried to shut his door, Dziezynski put his foot
in the way, and the three men continued to argue.
The officers were paying their visit to the Roaché residence
because a downstairs neighbor, Mildred P. Rodgers, had called
911 at about 3:45 a.m. to say she'd heard a woman "crying"
or "sobbing" in the upstairs apartment.
Not shouting, not screaming, not the sound of crockery shattering,
or furniture breaking, or a Saturday night special blasting away.
Merely "crying" and "sobbing." Rodgers, contacted
last week, refused to discuss the incident with a reporter.
She also told 911 there were two "black fellows" upstairs
in the same apartment with the crying woman--which wasn't quite
accurate, as events were about to demonstrate.
"I think one of them is abusing her," Rodgers concluded,
apparently based solely on the muffled sound coming through the
drywall in an apartment block that included three other units.
What's more, Rodgers told the 911 operator, she'd heard such
noises occasionally for the past six months, and had even told
her apartment supervisor about it. The super had advised her to
call the police the next time she heard it, so that's what she
was doing.
At the time, David Lee Gilbert, 24, lived in the same complex
as Rodgers and Roaché. He says his downstairs apartment
shared a wall with Roaché's upstairs unit, but he never
heard a peep coming from that direction. However, Gilbert says
he heard plenty--including occasional crying and sobbing--coming
from the unit directly above his.
"Those people up there were always the ones who were the
loudest," Gilbert recalls. "She'd have a fight with
her boyfriend on the front porch and then go inside crying, or
she'd be screaming or something. It was never Andy. He was always
very, very quiet."
Nonetheless, the question begs to be asked: Was Roaché
beating his wife?
"Of course not," says Helen Roaché. "I
wouldn't marry a guy who would beat me.
"I woke up at about 4 or 4:30 a.m., and someone was banging
on the door. I watched my husband get up. We kinda woke up at
the same time. He went to the door, and I could hear someone start
to talk to him. I couldn't exactly hear what they said, but from
what I heard, I understood someone had called in that someone
was maybe abused. I thought that, of course, they would know they
had the wrong apartment, but they just kept insisting they would
come in. My husband kept saying, 'No, you cannot come in.' "
Which raises the next question: Why didn't Roaché simply
let the cops come in and look around?
Of course there was the paranoia generated by his last encounter
with Krueger. (Gilbert also says he saw Oro Valley police cruisers
following Roaché's car into the complex's parking lot on
at least four occasions during the year or so he was Roaché's
neighbor.)
In addition, Roaché says, he believed--and still does--that
the police should have had a warrant before invading his home
that night. Instead, from his point of view at least, they'd suddenly
and inexplicably materialized on his landing at 4:30 a.m. to,
as Dziezynski had so professionally put it, "make sure nobody's
dead in there, or something like that."
And Roaché had what he thinks is another very good reason:
He and his wife are sunni Muslims. Helen Roaché says they
met about six years ago at a mosque. And in their religion, "you
simply don't allow strange men to come into your house, especially
when your wife isn't fully clothed," Roaché maintains.
"I certainly didn't want anybody coming in," adds Helen
Roaché. Although she foregoes the veil, in public she wears
a full-length dress and the traditional sunni scarf on her head.
And so Roaché steadfastly held his ground--until, that
is, he realized he was standing at his doorway clad only in his
skivvies.
Oddly, although the officers refrained from entering his home
while they allowed him to go get dressed, a few minutes later
they refused to allow him to go get his wife.
But by then two more officers had arrived--due to additional
911 calls from neighbors warning that a fight was in progress,
and exacerbated, no doubt, by Roaché's threats of a lawsuit
and his angry demands that the entire contingent of OV cops on
duty at that hour come on down to see firsthand just what sort
of outrage their brethren were perpetrating.
The tension, as they say, was mounting.
"What the officers should have done that night," Roaché
argues, "when they came upstairs and saw that everything
was dark, when they heard nothing going on, they should have left
and come back in the morning."
In an ideal world, perhaps. But even freshly-minted Oro Valley,
with its 28,000 mainly white, upper-middle class souls, and its
acres and acres of perfectly-matched dwelling units camouflaged
in inoffensive shades of beige and bolted firmly onto all those
mini lots in an ever-expanding multiplex of master-planned "communities"--even
this uniformly stuccoed, well-manicured milieu, alas, is not an
ideal world.
As his wife emerged from their bedroom, fully dressed and with
headgear firmly in place, four cops rushed Roaché. They
yanked his feet out from under him and, as he lay face down on
his own carpet, they wrestled to cuff him, applying a neck hold
that, as subsequent photos revealed, left bruises for days afterwards.
Then, with his wife and the only other occupant of the apartment
that night--a female houseguest, another devout Muslim--watching,
they hauled Roaché's "I'm-an American-and-I've-got-my
rights" ass off to jail.
THE THIRD ACT in the The Andy Roaché Ordeal has
dragged on for more than a year now.
After invading his home at 4:30 a.m. based solely on the uncorroborated
report of one sleepy and possibly confused neighbor, the cops
charged Roaché with two counts of aggravated assault.
The more serious charge, disfigurement of a police officer, a
Class 3 felony, allegedly occurred as Roaché was being
handcuffed. Dziezynski's report notes: "Mr. Roaché
began fighting, flailing his arms and Officer [redacted] and I
fell to the ground with Mr. Roaché. When I got one handcuff
on Roaché's right hand, he swung around with his left hand,
striking me in the bridge of the nose, causing it to bleed."
At the hospital, another officer's report notes, an examining
physician was "unsure if Ofc. Dziezynski's nose was broken."
There's nothing in the official police transcript of the incident
to indicate Roaché injured Dziezynski, although another
officer notes, after Roaché has been cuffed and is apparently
being moved to a patrol car, that Dziezynski is bleeding. No mention
is made of how the injury occurred.
"I don't remember hitting anybody," Roaché says.
"If I did, I certainly didn't intend to."
Why is this important?
Because, if convicted, Roaché was facing a maximum 12
years in prison.
After he was charged, he says, he was laid off from his well-paying
real-estate job. "Nobody wants you if you have a felony charge
hanging over your head," he notes. Unable to support his
wife, she was forced to move back to Oregon, where she's currently
living with her in-laws.
At trial almost a year later, the jury apparently found insufficient
evidence to convict Roaché on the disfigurement charge.
He was acquitted; the jury hung, five to three, on the lesser
charge.
"For a year they let me think I was going to prison for
a dozen years," an embittered Roaché says. His situation
was made more difficult by the fact that the police officers claimed
their rights under the Arizona Victim Protection statute, making
it difficult for Roaché to get the information necessary
for his defense, complains his attorney, Vernon Peltz.
In fact, the prosecution had in its possession for nearly a year
a doctor's report stating Dziezynski showed no evidence of blood
in his nasal passages, that he showed no signs of a fractured
or broken nose, that he did not require medication, and that he
wouldn't need to miss any days of work to recuperate. Nor did
the doctor's report indicate Dziezynski had "two blackened
eyes," as an OVPD detective later testified before the grand
jury that indicted Roaché.
In the meantime, however, the prosecution had told Roaché
they would drop the disfigurement charge if he would plead guilty
to the lesser assault charge.
"Big deal," Roaché says. "I was an innocent
man, and I'd still be looking at two years in prison and $2,000
in restitution to Officer Dziezynski."
Peltz, however, says if Roaché had taken that deal, more
than likely he would have received probation--but taking the deal
would have automatically eliminated Roaché's ability to
sue Oro Valley for damages in civil court.
"The bottom line," Peltz says, "is that the entire
system stacks up against the defendant in a case like this. The
prosecutors typically charge him with a Class 3 felony, or something
else with a heavy-duty penalty, like the 12 years Andy could've
been facing. Then they come to him and say, 'If you just plead
to the minor assault, well get you probation.' It's hard for most
people to walk away from that in the face of possible prison time."
When Roaché rejected the deal, the judge, Howard Fell,
a former deputy Pima County prosecutor, promptly "turned
around and gutted my whole case with his rulings," Peltz
says. "Then he looked at me and said, 'Now, do you want to
talk to your client again?' "
But Roaché still refused to make a deal.
As it happened, because the prosecution revealed the doctor's
report so late in the process, the judge subsequently refused
to admit it as evidence.
Despite all the difficulties, Peltz says, at trial "the
jury just flat-out didn't believe the cops."
BUT THAT'S NOT the end of the story.
Roaché is currently facing a second prosecution on the
lesser assault charge, a Class 2 felony.
In the transcript, one of the officers accuses Roaché
of "crossing the line," by attempting to push him back,
presumably as the officer entered the doorway to Roaché's
home.
Roaché appears to deny that charge in the transcript.
And he maintains he's being prosecuted simply because his arms
went up in a reflex action when the police rushed him.
"This is typical," Peltz says. "The cops beat
a guy up, then they prosecute the hell out of him. These guys
are trying to cover up their own misdeeds."
But if Roaché was supposed to learn a lesson from all
of this, the Oro Valley Police Department had better do a better
job of tightening the screws next time:
"I come from a tough family," Roaché says. "My
father was a master sergeant in the Army, my brother was in the
Marine Corps, my grandfather was in the Navy. I lived with people
who are wise and tough, people who don't back down no matter the
circumstances. And I'm willing to sacrifice myself in the face
of wrong if it means right will come about by it."
Even though his life has been turned upside down, and in some
ways nearly destroyed, Andy Roaché says, "I just refuse
to lose."
The Tucson branch of the National Association for the Advancement
of Colored People, NAACP, donated $250 to Andy Roaché so
that he could purchase a transcript for his first trial, which
enabled his lawyer to impeach police testimony, winning Roaché's
acquittal on the more serious assault charge he was facing.
Now, however, Roaché needs roughly $1,200 to purchase
a transcript of the first trial, so that his attorney can use
it in an attempt to impeach police testimony in his upcoming trial.
If you wish to contribute, send a check made out to Tucson NAACP,
to 2160 N. Sixth Ave., 85705. Be sure to write "Andy Roaché
Defense Fund" in the check's memo space.
What Would You Do?
IMAGINE, FOR A moment, that you're someone like Andy Roaché
(See main story), and an incessant pounding has awakened
you from a sound sleep. You go to the door to find two uniformed
police officers standing there.
"We've gotten reports of a fight or a disturbance here,"
one of them says. "We need to come in to check welfare."
The whole thing is obviously a hideous mistake, you realize as
you're standing there in your underwear. What's more, you know
the Fourth Amendment to the U.S. Constitution guarantees your
right to be secure in your home from "unreasonable searches
and seizures"--and to your sleepy brain, at least, this seems
about as unreasonable as it gets.
What do you do?
"You open the door and let the officers in," says Deputy
Pima County Attorney David White, a veteran prosecutor.
Even if you know your spouse is in an embarrassing state of undress
in another part of the house?
"Yep," says White.
Even if it violates your basic religious principles?
"The law is very clear. You're not entitled to resist."
You're certainly allowed to protest that the cops are making
a big mistake, White adds, and sue them at a later date for the
damages you're about to suffer.
"Cops are sued all the time," he notes. "But for
obvious reasons nobody's entitled to resist the police by force."
Of course, the specific question of whether Roaché used
impermissible force--or any force at all--to keep the police from
entering his home is one for the jury to determine. Oro Valley
Police have already lost in court on one assault charge against
Roaché, who now faces trial on a lesser assault charge.
Roaché maintains his only "crime" might have
involved an involuntary reflex motion of his arms when the police
rushed him at his door as he stood there protesting their demands
to enter.
But in general terms, White points out, there are "any number
of exceptions" to the Fourth Amendment's warrant requirement.
"One of them is the public safety exception. If a police
officer has facts indicating somebody may be hurt, injured or
otherwise endangered, he can make a warrantless entry to check
on the safety of that person."
If it were your mother or your sister inside an apartment, White
says, and a neighbor called 911 to say he heard signs of distress,
"would you want the police to go check on safety, or would
you want them to go, 'Oh well, maybe this, maybe that, so we're
just not going to do anything'?"
White notes the courts have consistently resolved the question
in favor of safeguarding the public.
"Which means," says Vernon Peltz, Andy Roaché's
lawyer, "whether the police are coming into your house has
to do solely with the level of hysteria in a 911 caller's voice?
I don't think so."
Peltz says the law maintains that "every warrantless intrusion
into your home is presumed illegal. The standard is relaxed when
it comes to searching your car; but when it comes to the home,
in the law it's still a man's castle."
So the question in this case is also one of whether the police
had a good enough reason to believe someone was in distress or
danger.
And that's a question Peltz says he eventually hopes to resolve
in a civil suit--against the Oro Valley Police Department and
the officers who came barreling through Andy Roaché's doorway
in the wee hours just over a year ago.
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