Bowling for Justice

Among other things, the Fourth Amendment prohibits unreasonable searches and seizures by requiring a warrant “particularly describing the place to be searched, and the persons or things to be seized.” When narcotics detectives near Lakeland, Florida executed their search warrant on Michael Difalco’s home, it is doubtful the Nintendo Wii they spent hours bowling on was “particularly described” as one of the “things to be seized.”  What is plainly clear is that the Wii bowling extravaganza actually occurred, as it was recorded by a hidden surveillance camera in Difalco’s home.  What is still being looked into however, is whether the actions by the police will affect the admissibility of the evidence acquired during the drug raid. 

Although Polk County Sheriff Grady Judd regarded the situation as an “embarrassment," he told News Channel 8 in an exclusive interview that the impromptu bowling tournament would not “invalidate the search at all.”  However, a Tampa, Florida defense attorney, Rick Escobar, disagrees: “The real question here is have they seized property that wasn't described in the search warrant?”  Escobar would argue that the moment the detectives turned on that video game and effectively seized it, they turned the search warrant into an illegal search.

Should police misconduct affect the legality of the search warrant when, as in this case, it had no effect on the outcome of the drug raid?  Or should negative consequences only be implemented internally with the police department, perhaps by suspending the officers involved? The latter may certainly prove to be the case, at least in the city of Auburndale, one of the three departments in Polk County whose officers were participating in the raid.  As Auburndale police Chief Nolan McLeod regarded, “Certainly this was a case of bad judgment.  We will handle it appropriately.” Regardless if the evidence discovered during the search is upheld in trial, which is the most probable scenario, Difalco’s attorney may attempt to seriously undermine the credibility of the officers’ testimony by establishing that they do not follow the correct procedures when executing search warrants.  Minimizing an officer’s credibility is nothing new in terms of criminal defense strategies; however, its impact on a case such as this, where a search warrant was obtained and illegal items were found, may essentially achieve nothing for Difalco’s defense.

What it comes down to is that, on paper, the officers in Polk County executed a successful drug raid.  However, on camera, they exhibited actions that were arguably reprehensible.  Does it take hidden surveillance to uncover a lack of police professionalism or was this instance a rare occurrence?  Justice Scalia explores this notion of professionalism in his opinion of Hudson v. Michigan, where police burst into Hudson’s front door to execute a search warrant less than five seconds after knocking. Justice Scalia specifically noted the “increasing professionalism of police forces” and the “increasing evidence that police forces across the United States take the constitutional rights of citizens seriously,” due in part to reforms in police training. Radley Balko, from the blog Cato @ Liberty, wholeheartedly disagrees.  Balko believes that “police aren’t better trained at respecting civil liberties, they’re better trained at finding ways to get around them.”  In his post “Scalia’s Alternate Universe,” Balko directly challenges Justice Scalia’s Hudson opinion citing various authorities to show that evidence of Police un-professionalism is rampant throughout the nation.  At least in Polk, this holds true. Raw video footage doesn’t lie.

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If considering what a proper sanction for the police officers in Polk County could be, does knowing the following impact your decision?

- The Raid cost tax payers $4000.

- Difalco has a lengthy criminal record dating to 1995. He served three years in state prison from 2002 to 2005 for trafficking drugs, owning and operating a chop shop, and grand theft.

- The raid uncovered methamphetamine, marijuana, drug paraphernalia, weapons, and more than $30,000 in stolen property from the house.

- After the raid, Difalco allegedly told the officers that “he allowed Mexicans to use his barn (which had been converted to a chop shop) to remove firewalls from vehicles so that large amounts of meth could be hidden inside of the vehicles to be transported to various out-of-town locations.”

- A significant amount of drugs were found inside a bedpost in Difalco’s home.

- Investigators found enough methamphetamine to charge Difalco with trafficking. A detective also discovered other narcotics, oxycodone, alprazolam, and marijuana in the master bedroom.

- Supervisors were on the scene and failed to stop any of the Police from bowling.

- At one point, an officer stopped collecting evidence to bowl a few lanes and then preceded to collect evidence where she left off.