Trooper’s right to enter home debated in trial
Federal and state courts have said warrantless, forced entry into someone’s home by police interested in preserving blood-alcohol evidence in a misdemeanor drunken-driving case is illegal, a Grand Junction defense attorney testified Wednesday in the trial of a Colorado State Patrol trooper.
Reversing roles, testifying as an endorsed expert witness for prosecutors, attorney Ed Nugent said there are other more serious alcohol-related driving offenses, such as vehicular assault or vehicular homicide, when warrantless home entry may be justified.
While answering hypothetical questions, Nugent was restricted by the judge from giving his opinion to the jury on whether the facts outlined in Trooper Ivan “Gene” Lawyer’s and Cpl. Kirk Firko’s fateful encounter with Jason Kemp on July 20, 2010, represented a violation of Kemp’s Fourth Amendment protection against unlawful search and seizure.
“Those are issues for the jury to consider based on the application of the law to the facts of this case,” District Judge Richard Gurley said, ruling from the bench.
Legal arguments and their application to the fatal shooting of Kemp were a prominent theme of testimony Wednesday, the second day of prosecution witnesses in Lawyer’s trial. Testimony starts again today at 9:30 a.m.
Kemp, 31, was fatally shot July 20, 2010, in the doorway of his home at 103 Glade Park Road, Unit B, after Lawyer and Firko repeatedly kicked and pounded at the front door. Kemp was the suspected driver in a non-injury, drunken-driving incident in the Redlands neighborhood.
Malcolm Seawell, a defense attorney for Lawyer, suggested Nugent was paid, hired testimony with a professional interest in espousing to the jury a position favorable to the District Attorney’s Office.
Nugent bristled at the suggestion, saying he was being paid $100 per hour by the state of Colorado for his time to testify in Lawyer’s case. He told the jury he usually charges $225 per hour for the same in private practice.
“Are you here to curry favor by testifying?” District Attorney Pete Hautzinger asked Nugent, both longtime courtroom adversaries.
“That’s not something I would ever do for my own reasons,” Nugent said.
TRAINEE ‘RIDE ALONG’
Lawyer and Firko drew their handguns simultaneously after someone inside 103 Glade Park Road, Unit B, yelled, “Get a warrant,” then slammed the door in the troopers’ face, according to one man’s testimony.
Alex White, now a cadet at the State Patrol’s training academy, testified he heard Firko respond to the man inside by saying, “We don’t need a warrant. We have probable cause.”
White testified both troopers then started to kick at the door.
“It seemed like they were trying to break through the door,” White told the jury.
White was with Lawyer on the night of July 20, 2010, completing a “ride along,” because of his interest in a career with the State Patrol. He testified he was standing roughly 60 feet away, across the street from Kemp’s house.
White said Firko left Lawyer by himself at the front door during the confrontation after an individual emerged from the side of the home. Firko detained that person.
White testified he then heard a lone gunshot, looked back at the front door and saw Lawyer standing “in the doorway or just inside the house.”
White said he signaled and yelled at the “three to four children” along with an adult, who were standing outside, down the street, to get back inside their home. White said a distraught Lawyer ran to his patrol car, removed gloves and other gear for CPR and rendered aid on the fatally wounded Kemp.
The prosecution argues the troopers violated Kemp’s Fourth Amendment protections against unlawful search and seizure in trying to kick down Kemp’s front door. Lawyer’s defense claims the troopers had lawful reasons, probable cause for an arrest on DUI charges, to enter the home.
The defense has cited a section of Colorado law that allows police officers to use force to enter a building toward making an arrest, while prosecutors have argued it doesn’t apply to a “dwelling” or someone’s home.
Prosecutors Wednesday also touched on Colorado’s “Make My Day” law, the doctrine allowing a homeowner in fear of harm to use deadly force to stop an intruder.
Deputy District Attorney Todd Hildebrandt told jurors during opening statements, Kemp would have been justified in using deadly force against Lawyer and Firko, under the scenario that led to Kemp’s fatal shooting.
“Are you aware of anything that exempts police officers from that concept?” Hautzinger asked Nugent.
“No,” the attorney replied.
Prosecutors asked White about a potentially critical statement Lawyer made during the investigation.
Jim Hebenstreit, an investigator with the Mesa County Sheriff’s Department, testified on cross-examination that Lawyer said he yelled out a command, “Drop the gun,” just before the shooting.
Eric Fenster, Lawyer’s attorney, told the jury during opening statements that Lawyer believed Kemp might have had time to arm himself with a handgun during the confrontation at the door.
Hebenstreit testified there was no evidence suggesting Kemp communicated threats involving a weapon or displayed one at any time. Kemp was found unarmed.
A homeowner, who lives a few blocks away from Kemp’s former residence, told investigators he heard someone yell out, “Drop the gun,” Hebenstreit said. However, White and a second man were closer to the front door of Kemp’s home, and both said they didn’t hear any such command, Hebenstreit said.
“We couldn’t corroborate it,” Hebenstreit said, when asked about Lawyer’s claimed statement.