FL Police Make Costly Legal Error

SARASOTA, FL | Sarasota Herald-Tribune

Incident at man's house during dispute leads to $253K award

No crime was being committed when police arrived at Raphael McKinon's house. His ex-girlfriend was there, saying she wanted some clothes. McKinon wouldn't let her in.

Police asked McKinon to let Janine Rogers get her things, and when he refused, they arrested him on an obstruction charge.

Once inside, she stole $350 McKinon had left on the dresser, "just to be mean," she later said in a deposition.

The burglary -- and the $253,350 in damages a jury awarded McKinon on Wednesday for the officers violating his civil rights -- underscores why police are not supposed to get involved in civil disputes other than to keep the peace.

Police and sheriff's deputies are routinely asked to intervene to help people recover their possessions after a breakup. But without a court order, the officers have no right to enter a home when the owner says no, except in rare cases where immediate aid is required, legal experts say.

"Really, it comes down to a civil dispute and a judge is going to have to figure that out," Miami evictions law attorney Patrick Russell said. "The police should not take it upon themselves to be the judge and jury in that case."

The attorneys who represented McKinon in federal court say they believe what happened at McKinon's house was not an isolated incident.

"They obviously need better training and better supervising," Buckman said. "It's just a fundamental lack of understanding that they can't enter a house without a warrant."

Sarasota Police Chief Peter Abbott refused to discuss the incident or any police department policies regarding civil disputes. Spokesman Jay Frank said police officers are told to use their judgment in any situation.

There was no internal investigation into the January 2004 incident involving officers Eric Bolden and Sue Woniya, Frank said.

The officers arrived at the Dixon Avenue home after being called by Rogers , the mother of McKinon's child. She told them she lived there, and that she would leave if she could get her clothes, court records state.

McKinon told police she didn't have any property in the house and "he didn't know who she was."

Woniya knew he was lying.

Woniya also talked with neighbors, who told her Rogers lived there at the time because she was "always there, back and forth, in and out."

The officers, along with a supervisor who arrived at the scene, asked McKinon if Rogers could go in and retrieve her belongings, "as they felt that, as a tenant, she had the legal right to do so, based upon landlord-tenant law," court records state.

The officers tried to convince him for 40 minutes and then arrested him for obstruction.

McKinon's refusal should have been the end of the discussion, evictions expert Russell said.

"When he says no ... then at that point they say, 'That's as far as we can take it right now,'" Russell said. "It's not really their role to solve those types of problems."

The state attorney's office immediately saw problems with the obstruction charge against McKinon, and declined to prosecute him.

"There is no indication in the PCA (probable cause affidavit) that the officers were executing any court order, or writ, that would authorize them to enter the defendant's home without his consent," a prosecutor's memo states.

"In addition, there is no evidence that the items Ms. Rogers sought to retrieve from the defendant's home belonged to her."

When police respond to a situation like that, no crime is being committed, Russell said. The police should have told her that if she had possessions in the house, she could file a small claims case and get a court order to come back.