Column: More Context for Police Lawsuit

On May 19, 2014, a lawsuit was filed in federal district court against the city of Ann Arbor and three Ann Arbor police detectives who were working to solve an armed robbery that took place about two years earlier – on April 9, 2012. The plaintiff in the federal lawsuit is Joseph Bailey, who was a suspect arrested by the AAPD for the Broadway Party Store robbery.

The Broadway Party Store, on the east side of the Broadway bridges, was robbed in April 2012. The suspect arrested for the crime, but not prosecuted for it, has filed a lawsuit against the three Ann Arbor detectives who worked the case.

It was a high-profile case, as the security camera’s footage from the robbery was featured on Detroit TV news. The video captured the drama of a man wearing a skeleton mask, pointing a sawed-off shotgun at the store owner.

Bailey was charged with the robbery: After a preliminary examination conducted by judge Christopher Easthope at the 15th District Court, Bailey was bound over to stand trial in the 22nd Circuit Court before judge Melinda Morris.

From the time of his arrest at the end of May 2012, Bailey spent roughly 6 months in jail, before being released in November 2012. He wound up not being prosecuted for the robbery, because the prosecutor’s office concluded that Bailey’s guilt could not be established beyond a reasonable doubt at that time. Bailey did plead guilty to resisting or obstructing a police officer. And for that Morris sentenced him to 6 months in jail. Court records indicate that Bailey was already credited with serving 191 days – more than 6 months.

The federal lawsuit was filed nearly three weeks ago, but apparently still has not been served upon the city or the three detectives. It alleges various violations of Bailey’s basic rights by the detectives who worked the case, and contends that their actions caused him to be falsely imprisoned. [.pdf of complaint]

The Chronicle does not systematically cover crime or the courts. But we do occasionally write about those topics when they intersect with our other regular coverage of governmental units.

In this instance, the first point of intersection came in the course of looking up information on Bob Dascola’s election lawsuit. The ruling on Dascola’s case was filed in the federal court’s PACER (Public Access to Court Electronic Records) system on May 20, 2014. We don’t always look up cases on PACER in a way that is most efficient as measured by the number of steps – which would be to note the case number and enter that information into the search form. If you instead search by cases in which Ann Arbor is a defendant, you have a chance to notice cases other than the one you’re looking up. So it was that we noticed Bailey had filed a case in federal court against the city on May 19.

The second point of intersection is that we’d reported the public commentary of the robbery victim at the city council’s May 21, 2012 meeting. And we’d also reported the city administrator’s public congratulation of the police department at the council’s subsequent meeting, on June 4, 2012 meeting – for making an arrest in the Broadway Party Store robbery.

Finally, given that Bailey’s lawsuit has been filed as a public document in the federal court system, we think it would serve the public interest to add context to some of the allegations included in the complaint.

The context added below is also drawn from public documents – court records (obtained through a standard in-person request) and police records (obtained through a Freedom of Information Act request). First, we present a summary of some issues that the two sides could dispute – if the case is litigated. After that a timeline of events is provided.

Potentially Disputed Issues

Issues that could be disputed by the two sides if Bailey’s lawsuit is served and litigated include: (1) whether a search of Bailey’s bedroom was undertaken lawfully; (2) whether the clothing recovered from Bailey’s bedroom, and alleged to have been worn during the commission of the crime, was general in nature or distinctive; and (3) whether detectives had an obligation to investigate a claimed alibi by Bailey, and if so, whether they met that obligation.

Potentially Disputed Issues: Search

The federal lawsuit alleges that:

Despite the fact that Plaintiff was not at the residence, Defendants [Christopher] Fitzpatrick and [William] Stanford unlawfully entered Plaintiff’s bedroom and conducted an unlawful search of same.

Additional context provided by court and police documents includes a description of how police detectives – including the third detective named in the lawsuit, Michael Dortch – first visited the residence and left when there was no answer to the knock on the door. The following day, a return visit was made, and the door was answered by Bailey’s mother, who told detectives he was not home, but gave permission for detectives to enter his bedroom.

As reflected in the court records, the detectives contended that their purpose in entering the bedroom was not to search for evidence of a crime. Rather, they were confirming that Bailey was not at the residence trying to hide. They contend that the clothing they observed, for which they subsequently obtained a search warrant, was in plain view. That clothing included a hoodie with a skeleton mask, a vest and a pair of jeans.

The lawfulness of the initial search and subsequent search with a warrant – which Bailey’s federal complaint acknowledges was obtained – was the subject of argument during the preliminary exam in front of judge Christopher Easthope. Easthope left the matter of full-blown evidentiary hearing to the circuit court.

After the case went to circuit court, Bailey’s defense attorney filed a motion to suppress the evidence. The argument was based in part on the idea that Bailey’s mother did not have authority to give permission for the detectives to enter his bedroom. The prosecutor’s office filed a motion opposing the suppression of the evidence. Courts records don’t appear to include a ruling on that motion.

Potentially Disputed Issues: Clothing Match

Bailey’s federal complaint alleges that the clothing seeing in Bailey’s bedroom, for which a search warrant was subsequently obtained, was not distinctive enough to be tied to the Broadway Party Store robbery:

The clothes that were seen in Plaintiff’s bedroom were general in nature and could not be specifically linked to the crime at the party store.

The clothing allegedly seen in Plaintiff’s bedroom was not a direct match to the clothing (black sweatshirt with a skeleton on it; black vest, and black jeans) worn by the alleged perpetrators of the party store robbery.

The detectives, on the other hand, describe the clothing as distinctive and matching the clothing that is shown in the security camera footage.

For example, during the preliminary exam, a detective described the vest shown in the security camera footage like this:

The vest is a dark colored vest and appears to be some type of ribbed, and on the video you notice ah–some type of emblem over the left chest upper torso area m’m–the video you can’t make out the writing but it appears to be a couple of letters that are letters of the cross, a brand name, m’m–again, it’s a vest with no sleeves and it comes about waist length on the person.

And the vest actually recovered from Bailey’s room was described this way during the preliminary exam:

This is–is the Avirex brand vest that was found hanging behind the sweatshirt hoodie m’m–it’s dark colored m’m–vest with the word Avirex, A-v-i-r-e-x on the upper front chest area.

Also part of the prosecutor’s argument during the preliminary exam is the idea that it’s not just one article of clothing, but rather the combination of all the articles that leads to the conclusion that the set of clothing recovered from Bailey’s bedroom was the outfit worn during the robbery.

Potentially Disputed Issues: Alibi

Bailey’s federal complaint alleges that detectives failed to investigate Bailey’s alibi:

All of the individually-named Defendants failed to actively investigate all leads, failed to inquire as to the legitimacy of any leads acquired, and failed to make inquiry into Plaintiff’s alibi which put him at a specific address, with a specific individual, at the specific time when the party store robbery occurred.

Bailey’s alibi was that he was with the mother and grandmother of his child at the time of the robbery. This is reflected in a notice of alibi defense filed after Bailey was ordered to stand trial in the circuit court. It’s consistent with a statement Bailey gave to police detectives on the day he was arrested.

However, according to the police reports, that statement came at the end of a conversational thread during which Bailey initially offered other alternatives for his whereabouts. And for the prosecutor, this was used as an argument during the preliminary exam that Bailey should stand trial:

… I’m paraphrasing, the Court has all of these–this information, but Detective Fitzpatrick says something to the effect of, where were you six or seven weeks ago on April 9th. And he says, I was right here. And he gives some story and then was presented with more information about, well no, the video didn’t come out for an hour or a few days later, then he comes up with a different story, oh, then I was here. And then, when presented with the information that well, this crime took place at 10 o’clock at night, then the story changed again. Well, I was here.

Timeline of Events

Here’s a partial timeline of events constructed from The Chronicle’s past reporting, 22nd Circuit Court records (obtained through a standard in-person records request), and Ann Arbor police department reports (obtained through a Freedom of Information Act request).

• April 9, 2012: 10 p.m. Armed robbery is committed at Broadway Party Store.
• April 10, 2012: Sawed-off shotgun recovered about 100 yards from the Broadway Party Store after it was spotted by a passer-by.
• May 21, 2012: City councilmembers are addressed during public commentary by Esther Choi, daughter of Sang-Chul Choi, who was robbed at gunpoint while working at the Broadway Party Store. She tells the council that the store had been repeatedly robbed and that Ann Arbor should not stand for this kind of behavior. [link] From The Chronicle’s report of the meeting: “During a break in the meeting, interim chief of police John Seto approached Choi, who was seated in the audience, and assured her that the department was aware of the case. It’s being worked on, he said, telling her that he’d get her an update from the detective who’s working the case.”
• May 24, 2012: AAPD detectives Fitzpatrick and [Michael] Dortch attempt contact at Bailey’s address. A knock at the door receives no answer.
• May 25, 2012: 9 a.m. AAPD detectives Fitzpatrick and Dortch attempt contact at Bailey’s address. Door is answered by Bailey’s mother, who tells the detectives Bailey is not there. From the police report: “[Detectives Fitzpatrick and Dortch asked] if it would be okay to check his room and make sure he wasn’t hiding or sitting up there. [Bailey's mother took them] up to a room, which she pointed out as being Bailey’s. While looking in Bailey’s bedroom, detectives saw a hoodie, dark colored, with a white mask, which zipped up the front, which was identical to the one the detectives were looking for regarding the Broadway Party Store robbery.”
• May 25, 2012: Request for search warrant. Detective Stanford handles the search warrant, reviewed by prosecutor Robyn Lidell and signed by magistrate Colleen Currie. The search warrant is for: (1) a black and white skeleton sweatshirt with a hood that zips up in a skull; (2) a dark-colored vest with a symbol on the left front; (3) black and white gym shoes; and (4) U.S. currency.
• May 25, 2012: 11 a.m. Contact with Bailey’s girlfriend, mother of his child. Detectives attempt to learn Bailey’s whereabouts.
• May 25, 2012: before and after 11 a.m. Phone calls from Bailey. Bailey has heard detectives are looking for him and calls detective Fitzpatrick several times throughout the morning to inquire why.
• May 25, 2012: 12 p.m. Execution of search warrant by detectives Stanford, Lee, Fitzpatrick, Lawson and Sgt. Fox.
• May 25, 2012: 12:30 p.m. Bailey is arrested. Prior to arrest, Bailey communicates with Fitzpatrick by phone that he wants to surrender himself to Fitzpatrick, but doesn’t want patrol officers involved. Bailey knew Fitzpatrick from previous incidents that were a part of his juvenile record. Police records show that Bailey called him “Fitz.” However, events unfold in a way that Bailey flees from police before he’s arrested and is charged with resisting and obstructing a police officer – the one charge for which he will eventually be convicted.
• May 25, 2012: 1:45 p.m. Interview of Bailey by detective Fitzpatrick. Bailey denies robbing the store. He takes a polygraph test, which the police report says indicates deception. The police report reflects that part of the conversation with Bailey that covered his possible whereabouts at the time of the robbery – a conversation that was summarized at the preliminary hearing by prosecutors and police as Bailey making conflicting statements. The end of that part of the conversation is recorded in the police report as follows: “When told the robbery was at 10:00 at night, [Bailey] said he was probably at his girlfriend’s apartment in Glencoe Hills.”
• May 26, 2012: Arraignment in front of magistrate A. Thomas Truesdell, with preliminary exam set for June 7, 2012.
• June 4, 2012: At the city council’s regular meeting, city administrator Steve Powers publicly congratulates the police department for an arrest made in connection with the Broadway Party Store robbery. [link]
• June 7, 2012: Preliminary exam at 15th District Court in front of judge Christopher Easthope. [.pdf of preliminary exam transcript] Issues raised by Bailey’s defense attorney, Robert Killewald, include the admissibility of the evidence obtained under the search warrant and the use of hearsay. Killewald questions whether the police detectives on their initial visit were merely checking to see if Bailey was present, or if they were in fact looking for evidence. Easthope concludes that the prosecutor’s office has met its burden for four charges: (1) armed robbery; (2) possession of illegal firearm; (3) resisting a police officer; and (4) weapons felony. Based on the transcript, what Easthope finds persuasive are conflicting statements Bailey had allegedly made about his whereabouts at the time of the robbery, the clothing found in Bailey’s room that matched the distinctive features of the clothing the suspects in the security footage wore (hoodie with front zipper that encloses head to form a skeleton mask, a vest with the word “Avirex” on the left chest, a pair of jeans with a checkerboard stitched pattern on the thigh areas, and the fact that Bailey ran from police. The pre-trial hearing is set in front of judge Melinda Morris of the 22nd Circuit Court for July 16, 2012.
• July 16, 2012: Pre-trial hearing.
• Aug. 3, 2012: Notification of an alibi defense. The notification indicates that the alibi for Bailey’s whereabouts at the time of the Broadway Party Store robbery will be provided by the mother of his child and the grandmother of his child and will establish he was at their residence at Glencoe Hills. [.pdf of notice of alibi defense] This alibi appears to be consistent with Bailey’s statement at the end of the conversation about his whereabouts at the time of the robbery, as recorded in the police report.
• Aug. 21, 2012: An additional person [Suspect 2] is arrested, based in part on a phoned-in tip. When shown a photograph of the sawed-off shotgun recovered near the scene of the Broadway Party Store robbery, Suspect 2 admits in an interview with detectives that he had at one time owned the sawed-off shotgun. Suspect 2 denies he’d committed the robbery. The result of a subsequent attempt to match DNA from Suspect 2 to the sawed-off shotgun is inconclusive.
• Aug. 29, 2012: Motion is filed by defense to suppress evidence. One part of the argument is the idea that Bailey’s mother lacked the authority to allow police detectives to enter Bailey’s room initially, when they saw the clothing items – based on which a search warrant was subsequently obtained. [.pdf of motion to suppress]
• Sept. 6, 2012: Response to motion to suppress evidence is filed by prosecutor’s office. The prosecutor’s argument is that it was reasonable for the police detectives to assume that Bailey’s mother did have control over the premises and had the authority to grant permission to them to enter. [.pdf of response to motion to suppress]
• Sept. 28, 2012: Additional individual [Person 3] is picked up on felony bench warrants unrelated to Broadway Party Store robbery and on information Person 3 might have information about the robbery. According to report written by detective Fitzpatrick, he told Person 3 that “… word on the street was that there were north side residents of Ann Arbor who committed the robbery and that the person who did it who was in custody was the wrong person, that person being Joe Bailey.” Person 3 responded by stating he knew Bailey and knew that Bailey was being falsely accused of the Broadway Party Store robbery. Person 3 stated “Joe wouldn’t do something like this.” Person 3 indicated later in the interview that he knew Suspect 2 and told the police that in Suspect 2, they had the right guy.
• Nov. 5, 2012: Plea of guilty is made to resisting or obstructing an officer. The other charges are not prosecuted (nolle prosequi). Reason given: “Unable to prove charges in counts 1 and 2 beyond reasonable doubt at present time.”
• Dec. 17, 2012: Sentencing on the resisting charge is in front of judge Melinda Morris: 6 months in jail. Bailey is credited with 191 days served. [Calculated from May 25, when he was arrested, 191 days would extend through Dec. 1, 2012. But the federal lawsuit filed by Bailey indicates he was released from jail in November. And correspondence between detective Fitzpatrick and the property division of AAPD seems to indicate that by Nov. 20, 2012, Bailey had been released from jail – as Bailey was trying to get Fitzpatrick to facilitate the return of some of his property that had been seized under the warrant.]
• May 19, 2014: Bailey files lawsuit in federal court. [.pdf of complaint]

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