Dan: [00:00:04] In police stations across the country, officers start their shifts in The Briefing Room.

Dave: [00:00:10] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dan and Dave: [00:00:21] Welcome to The Briefing Room.

[Briefing Room theme playing]

Dan: [00:00:36] Today, you’re going to hear about a day in the life of a medical examiner. Medical examiners are a key link in the chain of investigators when someone dies. They’re the ones who determine the cause and manner of death. So, we asked Dr. Mark Super, a highly skilled veteran who worked mostly in Central and Northern California, to join us. You’re going to hear how he became a forensic pathologist, because really, how does someone end up in that job, about what it means to go above and beyond as a medical examiner, and he’ll tell us a little bit about what he wishes the people he works with, police, ER doctors, nurses, knew about his job to make autopsies easier. And we’ll ask him about some of his most interesting cases as well. Without further ado, Dr. Super.

Mark: [00:01:22] Thank you.

Dave: [00:01:24] Over the years, we’ve had a lot of guests on our two different podcasts that we have, we’ve never had a forensic pathologist as far as I can remember, and we thought it would be helpful to give our listeners a little bit of insight into what the medical examiner provides as far as being a stakeholder in the greater criminal justice community and beyond. Before we get into that, I was hoping we could just have you, Dr. Super, give us a little bit of a bio on your jurisdiction, the population you serve, and what typical workday or work week looks like for your office.

Mark: [00:02:00] Okay. I practice in California, which is predominantly a sheriff coroner state. Death is investigated on a county level in California. There’re 58 counties and the vast majority of them are sheriff coroner jurisdictions.

Dan: [00:02:16] My understanding is a sheriff coroner county, you have the elected sheriff who’s elected by the people, he also serves as a county coroner. He then appoints a chief deputy coroner, in this case, it would be someone like you who goes in and does death investigations. Is that correct?

Mark: [00:02:33] Yes. I practice full time in Merced County. We have a sheriff. I also have a private practice, and I go all over Northern California doing work for other coroners and private work as well.

Dave: [00:02:45] Okay. And is that in a consulting capacity where you get called in to give another opinion on a case?

Mark: [00:02:52] No, I don’t do that as much. Mostly, they need somebody to do autopsies, [Dave laughs] because there’re very few of us out here. Sometimes, people are gone, they’re on vacation, they need help. And so, I’ll go up and do cases, especially in some of the far-flung low population counties like Humboldt County, which I’d worked for over 20 years. I did all of their homicides.

Dave: [00:03:16] Oh, small world. My brother and I have spent quite a bit of time playing baseball in Eureka, which is in Humboldt County.

Mark: [00:03:23] Oh, well, [Dave laughs] I have some great stories about Eureka. [laughs]

Dave: [00:03:27] Very excited to hear about Eureka stories. First, let’s give some context to what a medical examiner does. When a dead body ends up in your office, what do you do? What scenarios require your participation and expertise? Take us through a day in the life of Dr. Mark Super.

Mark: [00:03:48] Well, just like everybody is born, you have to have a birth certificate. So, when you die, you have to have a death certificate, and that’s what the coroner’s main job is to do. Most people die of some kind of natural death, over 60% of people. And most of those people have a doctor, people know that they’re dying or their death is not unexpected. But then there’re those cases where people die suddenly or they die of some means that’s not natural. So, the coroner must investigate it.

[00:04:19] So, let’s say overnight somebody dies, or two or three people die, and they could transport it to our office. Then we would look at them. First of all, we have to make sure we identify them. That could be a big problem, if you [Dave laughs] misidentify somebody. That could get you in the papers and things that go bad in a hurry.

Dave: [00:04:37] Right.

Mark: [00:04:38] And that’s fingerprints. Most people will do fingerprints right off the bat. As you know, there’re large databases that we can automatically look up who somebody is, which is a big help. Then we decide, are we going to just do an external examination, or are we going to autopsy this individual? Sometimes, it’s an older person. It’s obvious and natural, but they don’t have a doctor. Some people are really smart. They don’t go to doctors. [Dave laughs] They don’t believe in doctors, but they still have to have a death certificate. Then we’ll go ahead and do an autopsy. When you get done, hopefully, we’ll have a cause of death.

[00:05:14] Nowadays, with this opioid crisis and the fentanyl deaths are so high, most of our autopsies are now– We do the autopsies and they end up as pending cause of death, because they’re waiting for results to come out. That takes many weeks usually. Then we have to decide on the manner of deaths. So, a lot of people don’t realize that it’s not just the cause of death, but it’s the manner of death that goes on to the death certificate. Was it a homicide? That means death at the hands of another person. Is it a suicide? Death at their own hands. Is it an accident? Was it some unforeseen event that resulted in their death or is it a small percent of the cases we just don’t know what it is?

[00:05:54] Sometimes, they’re so decomposed or they’re even skeletonized, we may not know how this individual died. But then our day is mixed up with other things like court appearances. We do have to testify in court and so that sometimes takes up a large part of our day. Hopefully, forensic pathologists are going to scenes. I’ve always made it my point to go to homicide scenes, if possible. If the body is at the scene, hasn’t been transported to a hospital or something, I respond and I go and I look at the body at the scene. To me, that’s where the autopsy starts. So, that’s how my day goes.

Dave: [00:06:29] As a former detective, I would have really enjoyed having our medical examiner out at the scene. Our medical examiner in our jurisdiction where Dan and I worked, very, very good. He had his deputies that went out and made on scene determinations and those types of things. But you’re right. The crime scene and the autopsy would definitely start for you seeing the circumstances and the land out where the body’s found, correct?

Mark: [00:06:53] Yes. I’m answering a lot of questions in my own head that I don’t have to ask you. [Dave laughs] Like, what’s nearby? What position is the person in? You’re giving me a status on what happened. So, questions about how long do I think the person’s been dead? Sometimes, I can give the police a good idea or based on what the police tell me and based on what I find at the exam at this scene, I can say, “Well, that’s pretty consistent with what you know,” or “It’s not inconsistent.” “This person’s been dead longer,” or “This person hasn’t been dead that long.” So, sometimes, I can say those kind of things at the scene and things that are moving along.

Dave: [00:07:30] Okay.

Mark: [00:07:31] Nowadays, at 70 years old, I go to the homicide scenes, and I’m the most experienced person there by far. So, I can sometimes be of help. It hasn’t been that uncommon where I’ll go, “This isn’t even a homicide.”

Dave: [00:07:43] Interesting.

Dan: [00:07:44] Dr. Super, I’d like to go back just a little bit into your personal history. You’re from Bismarck, North Dakota, and then went into the navy. I think that when you’re not around an ocean growing up, I think going into the navy might be an interesting choice. Can you give us a little bit of your background growing up and your decision to join the navy?

Mark: [00:08:05] I went to the University of North Dakota. I grew up in Bismarck, as you said. I graduated in physical therapy. So, I became a physical therapist. That’s what I was doing. I went back to Bismarck, and I was practicing, and I enjoyed working with the elderly. I love talking to old people, and hearing their stories, and helping them get better. When I decided to go back to medical school, I was accepted to the University of North Dakota. My intention was to become a geriatrist. It wasn’t until I was a fourth-year medical student, I was allowed to do an autopsy. I’d watched one and I got to do one. This is 1979. I did my first autopsy and I said, “Oh, this is great. I really like this.” So, I became a pathologist.

[00:08:54] Well, not having a lot of money, I was fortunate enough to get a navy scholarship. Even though I’m in North Dakota, the navy, they gave two of us in my class scholarships. So, when I graduated, I went out to San Diego to start my residency. I didn’t know anything about forensic pathology, nothing. I just liked doing autopsies pathology. Well, my second year, the navy sent a forensic pathologist to take over the morgue at Naval Hospital San Diego, which is a large military hospital, one of the largest in the world. I’m talking to him and he says, he’s a forensic pathologist. I thought, what is that? I didn’t even know. I come from Bismarck. How many homicides are there in Bismarck in a century?

Dave: [00:09:46] Right.

Mark: [00:09:47] So he says, “Well, you do autopsies on people that have been murdered and then you work with police, and then you testify about how the person died under these homicide circumstances.” And I went, “Really? Really?” You get to do autopsies, which I like, and you get to work with the cops and figure out why people were killed. And I said, “Where do I sign up for that?”

Dave: [00:10:09] Right. Do you remember the moment you put the scalpel in for the first time?

Mark: [00:10:14] Oh, yes.

Dave: [00:10:15] Was there hesitancy before that, or was it just straight excitement, “I can’t wait to get in and see what I find”?

Mark: [00:10:21] It was excitement. I’d watched a couple and I just felt like this was where I wanted to be. It just felt so natural that this is where my brain works. I was really thinking about medicine. To me, autopsies was medicine. So, I was thinking, I’m going to help other doctors, I’m going to help families figure out why somebody died. That was my thinking when I went into pathology in the first place.

Dave: [00:10:48] And just ballpark, how many full autopsies do you think you’ve done?

Mark: [00:10:53] I know exactly how many I’ve done. I’ve done over 13,600.

Dan: [00:10:59] Wow.

Mark: [00:11:00] It’s been 43 years.

Dan: [00:11:14] So, eight years in the navy as a lieutenant commander doing pathology, where was the transition when you move on to be a county coroner? How did that progress for you?

Mark: [00:11:27] Well, I was in San Diego, I was finishing my obligation. When I finished my fellowship, the navy sent me back to San Diego to run the morgue. I was the first junior officer to run that morgue in the history of its time. They built a new hospital there. I did the first autopsy in the new San Diego Naval Hospital. Anyway, as I was ending my obligation, I was starting to work on the weekends at the then coroner’s office. San Diego was still a coroner’s office in those days. I would go on Saturdays and they would give me so many autopsies due and I would do them for $100 apiece. But that was 100 bucks.

Dave: [00:12:05] Oh, it’s like getting overtime.

Mark: [00:12:06] Oh, yeah.

Dave: [00:12:08] Yeah, you love it.

Mark: [00:12:09] I had young children, that was extra money that I really needed. But at the same time, San Diego was planning on becoming a medical examiner’s system and they were going to do away with the coroner altogether. So, at the very time that I’m getting out, they needed full-time forensic pathologists. So, they knew who I was. So, one day I was still in the navy, and the next day I was a deputy medical examiner in San Diego County. [Dave laughs] On the very first day that the ME office opened up, I was one of their MEs.

Dan: [00:12:43] Can you explain the difference between a coroner’s office and then the ME’s office system?

Mark: [00:12:48] Well, I always explain it by a medical examiner is a forensic pathologist with an attitude. Because as a coroner, coroner is a political title. So, that person might be appointed, that person might be elected, but there’s nothing about their training as a physician or as a medical person that has anything to do with their job. They just have to fulfil this public office. San Diego at that time wasn’t appointed by the Board of Supervisors.

Dan: [00:13:17] Right. So, just to clarify, a coroner is typically elected by the people, sometimes appointed in the city or state that they work in. But in some cases, they might not even have medical training. They’re simply holding the office of the coroner. Whereas an ME, medical examiner, has to have a degree from a medical school and have a certification from the state.

Mark: [00:13:40] Yes. There are a few counties in California where they abolish the coroner altogether and they set up a medical examiner’s office. So, a forensic pathologist is deciding the cause and the manner of death and that person is filling the death certificate up. But in a coroner system, a coroner can’t do an autopsy. That’s a medical procedure. So, a coroner has to hire a forensic pathologist to do the autopsies. There’s nothing to stop the coroner from not even caring what you say. They could technically put down on the death certificate whatever they wanted. But you can imagine how you can get into political situations that way.

Dave: [00:14:18] Oh, absolutely.

Mark: [00:14:19] Especially when it comes to the manner of death. When police are involved in someone’s death, in the old days, they would just call them accidents and just go on, even though maybe the scene was not quite that if the one person looked at it.

Dave: [00:14:33] It’s interesting you mentioned that Dr. Super, Dan and I frequently speak about how victims and their families are directly affected by the competence of the detective that’s assigned to the case. And in this instance, I’m sure it’s the same for you. A medical examiner or a deputy medical examiner out on a scene is at the mercy of whatever law enforcement has done at that scene prior to the medical examiner’s arrival. So, in some instances, you might have a pristine scene that’s been really well handled by an investigator. But Dan and I have both seen plenty of instances where a scene can be mishandled or evidence can be misinterpreted. Do you run into that?

Mark: [00:15:21] Well, when I was first a new deputy medical examiner in San Diego, as I recall, San Diego had three, maybe four teams of detectives that were on their homicide team, and they had been together for years and years. So, these are, I don’t want to say, crusty, but you know what we’re talking about.

Dave: [00:15:42] Salty veterans that have seen it all.

Mark: [00:15:44] Yes. And we were told that they weren’t going to be very accepting of some young guy showing up at their scene and some kind of know it all. So, I was a little hesitant when I went to my first scene early in this time, and I showed up at this homicide scene, and I said, “I’m Dr. Super. I’m here for this.” And the detective said, “Well, what took you so long?”

Dave: [00:16:07] [laughs]

Mark: [00:16:09] They were totally accepting from day one. They couldn’t figure out why nobody ever came before.

Dave: [00:16:14] It’s great to have another set of eyes, especially one who you know is going to be the last person to see this victim. I want that person to know everything about the case.

Mark: [00:16:23] I can’t tell you how many times police– they’ll be at scenes and they’re talking to each other and they’ll point to something on the body and they’ll say, “Oh, that’s a powder stain.” And I’m thanking them, “No, that’s not what that is. No, no, no.” Or, they have the range of fire or the direction of fire totally opposite what it really is. And sometimes, you can tell at the scene and they’re just wrong. They’re wrong right off the bat. So, it does help to have somebody have another set of eyes, or it helps to say, “Let’s just wait until we get to the autopsy before we decide what we know what’s happened here.”

Dave: [00:17:01] Yeah. The worst thing is to have to course correct after you’ve characterized something as one thing and it turns out to be something completely different.

Dan: [00:17:11] I do remember my first autopsy as a detective. I’d been to one as a patrol officer simply for a training exercise to get me used to what this was going to be, because I always had the goal to be a detective and I knew that this was on the horizon for me. I remember the medical examiner having me roll prints, so roll the fingerprints of the subject that was on the table, who he was going to be examining, which I was a little hesitant to do. I think it was to break my mind out of what I’m actually looking at and get involved in the process. It was great. But going back to that first autopsy as a detective, by all means, this case looked like it could have been an overdose, something else.

[00:18:02] We get into the autopsy and the medical examiner, our doctor, quickly determines you’ve got a homicide on your hands. I felt a rush come over my body, and I’m imagining that there are times when you are doing an autopsy and you start seeing things that completely change the course of direction for an investigation. Can you tell us what those moments are like for you?

Mark: [00:18:27] Well, they’re the things that make it fun to do this. It’s why we’re doing it. Like all jobs, there’s a lot of mundane stuff that happens with dead bodies. But we’ll be doing an autopsy and I’ll say, “Whoa, this bullet, we thought was doing this direction.” We always like to have the police there, some detective there from the agency. I don’t know, if you have that experience. They send the person that’s the least knowledgeable to the autopsy.

Dave: [00:18:57] [laughs] We usually send the case agent, the one who’s going to be leading it. We want them to see– [crosstalk]

Mark: [00:19:01] That’s good, because sometimes they’re just looking at me like, “I don’t know, they just told me to come here.” I hate that. Anyway, I’ll go, “So, let’s go back to the scene. Where did you say this bullet was supposed to come from?” It totally changes everything they think about the scene, some finding that I’ve had. I had a case where there were two bullet holes, and I thought it was an in one side and an out on the other side. But when I got in there, there were two bullets. So, things can change on a dime in the middle of the autopsy. They can.

Dan: [00:19:36] Yeah, they totally can. I’ve been there when it happened. Dr. Super, I’m just curious. I watched that Netflix series, Murder Mountain. I was wondering if you were involved in any of those investigations, because I know they happened in Southern Humboldt County.

Mark: [00:19:50] So there’re five homicides that discuss Murder Mountain. I autopsied all five of those people.

Dan: [00:19:56] For our listeners who aren’t familiar, Murder Mountain is a Netflix series, but it really discusses the many disappearances and murders that have occurred in Southern Humboldt County, and they all revolve around the marijuana industry, and these growers that are up in the mountains. It really goes into a little more detail about one particular case where a cannabis grower was actually murdered.

Mark: [00:20:22] I was going up there for years. Well, I did the famous one where Mr. Ford, who walked into the sheriff’s office up and said, “I’ve been a very bad boy,” and he pulled a woman’s breast out of his pocket.

Dave: [00:20:36] For listeners, this was 1998 when Wayne Adam Ford turned himself in. He’s now on death row at San Quentin.

Mark: [00:20:44] Yes. And so, that got people pretty concerned. So, that afternoon, I was out digging up various parts of this woman that he had dismembered and buried. He was a trucker and he ended up being tried for several women along his way. He just decided to admit to it one day and there it was. And the torso that went with the pieces that I had was just identified through familial DNA.

Dave: [00:21:13] Oh, wow.

Mark: [00:21:14] They finally found out who this young woman was. And the family, they didn’t know where she was for years and years, because the police said, “Well, she’s an adult. She can take off if she wants, we don’t have to track her down.” So, they had no idea where this young woman went and she’s been dead for all these years.

Dave: [00:21:32] So, the victim in that case was 25-year-old, Kerry Ann Cummings, and they were finally able to identify her. The closure that provides a family, invaluable. That’s why we want the answers. I don’t care if it comes in 10 years or 20 years, but we got to get some answers here. There’re too many people that care.

Dan: [00:21:52] Yes.

Mark: [00:22:07] We had a case, what I call Thelma and Louise case. So, these two guys, they’re going to buy some marijuana. They’re going to buy some dope. That’s not a big deal. That’s just commerce up in Humboldt County. [Dave laughs] So, they don’t pay for that. They just take the dope and take off. So, the person that was supposed to get the money called the police because by God, they– [laughs]

Dave: [00:22:33] I’ve been robbed.

Mark: [00:22:34] I’ve been robbed. That was a legitimate crime. So, they start chasing these guys up these mountain roads, and they’re exchanging gunfire with these guys. One of them has an M14 and the other one has a .45 semiautomatic pistol, I think the driver. So, they’re chasing these guys on this mountain road. So, they decide to put the strip down and take out their tires and they do that. Now they’re riding on these rims on these mountain roads. So, they decide to just aim for the cliff. And so, they aim for the cliff, and they went over the cliff, and they’re talking on the phone saying, “You’re not going to stop us.” So, as they went over the cliff, the driver takes his semiautomatic pistol and shoots his accomplice and then he shoots himself in the head-

Dave: [00:23:24] On their way down.

Mark: [00:23:26] -on their way down. So, the car goes down a cliff. And so, the police are up there, they’re looking down, going, “What the heck was that?” Next thing you know, the driver’s crawling back up. He shot himself in the face. He didn’t do the job. So, he ended up being tried for the other guy’s murder in the robbery and all the shooting of the police and stuff.

Dave: [00:23:48] I love the poetry of that.

Mark: [00:23:52] [laughs] That was Humboldt County stuff.

Dave: [00:23:54] Like, Humboldt County craziness?

Mark: [00:23:55] Yes. Absolutely.

Dan: [00:23:57] So, Dr. Super, you said you worked in Merced County, which is more Central California. Does that cover Yosemite National Park?

Mark: [00:24:05] No, Mariposa County does.

Dan: [00:24:07] Mariposa County. Okay. I recently visited Yosemite and became fascinated by some stories of unfortunate circumstances that led to people’s deaths in that park. I thought it was really interesting because they had really broken it down to deaths at waterfalls and deaths on the roads there. I was just curious if you’d covered any of those cases.

Mark: [00:24:34] For many years, I also did all the autopsies in Madera County, and as you know, part of the park is in Madera County.

Dan: [00:24:40] Oh, yeah.

Mark: [00:24:41] There’s mountainous rural areas around the park in that county. Well, we had a case where a man– He’s a tour guide, and he knows where these natural waterslides are up there. So, he takes a bunch of Japanese tourists out on this hike up to this waterslide. He says, “I’ll show you how this works.” So, he climbs to the top of the slide, and he slides down. And then when he gets to the bottom, he stands up, and then he just says, “Oh, S-H-I-T.” Falls, like, several hundred feet off a cliff. While these poor Japanese people are looking, “Ah, now, how did we get here and how do we get back?”

Dave: [00:25:26] Right. He’s got the keys, right?

Dan: [00:25:28] Yeah.

Mark: [00:25:28] Yes. He knew how to get there and he broke about everything.

Dave: [00:25:32] Oh, man.

Dan: [00:25:34] So, this tour guide shows these people what should be a really fun experience for him. But when he gets to the bottom of the waterslide, he loses his footing and plummets to his death.

Mark: [00:25:46] Yeah.

Dan: [00:25:47] Oh, my God.

Dave: [00:25:49] What does a fall of several hundred feet do to a human body? I have my own assumptions.

Mark: [00:25:55] Ones that hit solid ground, they have major fractures of the long bones, and thorax, and usually head too. I’ve done some parachutes too, people that parachutes aren’t open. Or, in the military I’ve done like green beret type, those Special Forces that do low altitude jumps?

Dave: [00:26:14] Right.

Mark: [00:26:15] That don’t work sometimes.

Dave: [00:26:16] Yeah. The parachute doesn’t deploy.

Mark: [00:26:18] Well, they jump high, but it’s not high enough for the chute to deploy.

Dave: [00:26:23] Got it.

Mark: [00:26:24] Yeah. It’s a straightforward training accident, but it’s fatal.

Dave: [00:26:27] What are the types of cases that really interest you or get you very engaged versus what are the more mundane things that–? I’m not even talking about autopsies. What’s your favorite part of your job? What’s your least favorite part of your job?

Mark: [00:26:42] My favorite part of the job has always been going to the scenes and seeing what’s going on, because that’s where the excitement is for us. It’s different than working in a lab all day. I always found the asphyxial death to be the most challenging, because there’s not a lot of wounds. A lot of people can see somebody who’s been shot 10 times and figure out that they weren’t going to make it. Not to say that they’re not important, but as far as figuring out why somebody died in using my head, those kinds of cases are the best.

Dave: [00:27:15] You said asphyxial, like choking or strangling, lack of air.

Mark: [00:27:20] Yes.

Dave: [00:27:21] You like figuring out puzzles.

Mark: [00:27:22] Yes. People that have been smothered, people that have been strangled, people that have been poisoned and made to look like something else, those are the ones that really make it worthwhile and you go, “Yeah, now I know why I’m doing this.”

Dan: [00:27:39] Over the years, you’ve been doing this for, I think you said 40 years. Is that right?

Mark: [00:27:43] Over 40 years.

Dan: [00:27:44] Over 40 years. You started in 1979, I believe. Is that correct?

Mark: [00:27:48] That was my first autopsy as a medical student.

Dan: [00:27:51] Yeah. First autopsy in 1979, up to current day, we’re in 2023. And the changes in forensic science, can you talk about what that’s been like from your perspective?

Mark: [00:28:06] Like, night and day, for all sorts of reasons, probably in my tenure, DNA has been the number one thing that’s really changed what we do and changed how we figure out who did what and how to identify somebody. Now we’re identifying much more people using state-of-the-art DNA stuff. I think that’s the big change, the technical changes. We were typing reports in those days. We’d have to type the reports, then there would be two mistakes, and then the stenographer would have to retype the whole thing. Then there was also the days before digital photography, we’d take all these photographs of the autopsy, and then they’d run them down to the store, and then the next day they’d pick them up and they’d be all out of focus. Those days– when digital photography came around, for me, that was the greatest thing, because I can see right away if the photo is not what I want, and you can take 100 of them.

Dave: [00:29:08] We’ve tried to relay that as detectives to patrol officers for years like, “Hey, you know, there’s a little disc, and it saves lots of these things on one little digital disc. Take three times as many as you thought you needed.”

Mark: [00:29:25] Yes.

Dave: [00:29:25] There’s never enough. [laughs]

Mark: [00:29:27] Yes. Polaroids were a big deal. Remember how much those cost a pop?

Dave: [00:29:33] Oh, yeah.

Mark: [00:29:34] So, if we used three or four boxes of those and the coroner would start to grumble.

Dave: [00:29:38] Right. Like, you’re hitting my budget now.

Mark: [00:29:41] Yeah, absolutely.

Dave: [00:29:43] Those are things to be concerned with. I think back to a few of our cases where we want to throw the body through a full body scan just to see what it looks like underneath and there’re concerns about, “Well, that’s going to cost a few thousand dollars to throw this person in the machine and get a scan. Is it something we really need?” Those are things where I’m like, “It’s a murder. Yeah, we need it.” The right answer is, “Let’s do it the right way.”

Mark: [00:30:11] Oh. Absolutely. Digital x-rays are another example of that. In the small rural jurisdictions, it was uncommon to get any kind of x-ray on a firearm injury. It was uncommon, and the coroners couldn’t figure out why that we even needed those. It took all we could too to convince them that you can’t investigate a firearm injury without an x-ray. You just can’t. I don’t care what you want to say about it. I don’t care who saw what. You really need an x-ray-

Dave: [00:30:37] Right.

Mark: [00:30:38] -because there could be still a bullet in there. You think you know what happened, but you don’t know what happened.

Dave: [00:30:43] Yeah.

Mark: [00:30:44] So, digital x-rays have been a real big help and now they’re affordable. So, even the smaller agencies often have one, and you can take a whole bunch of x-rays.

Dave: [00:31:09] We have a lot of law enforcement and first responders that listen to our podcast. What are some things as a medical examiner with tons of experience? Are there things that you wish were being taught in police academies and ongoing training with law enforcement that would really aid you when you get called out to a scene and then you have to do your follow-up work?

Mark: [00:31:34] I always advise people, especially in the emergency rooms, those people are really good at what they do. God bless them. They save people. But they should not tell people what entrances and exits are. They should quit doing that. They should quit making these kinds of statements that so often are wrong. The investigation will find out that they weren’t even close. They think because they see a lot of gunshot wounds coming through the ER that they know what happened. No, they know what to do about it. They know how to help the person, but they don’t actually look at the wound itself. That’s what I do.

Dan: [00:32:14] So, these are all things that come up in court, I imagine. If you’ve got statements from ER personnel or other law enforcement personnel who are putting statements in reports and then it contradicts what you found at the autopsy, I would imagine that that is just ripe pickings for a defense attorney.

Mark: [00:32:33] Oh, yeah. I’ve had that happen a whole bunch of times. I’ve had defense attorneys try to blame the surgeons, because they tried to save the person. Now they can’t figure out why the person died. I’ve seen all of that stuff. But it’s easily overcome, really. It’s easy to explain things to juries, because juries aren’t stupid. I think a lot of people think juries are some– maybe just don’t know what they’re doing. They’re intelligent people. When you just talk to them plainly, this is what happened to the dead person. That’s my job in the courtroom. I don’t get any reward if the defendant is convicted.

Dan: [00:33:09] Right.

Mark: [00:33:10] It doesn’t help me any. I’m not there to convict him. In fact, him or her. Because if they got the wrong person, I don’t want to be part of the whole thing.

Dan and Dave: [00:33:19] Right.

Mark: [00:33:20] My job is to tell the jury or the judge, what happened to the deceased person as clearly and concisely as I can in words that people understand. Sometimes, medical and scientific terms go over some people’s heads, but I can explain it in kind of a Midwestern kid and say, “This is how this happened.” They’ll nod. You can see the jurors, they’ll nod. They get it, “Okay, now I’m on the same page with you. That’s my job.”

Dave: [00:33:48] Have you had any memorable showdowns in court?

Mark: [00:33:51] Oh, yeah. I had a case where the prosecution really wanted the photographs. You’re probably experienced with this, where the defense gets all the photographs eliminated, because they’re prejudicial.

Dave: [00:34:06] Right.

Mark: [00:34:06] But they don’t tell me that. I show up and I start to talk about the injuries, and I’ll say something about, “Well, you can see this on the photograph or something like that.” And they’re like, “You know, then there’s a big sidebar and everybody’s yelling at everybody.”

Dave: [00:34:20] Right.

Mark: [00:34:21] So, the prosecutor goes, “Well, Dr. Super, don’t you think it would better for you if you had the pictures?” And the judge just slammed his gavel down, and he threatens to send this DA out to fix parking tickets for the next six years. It’s a big old thing. Well, then he does it again. About five minutes later, he insinuates that pictures will better. So, that was it.

Dave: [00:34:46] Oh, yeah.

Mark: [00:34:46] I got hauled into chambers. It’s a child death. And so, there’s an easel there with my diagrams. And the judge goes, “Dr. Super, do you think you can testify to these by this diagram?” And I’m going, “Well, I can.” It’s not a matter of what I know. I said, “I think I can explain these injuries based on these diagrams.” Obviously, the photographs help. He says, “I know, I know, I know,” and he explains to me why they’re not going to get in. So, then we go back out, and I’m going to start my discussion with my diagrams. Well, no, a jurors passed a note to the judge saying he’d like to see pictures. Oh, my God.

[laughter]

Mark: [00:35:31] More gavels, more pounding, more yelling.

Dave: [00:35:34] Sometimes, I think some of those rulings are, the judge doesn’t want to see that stuff. I’m not allowing it because I don’t want to deal with it. I can understand how in a kid case, that would be cumulative and a little bit prejudicial. I understand horrific pictures there is testifying to those types of things. You have to be sensitive to what you’re explaining, but at the same time, this is the facts about what this person did to this person. Let’s talk about it. That’s what we’re here for.

Dan: [00:36:07] Yeah. So, I’m always curious when I see a certain cadre of medical examiners who end up being expert witnesses for the defense, and that I would imagine that you have experience in being a rebuttal witness or defense brings an expert in to rebut what you’ve determined during your autopsy. Can you talk about what that experience is like for you?

Mark: [00:36:36] I hate it. I don’t plan on doing much of it. I guess, it’s not helpful. Everyone deserves their time. They deserve a representation of their opinions. We’re supposed to be criticizing each other just as professionals, which I don’t like. I don’t like to testify that this other pathologist is wrong and they’re insinuate that they’re dumb or that they’re sloppy. I don’t like that.

Dave: [00:37:06] A lot of people only come across a dead body a couple of times in their life. For someone who sees death, and destruction, and harm, and people being maimed so often, I’m wondering, how does dealing with death as frequently as you do? How does it affect you?

Mark: [00:37:26] The psychological part of this started with me in my fellowship. So, you become a pathologist. In order to be a forensic pathologist, you have to be a general pathologist first, so you go to residency for that. And then the navy, fortunately sent me to Washington, D.C. to become a forensic pathologist. There was only one slot in the whole world that was open and they chose me to go there.

Dave: [00:37:49] Wow.

Mark: [00:37:50] It was 1984, 1985, when I was actually doing full time forensic pathology, and that was in Baltimore, in Washington, D.C., in the city. I stuffed myself around six months, eight months into it, and I coined the term in my own head was tired eyes. I felt like worn out. I was starting to get emotionally detached from things. It just seemed near the end of my fellowship, I went through this kind of veil where one part of my brain just set all this emotional stuff aside, and I realized somebody at the scene has to be the person going, “This is what we have to do. We have to get this, we have to do this, we have to do this.” We can’t worry about how things look and how sad everybody is and how distraught all the families are and the community is. Somebody has to be the person that’s going to get all this information down and get it right-

Dave: [00:38:44] Absolutely.

Mark: [00:38:45] -and get it documented, because we want somebody to go down for this if it’s crime. I could be the one that has to do that. So, I was able to put that aside. It worked for years and years and years. But now, as I’m going to retire here in a few weeks after all this time.

Dave: [00:39:03] Congratulations.

Dan: [00:39:04] Congratulations.

Mark: [00:39:05] Thank you. And it’s started to affect me again.

Dave: [00:39:09] I’m not surprised, to be honest.

Mark: [00:39:11] It’s creeping up.

Dave: [00:39:13] Yeah.

Mark: [00:39:13] So, it’s really time for me to get out.

Dave: [00:39:15] Yeah. I think sometimes the box that we all stuff it in gets a little disorganized and the lid pops open sometimes.

Mark: [00:39:23] Yes.

Dave: [00:39:24] How do you deal with it, and how does your family and close friends deal with what you handle on a day-to-day basis in life for the last 40 plus years?

Mark: [00:39:35] Well, my individual family– My wife just recently died.

Dan: [00:39:42] Ah, I’m sorry to hear that.

Mark: [00:39:43] She was an investigator, so she knew what I did. We met when I was an ME. My first wife, you can see I just got detached. Those kinds of things that happen to you. It didn’t help my marriage. Let’s put it that way.

Dave: [00:39:58] Right.

Mark: [00:39:59] But the other people in your life, they want you to entertain them at parties. Anybody noticed that?

Dave: [00:40:07] It’s the genesis of our podcast, honestly. Tell me a story.

Mark: [00:40:10] Yes. What’s the goriest thing you’ve ever seen, that kind of thing. I have two cases or three cases that I throw out there because they were so cool, and the autopsy changed everything. But I don’t like to go into the dismembered people and the kids that are starved. I did the kids that were starved and beaten and left in the storage bin in Reading that case. It was horrific. And then I’m autopsying them at Christmas at that time and I have my own kids. So, it has been brutal on my psyche over 40 years. But other people love to hear about that stuff. They just do. I’m a hit at parties.

Dave: [00:40:58] It’s one of the things that we talk about. I say, when I go to a dinner party or I’m at a barbecue with folks, there can be all kinds of people with much more esteemed credentials than I have. But typically, firefighters and cops and medical staff, people who work in hospitals especially, get acute cases. We get asked a lot about, “Well, tell me about your job.” You usually have the most interesting stories at these types of functions, so people tend to want to ask about things, but there is a proper way to ask those things.

Mark: [00:41:37] Yeah. Sometimes, I’m at the party to get away from that.

Dave: [00:41:42] Right.

Mark: [00:41:43] So, now I’m back immersed in it all and bringing it all back in my own brain.

Dave: [00:41:49] Can’t escape.

Mark: [00:41:49] Yes.

Dave: [00:41:51] Yeah. What’s the rest of your day look like? Are you doing anything that you enjoy in your job, or are you stuck doing the mundane?

Mark: [00:42:00] Well, I’m no longer doing any autopsies in Merced County. I’m semi-retired now and just closing cases. By the end of the month, I’m ready to get on to being a grandpa.

Dave: [00:42:13] Well, that’s well deserved, sir.

Mark: [00:42:15] Thank you.

Dan: [00:42:16] Do you have a favorite baseball team?

Mark: [00:42:18] Well, right now it’s a Giants, but I’m a homer. So, when I moved back down to San Diego, I was a big Padre fan in the day before I moved up to Northern California. Then I became a rabid Giant fan.

Dan: [00:42:29] Yeah.

Mark: [00:42:29] And now I can see me in a couple of years being a Padre fan again. We’ll see. But right now, it’s the Giants all.

Dave: [00:42:36] We’re both Dodger fans.

Mark: [00:42:37] Uh-oh. Oh-oh. You mean the scum-sucking Dodgers?

[laughter]

Dan: [00:42:46] That’s great.

Dave: [00:42:47] Dr. Super, really appreciate your time. I know you’re busy, and I hope you enjoy your retirement, and get away from it all.

Mark: [00:42:56] Thank you very much.

Dan: [00:42:58] Thank you for so many years of service for our country and the county that you served.

Mark: [00:43:02] Thank you. Appreciate it.

Dave: [00:43:07] On the next episode of The Briefing Room–

Lindsey: [00:43:10] With a lot of these child abduction suspects, when they’re interviewed, they will say the victim was just at the wrong place at the wrong time. It wasn’t like this perpetrator was out stalking them or had been watching them or picked them out ahead of time. It literally was they’re looking for a victim and the victim presented themselves.

Dan: [00:43:31] That’s next week on The Briefing Room.

[music]

Yeardley: [00:43:37] The Briefing Room is produced by Jessica Halstead and co-produced by Detectives Dan and Dave. Executive producers are Gary Scott and me, Yeardley Smith. Our production manager is Logan Heftel. Logan also composed theme music. Soren Begin is our senior audio editor. Monika Scott runs our social media and our books are cooked and cats wrangled by Ben Cornwell.

[00:44:02] Thank you to SpeechDocs for providing transcripts. To read those transcripts or to hear past episodes, please go to our website at thebriefingroompod.com. The Briefing Room is an Audio 99 production. And I cannot go without saying thank you to you, all of you, our fans, you are the best fans in the pod universe. And I can say with complete confidence, nobody is better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

Dan: [00:00:04] In police stations across the country, officers start their shifts in The Briefing Room.

Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dan and Dave: [00:00:21] Welcome to The Briefing Room.

[The Briefing Room theme playing]

Dan: [00:00:35] On this week’s episode of The Briefing Room, we’re talking about case law. Terry v. Ohio, a landmark decision that laid the foundation and boundaries for a police officer’s ability to detain and perform cursory searches of citizens. We’ll get into the background of Terry v. Ohio and we’ll discuss the relevance of the decision and how it applies to the streets today.

Dave: [00:00:58] So, it’s a case that occurred in Cleveland, Ohio, back in 1963. It was heard by the Supreme Court in 1967. So, you see kind of the delay in finally making it through all the appeals to finally make it to the US Supreme Court. But the basic gist of it is what people refer to as stop and frisk. There’s all kinds of discussions about stop and frisk and whether or not it’s constitutional, whether it’s applied evenly, those kinds of things, but a lot of situations that police encounter amount to a Terry stop. We call them Terry stops.

Dan: [00:01:38] One of the reasons we wanted to talk about this issue is to clarify what is legal under case law and what isn’t.

Dave: [00:01:44] Right. In this case in Cleveland, we have a plainclothes officer, his detail is working a foot beat. He walks around downtown in Cleveland, and he is specifically looking for shoplifters, pick-pocketers, robbers, people that are up to no good. 39-year police veterans, 35 of which he’s been a detective. So, this guy has a lot of experience people watching.

[00:02:14] On an October afternoon, he is on his foot patrol and notices two men who are about 300ft, 400ft away from him. He said that a lot of times he would just stop and watch people, just observe and see what they are up to. He doesn’t recognize these two gentlemen. He says that he sees these two men talking. One of them departs, walks down the street a little ways, stops in front of a store, looks into the window, walks a little bit further past the store, turns around, walks back, stares in the same store window, comes back to Mr. Terry.

[00:02:58] Terry then walks, does the same exact thing as his partner, Mr. Chilton, and goes up to the same store window, peers in the window, walks a little bit further past, comes back, looks in the window again, comes back down the street, confers with Mr. Chilton. Terry and Chilton repeat this each five or six times.

Yeardley: [00:03:21] Is the store open or closed?

Dave: [00:03:23] Store is open. So, this detective finds this to be suspicious behavior. I think that’s fair.

Dan: [00:03:30] What about you, Yeardley?

Yeardley: [00:03:33] I do, especially since you said the store is open. If you want to know what’s in the store, why don’t you go inside?

Dave: [00:03:39] Right. So, you talk about this officer with three decades, almost four decades of experience. He’s in his beat, in his neighborhood that he’s supposed to be patrolling. He has decades of trying to recognize suspicious activity. He sees this, and appropriately, his suspicions are aroused, like, “What are these guys up to?” A third person approaches these two gentlemen, and they talk for a little bit. And that person, the third person, walks away and goes in an opposite direction.

[00:04:13] This detective starts to pay more attention to this duo, Terry and Chilton, and thinks something’s going on. Are they about to do an armed robbery? He doesn’t know. So, he follows this group as Terry and Chilton, a little bit later, go the same direction as the third person who had approached them. They end up meeting back with this third person and this detective is like, “Okay, these guys are planning something. I’m going to go contact them.”

[00:04:45] This detective approaches this trio of people and identifies himself as a police officer. He’s at an obvious disadvantage. I mean, he’s outnumbered, he doesn’t have any back up there with him. He ends up putting his hands on Terry, spinning him around, and tells these three guys, “Hey, we’re going to go inside this business.” I’m guessing this officer wanted them in a more confined space to limit their movements and to ask the shop owner, “Can you call the police department, have them send a wagon down here? I need more bodies.” He performs a pat-down search of these three gentlemen.

[00:05:27] So, detective pats down Terry first, and he’s just patting the outer clothing. He doesn’t get intrusive, like going inside garments or anything like that, but he’s patting down for weapons. And inside Terry’s jacket coat pocket, he feels a pistol. So, he retrieves that, got one gun off of the three so far. He pats down Mr. Chilton, and Mr. Chilton has a gun on him as well. The third subject does not have a gun. So, two out of three have guns and it’s the two guys that this detective had been watching for many minutes. Terry and Chilton get arrested for carrying concealed weapons. At their trial, they go through a suppression hearing, basically saying, “This is a Fourth Amendment violation. This detective didn’t have the right to search us.”

Yeardley: [00:06:18] So, law enforcement’s right to stop and frisk these three men is the crux of this case. As in, does this detective have a reason to detain these gentlemen and pat them down or is that a violation of their right to privacy?

Dave: [00:06:34] Correct. So, when we talk about pat downs on a Terry stop, if I stop you on the basis of a Terry stop, which is reasonable suspicion, it’s not probable cause. It’s reasonable suspicion. So, less than 50%. Probable cause is more likely than not, so 51%. Reasonable suspicion is I have to articulate why I’m suspicious about this person that I’m stopping and why I believe they could possibly be armed. That can be difficult to do or it can be simple to do.

If I see a knife clipped to somebody’s pocket, I recognize that’s a knife clipped to somebody’s pocket. If I see a bulge in your pocket, I have an obvious responsibility to my own safety to say, “I don’t want that to be a big rock in your pocket, something hard that you can strike me with. I can pat down that pocket for my safety, because that’s potentially a weapon that could be used against me.” Now, if I pat it down and it’s a sock, that’s different, right, like a balled-up sock.

Yeardley: [00:07:42] Right. But you wouldn’t know that until you patted the person down.

Dan: [00:07:46] Right. It’s important to distinguish that when we talk about a pat down search or a frisk versus an actual search, they are different terms. A pat-down search is outside the clothing, over the clothing, where I’m patting pockets trying to determine whether or not I feel a gun or what’s obviously a knife or something that’s hefty that could be considered a bludgeoning weapon that could be used against me. It’s an officer safety issue. If you’re continuously putting your hands in your pockets after I tell you no, I might do a pat-down search to make sure that you’ve got nothing on you that you can hurt me with or potential evidence like a bag of drugs that you might throw in your mouth when you get your hand out of your pocket, so you destroy evidence. So, there’s reasons for us to be able to pat down.

[00:08:36] Folks, it’s for our safety. If we are inquiring about a crime, if we have reasonable suspicion, there are reasons for us to do pat-down searches. So, stop and frisk is like a pat-down search. You can feel through a pocket what a gun or a knife or something that’s hefty feels like versus a cell phone or car keys. I know what a meth pipe feels like as opposed to a marijuana pipe through clothing. So, it’s all kinds of different things.

[00:09:07] A search that we get either via consent or incident to an arrest, I can get into your pockets, I can check your waistband, I can check all these areas and more intrusively even without your consent. Obviously, you’re under arrest. I got to make sure you’re not bringing any contraband into the jail, and you’ve got nothing in the back seat while I transport you that you can hurt me with, like a gun in the small of your back. It’s happened. Cops have been shot from the back seat after missing guns on a search.

[00:09:38] So, I’ve seen people with drugs rubber banded inside their biceps, on the inside of their arms, so when they put their arms down, you can’t see anything. I’ve seen the same thing around calves. We’re really good at patting down mid sections and pockets, jeans pockets, and then we go down your legs, and a lot of times we’ll miss right behind your knees, the backside of your knees. And so, people will rubber band things trying to conceal them. They’ll put them in their socks, in their shoes, things where they don’t think the police are going to be able to feel this object. So, criminals are really creative about concealing things they don’t want the police to find. I’ve been fooled before. The worst is missing a handcuffed key in someone’s pocket, when you book them into the jail. Jail people do another search of your pockets, and they pull out, “Hey, you missed this” and you’re like, “Oh, I’m stupid.”

Yeardley: [00:10:32] Is that a universal handcuff key or they stole it from you?

Dave: [00:10:35] No, it’s universal.

Yeardley: [00:10:36] Really?

Dave: [00:10:37] Yeah. I can use one handcuff key to open every set of handcuffs I’ve ever come across in law enforcement.

Yeardley: [00:10:43] Then, why wouldn’t every suspect carry a handcuff key?

Dave: [00:10:47] A lot of them do.

Dan: [00:10:48] I’ve seen them on necklaces. They can even make them out of this hard plastic. I’ve seen them as part of a necklace of some other design and it breaks apart, and it’s a handcuff key, specifically for opening handcuffs. It’s not for any other reason to have.

Yeardley: [00:11:05] I was today years old when I found that out.

Dave: [00:11:08] Right. So, when we search someone incident to arrest, not just a pat-down search, but I’m getting in your pocket so I’m going to make sure that you’ve got nothing on you that can hurt me, it’s also for weapons and implements of escape, handcuff keys, because when you go into the jail, as the officer, I need to make sure that you’ve got no property on you, that I’ve done due diligence in making sure that I’m not bringing a suspect in who’s got a weapon or drugs.

Dan: [00:11:37] But again, the case we’re talking about today is about the more limited pat-down searches.

Dave: [00:11:44] So, in this case, Terry and Chilton, they try to get the discovery of their guns suppressed. I understand why. Like you’re charged with carrying a concealed firearm, I understand why you’d want that evidence thrown out, because then the case goes away. The trial court says, “No, sorry. This is all coming in.” And Terry and Chilton plead guilty. That triggers a series of appeals that ultimately finds its way to the US Supreme Court.

Yeardley: [00:12:15] Right. We actually have a clip of the defense argument before the Supreme Court. This is the actual audio from those arguments made on December 12th, 1967.

[clip begins]

Defense Lawyer: [00:12:27] But the product, once it has been removed, the danger has been removed. And we’re saying that in this case, since it was not based upon probable cause, we should not protect the constitutionally impermissible arrest by permitting the yield of that arrest to come into evidence against the defendant.

[clip ends]

Dan: [00:12:50] That’s legal speak, but what the defense is saying is that the guns the detective found cannot be the grounds for the charges, because they’re a fruit of an unlawful search.

Dave: [00:13:01] So, I think we’ll put a link to the case law.

Yeardley: [00:13:05] Yes, we’ll put the link in the episode description.

Dave: [00:13:08] It is fairly interesting, but the court basically said, “Under the Fourth Amendment of the US. Constitution, a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime, and has a reasonable belief that the person may be armed and presently dangerous.” So, while you need probable cause, PC, for an arrest, police can detain you with reasonable suspicion.

Yeardley: [00:13:42] Right. And here’s the state making that very argument to the Supreme Court, the argument that won the day.

[clip begins]

Judge: [00:13:50] This police officer in this instance had the right to investigate crime. He did see what one might, well say, were suspicious acts on the parts of people whom he thought might be preparing to commit a crime. He had a right, did he not, to pursue that farther to determine whether or not that he would have probable cause, perhaps for an arrest.

[clip ends]

Yeardley: [00:14:25] Okay, I’d like to break down what that Supreme Court audio was talking about in real-world terms, because probable cause means something very specific to you all in law enforcement. But most laypeople like me probably don’t know what those parameters are. So, Dave, can you give us a real-world example to help clarify that?

Dave: [00:14:47] Yeah. I had an example two years ago. I was a sergeant driving through a neighborhood that had been getting just hammered with people breaking into cars in the middle of the night. So, I would make it a point to drive through that neighborhood at 2, 3 in the morning, blacked out, no headlights, really slow, so you don’t hear the engine coming up, trying to catch somebody in the act. In the process of that, this neighborhood has railroad tracks bordering it to the south and a bike path bordering it to the north. This bike path is well known for being a highway that’s off the beaten path for people to get between neighborhoods without being detected by the police. Spike path, we don’t usually drive those. So, I made it a point to drive those.

Yeardley: [00:15:39] They’re wide enough for you to drive?

Dave: [00:15:41] Yeah. Single car can drive down that. It’s not what it’s made for, but I don’t expect to encounter too many people that are out for a jog at 02:30 in the morning.

Dan: [00:15:52] Right before I became a detective, I was on day watch. I would drive that same path and local residents, who were out walking their dogs or a couple were going for a walk, they would stop me and thank me for patrolling that path, because they’ve seen so much other stuff that goes on at night on that path. Stolen bikes. I’ve even recovered a stolen car on that bike path and they went back there to part it out, because you’re basically hidden from view of really anyone. It’s pretty heavily wooded and it’s remote.

Yeardley: [00:16:29] Interesting.

Dave: [00:16:30] So, in this case, I’m driving down this path, and I see a guy walking, and I had seen a bike, like the back red reflector on a bike, I had seen a flash of that as I had my spotlight and it just disappeared around a corner. I was like, “Oh, there’s a bicyclist who just came out of that neighborhood. I’m going to go find him.”

Yeardley: [00:16:51] So, just to play really dumb, what makes you think that guy on the bike isn’t just an insomniac and he’s out for a midnight ride?

Dave: [00:17:01] It’s a good question, and it comes down to the totality of the circumstances. This guy is in a neighborhood I patrol often at an hour that I know. Residents are typically not stirring. They’re not out for a walk. They’re not walking their dog. They’re not exercising. Garage doors are closed. House lights are off. So, to see a male in a hoodie wearing all dark clothing with a backpack on a BMX bike coming out of a neighborhood, I wouldn’t expect there to be any activity in, no paper boys, et cetera. And then to feel like he ducked out on me when he hit the bike path to avoid me, I’d say given the number of times that I’ve patrolled that neighborhood, all the observations I just went through that I would have a reason to believe that person is probably not from that neighborhood. So, I’m going to check him out.

[00:17:54] In this case, the guy doesn’t have bike lights. He doesn’t have a headlight, so he can’t be riding his bicycle around on city streets. So, I have PC to at least stop him, compel him to give me his identification. And if he doesn’t want to play ball, then we go from there. And so, I’m driving down this bike path, and all of a sudden, there’s a guy walking, and I’m like, “There’s no bike. I don’t see the bike. Did this guy just ditch the bike? What’s going on?”

Yeardley: [00:18:21] Does it look like the same guy, his same clothing? Can you tell that much?

Dave: [00:18:25] Different clothing. And so, I’m like, “I don’t think it’s the same guy.” So, it’s not against the law to walk down a bike path in the middle of the night. I’m looking for a bicyclist. There’s no sign of a bike, and there’s no way this guy changed outfits like Superman.

Yeardley: [00:18:39] [laughs]

Dave: [00:18:40] So, I’m thinking, I’ve got nothing on this guy. I really wanted to talk to that bicyclist. But I get out anyway and I said, “Hey, man, did you see a bicyclist just ride by?” And he’s like, “Actually, I did. Yeah, he’s going eastbound.” I was like, “Within the last 10 seconds?” He’s like, “Yeah.” I’m like, “Where did he go?” He wouldn’t answer me. He’s just really quiet and he’s like, “Can I go?” I said, “Hey, man, what’s your name?” And he goes, “You don’t have the right to ask me that.” I said, “Well, I can ask you that. You don’t have to tell me.” And he’s like, “Well, I’m not going to tell you.” I asked where he was going and he said he was headed east, but I didn’t get his name, and I conceded. I said, “You know what? You’re right. Have a good night, man.”

[00:19:20] So, he continues walking eastbound. I turn around and go back out to this other neighborhood that the bike path connects to my original target neighborhood. Look around for a few minutes and who do I come across? The guy who was walking and he’s on the opposite side of this neighborhood in the opposite direction that he had been walking and told me where he was headed. Now, I’m suspicious.

Yeardley: [00:19:45] Oh-kay. Right. So, he said, “I’m going east,” and then you encounter him again, and now he’s going west.

Dave: [00:19:51] He’s west and he’s on the west side of this neighborhood. It’s far enough that I’m like, “This guy must have ran.” So, I get out and I contact him, I stop him, and I said, “Hey, it’s me again.” And he’s like, “I told you I don’t want to talk to you.” And I go, “Well, before, you were right. You didn’t have to give me your name. But now, I’m suspicious.” He’s like, “Well, why?” “Because you are on the opposite side of a neighborhood in an opposite direction that you told me you were going in. You’re beating with sweat and you’ve got a backpack. Do you have a house in this neighborhood? What are you doing in this neighborhood?” And he says, “I’m just out for a walk, man.” I said, “Well, I’m going to need your name.”

[00:20:34] This begins a standoff. He’s not going to give me his name and he explains why he’s not. “I’m not required to. You just contacted me five minutes ago and said that I didn’t have to give you my name.” And I said, “Well, you ever heard of a case law called Terry v. Ohio?” And I explained Terry v. Ohio to him in a very simple way, but basically, I have now reasonable suspicion to believe that you’re up to something, and I believe that to be criminal activity, and I’m going to need to see some ID. You’re not free to leave. I want to make that clear. What’s your name?” “I’m not telling you.” “Okay.” So, I’m on the radio. Send me another unit. I already know how this is going to go.

[00:21:18] This guy made the mistake of having face tattoos. [Yeardley chuckles] So, I just start reading off to our dispatchers. “Can you run this guy? He’s got a tattoo under his right eye of a diamond. He’s got a tattoo on his neck of this.” And pretty soon, one of our officers named Connor, he gets me on the radio, and he goes, “It’s this guy.” I say the guy’s name. I said, “Oh, hey-” I think the guy’s name was Travis or something. “Hey, Travis.” And he looks at me like, “How the fuck did you figure that out that quick?” Just as I see the headlights of another police car coming up the street, I look at him, and I said, “Don’t run,” because I could see it on him. He’s flexing his hands, he’s starting to blade his stance like he’s going to run the opposite direction. And I’m like, “Here we go.” So, I just started to walk towards him just to put my hands on him, so you’re not getting away and the chase is on.

[00:22:13] He takes off. He made the mistake of wearing slides. He’s got the Adidas sandals on and basically just runs out of his shoes and stumbles and falls down and takes him into custody. I remember him being very upset with me until we’re in the car, and he said, “Can you explain that to me again?” And I explained, “Travis, I have reasonable suspicion and this is why. I’ll put that all in my report. You were right the first time. The second time, I was right. I’m not out here to jam you up until I have a lawful reason to.” But I think most people would agree, if you tell me you’re going one direction, and then I find you in the opposite direction, and now you’re covered in sweat, I think most people go, “Yeah, that seems a little bit suspicious. What’s he doing in that neighborhood now?”

Dan: [00:23:14] Now, where a lot of officers bungle this is the court decision is pretty clear. It has to be more than a hunch. You have to have articulable facts as to why you have reasonable suspicion that a crime is being committed, is about to be committed, or just has been committed. So, if you can’t articulate those things– And this is where sometimes young officers will just say, “He was acting suspicious.” Well, what’s suspicious? You have to articulate it. That’s where these cases, they end up going to suppression hearings, because you didn’t articulate in your report what was making you suspicious. It’s all based on your training and experience, the neighborhood you’re in. In the last three weeks, this neighborhood has been riddled with car thefts. People breaking into cars. That’s why specifically I was patrolling this neighborhood. These are all things that are relevant when you articulate these facts.

[00:24:13] If you just say, “He was acting funny. He gave me a weird feeling,” I’ve seen that in a report, what is that? What is a weird feeling? Can you tell me what a weird feeling is? Because I can tell you this. It’s not going to pass the smell test in front of a judge. But like Dave said, you just have to be able to articulate and take the loss when you have to take the loss like Dave did. Five minutes later, now, he’s developed some articulable facts and it’s a right to stop.

Dave: [00:24:44] That was a neighborhood that I would go through at least once a night, sometimes twice a night, every time I worked, and I would go at varying times. So, I had the rhythm of that neighborhood. I knew which guys went to work at 5, I knew which guys went to work at 3 in the morning. So, I had the rhythm of that neighborhood down very well. I had never seen this person ever in this neighborhood. That’s another articulable fact. It’s not like I just said, “Oh, there’s a pedestrian. I’m going to go out and contact him.”

Yeardley: [00:25:16] Dave, this Travis, as we’re calling him, was he the guy on the bike?

Dave: [00:25:21] He was not the guy on the bike. I ended up finding that guy on the bike later that night.

Yeardley: [00:25:26] [laughs] Don’t mess with Detective Dave. So, once you stop Travis the second time, and then dispatch gives you this information on him, who he is, stuff like that, other than the fact that you have this hunch that you have checked several boxes that give you reasonable suspicion that something isn’t right here, was anything going on with him? What was in his backpack? What was he up to?

Dave: [00:25:52] He had a warrant. He wasn’t being overly belligerent. He wasn’t screaming at me, calling me every name in the book or anything like that. He wasn’t compliant with his hands, I remember that. In his backpack, I think he had, we call it a rinse bag, like a little bag of drugs that wouldn’t even amount to one use, but clearly methamphetamine and some charger cords and stuff, like more than you or I would keep.

Yeardley: [00:26:18] To jump start a car kind of thing?

Dave: [00:26:21] Like phone charger cords.

Yeardley: [00:26:23] Oh.

Dan: [00:26:24] Every car burglar that I’ve ever encountered had a backpack and it was full of either burglary tools, so shaved keys, window punches, and they have charging cords everywhere.

Yeardley: [00:26:38] Those things are expensive.

Dan: [00:26:40] Yeah. And just to be clear, Terry v. Ohio also affords us the liberty and the right to pursue people when they run from us, if we can check those boxes of articulable facts that give us reasonable suspicion.

Yeardley: [00:26:54] So, just to be clear, the first time you contact Travis, he says, “I don’t have to tell you my name,” and he’s right about that.

Dave: [00:27:02] Yeah. I was looking for a guy on the bike with certain clothing on and it was clearly not him. So, I don’t have any articulable set of facts on the pedestrian. My whole focus was on this bicyclist, who I had seen peel off out of this neighborhood and catch the onramp to the bike path. So, I knew this bicyclist had just been in the neighborhood, I was going to be patrolling. And then I come across this pedestrian and I’m like, “Where did this guy come from?” But he was never my target and truly was just walking on a bike path when I first contacted him.

Yeardley: [00:27:36] So, the second time you contact him 5 or 10 minutes later, he’s now headed in the opposite direction he said he was going and he’s covered in sweat. And it’s based on your judgment when you say, “Give me your name,” that he is now obligated under the law to give you his name, he’s not allowed to refuse?

Dave: [00:27:56] On the second contact, no, because I’m covered by Terry v. Ohio.

Judge: [00:28:01] The question which was put to them by the officers, “What are your names?”, as to this, there was a mumbled, incoherent response made in reply to that particular question. And this, of course, coupled with his observations and conclusions which he had made previously. There was probable cause for this officer to further investigate for weapons under these circumstances to determine and to protect his own life here.

Yeardley: [00:28:34] So, I guess, what I’m getting at is to Travis, pedestrian, to him, the situation feels the same, even though he knows he may be up to some funny business. You are saying, “In my perception, the situation has changed, and now I’m compelling you to give me your name.”

Dave: [00:28:52] Right. I felt like I had a different set of facts between the first and second time that we met. I would hope that a reasonable person would go, “Okay, yeah, I think those are different facts.”

Dan: [00:29:02] Which is why we call it reasonable suspicion. So, for instance, you’re in a neighborhood. You as just a normal citizen say you’ve got a dog and you’re just letting your dog out. It’s 02:30 in the morning. You can’t sleep. Your dog wants to go out. You stand in your front yard. It’s a dark street. You’re not in the street, you’re not on the sidewalk. So, typically, streetlights will cast down on the sidewalk, and on the street back towards your house in your yard, it’s darker, right? You see down the street, a silhouette going back and forth across the street from driveway to driveway. Spends 10 seconds in one driveway, crosses the street, goes to another driveway, back and forth, back and forth. Reasonably, you would think, “Hey, that’s either a paperboy– It ain’t the mailman. It’s not UPS or Amazon. It’s either a paperboy, but I don’t see a big bag with a bunch of papers. I see a backpack and I see a flashlight flicker every time he goes to a driveway.”

[00:30:06] A reasonable person is going to say, that guy’s checking out cars to steal stuff. I think anybody in their right mind would side with the police, if the police stop that person, say, “Heck, yeah, stop that guy. What is he doing?” But you have to articulate it that way. If a police officer sees this happening, which Dave and I have both done, you just sit at the end of a street and just watch. You’re typing reports, you’re all blacked out in your car, and you’ve got a perfect view. And you can see silhouettes hundreds of yards away making their way towards you or away from you. You can see bike lights and those are the things that we would look for is, “I keep seeing the silhouette go back and forth, back and forth. Now, I’m going to go find that guy.”

[00:30:55] Other situations, private business at night, after hours, they’re obviously not open, and you’re driving by, and you see someone staring in the windows. I think that that’s suspicious. They’re not open. Are you window shopping?

Yeardley: [00:31:10] [laughs] Right, because it’s 2:30 in the morning and the shop closed at 06:00.

Dan: [00:31:15] Exactly. Not only that, you’ve probably got a righteous trespass in that situation also. The business isn’t open. I’ve also been to businesses– and this is why you go there, and you talk to someone. Our job is to investigate. So, I drive over there and I go, “Hey, man, what’s going on?” “Nothing.” “Do you work here?” “Yeah.” “Oh, yeah, what’s your boss’ name?” Then, we start going down the path. “Do you really work here?” “No, man, I was just looking in the window.” “Okay. Can I see some ID?”

Yeardley: [00:31:44] And you ask for identification in that case, because you are going to write at least a small report?

Dan: [00:31:52] No, I have a right to identify him though.

Yeardley: [00:31:55] Is that to see if he or she is wanted for any other crimes or–?

Dan: [00:32:01] If they have warrants, I also might do an FI, which is a field interview, which is a little card. It’s a 3×5 card. We’ve talked about FIs in the past. They’ve been really helpful in solving some crimes just by placing someone in a neighborhood when something bigger happened. You say, “You know what? I was in that neighborhood an hour before that incident, and I contacted a guy and I filled out an FI card. Let me find that Fi card,” and boom, you’ve got it. And you say, “Oh, the person that was in that neighborhood, he had a backpack. He had a pair of bolt cutters hanging out of the back of his backpack. I remember that, because it’s on this FI card that I wrote right here and say it was a car lot or something that got broken into and a padlock got clipped.” That’s a pretty good suspect.

Yeardley: [00:33:01] So, it seems like the first question law enforcement always asks is, “What’s your name?” It’s a starting point in terms of gathering information. It’s something, because you never know what’s going to happen down the line, whether it’s an hour from now, a week, a month.

Dan: [00:33:19] Or seconds from now, when he runs from you and you don’t find him.

Dave: [00:33:23] I want to know who I’m dealing with. When I run your name and dispatch comes back with a return, they tell me this is this person. They give me some brief identifiers. They also will list off any significant criminal history. So, I know if I’m dealing with somebody who’s got a history of assault, a history of theft, drugs, or sometimes, no contacts at all. Sometimes, they’ll say victim entries, which means they have been the complainant. They’ve been a victim of a crime before. It all informs me about the type of person I’m dealing with. I want more information. And so, we talk about officer safety when a police officer contacts you. It’s just normal for people to put their hands in their pockets, especially when it’s cold. Cops are afraid of pockets.

[00:34:12] We’re taught from day one, “Can you take your hands out of your pockets?” Because that’s where weapons get stored. I don’t want your hands in your pockets. I understand you want to put your hands in your pockets because you’re cold. So, I’d say, “Hey, can I at least pat your pockets down so I know there’s nothing in there? Then you could put your hands in your pockets, no problem. Just get out in front of it.” But people don’t like being told what to do by the government, right? So, sometimes when you ask somebody, “Hey, when you take your hands out of your pockets” and they refuse, that gets my blood pressure going, because I go, “Why wouldn’t you just take your hands out of your pockets? Now, I’m worried about who you are. Now, I’m also worried about what you have in your pockets and why you’re being noncompliant with a really simple request. Just take your hands out of your pockets, man. We’re a nervous bunch. I don’t want your hands in your pockets.”

[00:35:05] Or when somebody turns away and tries to conceal or secrete one of their hands so you can only see one plane of their body. I see those on body cam videos, and I’m like, “Here it comes. They’re going to pull a gun, they’re going to pull a knife, they’re going to pull a bag of drugs.” They call them furtive movements. When you’ve dealt with people in the criminal element for even a matter of weeks, that gets ingrained into your brain that you recognize when somebody’s doing the feigned compliance, or they’re about to run, or they’re about to fight clenching their fists, grinding their teeth, you can see the veins in their neck pop.

Yeardley: [00:35:46] So if you, as a law enforcement officer, feel a growing sense of danger, does that trigger the probable cause provision of Terry v. Ohio? Can you search a person or pat them down at that point?

Dan: [00:35:58] If I can articulate that I have concerns for my officer safety or safety for others around me, then I have reached that threshold and I can pat someone down for weapons.

Yeardley: [00:36:08] Okay.

Dan: [00:36:09] It’s not something that we’re really gauging. It’s a very fluid situation.

Yeardley: [00:36:14] Sort of on a case-by-case basis.

Dan: [00:36:16] Yeah. If you’ve been doing it long enough and you are experienced and you’ve trained and you’re knowledgeable, you just know when you’ve reached that threshold.

Yeardley: [00:36:26] Right.

Dan: [00:36:27] One of the first big fights that I got into, it was a guy that had been abusing his wife, and he was not on scene when I showed up. Her friends had showed up to support her, and we were standing in the front yard, and this victim’s husband came back, and she says, “Well, that’s him right there.” And I go, “Oh, well, hey, let’s go have a chat over here.” This doesn’t really have to do with Terry v. Ohio, but I’d always been told and I never really believed that when people are getting ready to fight you, they actually show you that they’re about ready to fight you.

[00:37:03] I remember watching this guy clench his fist while I was talking to him. He was looking back and forth over his shoulder, like, “Where am I going to run to after I hit this cop.” And then he literally pushed his sleeves up like a cartoon.

Yeardley: [00:37:20] [laughs] Like Popeye?

Dan: [00:37:21] When they get ready to fight with you, he pushed his sleeves up to his elbow and I was like, “Huh, I think this guy’s getting ready to punch me,” and he took a swing at me, and he missed, and the fight was on, and he went to jail. But that always stuck in my head. I just noticed these things and I was like, “Holy, they really do it. They really do do it.”

Yeardley: [00:37:46] [laughs]

Dave: [00:37:47] It’s funny. You can tell when somebody is going to fight, you can tell when somebody’s going to run, I got to be fairly good at it. A lot of people ran from me. I might not have caught them, but I was pretty good on a radio, so I could put people in a position to catch somebody. But I got fairly good at recognizing, “Okay, I’m about to be in a race that I’m probably going to lose.” I would say, “Do you want to stretch out before you take off?”

Yeardley: [00:38:11] [laughs]

Dave: [00:38:13] Just because I want him to know that I know you’re about to outrun me, but I saw it first. So, you see things like that. Every experience just goes in the piggy bank, right? You’re like, “I’ve seen this before.” So, going back to Terry stop, the ruling, and I think this is important, says, a stop and a frisk amount to “a minor inconvenience and a petty indignity.” That when a Terry stop is done correctly, it’s minor. It’s not that intrusive.

Judge: [00:38:45] The court stated further that this, of course, was just a minor inconvenience with the personal liberty that is guaranteed and that therefore, each citizen ought to be willing to give up this amount of his personal liberty in order that they might have effective law enforcement in the community.

Dave: [00:39:07] If a police officer has reasonable suspicion to stop you, it’s not up to you, the suspect or the citizen being stopped, to define what’s reasonable. I promise you, you probably don’t know the law as well as police officers do. You might, but if a police officer feels like he has a reasonable suspicion to stop you and says, “Hey, you’re not free to leave,” it’s time to start complying. It doesn’t mean you’re going to jail. It doesn’t mean it’s even going to take three minutes. It just means, “Hey, I have a reasonable suspicion to stop you, identify you, and make sure that everything’s on the up and up.” The courts recognize, that’s a minor inconvenience to the citizen. But it’s an essential job function for police officers.

Yeardley: [00:39:53] Yeah, but what if I don’t agree with you stopping me? What if I have a problem with that?

Dan: [00:39:59] I’d say you’re welcome to your opinion about that, and you may feel like you’re not being legally detained. I can tell you that that’s not the time to protest. You’d rather use the legal system to protest it, so in court, potentially. That’s when you protest. What we’re looking for in that situation is compliance. That is not the time for debate and that’s safest for everybody involved. Now, I’m not saying that there aren’t officers who abuse that, because obviously they do. And this is why we have case law.

Yeardley: [00:40:33] Right. I know there was a controversial use of stop and frisk in New York City, which led to a class action lawsuit and changes in the policy when that policy was challenged in 2013. Can you tell me how did what they were doing in New York differ or did it differ from Terry v. Ohio?

Dan: [00:40:55] There were two main criticisms. Stop and frisk was being used way too often and it was racially motivated. Those are problems. I know they were in some neighborhoods that were high crime neighborhoods, but they found some disparities racially among who was actually being stopped and frisked. That created the controversy, is that it wasn’t– Again, it wasn’t about articulable facts. It was just, “Hey, see those guys walking down the street right there? Let’s go stop them and frisk them.”

Dave: [00:41:25] Applied too liberally and unevenly, and without articulable facts, then we’re not operating in this sweet spot that’s between reasonable suspicion and probable cause. If you can get to reasonable suspicion and probable cause, you’re covered. But if you fall short of reasonable suspicion, you’re not operating within the law.

Dan: [00:41:47] This is where police lose some of our liberties, because case law changes and they rewrite the rule book on us. There were officers that I worked with, where they did some questionable things, and you go talk to them and say, “Dude, you can’t do that.” I’d hear him defend it, I’d hear him say, “Well, so and so taught me.” And I would say, “Well, so and so is wrong.” This conversation could go on and on. That’s why it’s imperative that you have good FTOs that are up on case law that understand procedure. So, yeah, we’re always a decision away from losing some of these–

Dave: [00:42:24] Authority.

Dan: [00:42:25] Yeah. Terry v. Ohio, when applied correctly, it’s invaluable to the police. Applied incorrectly, it’s terrible.

Yeardley: [00:42:36] Right. So interesting. I love these discussions about case law and the things that law enforcement need to comply with to do the job in the best possible way. There are some incredibly nuanced, but all really valuable and I think it’s great for the public to know. So, thank you, both.

Dave: [00:42:57] Yeah, it’s just important to note that throughout that decision, the word reasonable and unreasonable is used over and over and over again just like the other cases.

Yeardley: [00:43:08] Reasonable should be put at the top of every door of every precinct.

Dave: [00:43:12] Educated and well trained and well-intentioned cops are very familiar with that term.

Dan: [00:43:17] I don’t know. Putting a sign over every door, it seems a little unreasonable though.

Yeardley: [00:43:21] [laughs] [The Briefing Room theme playing]

Dave: [00:43:27] These Terry issues are challenged in courtrooms every day across the country. I’ve been on the losing end of a couple of these challenges and guess what? I learned. I didn’t take it personally and I made the adjustment.

Thanks again to our listeners. We’re back next week with a 2-parter, a lengthy discussion with someone from the dark side, one of my favorites, Lisa, the defense attorney.

[music]

Yeardley: [00:43:55] The Briefing Room is produced by Gary Scott and me, Yeardley Smith and coproduced by Detectives Dan and Dave. This episode was edited by Soren Begin, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts. And thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

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