Florida Deputy Uses Spidey-Sense to Establish Probable Cause

Sunday, August 26th, 2012

Last May, Sarasota, Florida Sheriff’s Deputy Dominic Fornal followed Joseph McNeal’s Jaguar out of a parking lot, then pulled McNeal over. The reason? Dep. Fornal claimed he could smell marijuana coming from the car. Even though the car was traveling at 35 mph. And the windows were up. Oh, and there was no marijuana in the car. Fornal did arrest McNeal and charge him with a DUI, though, even though McNeal’s BAC was about half the legal limit.

Fornal’s dash cam and wireless microphone clearly show McNeal, denying the search. More deputies arrived. They brought in a drug dog, which miraculously didn’t alert. They searched the car anyway, based solely on Dep. Fornal’s obvious olfactory gifts. He must have some bloodhound in him.

It was a thorough search. They went through all the stuff McNeal and his girlfriend had in the car. They made McNeal take off his shoes and socks. They made him turn the socks inside out.  They ripped up the interior of McNeal’s car. They pulled down trim and fabric lining. They found nothing. They then brought in another dog. They searched a second, third, and fourth time. Still no sign of the drugs that beckoned Dep. Fornal’s nose like a fresh chess pie cooling on the neighbor’s windowsill. For some reason, Dep. Fornal then turned off his wireless microphone. Shortly thereafter—we’re a good 90 minutes into the stop, now—another deputy miraculously found a single burnt marijuana cigarette in the trunk. They had missed it during all of those prior searches. They must have been distracted by Dep. Fornal’s live mic. I mean, that’s the only explanation I can imagine.

The state’s attorney later dropped all charges against McNeal. Once he was released, McNeal was free to pick up his car, which the deputies had graciously left in a muddy field. They didn’t bother repairing the damage.

And what about Fornal?

Fornal’s supervisor, Maj. Kevin Kenney, described that search as “going a little too far,” though overall, he stands by the deputy’s actions that night. Kenney said his deputy operated entirely within department policy.

Everyone together, now: Then there’s something wrong with your goddamned policy.

On the plus side, that admission could help McNeal establish “pattern or practice” in his inevitable lawsuit.

But don’t think the sheriff’s department didn’t learn anything from all of this. In fact, they learned a pretty darned important lesson about how to prevent an embarrassing incident like this from happening again:

Fornal will no longer have a camera in his car.


–Radley

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38 Responses to “Florida Deputy Uses Spidey-Sense to Establish Probable Cause”

  1. #1 |  Burgers Allday | 

    On the plus side, that admission could help McNeal establish “pattern or practice” in his inevitable lawsuit.

    I wonder if this is really true. One would think it is. One would hope it is. It is just that I read a lot of fourth amendment / qualified immunity (4aqi) cases and that makes me think that this admission may not really be that helpful for the plaintiff. Again, hope I am wrong.

    On a related note, there was an awesome “pattern or practice” case last week out of St. Louis:

    http://police4aqi.wordpress.com/2012/08/21/harsh-criticism-for-the-st-louis-metropolitan-police-board-of-commissioners/

  2. #2 |  Terrance Huff | 

    Been there and done that.

  3. #3 |  Marty | 

    my mom’s car was ‘modified’ by some cops… I hope this guy ends up with a new 3 car garage to stable some new jaguars.

  4. #4 |  Bob | 

    More deputies arrived. They brought in a drug dog, which miraculously didn’t alert.

    Wut? What kind of hack training are these guys getting? What’s the point of having a Drug Dog if it doesn’t alert?

  5. #5 |  Mike Williams | 

    Good god a’mighty. Holy coup de grace nutpunch with the last line.

  6. #6 |  Jeff A. Taylor | 

    Occam’s razor requires no appeal to superheroes. Dime-Dropping Bar in Action?

  7. #7 |  DoubleU | 

    In all seriousness there has been numerous times I have smelled pot while traveling 65mph on I-95 in south Florida. (not that I know what pot smells like) I always thought it was amazing that I could smell it from a different car at that speed and wondered which car it was coming from because I couldn’t tell.

  8. #8 |  DoubleU | 

    Wut? What kind of hack training are these guys getting? What’s the point of having a Drug Dog if it doesn’t alert?

    I was working a TV job at the University of Miami game several years ago, we watched a dog and his officer walk in back of all the cars in the television parking lot. A colleague says to me, “That must be a bomb sniffing dog.” I asked, “Why do you say that?” He says, “Because no drug sniffing dog could walk past the a television crew’s car and not alert.”

  9. #9 |  Ariel | 

    “I have smelled pot while traveling 65mph”

    Especially when smoked in the trunk. Which only the deputy could smell, and not two dogs.

    I’ve smelled pot while going down the road too. Which car out of 10?

    We have a smoker in our neighborhood. Problem is you can’t tell where it comes from. However, the smoke does accumulate in our courtyard. Guess I should put up a sign “No, SWAT members, it isn’t me”.

  10. #10 |  Cyto | 

    Fornal will no longer have a camera in his car.

    One would hope that any competent defense attorney could use this as a prima-facie admission by the department that Fornal routinely engages in misconduct and his testimony and any evidence recovered at a scene where he is involved is suspect and can be discounted by the court.

  11. #11 |  Tom | 

    Burgers–

    “Pattern and practice” is used to demonstrate municipal liability. Qualified immunity only applies to the individual officers, so wouldn’t have anything to do with the “pattern and practices” analysis.

    The main problem here will be getting the chief’s statement in over a hearsay objection (although the party admission, or statement contrary to interests, or some other exception/exemption might make that possible).

    I do, however, agree with your general sentiment that the section 1983 litigation landscape is littered with hurdles in the way of plaintiffs, most of whom are tripped up by at least one on the way to vindicating their rights.

  12. #12 |  Tom | 

    I guess it’s a Major’s statement, not the Chief’s, which would also complicate the issue of whether he speaks for the department.

  13. #13 |  Yizmo Gizmo | 

    Reminds me of the time I got a speeding ticket in Gainesville
    from a cop with no radar device. He told me he took
    a class and could discern the velocity of objects at a distance
    with no error. I asked him if he might be wrong, or had ever been wrong about anything in his life and he proclaimed, in front of the Traffic Judge Evelyn Sapp, “No.” I guess I should have inquired why he became
    a traffic cop if was so smart.

  14. #14 |  AlgerHiss | 

    The depths that this bullshit reaches never ends.

    You go to the Sarasota Sheriff’s website, and you can pull up the arrest record of McNeal. Do a search on May 6th, 2012.

    http://www.sarasotasheriff.org/DailyArrest.asp

    That the charges were dropped, who cares: McNeal’s arrest is still there, and all of his personal information for schlubs such as myself to peruse.

    McNeal should demand his “arrest” record be taken off the internet.

    LE in this country is completely out of control. These people are downright dangerous.

  15. #15 |  RBass | 

    Fascist Florida strikes again,
    No Rules……. For the police that is!

  16. #16 |  Burgers Allday | 

    “Pattern and practice” is used to demonstrate municipal liability. Qualified immunity only applies to the individual officers, so wouldn’t have anything to do with the “pattern and practices” analysis.

    Yes, I totally get that. I do a blog devoted to qualified immunity cases and read about 10 of police / qi cases per week. I don’t think most courts would deem the quote as strong enough pattern and practice evidence to make it past the summary judgement stage on the municipality claim. I could be wrong about that. I hope I am wrong about that. But I am probably not wrong about that.

  17. #17 |  matt | 

    Back in the 80’s, when I was 17ish, I was on a dark lonely stretch of I-185 outside of Columbus, GA, and was approaching my exit (heading home with the GF). Saw lights waaay back behind me as I exited (and no other cars AT ALL). Before I could get to the end of the ramp, the car was on me, a cop, lights flashing. And he was mad. Deputy Roller of the Harris County Sheriff’s Office gave me a ticket for driving in excess of 100mph and attempting to elude, but strangely let me drive home. Had to go to court over that (with my dad).
    Strange thing was, in court, he said he’d radared me doing over 100, got up behind me at his vehicle’s max speed of 147mph, then I dusted him. The helpful state trooper in the courtroom (who looked like fat Elvis) helpfully piped up that, uh Deputy Roller’s car doesn’t have a radar (it didn’t; no Harris County deputy cars had them at the time). Elvis was told to shut up by the nice judge lady with the broken arm (she was wearing a cast, won’t forget that). I pointed out I was driving an 83 Honda with 138,000 miles and that was most impossible. The good Deputy then explained that his Crown Vic was also a 4 cylinder. $190, I was told, or go to jail. We paid it. Just glad he knew for a fact I wan’t guilty of anything the night he decided to railroad me for sport, because in truth I had a trunk full of untaxed liquor. I was sober, but still…. :0

  18. #18 |  demize! | 

    Florida cops, some Del Ray big fish in a small pond pulled this on me. Pissed off they couldn’t find anything they disappeared my keys for me. Real professionals.

  19. #19 |  C.E. | 

    I’m in Texas and I can smell the bullshit from Florida all the way over here.

  20. #20 |  marco73 | 

    A DUI unit, with federal funding, plus drug dogs, also with federal funding.
    Who says the goevernment isn’t on the case?

    I wonder if the victim in this case was, how do I say this gently, a minority? You do understand that cops in Florida don’t need their nose to establish probable cause: they need their eyes to see anyone with non-white skin.

  21. #21 |  Burgers Allday | 

    sort of a follow up story that is worth reading:

    http://www.heraldtribune.com/article/20120824/ARTICLE/120829785

  22. #22 |  hskiprob | 

    Prosecutorial and Judicial corruption has been the scourge of the world for EVER. Exactly why libertarians lean towards less government and the lessor the better. The more people are responcible, the less government is needed. It is better to promote responcibility rather than government force.

    A recent article spoke on social collectivity prior to Saul in the Bible. Saul reportedly brought in the use of force to collect taxes where as under prior law it was voluntary as tithing is. The tribes of Israel were set up more as theocracies and were voluntary associations. I don’t know how really true this is.

    As we all know, when the church and state get in bed is when you really have a problem. What we do know is that govenment as we know it, has not produced on environment that protects the rights of individuals, unless your rich and politically connected so that you have the money to payoff the Judiciary. All democracies fail over time and for the same reason. I think you can surely say that our democractic Republic has followed the way of demcracies. If you think about it, adding a layer of politicians on top of the decision making process in any political entity, could not possibly correct the problem.

  23. #23 |  Weird Willy | 

    Both McNeal and the sickening pig Fornal are White. I suspect that the motivation for the traffic stop may lie in the simple fact that McNeal was driving a Jaguar sedan, and after giving the driver a once-over the pig targeted him on the basis of his appearance.

  24. #24 |  CyniCAl | 

    Anyone who lives in or travels to Florida deserves it. It is a 3rd-world country.

  25. #25 |  Burgers Allday | 

    @23:

    It is almost certain that McNeal was stopped primarily because he was leaving a bar parking lot late at night. Also, there was a band playing at the bar and McNeal sys that this band was smoking mj near him (McNeal claims that he himself was not smoking mj that night, for what it is worth). There is a good chance that the policeman knew something about th reputation of the band, whatever band it was.

    I am sure that the Jag and McNeal’s appearance did not help, but, chances are, Fornal was going to stop the most expensive car coming out of that particular show, even if it had just been a Ford Escort.

    Driving out of a bar parking area at night is always a good way to get stopped, stoner band or no stoner band.

  26. #26 |  SWFL | 

    @24 –

    I live in Florida and I can neither confirm nor deny your allegations.

  27. #27 |  Pete F | 

    @Yizmo

    I have also been ticketed by a cop who did not radar me, but rather followed me for a 1/4 mile or so and watched his speedometer. Thing was, I wasn’t speeding. Why would I speed with a cop tailing me? I honestly think I got the ticket because when he asked if I knew why he pulled me over, I said, “Looking for drunks I guess.” He was upset with this accusation of profiling.

    Anyway, the real garbage of the story is I came to court with pages of questions for the officer. He answered “I don’t remember” to almost all of them. The judge pointed out that there is no burden of proof in a traffic infraction, and that the uniformed man’s word was worth more than mine even though he really had nothing to say beyond “he was speeding.”

  28. #28 |  Dawn the LegalShield lady | 

    See, this is why people need a membership with LegalShield. If we don’t know our rights, we don’t have any. He clearly knew that he could deny consent to search, but did he know he had his Miranda rights all along, including the right to an attorney? If he’d have been able to pull out his LegalShield membership card and use his emergency 24 hour access, that whole thing would have gone very differently, I can assure you.

  29. #29 |  Kami B | 

    After visiting a friend freshly (honorably discharged) from the Navy late one night in marion county, florida – I pulled into a gas station where i saw two cop cars sitting at the pump. after going inside, buying juice for my kids and an energy drink for their dad, I returned to my car. I could tell by the way they were looking, poised to pounce, that they were going to follow me and light me up. I didn’t get 20 yards from the gas station before they did so. I smiled and waved to the officer because i knew that i had done nothing wrong, had nothing on me to be concerned about, and had never even had a parking ticket. They came up to my car and shined their flashlights in the trunk/ backseat. it was a good 10-15 minutes before they even came up to me and what did they say?? “what’s your name?” i gave it. “oh. all right then. we thought you were someone else. your… uh.. your tail light was out.” i asked “may i go then?” their response “uh.. yeah.. uh your tail light was out. thought you were someone else.” and that was the nicest interaction i’ve ever had with cops at a traffic stop. florida.

  30. #30 |  Bart | 

    Many years ago, on two separate occasions I was a tourist in Florida and will never return. I found the place to be a cultural wasteland, reeking with racism and silent rage.

    I realize of course how many Floridians would say they don’t need me around anyway, so don’t bother returning, but for the sake of their own quality of life, I can’t understand how they would allow the police to operate in this way.

  31. #31 |  Josh | 

    Lincoln should have let the entire rotten South secede.

  32. #32 |  Open Thread: Ten Years of “Alas” Edition | Alas, a Blog | 

    [...] Florida Deputy Uses Spidey-Sense to Establish Probable Cause [...]

  33. #33 |  demize! | 

    “Many years ago, on two separate occasions I was a tourist in Florida and will never return. I found the place to be a cultural wasteland, reeking with racism and silent rage. ”
    Beautifully said and accurate. Having lived and visited there I can duly attest it puts the Pa in parochial.

  34. #34 |  Quick Hits of the Week « A Bodey in Motion | 

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  36. #36 |  Sailor Barsoom | 

    #31
    A-freaking-men.

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  38. #38 |  Why “Criminals” Should Have Rights Pt 3 « The Blog For Truth, Justice, & The Josh Way | 

    [...] *A suspicious roadside stop involves an unauthorized warrantless search for marijuana. The officer detected marijuana from an a vehicle going 35 mph with the windows closed. After ninety minutes and four unauthorized warrantless searches (where the vehicle is plundered) came up fruitless, a single burnt cigarette was finally found after Search #5, which was aided by the fact that the officer’s wireless microphone was turned OFF for this search. The driver was initially charged with a DUI, even though his blood-alcohol level was below the legal limit; eventually all charges were dropped. Your 4th Amendment violations: a warrantless unauthorized search, and an unreasonable search. [...]

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