Pee 81/10 afie/2ee9 igse1| 4177250815 Nixa Police Department RO. Box 395 715 W. Center Circle NIXA, MISSOURI 65714 Office: 417-725-2510 Fax: 417-725-0915 fi | | | | | | | Benergency: 911 | | | | | FACSIMILE TRANSMITTAL FROM: N Bae LOCATION, NPD 7 To Shea iis ae ta eae ene oe FAX NUMBER, TOTAL. SER OF PAGES. [o (INCLUDING COVER PAGE) ADDITIONAL: INFORMATION. Doddy 7s (s_ CATE Out AT ew? ce Day. mre fad borg — LeRoi inn B@ncey ow Une —_vwhVainbe fr Oumar. Wie (e ‘ CONFIDENTIAL INFORMATION Auaenat 0, To be viewed ony by above name retin I this message i inadvertently received, (10H please notify sender immediately. ft, (fo 19PAGE 82/18 agiel) 4177258915 Nixa Police Department P.O. Box 395 ‘TIS W. Center Circle Nixa, Missouri 65714 Emergency: 911 Office: 417-725-2510 | Fax; 417-725-0915 Novembet 10, 2009 | ‘The Nixa Police Department bas concluded the investigation on the complaint filed by Pat and Joe Picree on bebalf of their 16 year old daughter. ing with the Nixa Board of Aldermen on Monday, November 9, 2009, a scheduled to review the findings with the Pierce family. The meeting was ‘on Tuesday, November 10, 2009, at 4:30pm and lasted approximately one and In addition to the Pierce family, in attendance were Mayor Brian Hayes, City cor Brian Bingle and Chicf James Bacon. half hour: ‘The Nixa City Attomey has indicated that any disciplinary action taken in this investigation is protected as a personnel issue and therefore can't be disclosed. ‘Additionally, the completed investigative file is closed and not releasable. However, the attached letter was provided to the Pierce family and attempts to address all of the elements that can be released. I The letter|details how the investigation was conducted, what agencies participated in the review, and a summation of the overall investigation. ‘Unfortundtely, due to a pre-scheduled vacation, Chief Bacon is not currently available for interviews; however, he will return to work on Monday, November 16, 2009, and has agreed to answer any questions at that time regarding the investigation and/or the response provided to the Pierce family.e:e1 4177258915 PAGE 03/10 Nixa Police Department P.O, Box 395 TIS W. Center Circle Nixa, Missouri S714 | Emergency: 91 | Office: 417-725-2510 Fax: 417-728-0915 October 29, 2009 Joe and Pat Pierce 1784 Deer Ridge Drive ‘Nixa, MO|65714 Mr. and Mir, Piere: “This letter| comes in response to the formal complaint that you filed with my office on or about Friday, October 2, 2009. Additionally, I would also like to acknowledge that you first contabted the department within a few days of the traffic stop, and we subsequently ‘met on Friday, September 18, 2009, to discuss your original concerns. ‘The basis bf your complaint deals with a treffic stop involving your daughter (Anne E. rmed by officers of the Nixa Police Department. When we met on 18", I was provided a list of thirty-two (32) questions that we discussed at some Jength. Subsequently, you submitted additional questions and additional concems about the fraffic stop with your formal complaint. Due to the length and complexity of the complaint T am going to try and simplify this response while addressing what I believe tolbe the major concerns based upon our conversations and your recent comments in mind that [ have reviewed and listened to the full audio/video of your ‘contact with the officers, and I have reviewed all of the reports, statements and iintained within our records management system. Additionally, I have viewed a copy of the Wal Mart security video. Therefore, my response will the facts as recorded, and please understand that each issuc was reviewed current policy and/or laws of these United States of America, the State of lor the City of Nixa. First, I know that you raised concems about the Nixa Police Department conducting an internal investigation of the incident, Let me assure you thet all of the facts of this case have beer reviewed with a variety of legal professionals. While our department did document the investigative file, I exercised my authority and responsibility by contacting outside agencies to seek input on the proper course of action. Specifically, in addition to the Nixa City Attomey that met with Sgr. Liles, I have personally spoken with and reviewed the video tapes of the traffic stop with Christian County Prosecuting Attomey Ron Cleek, FBI Supervisory Senior Resident Agent (SSRA) Josh Nixon and FBI Special ‘Agent (SA) Mitchell King (both of the Springfield FBI Office).affie/zees ssa.) 4177280915 PAGE 04/18 \ Plro complaint spore; Ober 29,2009, page 2 ‘After reviewing the videos, everyone is agreement that the officers” conduct did not demonstrate any crimainal or civil rights violations; however, everyone agreed that there was evidence of a potential policy violation that needed to be addressed by the ‘Administtation of the Nixa Police Department. As such, an external investigation was not warranted, and the FBI declined to initiate a criminal or civil rights investigation as, did the Christian County Prosecutor's Office. Now, let me address more specifically what I believe to be the issues of your formal complaint: 1. The purpose of the stop : 2. The missing audio” from the video provided by my office 3. The purpose of the search — Was it with consent? > With an allegation of “sexual assault or harassment” > With an allegation of a civil rights violation ‘The purpose of the field sobriety tests . Tpepetone of four officers aye jous statements made by the officers during the traffic stop ‘The following are my responses to these specific issues: \ 1) The purpose of the stop was an accumulation of facts that developed as a result of ur daughter’s driving habits. As I told you both during the September 13 ing, individually one act might not substantiate the need for a traffic stop, but ‘were several elements that the officers used to establish probable cause. 8) The fact that she was stopped at the exit of the parking lot with cars behind her and not moving although there was no cross traffic to prevent her actions |b) The fact that after turning east on Hwy 14, she drove in the straight | Jane to proceed east through the intersection, only to make a hurried and abrupt lane change to get behind the police car, which was stopped in the turn lane (for traffic to travel north on Hwwy 160). ¢) The fact that after turning north on Hwy 160, she would not drive past the officers even after they slowed to a speed of 25mph (in a speed zone of 45 mph). While your complaint indicates that this is “VERY normal,” and while | admit that in our conversation I stated that I've seen people unwilling to pass police cars sveling on the road, this was not a time when a police car was traveling close to ‘at the posted speed limit. The patrol car was traveling at a speed well beneath ¢ posted limit, and from my experience this is often an indicator of someone iting to avoid being in front of a police car (for various unknown reasons). ore, everyone agrees that the accumulation of details demonstrated aiifie/2003 ig:a1) 4177250815 PAGE 05/18 ! Pere compli repre: Ober 29, 208, age 3 spicion that in the past has proven evident of an impaired driver. Therefore, the offess initiated a stop to determine if the driver wes impaired. 2) In ovr previous meeting, I explained that the audio from one officer's microphone not present due to a mechanical issue, However, to ensure that this was the cake in your daughter's traffic stop, I have done the following: a) Thad Sgt. Liles review the initial radio/video inspection video performed by the officer at the start of the shift. b) We have reviewed all video from the officer's shift on the date of September 11, 2009. c) Thave contacted the manufacturer of our In-car camera systems to determine if officers can delete or remove audio from a retained video. ‘The initial video inspection has demonstrated an error in which the microphone seat properly synched to the system and therefore did not provide audio to the recording system. This is a training issue that requires attention. We also discovered that the lack of audio occurred with every traffic stop made by the icer throughout the entire shift and was not isolated to your daughter's traffic stop. The manufacturer has also verified that neither officers nor supervisors have <8 to delete portions of a retained video or audio within our system, and it is ir opinion that no audio was deleted or removed ftom the recording because system would record such an attempt within the system's data log. It simply id not record because the microphone was not synched with the recording device. 3) ee as | explained during our first meeting, the purpose of the search was to seek consent to ensure officer safety while performing field sobriety tests. The audio recording verifies that a supervisor explains to the probationary officer that this should always be done, Was it a consent search? While I understand that it is your position that your daughter did not give consent, the officer claims that she did. Therefore, since I not present and do not have personal knowledge as to which statement rect, I have to make a determination based upon the available facts. Upon ‘iewing the video with the aforementioned sources, everyone agrees that the ions of your daughter and the officer support the conclusion that consent was ted, As such, the subsequent search was in compliance with the policy of the department. ile I recognize that searches performed on members of the opposite sex are awkward there is a need to do them, and therefore there is a standard protocol and icy that governs the method by which an officer performs searches on jembers of the opposite sex. Personally, I wish our department had femate officers available for this type of incident, but we don't. That js the purpose ofafie/zee9 is:e1 4177280915 PAGE 06/18 Pier compl response: October 29,2009, pags 4 the policy, which was approved and adopted by the Nixa Board of Aldermen in. ‘Sqptember 2007. Was it sexual assault or harassment? Again, after reviewing the video with secutors and federal officials, everyone agrees that there is no evidence to support that claim. But, let’s review the state statutes: @) Missouri RSMo 566.040 defines sexual assault as: “4 person commits the crime of sexual assault if (s)he has sexual intercourse with another person knowing that (s)he does so ‘without that person's consent.” 3B) Missouri RSMo 565,090 defines harassment as: “A person commits the crime of harassment if: () (he inowingly 2) (s)he does any of the following: (@) communicates a threat to commit a felony to another person and in so doing frightens, intimidates, or causes emotional distress to such other person: OR (8) communicates with another person and uses coarse language offensive to one of average sensibility and thereby puts such ‘person in reasonable apprehension of offensive physical contact; | OR (©) frightens, intimidates, or causes emotional distress to another person my making an anonymous phone calll or any electronic \ communication; OR (@) makes repeated unwanted communication to another person; OR (€) communicates with another person who is or purports to be less than 18 years of age and who without good cause recklessly ‘frightens, intimidates, or causes emotional distress to that person; oR () engages in any other act without good cause: (2) with the purpose to frighten, intimidate, or cause emotional distress to another person, AND Q) causes such person to be frightened, intimidated, or emotionally distressed (NOTE: the person's response to the act must be one of a person of average sensibilities considering the age of the person).ig:eL, 417250918 Page 87/18 Pieter complain response: Ostober 29,2009, page § I would like to note that in reviewing the statute for harassment, the only sections that could possibly be considered as potential violations were sections “e” and “£.” However, with the existence of probable cause for the initial traffic stop and the reasonable suspicion present for the use of the field sobriety tests there is substantial evidence to establish “good cause” and therefore fails to meet the statutory requirements of a criminal violation. Was it a civil rights violation? As previously noted, 1 contacted the Federal Boreau of Investigation in Springfield, MO, to seek their opinion on this particular issue. The determination was that there was no evidence of a civil iphts violation and subsequently the FBI would not initiate or participate in the investigation 4) Asa general standard, officers perform field sobricty tests anytime they have suspicions that a driver may be impaired (by alcohol or drugs). Furthermore the purpose is to ensure that the driver is not a hazard to themselves or other people. In our first meeting, I asked how you would feel if the officers had not performed ‘any test and let her go, and she was then killed in an accident a few moments later. Your response was “or killed someone else.” The point I make here is that T will always seek to err on the side of caution to ensure that no one is injured or led as a result of a potential impairment. And, yes sometimes an impairment develop from a person being tired, which was the comment made by the officer before asking your daughter to exit the vehicle: “My main concern right nie ts I'm not sure Ifyou're tired or what.” Does that mean being tired could 0 result in an arrest? No, but I have seen meny times when a traffic stop bas revived a tired person and removed the danger of them driving while sleepy. 5) Abs we discussed in the first meeting, I will acknowledge that four officers were me ‘at the conclusion of the traffic stop. However, evidence indicates and supports the fact that the fourth officer did not arrive on scene Until the end of the stop. That officer actually performed another traffic stop in the same general area, during the time that the officers were conducting the consent search and field sobriety tests. It is my opinion that the officer's presence was not necessary, and this we be addressed. However, his appearance at the end of the stop had no influence or factor in the consent search or performance of the sobriety tests. 6) Concerning specific comments made by the officers on the video, I will tell you the same thing today that I did when we met on September 18". Lam sony. The officer's comments were unnecessary and unprofessional; however, every prosecutor and investigator (local and federal) that has viewed the ‘taffic stop agrees that the statements did not demonstrate a violation of any statex PAGE 8/18 19/2089 19:01 © 4177250915 ‘Piece compl response: October 29,2009, nase 6 orifederal law. Everyone agreed that if the comments did not exist, this would be a good traffic stop. But, the statements do exist. I've never tried to hide them, from the beginning I have expressed my disappointment in the usage of the ements, but the existence of these statements does not change the facts that pbbable cause and reasonable suspicion existed for each action performed by the officers Before I summarize this letter, I would also like to address a couple of additional issues that were noted in your written complaint. First, you stated: "We asked Chief Bacon if their offiders ever do this type of action for practice. He said - NO.” Itis possible that you recall the conversation in that manner, but as you recall I did audio record our ‘conversation. In reviewing the audio tape here is the exact conversation, which does add some context to my response: [At 00:57:58 of the recording, I read the specific question (#21) from your list of questions] ~ “Was this being used as a training or practice exercise, with Anne being the vierim?” ‘Then I provided the following response: “No, that was not the purpose; however, uh, I'm not going to lie to you and say than with everything we do there’s not some level of training especially when a rookie is involved, Bul, it wasn't for the purpose of.” The statement I made that day is consistent with the statement that I provided to various media sottrces, and it is consistent with my stance today. We do not go out and target rivers for the sole purpose of “practicing or training” officers. However, when we are dealing with a probationary officer everything that we do is an clement of training (itis ‘commonly referred to as OFT). If we sce that a suspicion exists, then we will proceed with the necessary actions. In doing so, we can (1) determine if a violation exists and (2) observe and make improvements to the performance of our staff. But, we do not stop people simply because we want (or need) to practice on someone. Secondly, in your complaint you state “[Corporal] Campbell did roll down his window and said, ‘Your daughter did everything just as she should. She did fine,’ And left.” Additionally, in our first meeting you stated (as transcribed from the audio at 00:31:24): “He was leaving and I approached his vehicle. He didn't get out of his, Iwent to kim because I wanted to speak with an officer yet while J was there.” ‘This seenhs to indicate that the officers avoided contact with you and made a short statement before immediately leaving you and your daughter alone on the parking lot, but video from Wal Mart security shows something different. After driving away from the9/18 aP/ie/2ae3 i9:e1. 4177280915 PAGE Perce complaint remonce: Oxnber 29, 2008, page 7 ttaffic stap, Corporal Campbell is seen stopped on the parking lot several yards away. ‘After you apparently arrive at your daughter's location, he turns his vehicle around and dtives batk to your location. The video also shows that he remained there for four and one half minutes. Now, I dou’t share this to make any accusation of a misrepresentation ‘on your part, but simply to demonstrate that during stressful events the mind can remember things differently. However, in an evaluation of circumstances, I must consider the facts as they exist, not as they are perceived, Finally, during the recent Board of Alderman’s meeting you asked the Aldermen to have the policd department engage in an educational program with students at the high school. ‘Twice dufing the meeting, [ asked you to acknowledge that I already offered that on behalf of the police department, but for some reason you were unwilling to confirm our conversation. Therefore, I would like to again refer to our taped conversation and provide the following: Here are excerpts from the recording (01:22:20), although the full recording depicts much more of my response than T have included with this letter — Joe Pierce: “Would the Nixa Police Department be willing to talk to the Nica student body and explain to them what they can expect if they get pulled over for various things. You know, basically so they're not paranoid about it and like you said, you know, she was not stopped just because of one particular thing. it was a ‘multitude of things. If they understood that, I think that she probably wouldn't have driven the way she did.” ‘Ifyou are asking me ifthe Nixa Police Department would be willing to do educational programs with the schools, yes. We already do that. We've not necessarily done this topic, but we ve got a a Dare Officer, he works mainly in the lower elementaries, But Brent has done many things at the High School.” Chief Bacon: Joe Pierce: "I think it would be a great education for them so hopefilly they will not fear, and hopefully respect, and not be endangered by you.” Chief Bacon: "..yes, I'd be more than happy to have Brent visit with them [SRO's] to see about, you know, setting up some type of things where we could do that. Every year in fact, we do a program with the crash around Prom. That would, that would be a very good time to incorporate this into that, because we've already got there uh, attention about the accident and driving impaired, and such as that, and you know that would be a good time to do that.” Again, I share these comments only to verify our earlicr conversation and reemphasize a commitment that was already in place.aP/ie/2a03 19:01 4177280915 PAGE 10/10 Peres complaint response: October 29, 2008, page ‘In summary, while I am sure that you may not agree with all of the conclusions in this review, I'can assure you that I have carefully reviewed all aspects of the complaint and I hhave done so with input from state and federal agencies. The conclusion is that the traffic stop was made within the limits of the law, the search was based upon consent and performed within department policy, there was reasonable suspicion to perform field sobriety tests, and there was no criminal or civil misconduct on the part of the officers. In regards to the statements made during the stop, I have determined that a policy violation existed, and I have taken appropriate disciplinary action; however, I can’t disclose issues related to a personnel disciplinary matter. I will also confirm that we have recognized areas in which we can improve our performance and training, and I can assure you that we will always take the necessary steps to continue our evaluation of personnel performance. Finally, Iam sorry that you feel that our service was inadequate. I’m also sorry that umnecessary statements were made and elevated your concems, but please know that it hhas been a goal throughout my entire career to provide quality service to the citizens that Tserve, [also understand that everyone will not always agree with the actions of law enforcenlent...there will be those that question our actions, others that accept things in blind trust, and still others that will wait to make a conclusion until they review all of the facts. Ultimately the evaluation of performance must include a review of actions as they relate to policy and/or laws that govern the actions of every law enforcement officer in this country. That occurs with an open and honest review of citizen complaints, and when adtninistrators accept and acknowledge the responsibility of things that occur — whether it is good or bad. IE can agsist you in other manner, please feel free to contact me, Sincerely, Ez ‘A! Bacon : Chief ec. Mayar Brian Hayes City of Nixa - Board of Aldermen Brian Bingle, City Administrator Judy Long, City Clerk Administrative File