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No Credible Evidence PDF Print E-mail
Written by Jim Mullin   
February 2013

Aventura police investigated our story and concluded this: Unfounded

IZales_1n his story “Tase the Season” (December 2012), Biscayne Times contributor Derek McCann recounted an incident that took place at the Zales jewelry store in Aventura Mall. McCann had gone to Zales this past November 8 to make a purchase using his newly opened Zales credit account.

When Zales employees became suspicious that McCann might be engaged in some form of identity theft or criminal fraud, Aventura police officers responded to the store. In his story, McCann described a frightening scene that suggested gross overreaction by the police.

After McCann filed a complaint with the Aventura Police Department, an investigation was opened, led by Capt. Bryan Pegues, the department’s internal affairs investigator.

Below is his final report. It has been edited for style and space, but otherwise appears here verbatim.

 


TZales_2his complaint was originally submitted via the Internet on November 9, 2012. Upon receiving the complaint, Sergeant Brinson met with Mr. McCann on November 15 to determine if he could identify any of the involved officers and to determine if anything more serious occurred.

:Mr. McCann reviewed the employee photographs and identified the following employees: #61 (Terry Scott) as the person making the comment about the knife; #4 (Jason Fernandez) as the person who pointed the Taser at him; #48 (Nelson Reyes) as the supervising officer who did nothing wrong.

After her interview with McCann, Sergeant Brinson determined that the allegations only involved unprofessional behavior. Since one of the allegations was against Sgt. Terry Scott, a decision was made to assign the complaint to Capt. Mike Bentolila. Sergeant Scott is assigned to the Operations Division, which falls under Captain Bentolila’s supervision.

On November 26, 2012, Captain Bentolila contacted McCann and informed him that he was looking into the complaint. After speaking to McCann, Bentolila spoke with Michelle Snyder, the manager of Zales Jewelers, located inside the Aventura Mall. She told Bentolila that she was in the store during the incident and observed an officer point a Taser at Mr. McCann. She added that she heard the Taser make a crackling sound as if it were being discharged in a drive-stun mode.

After hearing this comment, Bentolila asked Snyder to provide him with a written statement describing the incident. According to Bentolila, she agreed and told him that she would call him when the statement was ready.

Based on this new allegation -- an improper discharge/display of the Taser -- a decision was made to reclassify the incident as an Internal Affairs Investigation and assign it to me.

I received the complaint on 11/26/2012, and conducted the following investigative steps:

Zales_3• I called and spoke to Michelle Snyder, the manager at Zales. She told me that she saw some type of light emanating from the officer’s Taser but was unsure if she observed an actual electrical discharge. I asked her if her statement was ready and if she could provide me with the in-store video. She told me that she would have to speak to her legal department before providing me with a statement or with the in-store video. She would not review what led to the police entering the store on November 8 without permission from legal. After our initial conversation, she never returned any of my phone calls.

• I requested and received all radio transmissions and 911 calls for the incident from communications manager Fernandez.

• I obtained all of the shift line-ups for November 8. Based on the line ups, Ofcr. Jason Fernandez, who was initially identified as pointing the Taser at McCann, was excluded from the complaint since he was not on duty during the incident. The officer who displayed the Taser was Officer Craig.

• Based on the shift line-ups and radio transmissions, I obtained a printout of the following employees’ Taser usage for November 8, 2012: Nelson Reyes, Jason Fernandez, Troy Vezina, Elricco Barnes, Cosimo Castronovo, Terry Scott, Jason Williams, Kevin Childs, and Joseph Craig. Officer Craig is the only employee who shows Taser usage during the date and time of the incident. According to the Taser report, Officer Craig turns on his Taser for 23 seconds on November 8 at 2013 hours. The Taser was only turned on and off. It was not deployed in a drive-stun or probe-deployment mode. At no time does the Taser record show an electrical arc from anyone’s Taser during the time of the incident. After 23 seconds, Craig’s Taser is turned off and not turned on again until November 15.

• I contacted Zales corporate headquarters in Irving, Texas, and spoke to staff attorney Lisa Washington-Watts. Watts sent me a copy of the video via overnight mail but told me she would not allow any employees to provide me with a written or taped statement. Other than the video, Zales would not provide any additional cooperation without subpoenas.

• I spoke to Derek McCann and obtained a sworn, taped statement from him. After his statement, McCann reduced his initial complaint to one issue: the comment an officer made to him about a knife.

• I spoke to Aventura Mall security officers Gomez and Carrell (K9).

• I spoke to Sergeant Scott, Officer Barnes, and Officer Williams. McCann identified an African-American officer as having made the comment about the knife. The listed officers are African American and had verbal contact with McCann during the incident. McCann initially identified Sergeant Scott, but I interviewed the other officers because he was not 100 percent certain who made the alleged comment.

• I spoke to Thomas McHugh, the boyfriend of Derek McCann. McHugh arrived on the scene after McCann was unhandcuffed. Officers Reyes and Craig were the only two officers present when McHugh arrived. It should be noted that McCann refers to McHugh as his boyfriend in his taped statement and in several conversations he had with me. When I spoke to McHugh, he introduced himself as McCann’s boyfriend.

Zales_4After reviewing all the above information to include the video, radio transmissions, conversations with all involved parties, and McCann’s taped statement, the following is what occurred:

Derek McCann opened an instant-credit account over the phone with Zales on November 8. While on the phone with the company representative, he asked if he could make an in-store purchase prior to receiving his credit card in the mail, and was told that all he needed to make a purchase in a Zales affiliated store was his account number and two forms of identification.

That same day, at approximately 2000 hours, McCann went to the Zales Jewelry store located inside the Aventura Mall to make a purchase. He presented a store employee with his account number written on a piece of paper and his Florida driver’s license. The store employee became suspicious when McCann presented her with an account number written on a piece of paper that she could not verify as valid.

Her suspicions were further aroused when the picture on the driver’s license he presented did not look like him. Based on this, she alerted her manager, Michelle Snyder, who contacted mall security, via telephone, about a possible fraud occurring inside the store.

Mall security dispatched Tier 2 security officer Gomez, who was on patrol duty inside the mall, to go to the store and investigate. While walking to the store, Gomez saw Ofcr. Kevin Childs patrolling the interior of the mall and informed him of what was going on. Officer Childs told Gomez that he would wait outside the store while Gomez went in to speak with the manager.

After being told what was going on, Officer Childs transmitted over the police radio that he was being advised by mall security of a possible fraud going on inside Zales. Officers Barnes and Craig indicated over the radio that they would be heading to the store as back- up officers.

Two additional officers, Williams and Vezina, happened to be patrolling inside the mall and overheard the transmission and indicated over the radio that they would be heading toward the store as well.

Mall security K9 officer Carrell heard what was going on over the mall radio and headed toward Zales. He staged outside of the Lego store, which is directly next to Zales. Carrell never entered Zales and remained out of sight the entire time.

Zales_5Gomez went into the store and spoke to the manager. The store employees told him they could not confirm that the account number McCann presented was valid and that the license he presented did not match what he looked like. The store manager told Gomez she believed something suspicious was occurring and that McCann would not present any other form of identification to the employees.

After he heard this, Gomez walked out of the store and told Officer Childs that it appeared a fraud was being committed inside. Officers Childs, Barnes, and Craig entered the store. Childs bypassed McCann, who was seated in a chair, and went directly to speak to the store employees. Officers Craig and Barnes entered right after Childs and stood on opposite sides of McCann.

Officer Craig was standing approximately three to four feet from McCann and had his Taser held at his hip, pointed in McCann’s direction. He never extended his arm toward McCann or displayed an electrical arc. In his taped statement, McCann confirmed that the officer held the Taser at his side and did not display an electrical arc.

Officer Childs briefly spoke to the store employees, who indicated that a possible crime was occurring. Based on the information presented to him, Officer Childs verbally indicated to Barnes and Craig that a crime was being committed. My conversations with the involved officers and a review of the video confirm this to be the case.

The video appears to show Officer Childs speaking to Barnes from the store manager’s desk several feet away and pointing to McCann. Once Barnes is told that a crime is being committed, he asks McCann to stand up and place his hands on the counter to pat him down. After patting him down, he handcuffs McCann and tells him to sit down. Officer Craig immediately reholstered his Taser after the handcuffs were put on.

Officer Barnes removed his handcuffs a few minutes later, when a store employee received confirmation that the account number he presented was active. The officers also established that the driver’s license McCann presented was valid. The photograph on the license depicts McCann at a heavier weight and with long hair. Currently he is much thinner, has tattoos, and no hair.

During the incident, Officers J. Williams, Vezina, Scott, and Reyes walk into the store for a brief time. At no time are there ever more than three or four officers around McCann. After McCann is unhandcuffed, only Officers Craig and Reyes remain inside the store with him.

It appears from the video that Reyes and McCann are having a cordial conversation because Reyes pats him on the back and shakes his hand. While Reyes and Craig are talking to McCann, his boyfriend, Thomas McHugh, enters the store and Reyes shakes his hand as well. From the video it appears that everyone is laughing.

After all of the officers leave, McCann and McHugh can be seen sitting down at the store counter and completing a transaction before the video ends. It should be noted that McCann and McHugh came to the mall separately, but made arrangements over the phone to meet at Zales.

At no point during the video does a K9 enter the store or stage outside the store entrance. According to mall security K9 Officer Carrell, he stood outside the Lego store next door until he heard that the situation was resolved and left the area.

McCann said in his sworn statement that he did not actually see the K9. He was informed about the K9 from his boyfriend, who saw the dog walking in the vicinity as he was coming to meet McCann at the store. There was no Aventura police K9 inside the mall at any time during the incident.

In his initial complaint, McCann alleged three things:

• 15 officers stormed into the store and repeatedly threatened him.

• A German shepherd was present inside the store.

• An African-American officer told him that if he wanted to point a knife at him, he could do that.

Based on my investigation, there were never more than seven officers inside the store at any time. The majority of the officers only entered for a moment, and once they saw the situation was under control, they left. The majority of the time there was only two to three officers with McCann.

There was never a German shepherd inside the store. In fact, Mr. McCann by his own admission never saw a dog.

None of the three African-American officers that spoke to McCann remembered making any type of comment about a knife to him, nor do they remember anyone else making that type of comment.

During my taped interview with McCann, he added that someone put their hand on his chest and asked him why his heart was beating so fast. At no point on the video does anyone put their hand on his chest.

Conclusion: Unfounded.

There is no credible evidence to support any of the allegations. In fact, with the exception of the knife comment, every allegation was recanted by McCann in his taped statement and proven to be false by the video. McCann even acknowledged in his statement to me that the officers treated him well, apologized, and explained their actions. All of the officers identified by McCann denied making any comment involving a knife, and there is no credible evidence to support it.

The facts in this case support handcuffs being placed on McCann for a short time because, as indicated above, Officer Barnes was acting on information given to him that a crime had occurred. Immediately upon receiving confirmation that the information Mr. McCann presented was valid, the handcuffs were removed.

The display of the Taser upon entering the store without indication that McCann had committed a crime or was unruly is an issue of concern.

Mr. McCann did not give any indication that he was not cooperative, and Officer Craig’s proximity to him made the potential for incapacitation with a probe deployment highly unlikely. Also of tactical concern is that Officer Barnes could have been struck with the probes if the Taser was deployed.

The use of the Taser in this case warrants concern, and my suggestion is to forward the issue to the Training Unit to review the tactics employed and to provide remedial training to Craig.

 

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