Judge delays decision on Cole’s motion

Published 3:16 pm Monday, May 24, 2010

Five witnesses, including the defendant Brian Cole, took the stand

Friday in Baker County Circuit Court to contradict the testimony of two

Baker County Sheriff’s deputies during a hearing before Judge Garry

Reynolds of Pendleton.

Eight people testified during Reynolds’ consideration of a motion to

suppress evidence gathered in the police investigation of allegations

that Cole supplied alcohol to a 17-year-old girl and sexually abused

her.

Reynolds, who lives in Pendleton, left Baker City shortly after the

four-hour hearing ended at 2:30 p.m. The judge said he will issue a

ruling after reviewing briefs and case law filed by Cole’s attorney

Bob Moon of Baker City and prosecutor Sean Riddell, of the Oregon

Department of Justice. Riddell is representing the state because of

conflicts with the Baker County District Attorney’s Office. Reynolds is

substituting for Judge Greg Baxter, who recused himself in the case.

Moon filed the motion last month asking Reynolds to exclude all evidence at trial. He argued that the initial police “stop” on Oct. 31 was illegal and therefore none of the evidence against his client should be allowed. Moon also argued that police would not have obtained a search warrant to seize text messages between Cole and the victim had it not been for the “illegal stop.”

And Moon maintained that police should have given Cole miranda warnings before continuing to question him on Halloween night at the Pocahontas Fire Station.

Cole, 47, of 17507 Deer Park Loop, faces six Class A misdemeanor charges: two counts of furnishing alcohol to a minor, and four counts of third-degree sexual abuse.

Most of the testimony Friday centered on the issue of whether the deputies activated their overhead lights when they responded to a call about a suspicious vehicle parked at the Pocahontas Fire Station about 8:30 p.m. Oct. 31.

Deputies Gabe Maldonado and Rich Kirby testified that they did not turn on those lights as they approached the fire station or any time during their interviews with Cole and the girl.

Maldonado was the first to arrive. He said he found Cole and the girl in Cole’s car, which was parked at the Baker Rural Fire District station, about two miles west of Baker City.

He also found a bottle of peppermint schnapps inside Cole’s car.

The girl was taken to the sheriff’s office that night, cited on a charge of minor in possession of alcohol and released to her mother.

(The Baker City Herald does not report the names of sexual abuse victims nor does it report the names of juveniles charged with violations or misdemeanor crimes.)

In maintaining that the officers should have given Cole a miranda warning of his rights, Moon referred to a court ruling that calls for the warnings to be given if a defendant does not feel “free to leave” without answering the officers’ questions.

Moon said court precedent considers “(1) the location of the encounter, (2) the length of the encounter, (3) the amount of pressure exerted on the defendant, and (4) the defendant’s ability to terminate the encounter.”

Because Cole faced two officers, at least one of whom Moon claims activated his overheard lights and had a spotlight on at the fire station, Cole did not feel free to leave. And, Moon argued, police would not have been led to a search of the victim’s cell phone, which furthered the investigation of the sexual abuse allegations and those additional charges, without the initial stop.

“This is a tale of a sad case,” Moon said in closing Friday afternoon, “of police work that went over the top.”

He pointed to the testimony of Brooke and Kevin Bottger, who live near the fire station, and Nanette and Tracy Lehman, who were driving by that night on their way home from a Boise State football game. All four testified that they saw the patrol car lights flashing the night of Oct. 31.

“I was hoping the police would come to court and acknowledge that they made a mistake,” Moon said. “They took the arrogant approach … and took the stand and testified their red-and-blue lights were never on when that wasn’t true.

“For that reason alone, the motion should be granted,” Moon said.

Riddell argued that he doesn’t believe the Bottgers and the Lehmans were lying when they said they saw flashing lights at the fire station. He said he did not question their honesty, even though the Lehmans are acquainted with the Cole family through work and the fact that the Lehmans’ son is dating Cole’s youngest daughter.

“They are good, honest people … susceptible to pressures and memory,” Riddell said of the witnesses.

He argued that they could have thought the overhead lights were activated because of the headlights of one of the patrol cars shining through the blue-and-red lights of the other police vehicle.

Riddell also maintained that because the victim’s cell phone bill was paid for by her father, who also testified Friday, her father had the authority to authorize release of the text messages between the girl and Cole.

In calling Cole to the stand, Moon had limited his questions to the issue of the flashing lights.

The judge overruled Moon’s objections to Riddell’s questions about how Cole and the girl met that night and traveled to the Pocahontas Fire Station with a bottle of peppermint schnapps.

Riddell said the questions were designed to demonstrate the defendants’ memory and credibility.

In response to Riddell’s questions, Cole said he met the girl earlier that night in downtown Baker City after sending her a text message on his cell phone.

“I wanted to know where she was,” he said. “I was interested in being with her.”

The two met at Bridge Street near the Powder River and stopped by his office to get the bottle of alcohol before traveling to Pocahontas Road, Cole said.

Cole said he was traveling west on Pocahontas when he decided to park at the fire station, which he knew was public property.

In response to questions from Riddell, Cole said he did not take the girl to his office because she wanted to go for a drive. Riddell then asked Cole why they didn’t go to his house or the girl’s house.

“I wanted to spend time just with (the girl),” Cole said. “To talk about the challenges of her day.”