Andy Of Nayberry

By Dan Huff

A MAN'S HOME IS HIS CASTLE, but you can bet that hoary little adage won't prevent the cops from entering your home whenever they please, on the slightest pretext.

Feature And if you're living in the Pleasantville surroundings known as the Town of Oro Valley, you might as well kiss goodbye the whole silly notion of a Fourth Amendment protection against unreasonable searches and seizures. Because, for all practical purposes, the amendment guarantees no such protection, at least not unless you're willing to fight a long and expensive court battle--perhaps several--after the fact. Furthermore, you can get your ass in a heap o' trouble if you're uppity enough to assert such an inconsequential "right" in the face of Oro Valley police might.

That's what Andy Roaché will tell you.

Roaché, a trim, well-groomed man of 28, says he moved to Oro Valley because "it's a little nicer, a little cleaner. It was an area where I thought I could be at peace.... Of course, I learned differently."

Roaché is currently facing prosecution--for the second time--in Pima County Superior Court on an assault allegation stemming from an early morning invasion of his apartment by four OVPD officers.

It happened in May 1998, about a week and a half after Roaché received a minor citation.

That supposedly routine event occurred in the parking lot of his North Oracle Road apartment complex, just as Roaché, in a suit and tie, was returning from a long, hot day selling real estate.

"I pulled into my parking spot," Roaché recalls, "and I got out of my car, and I was going toward the stairs of my apartment when I noticed an officer a little farther down the lot fingering me to come over and talk to him by his patrol car."

According to Roaché, the officer, Daniel Krueger, announced he was writing a citation for expired tags. Roaché says he tried to explain that he'd already passed the emissions test and just needed to obtain his new tags, but simply hadn't found the time. Roaché showed him some documentation to back up the story. Krueger went back to his car and made a call, then came back to say he was writing a ticket because Roaché lacked proof of registration.

But there was something far more bothersome about the encounter, according to Roaché. He claims his license plate, on the rear of his shiny black Mustang, was well out of Krueger's angle of view that day.

"And so I asked him, 'Am I under investigation or something? Because you haven't told me how you know my car's the one driving around here with expired tags.'

"He had to have looked at it before," Roaché maintains. "That's what I was getting at, but he refused to answer the question."

In less than two minutes, Roaché says, "a white van with no markings pulled up, and a plainclothes officer got out."

The two officers talked for a few minutes, then the plainclothes cop approached Roaché.

"He said, 'I want to ask you some questions.' I said, 'I have nothing to say to you. I am not a criminal, I've committed no crime, and I don't have anything to say. Officer, I have committed a traffic infraction, if that. That is not a crime. So I suggest that you catch yourself a criminal and leave me alone. I haven't done anything wrong.' "

The two officers discussed the situation for a couple of minutes, Roaché recalls, "then they came back and began snooping around my car. I said, 'Look, I sell real estate. I sell homes. In the back of my car are real-estate signs. I don't sell drugs, I sell real estate. That's the only thing I sell.'

"And the officer got a little upset. And he said, 'Well I'm just trying....'

"And I said, 'I understand what's going on here, and I have nothing to say. I have nothing to hide. If you want to search my car, search it for drugs and guns, you go ahead and do that. I'm going to give you the permission to search my car.' "

They poked around a bit, and then the plainclothes officer stepped back, leaving Krueger to write up the fuming Roaché's citation.

"We had a little joust," Roaché recalls. "He wanted me to sign the citation before he gave me back my license. It was connected to his clipboard. So when he handed me the clipboard, I actually took my license out, then I signed it. It was a little joust. No big deal."

Apparently just one of the simple pleasures available to a black man in Oro Valley, USA.

SO IMAGINE ANDY Roaché's pleasant surprise nine days later, when, after a loud and prolonged banging on his door shortly after 4:30 a.m., he was awakened from a sound sleep to find Krueger and another officer firmly planted on his apartment's tiny landing.

The cops had their tape recorder running. According to the official transcript, it sounded like this:

Roaché: Hey. What do you want?

Krueger: We had a complaint that, uh, there was some sobbing...

Roaché: Somebody...

Krueger: ...or crying coming from your apartment.

Roaché: Come on. Are you serious?

Officer Dziezynski: Yes.

Krueger: Um, I'm really serious, sir, or I wouldn't be here at four in the morning.

Roaché: (Inaudible). Did you hear anything come out of my apartment?

Krueger: I'm here because somebody heard that, and they called us, and we're here to check on it.

Roaché: Well, do you hear anything coming outta here?

Krueger: Not currently.

Roaché: (Inaudible).

Dziezynski: We need to check to make sure nobody's dead in there, or something like that.

Roaché: Well, that's not happenin' tonight. That's not happening. I'm going to sleep. So...

Krueger: But...

Roaché: I'll see you later...

Krueger: If there's no problem...

Roaché: I'll see you later.

Krueger: there, then you...

Roaché: I'll see you later.

Krueger: ...wouldn't have a problem letting us in.

As Roaché tried to shut his door, Dziezynski put his foot in the way, and the three men continued to argue.

The officers were paying their visit to the Roaché residence because a downstairs neighbor, Mildred P. Rodgers, had called 911 at about 3:45 a.m. to say she'd heard a woman "crying" or "sobbing" in the upstairs apartment.

Not shouting, not screaming, not the sound of crockery shattering, or furniture breaking, or a Saturday night special blasting away. Merely "crying" and "sobbing." Rodgers, contacted last week, refused to discuss the incident with a reporter.

She also told 911 there were two "black fellows" upstairs in the same apartment with the crying woman--which wasn't quite accurate, as events were about to demonstrate.

"I think one of them is abusing her," Rodgers concluded, apparently based solely on the muffled sound coming through the drywall in an apartment block that included three other units.

What's more, Rodgers told the 911 operator, she'd heard such noises occasionally for the past six months, and had even told her apartment supervisor about it. The super had advised her to call the police the next time she heard it, so that's what she was doing.

At the time, David Lee Gilbert, 24, lived in the same complex as Rodgers and Roaché. He says his downstairs apartment shared a wall with Roaché's upstairs unit, but he never heard a peep coming from that direction. However, Gilbert says he heard plenty--including occasional crying and sobbing--coming from the unit directly above his.

"Those people up there were always the ones who were the loudest," Gilbert recalls. "She'd have a fight with her boyfriend on the front porch and then go inside crying, or she'd be screaming or something. It was never Andy. He was always very, very quiet."

Nonetheless, the question begs to be asked: Was Roaché beating his wife?

"Of course not," says Helen Roaché. "I wouldn't marry a guy who would beat me.

"I woke up at about 4 or 4:30 a.m., and someone was banging on the door. I watched my husband get up. We kinda woke up at the same time. He went to the door, and I could hear someone start to talk to him. I couldn't exactly hear what they said, but from what I heard, I understood someone had called in that someone was maybe abused. I thought that, of course, they would know they had the wrong apartment, but they just kept insisting they would come in. My husband kept saying, 'No, you cannot come in.' "

Which raises the next question: Why didn't Roaché simply let the cops come in and look around?

Of course there was the paranoia generated by his last encounter with Krueger. (Gilbert also says he saw Oro Valley police cruisers following Roaché's car into the complex's parking lot on at least four occasions during the year or so he was Roaché's neighbor.)

In addition, Roaché says, he believed--and still does--that the police should have had a warrant before invading his home that night. Instead, from his point of view at least, they'd suddenly and inexplicably materialized on his landing at 4:30 a.m. to, as Dziezynski had so professionally put it, "make sure nobody's dead in there, or something like that."

And Roaché had what he thinks is another very good reason:

He and his wife are sunni Muslims. Helen Roaché says they met about six years ago at a mosque. And in their religion, "you simply don't allow strange men to come into your house, especially when your wife isn't fully clothed," Roaché maintains.

"I certainly didn't want anybody coming in," adds Helen Roaché. Although she foregoes the veil, in public she wears a full-length dress and the traditional sunni scarf on her head.

And so Roaché steadfastly held his ground--until, that is, he realized he was standing at his doorway clad only in his skivvies.

Oddly, although the officers refrained from entering his home while they allowed him to go get dressed, a few minutes later they refused to allow him to go get his wife.

But by then two more officers had arrived--due to additional 911 calls from neighbors warning that a fight was in progress, and exacerbated, no doubt, by Roaché's threats of a lawsuit and his angry demands that the entire contingent of OV cops on duty at that hour come on down to see firsthand just what sort of outrage their brethren were perpetrating.

The tension, as they say, was mounting.

"What the officers should have done that night," Roaché argues, "when they came upstairs and saw that everything was dark, when they heard nothing going on, they should have left and come back in the morning."

In an ideal world, perhaps. But even freshly-minted Oro Valley, with its 28,000 mainly white, upper-middle class souls, and its acres and acres of perfectly-matched dwelling units camouflaged in inoffensive shades of beige and bolted firmly onto all those mini lots in an ever-expanding multiplex of master-planned "communities"--even this uniformly stuccoed, well-manicured milieu, alas, is not an ideal world.

As his wife emerged from their bedroom, fully dressed and with headgear firmly in place, four cops rushed Roaché. They yanked his feet out from under him and, as he lay face down on his own carpet, they wrestled to cuff him, applying a neck hold that, as subsequent photos revealed, left bruises for days afterwards.

Then, with his wife and the only other occupant of the apartment that night--a female houseguest, another devout Muslim--watching, they hauled Roaché's "I'm-an American-and-I've-got-my rights" ass off to jail.

THE THIRD ACT in the The Andy Roaché Ordeal has dragged on for more than a year now.

After invading his home at 4:30 a.m. based solely on the uncorroborated report of one sleepy and possibly confused neighbor, the cops charged Roaché with two counts of aggravated assault.

The more serious charge, disfigurement of a police officer, a Class 3 felony, allegedly occurred as Roaché was being handcuffed. Dziezynski's report notes: "Mr. Roaché began fighting, flailing his arms and Officer [redacted] and I fell to the ground with Mr. Roaché. When I got one handcuff on Roaché's right hand, he swung around with his left hand, striking me in the bridge of the nose, causing it to bleed."

At the hospital, another officer's report notes, an examining physician was "unsure if Ofc. Dziezynski's nose was broken." There's nothing in the official police transcript of the incident to indicate Roaché injured Dziezynski, although another officer notes, after Roaché has been cuffed and is apparently being moved to a patrol car, that Dziezynski is bleeding. No mention is made of how the injury occurred.

"I don't remember hitting anybody," Roaché says. "If I did, I certainly didn't intend to."

Why is this important?

Because, if convicted, Roaché was facing a maximum 12 years in prison.

After he was charged, he says, he was laid off from his well-paying real-estate job. "Nobody wants you if you have a felony charge hanging over your head," he notes. Unable to support his wife, she was forced to move back to Oregon, where she's currently living with her in-laws.

At trial almost a year later, the jury apparently found insufficient evidence to convict Roaché on the disfigurement charge. He was acquitted; the jury hung, five to three, on the lesser charge.

"For a year they let me think I was going to prison for a dozen years," an embittered Roaché says. His situation was made more difficult by the fact that the police officers claimed their rights under the Arizona Victim Protection statute, making it difficult for Roaché to get the information necessary for his defense, complains his attorney, Vernon Peltz.

In fact, the prosecution had in its possession for nearly a year a doctor's report stating Dziezynski showed no evidence of blood in his nasal passages, that he showed no signs of a fractured or broken nose, that he did not require medication, and that he wouldn't need to miss any days of work to recuperate. Nor did the doctor's report indicate Dziezynski had "two blackened eyes," as an OVPD detective later testified before the grand jury that indicted Roaché.

In the meantime, however, the prosecution had told Roaché they would drop the disfigurement charge if he would plead guilty to the lesser assault charge.

"Big deal," Roaché says. "I was an innocent man, and I'd still be looking at two years in prison and $2,000 in restitution to Officer Dziezynski."

Peltz, however, says if Roaché had taken that deal, more than likely he would have received probation--but taking the deal would have automatically eliminated Roaché's ability to sue Oro Valley for damages in civil court.

"The bottom line," Peltz says, "is that the entire system stacks up against the defendant in a case like this. The prosecutors typically charge him with a Class 3 felony, or something else with a heavy-duty penalty, like the 12 years Andy could've been facing. Then they come to him and say, 'If you just plead to the minor assault, well get you probation.' It's hard for most people to walk away from that in the face of possible prison time."

When Roaché rejected the deal, the judge, Howard Fell, a former deputy Pima County prosecutor, promptly "turned around and gutted my whole case with his rulings," Peltz says. "Then he looked at me and said, 'Now, do you want to talk to your client again?' "

But Roaché still refused to make a deal.

As it happened, because the prosecution revealed the doctor's report so late in the process, the judge subsequently refused to admit it as evidence.

Despite all the difficulties, Peltz says, at trial "the jury just flat-out didn't believe the cops."

BUT THAT'S NOT the end of the story. Roaché is currently facing a second prosecution on the lesser assault charge, a Class 2 felony.

In the transcript, one of the officers accuses Roaché of "crossing the line," by attempting to push him back, presumably as the officer entered the doorway to Roaché's home.

Roaché appears to deny that charge in the transcript. And he maintains he's being prosecuted simply because his arms went up in a reflex action when the police rushed him.

"This is typical," Peltz says. "The cops beat a guy up, then they prosecute the hell out of him. These guys are trying to cover up their own misdeeds."

But if Roaché was supposed to learn a lesson from all of this, the Oro Valley Police Department had better do a better job of tightening the screws next time:

"I come from a tough family," Roaché says. "My father was a master sergeant in the Army, my brother was in the Marine Corps, my grandfather was in the Navy. I lived with people who are wise and tough, people who don't back down no matter the circumstances. And I'm willing to sacrifice myself in the face of wrong if it means right will come about by it."

Even though his life has been turned upside down, and in some ways nearly destroyed, Andy Roaché says, "I just refuse to lose."

The Tucson branch of the National Association for the Advancement of Colored People, NAACP, donated $250 to Andy Roaché so that he could purchase a transcript for his first trial, which enabled his lawyer to impeach police testimony, winning Roaché's acquittal on the more serious assault charge he was facing.

Now, however, Roaché needs roughly $1,200 to purchase a transcript of the first trial, so that his attorney can use it in an attempt to impeach police testimony in his upcoming trial.

If you wish to contribute, send a check made out to Tucson NAACP, to 2160 N. Sixth Ave., 85705. Be sure to write "Andy Roaché Defense Fund" in the check's memo space.

What Would You Do?

IMAGINE, FOR A moment, that you're someone like Andy Roaché (See main story), and an incessant pounding has awakened you from a sound sleep. You go to the door to find two uniformed police officers standing there.

"We've gotten reports of a fight or a disturbance here," one of them says. "We need to come in to check welfare."

The whole thing is obviously a hideous mistake, you realize as you're standing there in your underwear. What's more, you know the Fourth Amendment to the U.S. Constitution guarantees your right to be secure in your home from "unreasonable searches and seizures"--and to your sleepy brain, at least, this seems about as unreasonable as it gets.

What do you do?

"You open the door and let the officers in," says Deputy Pima County Attorney David White, a veteran prosecutor.

Even if you know your spouse is in an embarrassing state of undress in another part of the house?

"Yep," says White.

Even if it violates your basic religious principles?

"The law is very clear. You're not entitled to resist."

You're certainly allowed to protest that the cops are making a big mistake, White adds, and sue them at a later date for the damages you're about to suffer.

"Cops are sued all the time," he notes. "But for obvious reasons nobody's entitled to resist the police by force."

Of course, the specific question of whether Roaché used impermissible force--or any force at all--to keep the police from entering his home is one for the jury to determine. Oro Valley Police have already lost in court on one assault charge against Roaché, who now faces trial on a lesser assault charge. Roaché maintains his only "crime" might have involved an involuntary reflex motion of his arms when the police rushed him at his door as he stood there protesting their demands to enter.

But in general terms, White points out, there are "any number of exceptions" to the Fourth Amendment's warrant requirement. "One of them is the public safety exception. If a police officer has facts indicating somebody may be hurt, injured or otherwise endangered, he can make a warrantless entry to check on the safety of that person."

If it were your mother or your sister inside an apartment, White says, and a neighbor called 911 to say he heard signs of distress, "would you want the police to go check on safety, or would you want them to go, 'Oh well, maybe this, maybe that, so we're just not going to do anything'?"

White notes the courts have consistently resolved the question in favor of safeguarding the public.

"Which means," says Vernon Peltz, Andy Roaché's lawyer, "whether the police are coming into your house has to do solely with the level of hysteria in a 911 caller's voice? I don't think so."

Peltz says the law maintains that "every warrantless intrusion into your home is presumed illegal. The standard is relaxed when it comes to searching your car; but when it comes to the home, in the law it's still a man's castle."

So the question in this case is also one of whether the police had a good enough reason to believe someone was in distress or danger.

And that's a question Peltz says he eventually hopes to resolve in a civil suit--against the Oro Valley Police Department and the officers who came barreling through Andy Roaché's doorway in the wee hours just over a year ago. TW

 Page Back  Last Issue  Current Week  Next Week  Page Forward

Home | Currents | City Week | Music | Review | Books | Cinema | Back Page | Archives

Weekly Wire    © 1995-99 Tucson Weekly . Info Booth