Public defenders question roadside testing in fatal 2015 I-75 truck crash

Public defenders question roadside testing in fatal 2015 I-75 truck crash

March 3rd, 2017 by Zack Peterson in Local Regional News

Benjamin Brewer is brought out of custody to appear before Judge Don Poole for arraignment while at the Hamilton County Criminal Court's building in Chattanooga on Sept. 11, 2015.

Photo by Dan Henry /Times Free Press.

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Authorities took Benjamin Brewer into custody for six hours, telling him he wasn't under arrest but wasn't free to leave, either.

Brewer sat inside a Tennessee state trooper's car while officers flooded into the area around Interstate 75's mile marker 11, where his truck crashed into vehicles stopped for construction work on June 25, 2015. The 41-year-old is charged with killing six people.

During that time though, his defense attorneys argued Thursday in Hamilton County Criminal Court, Brewer was seized without a warrant. And under threat of detainment, officers did field sobriety testing, a formal interview with police, and a blood draw.

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"Each of these items must be suppressed as fruit of the poisonous tree, because they were preceded by an illegal seizure," deputy public defender Mike Little wrote in a recent motion arguing that said evidence should be kept from jurors in Brewer's April 4 trial. "Mr. Brewer's consent was an exploitation of that prior illegality."

Hamilton County District Attorney General Neal Pinkston countered his argument by calling a handful of officers from the scene that night. They described the carnage, how cars blazed with fire and victims called for help. With multiple agencies swarming the scene, "I wanted him in a secure place," one officer said. "That's why I took that position, to have him in the back seat of a patrol car."

Another officer said Brewer willingly handed over his log book, which commercial vehicle drivers use to track the number of hours they've been on the road.

The National Transportation Safety Board said in an October 2016 report that driver fatigue and drug use led to the fatal nine-vehicle crash. The agency also cited a failure in the employee screening process to determine that Brewer, of London, Ky., had been fired from a previous trucking job because of illegal drug use.

But Brewer's defense attorneys say on-scene officers collected Brewer's blood in an unorthodox way, tainting the results. His blood was drawn outside on the side of the highway amid all the carnage and chaos in the dark, public defender Erinn O'Leary said.

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"All of this raises concerns about whether the blood draw would have been done cleanly and properly for the medical standards," O'Leary argued, describing the blood test as the first link in a messy chain of custody.

Pinkston rejected that argument, saying it was "pretty clear" an officer locked the test results in his patrol car and later turned them over to the Chattanooga Police Department.

"If they have a witness who wants to talk about the nighttime and fire, that's fine," Pinkston said, "but it doesn't go back to the chain of custody."

As part of the illegal seizure argument, O'Leary also asked about the initial police interview with Brewer, when he was asked about his phone. About a week after the crash, officers secured a search warrant from Criminal Court Judge Don Poole to examine all of Brewer's cellular data.

But before he signed off on it, Poole didn't know another magistrate had rejected the police's first attempt.

"Do you have a copy of the original search warrant?" O'Leary asked one officer. "We'd really like to see that."

"I'm not sure how this is relevant," Pinkston said. "It's not the affidavit that ended up getting used."

"I think it's highly relevant what was changed," O'Leary shot back. "If there was no probable cause on the first warrant, then what changed?"

Judge Poole, who presided over Thursday's hearing, told attorneys to find another official to rule on the warrant issue. He said he would take the rest of the matters under advisement until Brewer's next court date on March 22.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.