Law Enforcement Expert Witness Prohibited From Testifying About the Existence of Probable Cause For Arrest

On February 26, 2024, the Defendant David Boruchowitz, a Deputy Sheriff with the Nye County Sheriff’s Office (NCSO), collaborated with Ken Johnson, a former Valley Electric Association (VEA) employee to arrest Angela Evans, the then-CEO of the Valley Electric Association (“VEA”), the entity responsible for providing power to residents of Nye County. Ken Johnson was a former employee of VEA who had competed for, and lost, the CEO position that Evans occupied. Because Boruchowitz had not yet secured a warrant, he made a probable cause arrest – as law enforcement officers are permitted to do – because Evans had received work at her personal residence, by VEA, for which she had not paid.

Even though an “arresting officer’s state of mind (except for the facts he knows) is irrelevant to the existence of probable cause,” the government contended that Boruchowitz’ involvement in a grass-roots movement called “Members for Change,” which sought to make VEA a more responsive organization to its customers, created a conflict of interest so severe that it deprived the Evans arrest of probable cause.

When Boruchowitz sought to introduce testimony from law enforcement expert Jeronimo Rodriguez, the Government argued that Rodriguez’s proffered testimony is irrelevant, misleading, and makes an impermissible legal conclusion. Boruchowitz responded that Rodriguez’s opinions are relevant to whether Boruchowitz’s arrest of Evans was unlawful and whether he acted willfully. The Government moved in limine to exclude testimony from Rodriguez.

Law Enforcement Expert Witness

Jeronimo Rodriguez began his policing career in the summer of 1986. He was an active police officer for 35 years and recently retired from active duty. Since retiring as a law enforcement officer in 2021, he has reviewed and consulted on police and law enforcement practices as a private police consultant. Since 2018, he has provided law enforcement training and management insight for various agencies throughout the United States.

Want to know more about the challenges Jeronimo Rodriguez has faced? Get the full details with our Challenge Study report.   

Discussion by the Court

A. Probable Cause

Rodriguez’s report indicates that he “was asked to review the Nye County Sheriff’s Office’s belief that Evans had committed a crime and opine whether it aligned with generally accepted practices.” Although Rodriguez does not always use the legal phrase “probable cause,” his report applies the facts of the case to conclude that there were sufficient grounds to arrest Evans. Boruchowitz argues that Rodriguez should be allowed to state this opinion because probable cause is an objective standard comparable to professional malpractice and does not go to an ultimate issue because it is only one element of the crime charged.

However, expert opinion is required in medical or legal malpractice cases only when the negligence is not “within the ordinary knowledge and experience of a layman.” Whether a given set of facts constitutes probable cause to arrest or charge for a crime is within a jury’s ordinary knowledge and experience, as reflected in the constitutional requirement of indictment by grand jury. Regardless of whether it goes to an element or an ultimate issue, the existence of probable cause is a legal conclusion that must be left to the jury. The Court therefore granted the Government’s motion to prohibit Rodriguez from testifying as to whether Boruchowitz had probable cause to arrest Evans.

B. Credibility of Sources

The Government also argues that Rodriguez’s report improperly opines on the credibility of other witnesses. Boruchowitz does not respond to this argument in his opposition. Rodriguez states that Boruchowitz received invoices from “a credible source working for Valley Electric.” The jury is entitled to determine whether the Valley Electric employee’s information was credible based on the facts presented at trial. Therefore, the Court granted the Government’s motion to prohibit Rodriguez from testifying about whether informants or witnesses were credible.

Because the Court granted the Government’s motion to exclude Rodriguez’s opinion on whether there was probable cause to arrest Evans, the Court need not address its request to preclude Rodriguez from relying on post-arrest information to support probable cause. Rodriguez may discuss post-arrest information or actions to the extent they are relevant to rebutting willfulness as described in this order.

C. Willfulness

Boruchowitz argued that Rodriguez’s report and testimony will demonstrate that Boruchowitz complied with Nye County Sheriff’s Office (NCSO) policies during the investigation leading up to Evans’ arrest, making it less likely that he willfully violated her rights. In support, he offers Rodriguez’s supplemental report, which opines that Boruchowitz complied with NCSO policies on street sources, informants, searches, and search warrants.

The Court declared that Rodriguez’s testimony on NCSO policies and procedures would be helpful to the jury in understanding the difference between street sources and informants and how to treat information from such sources. Those concepts are peculiar to law enforcement and not within the average person’s knowledge, as is applying for and executing a search warrant. Rodriguez may thus testify about whether NCSO’s policies on these investigative methods conform to the national standard and whether Boruchowitz’s conduct conformed to the policies.

Further, Rodriguez may not, however, testify in a way that offers a legal conclusion such as whether Boruchowitz sufficiently corroborated his source’s information, formed a reasonable belief that Evans committed a crime, or conformed to his training “to execute a probable cause arrest.” Rodriguez also may not instruct the jury on the legal standards for probable cause or proof beyond a reasonable doubt, which he describes in his original report.

Held

The Plaintiff’s motion to exclude the testimony of Law Expert Witness, Jeronimo Rodriguez is granted in part by the Court.

Key Takeaways

• Whether a given set of facts constitutes probable cause to arrest or charge for a crime is within a jury’s ordinary knowledge and experience, as reflected in the constitutional requirement of indictment by grand jury. Regardless of whether it goes to an element or an ultimate issue, the existence of probable cause is a legal conclusion that must be left to the jury. 

• Rodriguez’s testimony on NCSO policies and procedures would be helpful to the jury in understanding the difference between street sources and informants and how to treat information from such sources. Those concepts are peculiar to law enforcement and not within the average person’s knowledge, as is applying for and executing a search warrant. 

Case Details:

Case Caption:	United States v. Boruchowitz
Docket Number:	2:23cr149
Court:	United States District Court for the District of Nevada
Order Date:	November 27, 2024