Sheriff says there was 'probable cause' for cemetery questioning

BERNE — A woman was questioned by police as she mourned in a cemetery in the early morning hours of July 13. A breath sample at the police station, according to her arrest report, registered .01, well below the legal limit of .08 for driving. Meanwhile, her SUV had been towed from the cemetery and she had to pay $265 to get it back. She was charged with two misdemeanors — resisting arrest and second-degree obstructing governmental administration.

Marcia Pangburn at 57 said she takes comfort in visiting the cemetery on Thompson’s Lake Road in East Berne, just a few hundred yards from her home.

Her grandparents are buried there as is her infant son, Derrick Joseph Clark; her father, Raymond Ricketts, who died in 2008; and her brother, Daniel Ricketts, who died last year.

“He was my baby brother. He wasn’t supposed to die before me,” she said through tears last week.

On the night of Saturday, July 12, Pangburn parked by her father’s and brother’s graves. “They are head to toe,” she said. She keeps lights on the graves. “My father was afraid of the dark,” she explained.

Pangburn had been to a housewarming party for her niece on Warner’s Lake Road, she said, where her brother-in-law had made her a mixed drink. She said she didn’t know what was in it. “I’m usually a teetotaler,” she said.

She went to her home at 1278 Thompson’s Lake Road afterward and then, later, she was feeling melancholy, and drove to the cemetery for solace.

At about 2 a.m., she was sitting in her SUV, a gold Toyota Highlander, listening to a country song on the radio, “I Drive Your Truck,” and crying.

As she recited the lyrics to the Lee Brice song last week — the narrator mourns his brother, killed in action, by driving his pickup — she began crying again: “This thing burns gas like crazy but that’s all right. People got their ways of coping, oh, and I got mine. I drive your truck. I roll every window down. And I burn up every back road in this town...I leave that radio playing same old country station just where you left it. Yeah, man, I crank it up. And you’d probably punch my arm right now if you saw this tear rolling down my face...”

Two Albany County Sheriff’s deputies, each in his own patrol car, drove up to her parked SUV and asked if she had been drinking.

“I said no; I had a drink about three hours ago,” she said.

The arrest report says that deputies Javier-Luis Martinez and Philip Milano were responding to a “loud music call in Knox” when they saw a vehicle parked in the cemetery with its lights on.

Neither Martinez nor Milano returned calls seeking comment last week. The Enterprise called Sheriff Craig Apple this week; he said yesterday that he had alerted Internal Affairs about the case. While he wouldn’t answer specifics — “I don’t want to get into he said, she said,” the sheriff stated — he did answer questions in general terms, and noted some particulars.

“Anyone can file a complaint,” he said, noting Pangburn had not. “We’re happy to sit down with her.”

Apple said the deputies did have “probable cause” to question Pangburn in the cemetery. Apple said she hadn’t driven to the grave sites on a roadway. The deputies, he said, followed “vehicle tracks across the lawn to the back of the cemetery.”

The arrest report says the suspect “stated that she had driven her vehicle from her house to the graveyard to be close to her brother and father, whose tombstone was right next to her vehicle. Suspect was very emotional and was crying. A strong odor of an alcoholic beverage was emanating from within her vehicle. I asked suspect if she had anything to drink that night. Suspect stated that she did not. I removed suspect from the vehicle and she consented to a series of standardized field sobriety tests.”

Pangburn said this week there were no alcoholic beverages in her SUV. The only beverages, she said, were the coffee she had been drinking, and some unsweetened iced tea she had purchased earlier in the day when she had made a trip to the Great Escape with some family members.

Sheriff Apple noted that some medical conditions, like diabetes, can cause the smell of alcohol on a person to be stronger.

Pangburn also said that she followed the deputy’s directions for the field tests.

“They had me watch a pen with a colored top — blue…and they asked me to walk heel-to-toe on the white line at the edge of the road. And I had to stand on one foot. They had me count one-1,000, two-1,000, three-1,000,” she recalled.

The report says she failed the horizontal gaze test, failed the walk-and-turn test, and failed the one-leg stand test, and was then asked to consent to a preliminary breath-screening device.

Apple said, “All of our men and women are trained in standard field tests. They do it constantly.” More than one test is given, he said, because, for example, a sober person might fail the one-legged stand test simply because she has bad balance.

Apple also said that someone who registers less than the legal limit to drive on a breath test can still show the effects of having consumed alcohol. “The field tests show when ability is impaired,” he said.

At this point, Pangburn’s story and the deputy’s report diverge.

“I said, ‘I’m tired. I’m going to go home.’ They grabbed me and handcuffed me,” Pangburn said. “They were mean to me.” Deputy Milano said, “Now you made us put our hands on you. You refused to breath in the breathalyzer,” she recalled.

“I said, ‘I’ll blow in it.’ They said I wasn’t blowing right. I did it three times,” said Pangburn.

Pangburn said she suffers from COPD (chronic obstructive pulmonary disease) and perhaps, because of her difficulties breathing, the test wasn’t registering.

“They were abusive,” she said. “They treated me like a criminal.”

Milano then left, she assumes to search her car, saying to Martinez, “If she doesn’t behave right, you tell me.”

The arrest report, written by Martinez, says, “I asked suspect to consent to a preliminary breath screening device, at which point suspect became very agitated and refused to do so. I asked suspect to place her hands behind her back, where she stated, ‘I’m done with this. I’m going home,’ and began to run away from Deputy Milano and I. We grabbed suspect and told her to stop resisting. Suspect fell to her knees and used her dead weight to keep deputies from handcuffing her. Suspect took her hands and clenched them tightly against her chest. I and deputy Milano each grabbed one of suspect’s arms and placed them behind her back. Suspect was successfully handcuffed and placed into my patrol car.”

“I never fell to my knees or clenched my fists,” said Pangburn. “I just said, ‘I’m going home now. I’m through with these games.’ I turned to walk home. I didn’t run. They grabbed me really quickly — one on each side — and handcuffed me.”

Sheriff Apple, asked what constitutes resisting arrest, said, “The discretion is up to the police officer. One person may vary from another...If she does anything to keep him from arresting her, that can be resisting arrest.”

Pangburn said she was put in the back seat of Martinez’s car and, while Milano stayed behind, she was taken on a “wild ride” to the police station in Clarksville. “He went through stop signs and crossed double-yellow lines while I sat there with my hands cuffed behind my back,” she said.

Apple responded, “It would be very bizarre for an officer to drive in an erratic way.” He noted sometimes officers speed on their way to the scene of an accident or crime but, in a case like this, he concluded, “I have a hard time believing it.”

Once they arrived at the Clarksville station, Pangburn said, “He asked me to get out of the car. Whatever he asked me, I did…I sat on a wooden bench….He asked if I’d take a breath test. I said yes. I just wanted to go home. I sat there in silence for 20 minutes,” she said, referring to the typical protocol for taking a breath test.

“As soon as I took the breath test, his attitude changed,” said Pangburn. “He wasn’t mean anymore. He started to treat me like a human being. He took the cuffs off and said I could have a drink of water. He took a mug shot and fingerprinted me.

“I have farmer’s hands,” said Pangburn, holding out her worn fingers. She grew up working on her family’s farm in Berne, which, she said, wore her skin smooth.

She now works as an X-ray technician at the Stratton Veterans Affairs Medical Center in Albany, and, since she had to be fingerprinted as a federal worker there, knew it was difficult to do.

“It took an hour for the fingerprints,” she said.

She said Milano asked her, “Why did you run from us?”

“They’re making that up to make them look good,” said Pangburn.

Martinez drove her home; the clock on her kitchen stove said 5:30 a.m. when she arrived. Exhausted and emotionally drained, she said, she missed a day of work on Monday.

Four days later, on Thursday morning, at 6:30 a.m., Martinez returned to her house and handed her the tickets, she said.

Meanwhile, she said, she had to get her mother to take her to Town Line Auto on Route 32 in Greenville to retrieve her towed SUV. Her mother is Lora Ricketts, who writes a weekly correspondents column on Thompson’s Lake for The Enterprise.

Pangburn put the $265 charge for her impounded SUV on her credit card.

“I’m a single mother. I don’t have a lot of money,” said Pangburn. “I don’t know how I’m going to pay it.”

On towing the vehicle, Apple said, “I want to look into the circumstances regarding that.” While they were at the cemetery, he said, the deputies believed she was unable to drive her car. He went on, noting a cemetery is not in a high-traffic area, “The car probably could have been secured there.”

Pangburn concluded that she is now wary of returning to the cemetery, where she regularly went to mourn and seek comfort.  Often, when she couldn’t sleep at night, she would walk or drive the short distance to the cemetery. “I used to go there all the time,” she said.

Now, Pangburn said, “Emotionally, it’s got me afraid. I thought, America isn’t free. You can’t go to the cemetery and pay attention to your loved ones. I cry when I think about it. They were terrible to me.”

She also said, through tears, “As the cops were harassing me, I felt the presence of my father and my brother protecting me.”

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