Rose Above: Routine Traffic Stop Turns Into Felony Charges and Years of Court Battles

The first time I spoke with Jonathan Rose, he was about to fly to Switzerland for vacation. He needed it, he said. He deserved it, he said. After all, it was barely a year since he had been arrested, charged with multiple felonies and threatened with a long prison sentence.

Some Background

“I am a regular, hard-working, self-employed single dad. I’m a private equity investor with sole custody of my two children, whom I have raised by myself since 2012. During my spare time in Colorado, I was a volunteer first responder in Search and Rescue, and many of my friends were police officers and firefighters.

“I have always been a law-abiding citizen, obtaining all the correct permits, [and] all my guns have been bought from Federal Firearms Licensed dealers. I have maintained concealed carry permits for over a decade. Prior to this, my only brushes with law enforcement were, like you, turn signal violations and speeding tickets.

“My youngest child, David, has special needs, and living in a mountain town in Colorado, I had to drive four hours for the services he required. We decided we needed to move to New York [a move made in August 2016], where these services were more accessible. So we left our family home [a 16,000-square-foot log cabin] that I actually built myself as my forever dream home and rented a small apartment in the suburbs of New York.

“My days were spent trying to get my children acclimatized to a new school, make friends, start a business, and that was before dealing with all my son’s special needs requirements, doctors’ appointments, etc. I am sure you can relate to the incredible pressure and drain doing this as a couple, nevermind as a single dad. Things sometimes fall through the cracks.”

The Law on Rose

According to New York court documents, “It is alleged that the defendant possessed two loaded and operable semi-automatic pistols, three large-capacity ammunition feeding devices, and various kung fu stars and metal knuckles. These items were found pursuant to a search of the defendant’s motor vehicle by the Rye City Police after a traffic stop on Friday, May 5, 2017.”

The Incident

At approximately 10:45 a.m., Rose was driving alone near his home in Rye, New York, returning from a gym workout. Initially traveling in the opposite direction, city policeman Randy Kapus made a U-turn, sped through a school zone with his emergency lights flashing and pulled Rose over. Turning on the emergency lights automatically activated the police officer’s dashboard camera and the portable microphone synchronized with the camera. Rose switched on an iPhone camera mounted on his vehicle’s dashboard.

Rose, the cop said, did not have a front license plate properly mounted on his Audi A8. Rose explained that the car did not have a front plate holder, and Kapus replied that simply leaning the plate in the front windshield was insufficient to comply with the law.

Kapus asked for Rose’s license and registration, and Rose handed him several items of identification: a New York identification card, a Colorado driver’s license and, inadvertently, his Grand County, Colorado, concealed handgun permit. Rose proceeded to search for his registration, fumbling through the papers in his glove compartment and then his lap.

Simply leaning the plate in the front windshield was insufficient to comply with the law.

Officer Kapus asked several general questions, including whether Rose had guns on him at that moment. Rose replied in the negative. Kapus then asked where the gun was, and Rose, still rummaging for the registration, replied that it was in Colorado.

Acting, he later testified, on “a hunch” and on the basis of having viewed Rose’s Colorado carry permit, which Rose had calmly attempted to retrieve, Officer Kapus turned his back on Rose and walked to his patrol car to call for backup. Kapus told another officer, by radio, that Rose was refusing to answer any questions and that Kapus therefore intended to search the car.

Backup Arrives

Six minutes later, a responding officer arrived, one Alex Whalen. With Whalen, hand on pistol, Kapus returned to Rose’s car and ordered Rose out to conduct a pat-down search.

Kapus then entered the Audi, attempted to delete the video on Rose’s iPhone and found a pistol magazine in the driver’s-side map pocket. He then told Rose that gave him “probable cause” to conduct a search. His search subsequently found two loaded 15-round magazines, a loaded 12-round magazine, a loaded 10-round magazine, two loaded semi-autos — a .40-caliber Smith & Wesson and a Taurus PT24/7 — a package of QuikClot (a blood clotting agent often used for gunshot wounds), one set of brass knuckles, three kung fu throwing stars and seven knives. Rose was placed under arrest.

The cops took Rose to the police station, fingerprinted him and held him for hours in a cell with no food, water or access to toilet facilities. He was denied the ability to make calls to friends who could help with his children. He was arraigned by teleconference and released that evening on $50,000 bail.

The District Attorney was adamant that Rose, following his conviction (which the DA considered a “slam dunk”), was facing a 15-year sentence, minimum. Thus, he offered Rose a “deal” of “only” three and a half to five years.

Rose declined.

The ‘Slam Dunk’ Implodes

On Dec. 12, 2018, a year and a half after Rose was arrested, Westchester County Court Judge George E. Fufidio, Jr. essentially threw out the charges against Rose. He wrote, “The Court does not find that the search of the Defendant’s car was justified in any manner and accordingly grants the Defendant’s motion and suppresses any evidence obtained from the search of the Defendant’s car.”

So what happened to the “slam dunk” case? To Rose’s 15-year prison sentence? And, all things considered, is Rose the luckiest man in New York? After all, Officer Kapus asked Rose several times if he had guns, and Rose responded no. Kapus even asked where the gun was and Rose responded, “in Colorado.” So it would seem the police had caught Rose in a lie, and, in fact, caught him in multiple lies. Hence, slam dunk.

Or not.

The District Attorney presented a variety of evidence, including sworn testimony from the two officers, Kapus and Whalen. Evidentiary exhibits, however, included dash-cam video from Kapus’ patrol car and Rose’s cellphone video, but only after Rose’s attorney forced the disclosure of these key elements. Similarly unfortunate for the DA’s case against him, Rose had hired Northeastern Cyber Security and Privacy Institute to retrieve the video Kapus attempted to destroy. These also, of course, included audio.

Evidentiary exhibits included dash-cam video from Kapus’ patrol car and Rose’s cellphone video, but only after Rose’s attorney forced the disclosure of these key elements.

The court ultimately wrote, “Much of Officer Kapus’ testimony about the interaction is belied by the video and audio recordings of the event.”

Kapus testified that Rose behaved “extremely nervously.” Upon review of evidence, the court disagreed.

Kapus testified that Rose was “forceful and aggressive,” but the court disagreed.

Kapus told other officers that Rose was not answering questions, which the audio recordings proved was a lie.

Kapus, by radio, told another officer that he was going to remove Rose from the car and search it because Rose was not answering his questions. Untrue.

Upon removing Rose from the car, Kapus testified that Rose “quickly slammed the car door shut.” The video proved this to be untrue.

When Officer Kapus casually returned to his patrol car, two or three car lengths behind the Audi, he turned his back on Rose. If Rose had any interest in doing Kapus harm, he could have easily done so at this time.

Once in his patrol vehicle, Kapus failed to verify Rose’s license, did not check the license plate on the car, did not run Rose’s name for warrants and did not “audibly express to anyone [he spoke to several other officers] any type of urgency regarding this particular stop.”

Scoreboard

The court was persuaded that:

• Officer Kapus’ traffic stop was reasonable.
• Citing a “spectrum of suspicion,” Officer Kapus had a legal right to ask Rose about his firearms and where they were after he saw the Colorado carry license.
• Officer Kapus was justified in having Rose step out of the car.

The court was not persuaded that:

• The pat-down search was justified. There was no indication of an actual danger from Rose or inherent in the situation.
• Officer Kapus demonstrated “any kind of urgency or indicated that the stop was an emergency.” When the two officers together approached Rose, they were casual and took no defensive measures other than Whalen strolling along with his palm on the butt of his pistol to mitigate any possible threat.
• The search of Rose’s car was justified. The court determined there was no “actual and specific danger,” whether or not Rose was in possession of a gun at the time. “A police officer’s intrusion into a citizen’s car is a significant intrusion into that citizen’s privacy. From this Court’s perspective, Officer Kapus’ reasonable and articulable suspicion never ripened into anything more that would justify such an intrusion…”

Instead of probable cause, the sum of truth lay “somewhere between a reasonable articulable suspicion and a substantial likelihood,” neither being enough to justify a search. It was not until the officer found the loaded magazine that he lifted his head and announced “probable cause.”

A police officer’s intrusion into a citizen’s car is a significant intrusion into that citizen’s privacy.

In addition, the officers and Westchester County Assistant District Attorney Kevin Jones were either “playing fast and loose” with the facts and circumstances of the traffic stop, or their work was simply sloppy. As presented to the court by the DA, Officer Kapus asked Rose if he had guns in the car, to which Rose replied “no.” It was an obvious lie. The transcript of the audio recordings, however, which Rose says Kapus and Whalen attempted to delete, suggest this:

Kapus: “Do you have a handgun on you right now?”

Rose: “What?”

Kapus: “Do you have a handgun on you?”

Rose: “Umm … no.”

The difference is significant.

It can only be assumed that when District Attorney Anthony Scarpino, Jr. heard a sketch of the case from his assistant and/or the police officers, he decided that, under legal pressure, Rose would plead guilty and accept a minimum sentence. Thus, the DA could skim quickly past the truth to the truth he wanted to hear.

Rose on America

In 2004, Rose moved to the U.S. from England, he says, because changing demographics in the Midlands-North frightened his wife. So the Rose family moved to Colorado, where he began work on a magnificent log cabin and studied to become a U.S. citizen, an honor he achieved in 2008.

What Rose does not understand about America, he says, is that no uniform laws apply across the board, coast-to-coast, state-to-state, as they do in England. Every state has different statutes. Often, every borough, county or town is unique in its approach to business regulation, land development and possession of firearms. It is extraordinarily important, he believes, not only for new citizens to understand this, but also for America to adopt uniform laws about firearms and especially about concealed carry.

It is extraordinarily important for America to adopt uniform laws about firearms and especially about concealed carry.

Rose’s brush with the law and the threat of incarceration is now over, although he has filed a civil suit against the city of Rye. The police have returned his passport and his bail money but apparently confiscated his guns, brass knuckles and throwing stars without compensation. During the turmoil of the past two and a half years, Rose lost his house in Colorado, which he had listed for sale, as a result of unpaid taxes. Because he was charged with a felony, his financial enterprise collapsed.

In the end, the DA chose not to appeal Judge Fufidio’s decision on account of the Rye policemen being found less than truthful, along with their clumsy attempt to suppress evidence. In the search of the Audi, they attempted to erase Rose’s recording. And, at trial, they initially suggested that Officer Kapus’ dash cam recording was unavailable. Of course, the search itself was found to be illegal.

Today, Rose believes the police continue to harass him through behavior like driving close behind his car and turning on their emergency lights, then speeding away. He believes this is, in part, because of the verdict and, in part, because he is a Jewish man living in the suburbs.

The experience has left Rose bitter about his move to the U.S., a move he now reflects that he is sorry he made. And he has plenty to say about the American justice system. New York, he says, is becoming a police state, a fascist state. As a Jew, Rose has a clear vision of the relationship between police and power.

Jonathan Rose has set up a GoFundMe page for those who are interested in helping him raise funds to offset his legal fees. You can visit the page here: GoFundMe.com/f/legal-defense-fund-single-dad-arrested-for-ccw-permit.

“Every police officer should have to wear a body camera,” he says, “and every patrol car should have a dash camera linked to the audio recording. But America must pass a national reciprocity law.”

Rose views the last two years as little short of miserable and ruinous, emotionally devastating.

“It’s cost millions of dollars,” he says. “I wonder how it all would have worked out had I been too frightened to fight back.”

After all, the DA offered him the “deal” of a lifetime — just three and a half to five years — to roll over and plead guilty.