Romando Dixson

rdixson@citizen-times.com

ASHEVILLE – A District Court judge determined an Asheville police officer unlawfully arrested a local activist and granted a motion to suppress any evidence derived from the encounter.

Judge Patricia K. Young signed an order Wednesday, effectively dismissing three misdemeanor charges against Jennifer Nicole Foster stemming from an incident the evening of April 6 at The Bywater, a private club on Riverside Drive. She had been charged with being intoxicated and disruptive, possession of marijuana and possession of drug paraphernalia.

The ordeal started when club management asked a man she had become acquainted with to leave. She said she offered to call the man a cab, and the two were waiting for the cab when police arrived.

The Asheville Police Department responded to the call as a civil disturbance and the caller specifically described that a black man in a yellow shirt was asked to leave, according to “findings of fact” in the motion to suppress.

Officer Orlando Burge asked Foster, the man in the yellow shirt and another man for identification, and Foster questioned why it was necessary, according to the motion to suppress.

Foster told the officer her ID was inside the bar and that she would go get it. Burge then asked Bywater owner Chad Battles to retrieve Foster’s purse. She then stated, “I don’t need this (expletive) (expletive),” according to the motion.

Burge testified that he placed Foster in handcuffs to control the scene and arrested her because “he noticed an odor of alcohol, her appearance and that she was swearing in public.”

“There was no testimony, however, that the officer was able to articulate as to the opinion of intoxication other than the odor of alcohol,” the motion stated. “He testified that she was not stumbling and there was no evidence as to slurred speech or other factors indicating impairment.”

The court found there were no reasonable grounds to believe the offense of intoxicated and disruptive had been committed and, therefore, there was no probable cause to arrest.

Police said they found a small amount of marijuana and a pipe in Foster’s jacket pocket after the arrest. The marijuana possession and paraphernalia charges were dropped effective Sept. 24, according to the District Attorney’s office.

This is the second time the court system has sided with Foster, a former attorney, regarding an arrest in Buncombe County. In 2011, she went to the Magistrate’s Office to seek information about the arrest of several Occupy Asheville protesters and was held in contempt for using profanity.

Foster appealed the contempt conviction in Superior Court, but Judge James Downs affirmed the magistrate’s ruling. The state Court of Appeals in May 2013 overturned Downs’ decision.

“This is the second time I’ve been wrongly prosecuted in Buncombe County, and I do believe it is because of my activism,” she said.

Foster said she is not currently practicing law after the North Carolina State Bar suspended her license because she did not return a continuing education document to the bar.