Stonington — The findings of an independent investigation have criticized police for their initial handling of the alleged assault of a Black female clerk by a white couple at the Quality Inn in Mystic on June 26 but finds “no evidence to suggest any malicious intent on the part of police in not locating the suspects on the day of the assault.”

Attorney Frank Rudewicz, who was hired to review the incident and issue a report, wrote that the police department’s attempt to lure the male suspect, Philip Sarner, back to the hotel and arrest him for allegedly beating Crystal Caldwell failed “because Sarner tricked SPD.”

The report was released Tuesday. Rudewicz is a former Hartford police officer who also worked for the FBI's Organized Crime Task Force, and now works for Blum Shapiro & Co. 

Police have been criticized because Sarner and Emily Orbay, who was five months pregnant, were able to leave Lawrence + Memorial Hospital where they were treated after the 11 a.m. incident, return to the hotel and flee to New York in their car without being apprehended by police. Police have said that because  the hospital would not let them come inside to take Sarner into custody due to COVID-19 pandemic,  they came up with an unsuccessful plan to apprehend them when they returned to the hotel.

Police had the hotel manager cancel the couple’s room keys and asked him to call police if they returned. Police spoke by phone with Sarner, and told him he would need a police escort to get his belongings from his room because he had been banned from the property.

Sarner also called police about 3:15 p.m. to say he was still at the hospital. But video shows Sarner and Orbay arriving by Lyft at 2:19 p.m. and quickly driving off in their car. No police officers had remained at the hotel. 

They were eventually arrested on July 13 in Brooklyn, N.Y. Their cases are pending.

Despite the initial public statements by police, Rudewicz also found that L + M Hospital personnel did not prohibit police from entering their facility.

"After having been informed that patients would not be released before treatment was given and that masks are required while waiting, SPD made an operational decision to NOT wait at L + M Hospital, due to the uncertainty of the wait time, patrol staffing availability and some personal COVID related concerns by Officer (Brian) Discordia," who had responded to the hospital wrote Rudewicz. 

Rudewicz wrote that the arrest of Sarner, who has a long criminal history, “should have occurred as soon as possible at L + M Hospital, regardless of the uncertainty of wait time. As it is now known, the wait time would have been a little more than one hour. If concerns (personal or otherwise) about COVID related issues prevented officers from waiting inside, nothing prevented other measures to be used such as a wait outside while completing paperwork from the incident. The decision not to go to L + M Hospital proved fatal to the possibility of a custodial arrest.”

Rudewicz said “measures should have been taken to secure Sarner’s vehicle to prevent escape. Surveillance, blocking from movement or possible removal from the property were reasonable alternatives to help ensure capture.”

Rudewicz also wrote that it was not known until days later that police learned Sarner and Orbay had brought their belongings from their room to their car before the police department’s initial response to the assault. In addition, hotel personnel had entered Sarner’s room while he was at the hospital and did not find any property belonging to Sarner or Orbay.

Rudewicz said police did not follow up with hotel personnel at the time nor did hotel personnel tell police the room had been cleaned out. This allowed Sarner and Orbay to drive off as soon as they entered the hotel parking lot.

“Had SPD known that no personal belongings were in the room, additional measures could have been taken to take Sarner into custody,” Rudewicz wrote.

But Rudewicz also wrote that police did not violate any policy or law in their response.

“SPD made an operational and tactical decision to arrest Sarner upon his return to the hotel. Based on the information known and relied upon at the time, that decision appeared sound and measures were taken in furtherance. However, with the benefit of hindsight, the tactics used by SPD to implement their plan were deficient. There were better suited and additional tactics that could have been implemented to ensure the custodial arrest of Philip Sarner on June 26, 2020,” he wrote .

Rudewicz said the phrase “Twenty-twenty hindsight” aptly describes the facts and circumstances of this matter.

“All parties interviewed agree that different actions and tactics would have been implemented, in light of what was later found out. There is no doubt that certain facts, not known to SPD at the time, caused their “strategy” to fail. SPD put “all of their eggs in one basket” by relying on the premise that Sarner needed to retrieve items from the hotel and would have to make contact to do so,” he wrote.

He wrote that it was clear that police had determined that there was probable cause to arrest Sarner. Because they had not seen video that became available several days later, the lesser charge being contemplated by police at the time was third-degree assault, a misdemeanor. After seeing the video, police updated the charge to second-degree assault, a felony. Both Sarner and Orbay have also been charged with intimidation based on bigotry or bias for allegedly making racial slurs at Caldwell. 

He said that the department’s past protocol was to issue a misdemeanor summons for such an offense and police never considered taking Orbay into custody due to her pregnancy. They planned to issued her a summons.

“Nevertheless, SPD made a decision that a custodial arrest was required, at least as it pertained to Sarner,” he wrote.

Rudewicz also found that it is evident that more effective communication with Caldwell and her family after the initial response to the hotel was required. He wrote there was no further contact with her or her family after she was brought to the hospital for medical treatment and before Sarner was able to retrieve his car and flee.

He said that if police had told Caldwell’s family they planned to arrest Sarner, that may have kept an “avenue of information” flowing to police.

For example, Rudewicz wrote that unbeknownst to police, Caldwell’s son, Jammel Caldwell and others traveled to Lawrence + Memorial Hospital to locate Sarner. They then spotted Sarner and Orbay leaving the hospital and followed them back to the Quality Inn. But they were not aware that police had formulated a plan to take Sarner into custody at the Quality Inn. If police had known Sarner was in route back to the Quality Inn, measures would have been put in place to take him into custody.

But Rudewicz pointed out the ultimate outcome can not be overlooked.

“After the initial response, SPD continued with a professional, thorough, and complete investigation culminating in the arrest of Philip Sarner on a felony assault charge and Emily Orbay on a misdemeanor assault charge.”

As described in this report, Sarner’s actions illustrate an individual familiar with “the system” and he was able to win the battle with SPD on June 26. However, it is the final outcome of the investigation that proved to be most important. While we have not found any violations of policy, procedure or law, SPD would be well served to use a review of this incident and response as a training tool for understanding of possible variables present in similar future incidents.”

Supporters of Caldwell have rallied in front of the Stonington police station since the assault calling for justice for Caldwell. Police Chief J. Darren Stewart and the Board of Police Commissioners will now review the report to determine if any action should be taken.

j.wojtas@theday.com