CA1: Defendant wins a suppression appeal on credibility grounds

US v. Henderson, No. 03-1888.  The impossible happened today!  A defendant, who was the kind of person to 1) get stopped by the police; and 2) incorrectly appear as having a warrant issued for his arrest; but nevertheless 3) had a gun somewhere in the car, wins!  On the other hand, the cop that stopped him, was the subject of many complaints for baseless and harassing stops.  This stop was allegedly for not wearing a seat belt.  Unfortunately, the cop just couldn’t testify correctly, and the government kept trying to cover for him.  So, the First vacates the conviction on the grounds that a motion to suppress  was improperly denied.

Essentially the First provides a primer on 1) what is credible; and 2) how to argue credibility on appeal. 

Keep reading.

While the motion to suppress was initially denied, the District Court reopened the suppression after it became apparent that the government had not disclosed the officer (named Kominsky) had a history of stopping people for no reasons.  Nevertheless, the District Court found again that the evidence shouldn’t be suppressed.  It did the same thing at a later trial, because this cop kept stopping people for no reason.   

After a second trial (the first resulted in a mistrial because the government hid/withheld evidence of the officer’s history of harassing stops), at sentencing, the judge said, “I two times found by a preponderance of the credible evidence that Mr. Henderson was not wearing a seat belt. That much of Officer Kominsky I credited. But, in candor, I'm not close to sure about that.”

Applying clear error review, the Court concludes that because the officer’s testimony was later proved to be simply wrong many times (e.g. what kind of seatbelts were in the car), his testimony about his patterns of issuing citations wasn’t empirically correct, his testimony regarding what the defendant was wearing didn’t match the inventory search, he just wasn’t credible.  His testimony was basically incorrect, biased, and implausible.  (Kudos to the lawyer, for pointing this out.)  There is also a description of how the officer probably used profanity during the stop, and then tried deny it. 

The court concludes that the officer’s credibility problems are no cumulative, but just about everything he said was proven wrong. Likewise, the fact that the District Court, in denying the motion to suppress referred to “other credible evidence” but didn’t provide specifics.  Nor did the government. Did the District Court judge just throw that in because he likes denying motions to suppress and instantly credits cops more than the kind of people they like to stop?

The government tried to use the alternate argument of “officer safety” to justify the search, but that fails, because he the officer’s demands for identification kept changing scope and nature of the stop.  And, since the cop wasn’t telling the truth about the seatbelt investigation, there is no reason for him to investigate anyone else in the car.

The First goes out of its way to state that they are not addressing two issues by implication: Since the officer (with the history of harassment) testified that he couldn’t force non-seatbelt wearing passengers to give their social security numbers and dates of birth, the First isn’t deciding that it is reasonable to ask for the social security number.  At the same time the First isn’t deciding whether there was credible evidence that the defendant was actually wearing a seatbelt while the car was moving. 

The opinion notes that the defendant was stopped with his girlfriend, but they stopped dating by the time of the trial.  It is unknown whether the other participants in this legal drama also had their relationships interrupted, and whether they are entitled to a remedy. 

Comments

[JFC]

Wow. What is the world coming to when a bored police officer from a 97% white suburb can't sit at the town line and harrass people driving in from the poor, violent, rather darker city, and then lie about it in court?

You'd think Judge Wolf would be more skeptical about police after presiding over the FBI corruption cases.

[S. COTUS]

I think that the judge was more concerned about letting a dirty hippie go free.

I wonder if this cop is still stopping people and harassing them. Obviously he won't stop a federal judge (if he can recognize them), but it seems that the department approves of his behavior and the judge thought it was a good thing, too. Since he made up that line about "other credible evidence" when even the First (which never got stopped by any cops) saw that as being BS. Or am I being too cynical?