Judge Tosses Evidence After 'COPS' Footage Contradicts Officer's Testimony

from the just-trying-to-impress-the-crew? dept

The mutual adoration society that is long-running reality show "COPS" has just landed one of its protagonists in the middle of an evidence suppression order. Evidently forgetting his star turn in an episode of the show, Officer Miguel Hernandez of the Fort Myers (FL) Police Department performed an illegal search of a man walking down the street and concocted a story to cover up his actions. (h/t FourthAmendment.com)

Unfortunately, Hernandez's stop of Hubert Solomon was all captured on tape -- and apparently broadcast as well. Hernandez spotted Solomon walking down the middle of a street. Sidewalks are for walking, Hernandez thought (and Florida law agrees: pedestrians "must use sidewalks if one is available"), and he circled the block to cite Solomon. Solomon was on the sidewalk by this point, and shortly thereafter, so was Officer Hernandez's patrol car.

Officer Hernandez exited his vehicle and approached Defendant, who immediately reached into his pocket and pulled out his driver’s license. Defendant stated, “I don’t know what’s going on man; I just got stopped down the street.” Officer Hernandez informed Defendant that he was being stopped because he “failed to walk on the sidewalk down the street.” By this point, Officer Hernandez was face to face with Defendant. Officer Hernandez continued the conversation by inquiring why Defendant was walking on Lafayette Street at 11 p.m. Defendant responded that he was “coming from his girlfriend’s house,” and that he “lives just down the street.” Officer Hernandez then instructed Defendant to turn around and put his hands behind his back because he was going to pat him down. Defendant complied. During the pat down, Officer Hernandez discovered a gun in Defendant’s front pocket. The entire encounter lasted no more than 23 seconds.
It only takes 23 seconds to violate someone's rights. Both parties agree Hernandez had every right to stop Solomon, but disagreed on the legality of the search. Solomon's lawyer asserted the frisk had no basis. The government argued otherwise, stating Solomon was walking through a "high-crime area" and was "nervous" when speaking to Hernandez.

The court might have agreed with the government, if not for the footage captured by "COPS" cameramen.
Officer Hernandez provided testimony that could establish reasonable suspicion, but Officer Hernandez’s testimony is not the only evidence of what occurred during the stop. On the night in question, Officer Hernandez co-starred with Defendant in an episode of Cops, the television show. The Cops production team filmed the entire stop, thereby providing the Court with indisputable video evidence of the stop from its inception to Defendant’s arrest.
And here's why some cops are extremely resistant to the notion of additional recording devices. (Although, up until this point, Hernandez was apparently unopposed to the ridealong "COPS" crew…)
Interestingly, there are several discrepancies between Officer Hernandez’s testimony and the Cops video.
Because of Hernandez's "misstatements," "COPS" ended up arguing for the defense.
Officer Hernandez testified that Defendant was “blading” during the encounter to conceal the right side of his body where the firearm was located. The video, however, shows that Defendant walked straight towards Officer Hernandez after he drove his patrol car up to the sidewalk and activated the overhead lights. At no point did Defendant turn or “blade” and conceal his right pocket where the firearm was eventually located.
And:
Officer Hernandez also testified that Defendant appeared “extremely nervous” because his eyes were bulging and his forehead was glistening from sweat. The video, however, fails to show any unnatural or exaggerated eye movement by Defendant. Nor does the video show Defendant sweating in a manner that indicates nervousness. In fact, it would have been hard for Officer Hernandez to see Defendant’s forehead “glistening” when he wore a hat during the entire encounter. At most, the video shows Defendant endured the typical nerves experienced during any average police encounter.
Not only did COPS sell Officer Hernandez out, but the court finds that he helped himself to additional reasonable suspicion by watching the same video that refuted his other claims.
Beyond the testimony refuted by the Cops video, the Court does not find Officer Hernandez’s testimony regarding the bulge in Defendant’s pocket credible. At the hearing, Officer Hernandez testified that he saw a heavy object/bulge in Defendant’s pocket when Defendant approached him. Significantly, this fact was not included in the incident report/probable cause affidavit that Officer Hernandez was required to complete shortly after the stop.

More importantly, the Government failed to mention this fact in its Response. It seems unlikely such a significant fact would be unearthed for the first time on direct examination but rather was discovered after Officer Hernandez had the benefit of watching the Cops video. Therefore, it seems this allegation constitutes nothing more than hindsight observation from the Cops video, rather than an observation made during the very brief encounter.
Supposedly, this "bulge" Officer Hernandez didn't spot until after he'd viewed the recorded footage (in a presumably safe location) made him "fear for his safety and the safety of others." The court finds this no more credible than the steady stream of misstatements surrounding it. It agrees the defendant was in a high crime area and was dressed as Hernandez described him, but finds the totality of the circumstances to be nowhere what was needed to escalate a minor pedestrian stop to a frisk for contraband.
In sum, Defendant was stopped for a sidewalk violation – a section of Florida law not typically associated with armed and dangerous criminals. Defendant did not attempt to evade Officer Hernandez or take any evasive measure.

There is no evidence Officer Hernandez suspected Defendant was engaged in more serious criminal conduct, or that any criminal conduct had occurred in the immediate area before the stop occurred. Cf. Id. Nor is there any evidence that Defendant acted in a manner that would make Officer Hernandez fear for his safety or the safety of others during the 23-second encounter. The video evidence is clear: Defendant was walking home to his residence, which happens to be a high-crime area, and conveyed this fact to Officer Hernandez in a calm manner. Nevertheless, Officer Hernandez almost immediately subjected Defendant to a pat down with no articulable basis for why he feared for his safety or the safety of others. Because Officer Hernandez lacked the requisite reasonable suspicion to frisk Defendant for weapons, the evidence found during the pat down and any subsequent searches must be suppressed.
The court does commend Officer Hernandez for "instinct, experience and intuition." After all, the officer did recover a weapon during his unconstitutional search. But it points out that the Fourth Amendment isn't only supposed to be viewed after the fact. It's supposed to govern these interactions as they happen and deter the sort of thing Hernandez did.

Unfortunately, the court doesn't follow through on this thought process and wonder aloud whether Officer Hernandez's "instincts" and "intuition" also include lying about unconstitutional stops. It's entirely possible for police officers like Hernandez to both make tons of busts and violate several peoples' rights. This lying may have cost Hernandez a bust here, but having contradictory video documentation on hand and held by a third party is the sort of "perfect storm" violated citizens can't rely on saving them from law enforcement abuse.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 18 Mar 2016 @ 4:27pm

    Dammit!!!

    Both parties agree Hernandez had every right to stop Solomon, but disagreed on the legality of the search.

    COPS DON'T HAVE RIGHTS!!!!

    Anyone "agreeing" to this was fucking stupid! Lets get the lingo correct folks... it really is important for people to understand the difference between having POWER and having RIGHTS!

    Police are granted POWER, they have no RIGHTS!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Mar 2016 @ 5:34pm

      Re:

      right
      noun
      1. ...
      2. a moral or legal entitlement to have or obtain something or to act in a certain way.
      3. ...

      Police may not have "rights" (or at least no more than the average citizen), but they have a legal "right" to enforce the law.

      And some of them aren't jerks about it.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Mar 2016 @ 6:39pm

        Re: Re:

        Duty
        noun
        1.
        a moral or legal obligation; a responsibility

        2.
        a task or action that someone is required to perform

        They also have a duty to uphold the law regardless of station.Even if it's a fellow officer, laws still apply. If enough officers call each other out officers like this guy will be an exception instead of the rule.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Mar 2016 @ 7:09pm

        Re: Re:

        Imagine my shock, another person crawling around that gets nothing, believes everything, and wonders why things are going to hell.

        What is a right and a power when talking about Citizens and Government are well defined by the US Constitution and are not equivalents by any, except those with some cognitive dissonance.

        People like you and of course these clowns in the article are far to many and far too stupid!

        reply to this | link to this | view in chronology ]

        • icon
          xtian (profile), 19 Mar 2016 @ 1:13am

          Re: Re: Re:

          Nowhere in the article or the quotations does it speak about the officer's "rights" in a constitutional sense. In ordinary language, we say that someone "has every right to do this or that," when they have justification for their actions or just good reasons.

          "Both parties agree Hernandez had every right to stop Solomon, but disagreed on the legality of the search."
          = He was justified in doing so, because it was within his power, and he made the decision to do so.

          It's amazing how many people go apeshit and call others dumb, when they are themselves too obtuse to understand the context and varied meanings of utterances. That's six kinds of special stupid.

          reply to this | link to this | view in chronology ]

    • identicon
      Nah Man, 19 Mar 2016 @ 4:40am

      Re:

      Unfortunately many states have a Police/Peace Officer Bill of Rights.

      reply to this | link to this | view in chronology ]

    • identicon
      Don't Lie!, 19 Mar 2016 @ 1:31pm

      Re:

      The cop lied. He lost all credibility and power the minute he lied. That Simple.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 18 Mar 2016 @ 4:32pm

    One wonders how many other people had interactions with this officer where their rights were forgotten about because everyone believes a cop over a 'criminal'. Someone was a criminal here, pity is he had a badge.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 18 Mar 2016 @ 4:45pm

    COPS

    For the first time I see that there may be value in that show...sometimes...maybe...at least in this instance.




    It's certainly cheaper than hiring actors and writers and building sets, but it is also a part of why I don't watch TV anymore. They can't be bothered to create, except when it comes to accounting in their favor.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 18 Mar 2016 @ 9:41pm

    Barely more than a wrist-slap

    Cop gives bogus testimony in court, lying to judge, and the worst that happens is that the evidence obtained is suppressed. Pretty sure if anyone without a badge did something similar they'd be looking at contempt of court and/or perjury charges, nice to see the double-standards alive and well when it comes to what's allowable in court.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Mar 2016 @ 10:21pm

      Re: Barely more than a wrist-slap

      if the jack booted thugs were held accountable for their law breaking then what good would they be when it comes to conditioning americans that they have no rights and what the police says you do, or die.

      reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 19 Mar 2016 @ 2:14am

    Evidence of what? Carrying the weapon in itself? One may only assume then that there is something wrong with this particular individual carrying a weapon. Unregistered? Write him a damned ticket then.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Anonymous Coward, 19 Mar 2016 @ 7:28am

      Re:

      What, and lose all ones bragging rights down at the FOP? "Yeah...I took him down HARD...(belly laughs, slaps on back, more drinks ordered).

      reply to this | link to this | view in chronology ]

  • identicon
    Agent76, 19 Mar 2016 @ 11:13am

    No, the Police Don't Work For You

    Nov 2, 2015 No, the Police Don't Work For You

    https://youtu.be/eaNjfeQxSO4
    REVIEW ALL OF THE COURT RULINGS THAT SAY POLICE DO NOT HAVE OBLIGATION TO PROTECT CITIZENS FROM VIOLENT CRIME

    In the United States, you can get a pizza delivered faster than you can get the police to come to your home! To serve but not protect!

    http://whatreallyhappened.com/WRHARTICLES/courtrulingsonpoliceprotection.php#axzz3Lulh8Tph

    reply to this | link to this | view in chronology ]

  • identicon
    qyiet, 20 Mar 2016 @ 12:43pm

    Take the man at his word

    We should take the officer at his word: that the officer feared for his safety. That he 'saw' bulging eyes, sweat etc..

    Then remove him from duty as unfit due to psych reasons. He's clearly suffering from paranoia, or PTSD or something that is making him see things that are not there. As such he is not fit for duty.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer
Anonymous number for texting and calling from Hushed. $25 lifetime membership, use code TECHDIRT25
Report this ad  |  Hide Techdirt ads
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.