Court Shoots Down Cops Attempting To Prop Up Two Warrantless Searches With A Stack Of Lies

Legal Issues

from the lode-bearing-bullshit dept

“Our word against yours,” says law enforcement. The accusers are almost always deemed eminently credible. Presumption of innocence and all that, but the accused are almost always deemed… incredible[?]… right up until law enforcement shows its narrative can’t hold hydrogen or oxygen, much less water. (via FourthAmendment.com)

Roughly paraphrased, this is the story: some cop saw a guy take a white grocery bag full of something and put it in his car. Surveillance commenced. The car’s driver failed to signal a turn, which was all the cops needed to begin an exploratory stop.

As we know, law enforcement is no longer allowed to artificially prolong traffic stops until probable cause for a search develops. Instead, it must hand out its tickets and move along. Exceptions apply, of course, but that is the gist of the Supreme Court’s Rodriguez decision.

The traffic stop here had probable cause pre-assumed because of the grocery-bag-to-car move witnessed earlier. When it was all said and done, a failure to signal had turned into possession of a controlled substance. And two warrantless searches: the car and the driver’s house.

Warrantless searches aren’t always Fourth Amendment violations, but law enforcement spent two days tripping all over its story during a two-day suppression hearing. From the opinion:

As the suppression hearing unfolded over the course of two days, the credibility of certain law enforcement witnesses was called into serious question. The events of the second day of the hearing were extraordinary: (1) The government reopened its evidentiary presentation in order to correct materially inaccurate testimony provided by its law enforcement witnesses the day before; and (2) the government had to acknowledge that the testimony of the first defense witness – which was diametrically opposed to the testimony of the government’s law enforcement witnesses on day one – was, in fact, the truth.

So much for “our word against yours.” Still, it usually takes more than a “diametrically opposed” witness — especially one testifying for the defense — to undo a prosecutor’s case.

The narrative stayed coherent for all of one day, as the court notes.

Their testimony was largely in lock step as to the October 7, 2014 initiation of a traffic stop of the defendant, the search of his vehicle, the execution of a search warrant upon his home, and the entry of law enforcement into the defendant’s home after the warrant was signed.

These things supposedly happened in that order. Traffic stop, vehicle search, search warrant for home, search of said home. As the suppression hearing continued, the order of these events was revealed to be much more jumbled, and much less constitutional.

On the first day of the hearing, the government’s witnesses were unshakable in their testimony that no law enforcement officer entered the residence until after the search warrant was signed at 2:31 p.m. That testimony was central to the government’s opposition to the motions to suppress.

[…]

In addition, [Detective Craig] Brown testified that (1) at no time did any law enforcement officer enter the home prior to the execution of the search warrant, and (2) there was no “protective sweep” of the house before the search warrant was signed at 2:31 p.m.

Detective Brown testified that his team had made a “soft entry” — using a knock-and-talk — but did not search the home before the warrant arrived. The other seven officers on the scene did not enter the home until after being notified the warrant had been signed.

This was later proven to be a lie — not just by Brown but all of the law enforcement witnesses.

As it turns out, all of the government witnesses’ testimony that no one entered until after 2:31 p.m. was false, which was pivotal to the Court’s evaluation of the credibility of the government’s witnesses, as well as to the determination of the issues presented herein.

The defendant’s wife was subpoenaed. And her testimony directly contradicted the assertion that no search of the house was performed until after 2:31 pm.

She testified that her husband left the house sometime around 11:00 a.m. on October 7, 2014. Not long after that, she received a call from defendant from an unfamiliar telephone number, and he told her that the police may be coming to the house. When she looked outside, she saw numerous cars parked around the street. She had started cooking, so she went to the kitchen to check the stove. At about the same instant, she heard a knock at the door, and her little boy informed her that the police were there.

Which would have been fine if none of the officers had entered the home before acquiring the warrant. But that’s not what happened.

According to Ms. Soares, she opened the door and was asked whether there was a male member in the house, to which she replied, “my husband just left.” “More than five” law enforcement officers then entered the house. Those officers include two who were in uniform, Detective Brown, and two other people. They scattered and started looking around. Ms. Soares reported to the officers that she had only recently come to the United States and she did not know the laws and asked “is it okay for you to be here?” The officers answered “yes” and told her that they had just “met” her husband and “he knows we’re coming here.” She asked to see a warrant and asked them for their papers, and the officers said the papers would come.

[…]

Two uniformed officers stayed in the home with her, and another “kept coming and going,” all day. Ms. Soares believed that officers came in around 11:00 a.m. and remained until about 6:00 p.m., and she was at home with her son the entire time.

Still in an “our word against yours” position, though. Cops say one thing. Defendant’s wife says another. Until the cops say something else…

The government’s lawyer informed the court that it had dug deeper into the officers’ statements following Ms. Soares’ testimony and discovered those statements to be composed mostly of bullshit. The government offered new testimony from Officer Daniels, and his description of the events directly contradicted Detective Brown’s.

With respect to entry into the home, Daniels testified that he and his rookie trainee followed Brown to the defendant’s house immediately after the traffic stop on October 7, 2014. When they arrived at the home, they went inside the house. Daniels indicated that he did not remember how many officers, but that Daniels and the rookie officer stood on the porch with a “couple of the undercover officers” who “knocked, made contact, and . . . went in.” The undercover officers scattered throughout the home and walked individually through all rooms, including the bedrooms, living room, and kitchen.

[…]

Thereafter, Daniels and his trainee stayed in the house for “one to two hours” before the undercover officers “came back with a search warrant and executed the search warrant” while Daniels sat with the wife and son.

And, because the government dearly loves its exigent circumstances excuses, there’s this:

He further testified that, prior to entering the home, officers had observed no signs of danger, fire, or weapons in the house, and they heard no unusual noises, flushing, or screams.

Daniels, however, stated he did not see Detective Brown enter the house before the warrant arrived. That might have saved Brown, but the detective’s own testimony — in which the timeline was all wrong — stated he had entered the house (the “soft entry”) before the warrant arrived.

Brown testified that the officers’ first entry into the home was by Brown knocking on the door, followed by a “soft entry” into the home, and that, at that time, the only people in the home were Ms. Soares and her son.

With this new testimony being presented, Brown’s “clear” and “unequivocal” statements — made on the first day of the suppression hearing — suddenly became much more vague and muddied on the second day. Crucial actions performed by Brown himself (like the knock-and-talk “soft entry”) were suddenly things he “couldn’t recall” details about.

The court is completely unimpressed. (Emphasis in the original.)

Based on the demeanor and testimony of the live witnesses and the about face in the government’s theory in opposition to the motion to suppress evidence from the house, the Court has serious doubts as to the credibility of much of the law enforcement testimony that was presented during the hearing. One thing was clear from the testimony heard by the Court: law enforcement officers were hell-bent on getting into the defendant’s home on October 7, 2014. Among other things, the DEA Task Force strategically staged the outside area around the defendant’s home with between 6 to 8 officers from the early morning hours of that day. If only surveillance, or even a traffic stop and potential arrest, had been their goal, a handful of officers would have sufficed.

It’s not just the warrantless entry that was the problem. The search warrant itself was defective.

Moreover, when Brown made the immediate traffic stop and found exactly what officers hoped to find, they still did not believe they had probable cause to arrest defendant, because they did not have a field test for synthetic marijuana, but they used that same as-yet-untested evidence as probable cause to obtain a search warrant for the home.

And then Brown couldn’t even wait for the questionable warrant to arrive.

Before they could obtain that warrant, Brown and others joined up with the rest of the surveillance team at the home and immediately knocked and made entry into the home. They did not have probable cause to arrest the defendant; they did not have yet have a warrant; they did not witness any emergency or danger when they arrived at the home; and they heard no screams and saw no weapons; but they made immediate entry into the home.

Lies. (Emphasis mine.)

And, before Ms. Soares testified, all law enforcement witnesses inaccurately and adamantly denied that entry.

Lies on top of lies.

At the conclusion of the evidence, the government’s counsel acknowledged the troubling nature of the facts that (1) officers had not informed the AUSAs of the entry, and (2) the pre-warrant entry and sweep was not recorded in any report.

There goes anything obtained during the search of the residence. The court also suppressed the evidence obtained during the vehicle search because of its multiple deficiencies. While the court found the stop was not unreasonably prolonged, it says the search was not consensual and no reasonable person in the defendant’s position (flanked by three detectives, with a half-dozen police vehicles with lights flashing parked behind his car) would have felt they were free to go.

The government’s “good faith exception” Hail Mary is also no-go.

No officer testified that Ms. Soares consented to their entry into the home, and Ms. Soares testified that she asked the officers to leave until they had a warrant, but they refused. Officers testified that they did not enter the home before execution of the warrant, and the entry and initial sweep through the home was not listed on any report. While it appears that no evidence was seized until after the search warrant was executed, the Court finds these facts to be critically relevant to the determination of whether the officers’ actions with respect to the entry and subsequent search were in good faith, and concludes that the motion to suppress the evidence obtained from the residence should be granted.

The sad thing is the only punishment applied here is the loss of a highly-questionable drug bust. Every officer who swore to the bogus search timeline should be given maximum judicial side-eye every time they take the stand for the rest of their careers. But chances are, the next time “our word against theirs” is the only evidence supplied, they’ll still receive far more deference than the defendant.

Filed Under: 4th amendment, searches, traffic stops, warrantless searches