Court Refuses To Uphold Evidence Seized During A Completely Bogus Traffic Stop

from the law-enforcement-dashcam-key-witness-against-law-enforcement dept

Very rarely does anyone want to believe a defendant in a criminal prosecution. They have the most to lose, are often presumed guilty by all involved, and if they'd done nothing wrong, they wouldn't be here defending themselves, right? None of that is how the system is supposed to work. But that's how it often does.

Law enforcement officers, on the other hand, are often treated as unimpeachably credible, even when their recollections of events are less than accurate. Sometimes they get called out for it. Most times they don't. About the only way their dishonesty is called out if if there's another set of eyes on the scene -- like dashcams or body-worn cameras. (This, too, is far from a sure thing.)

That's what happened here. A bogus traffic stop that morphed into a drug bust began with zero traffic violations -- even though the officer performing the stop claimed at least two violations had occurred. (via FourthAmendment.com)

Victor Dominguez-Fernand was pulled over for allegedly driving with his headlights off and following too close to the vehicle ahead. Unfortunately for Deputy Nicholas Ernestes, his dashcam showed both claimed violations were bogus.

First off, the supposed violation of "driving with headlights off" was only a presumed violation. Deputy Ernestes testified that he "believed" headlights were required because of the weather conditions (overcast and raining) but couldn't actually assert that such a requirement exists.

This, of course, is hardly a fatal error. The Supreme Court (along with dozens of lower courts) have made it clear law enforcement isn't required to know the laws it's enforcing. All they have to do is believe a violation has occurred to perform a traffic stop.

Not that it mattered. When Ernestes turned on his lights to pull over Fernand, his dashcam kicked in, and it showed something completely different [PDF].

The available dash-cam video shows that the taillights on Mr. Dominguez-Fernand’s car were on for at least 30 seconds before Deputy Ernstes turned on his emergency lights.

If the taillights are on, the headlights are on. Ernestes also claimed Fernand was following too close to the vehicle ahead of him, even though Ernestes was unable to remember many details about the vehicle Fernand was supposedly tailgating.

Deputy Ernstes attested in an affidavit submitted before the hearing that he “pull[ed] his vehicle even with the black Mitsubishi” to confirm its speed and observed at that time that it was allegedly following the vehicle in front of it too closely. Deputy Ernstes does not remember what type of vehicle was in front of Mr. Dominguez-Fernand’s car. Deputy Ernstes testified that he used a method that involved counting the “skip lines” on the roadway to determine that Mr. Dominguez-Fernand’s car was allegedly closer to the vehicle in front of it than the “two-second rule” established in the Indiana Driving Manual. Deputy Ernstes testified that based on that calculation, he believed Mr. Dominguez-Fernand had violated Indiana Code § 9-21-8-14. Deputy Ernstes testified that he only saw the alleged traffic infraction for a few seconds.

Again, the dashcam saw it differently.

It shows that it was raining and that a box truck was in the distance in front of Mr. Dominguez-Fernand’s car.

The defendant recalled the incident in a way that more agrees with the dashcam footage than the deputy's affidavit and testimony.

Mr. Dominguez-Fernand had been driving for several hours and it had been raining heavily for ten to fifteen minutes before he was stopped by Deputy Ernstes. Mr. Dominguez-Fernand specifically remembered that the headlights on the car were turned on because he had been continuously driving through the night and the car’s dashboard was lit up for visibility. He emphasized that he drove a delivery truck for a living and that he was intentionally driving slower than the speed limit because of the rain. He maintained a five or six second distance between his car and the box truck in front of him because it was spraying a lot of water up because of the rain. Indeed, the dash-cam video shows that the rain caused trucks traveling on Interstate 70 to spray water behind them for a considerable distance.

Deputy Ernestes claimed the vehicle's lights were off when the defendant passed him, something the court finds dubious because this supposed reason for pulling over the defendant was never mentioned once during the course of the stop. Further, state law doesn't require the use of headlights in these weather conditions -- only if vehicles cannot be clearly seen within 500 feet. Ernestes' own testimony stated he could see cars approaching "up to one mile away" and they all had their headlights on. 5,280 feet being ten times the length required by statute means headlights or not, there was no violation.

The camera also showed Fernand was a safe distance behind the vehicle in front of him. So, despite Fernand's eventual consent to a search of the vehicle (which resulted in the discovery of amphetamines), the initial stop was so bogus the court cannot allow the subsequent search to stand.

The court also points out that Ernestes could have bolstered his claims that the violations occurred before the dashcam's automatic recording by simply using the recording device in his vehicle to, you know, record evidence.

The impact of these inconsistencies might have been lessened if Deputy Ernstes had manually turned on his dash-cam to record the traffic violation he claims to have seen. While he admits he could have done so, he did not, depriving the record of significant, reliable evidence.

As to the inconsistencies, they were more than just the fuzziness one would expect from a law enforcement who performs dozens of inconsequential traffic stops every shift. The inconsistencies stemmed from Ernestes' initial statements and paperwork.

Deputy Ernstes testified that he could not remember anything about the type of vehicle Mr. Dominguez-Fernand was allegedly too closely following. Deputy Ernstes’ affidavit, however, attests that he pulled alongside Mr. Dominguez-Fernand’s car to observe its speed and that it was allegedly too closely following the preceding vehicle, which would have given him a clear view of the large box truck Mr. Dominguez-Fernand was following. The imprecise nature of Deputy Ernstes’ recollection is further underscored by the Court’s previous conclusion that Deputy Ernstes was incorrect about the headlights on Mr. Dominguez-Fernand’s car being turned off, as well as Deputy Ernstes’ testimony at the hearing that he could only see one person in Mr. Dominguez-Fernand’s car, despite the fact that his affidavit states he could see “that two males were located inside of the vehicle” when he pulled alongside it.

And away goes the evidence, which is the only thing supporting the government's charges.

The Court has already held that the Government has not met its burden to show by a preponderance of the evidence that Deputy Ernstes had probable cause to stop Mr. Dominguez-Fernand’s car. Thus, the exclusionary rule forbids use of the unlawfully obtained evidence at trial. Since the Government has not argued that an exception to the exclusionary rule applies in these circumstances, and it is the Government’s burden to do so, the Court concludes that the drugs discovered in Mr. Dominguez-Fernand’s car must be suppressed.

Surprisingly, the government never asked for consideration under the "good faith exception," nor did the court decide to entertain this idea on its own. That this resulted in tossed evidence even with the Heien decision in place suggests law enforcement can still manage to go too far when cooking up bogus reasons to stop drivers.

Filed Under: 4th amendment, search, traffic stop, victor dominguez-fernand


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  • identicon
    Daydream, 22 Jun 2016 @ 4:13am

    Everyone, take a moment to consider why something that should be normal, a court rejecting illegally acquired evidence, is notable enough to feature on Techdirt's front page.

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

    • identicon
      David, 22 Jun 2016 @ 5:13am

      Re:

      I hate to be that guy, but, uh, obviously because Techdirt has an agenda. The selection of stories is not random, and their newsworthiness depends on how well the stories match the agenda.

      This is not a random unbiased sampling.

      If it were, why bother reading Techdirt in the first place?

      So there is a spin. No real question about that. But to spin a story you still need a story to start with.

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

      • identicon
        Anonymous Coward, 22 Jun 2016 @ 6:16am

        Re: Re:

        NOTHING in the news is without bias or agenda. The very process of deciding what is news worthy and what is not news worthy is a process of discrimination.

        These are NOT bad things! People like to use bias and discrimination like they are bad things. They are not!

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

        • identicon
          David, 22 Jun 2016 @ 7:14am

          Re: Re: Re:

          Sure, but "notable enough to feature on Techdirt's front page" is not sufficiently dire to make something notable enough to feature on Techdirt's front page.

          Daydream states
          Everyone, take a moment to consider why something that should be normal, a court rejecting illegally acquired evidence, is notable enough to feature on Techdirt's front page.
          and that just does not signify anything on its own. The story is not newsworthy solely because it became news. That's putting the cart before the horse.

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

          • identicon
            Anonymous Coward, 22 Jun 2016 @ 9:10am

            Re: Re: Re: Re:

            lol, I think you missed my point.

            Since you do not run TD, you do not get to choose what is news worthy.

            So yea, the cart is before the horse and has become news worthy whether you liked the reason, value, or content of the news.

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

      • identicon
        Anonymous Coward, 22 Jun 2016 @ 6:38am

        Re: Re:

        For this "should be a normal occurrence" to be a "story", there would be an attempt to knowingly use evidence obtained outside the law to prosecute a minor traffic offense ...
        Oh wait - that happened.

        Stories have spin, what a startling revelation. Do comments have spin also?

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

    • identicon
      Anonymous Coward, 26 Jun 2016 @ 2:57pm

      Re:

      Or perhaps what's newsworthy is the fact that evidence was illegally seized. The fact that the court rejected it is

      A: not newsworthy (or at least shouldn't be)

      B: Confirms the findings that the evidence was illegally seized and techdirt tries to choose to write about things that are not as controversial. The court confirming it makes it less controversial.

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

  • identicon
    David, 22 Jun 2016 @ 4:21am

    "Good faith exception"

    Good faith exception covers the officers not knowing the laws (so it would have covered the officer's belief that a front light would have been required).

    It doesn't cover hallucinations (seeing headlights off that were on, or a non-existent truck right in front of the car in question).

    Instead of claiming he saw the lights off he should have just claimed that he saw the driver driving with uncovered head. Or some other verifiable violation of a made-up random law matching the typical state law lottery in character.

    But no, instead of inventing random laws he had to invent random facts. And the good faith exception does not cover that.

    Yet.

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

    • identicon
      Anonymous Coward, 22 Jun 2016 @ 6:42am

      Re: "Good faith exception"

      What about the "Respect Mah Authoritah" exception?
      With this exception, anything goes.

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

      • identicon
        Anonymous Coward, 22 Jun 2016 @ 9:12am

        Re: Re: "Good faith exception"

        Are those really any different from each other?

        Both are being used to shit on the constitution without regard for law. The legal system is the largest criminal organization regularly breaking the very law they were tasked with enforcing!

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

  • identicon
    Anonymous Coward, 22 Jun 2016 @ 6:13am

    Entire Problem

    Very rarely does anyone want to believe a defendant in a criminal prosecution. They have the most to lose, are often presumed guilty by all involved, and if they'd done nothing wrong, they wouldn't be here defending themselves, right? None of that is how the system is supposed to work. But that's how it often does.

    If anything bears repeating, it is this this this THIS THIS THIS!!!!!

    Dear Citizens, YOU ARE THE CAUSE OF THIS FUCKING PROBLEM!

    http://fija.org/
    Be willing to serve on a Jury, tell you friends and family what it means to be a fully informed Juror! STOP government corrupt right in the fucking courts! People will stop signing their rights to a jury away and have some fucking confidence in the process again. The courts will be cleaned up by proxy because they will not be used to railroad people again. Judges, Prosecutors, and the Fucking Government agencies will be put back into check!
    fija.org

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

    • identicon
      Anonymous Coward, 22 Jun 2016 @ 6:45am

      Re: Entire Problem

      The victim blaming guy again.

      Yes - you are in control - lol - Why do you keep it screwing up?

      The puppet masters have convinced the puppets they have free will and are responsible for all their actions.

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

      • identicon
        Anonymous Coward, 22 Jun 2016 @ 9:20am

        Re: Re: Entire Problem

        There is no greater enemy than one's self.

        This is not victim blaming, we ARE the fucking cause, whether we become a victim of this shit or not!

        Every Nation gets the government it deserves! If you won't participate to help resolve the problem then you become a cause of the problem.

        People like you refuse to accept responsibility, people like you think doing nothing but running your trap is a cure, people like you add to the burden of society while refusing to contribute to it!

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

        • icon
          John Fenderson (profile), 22 Jun 2016 @ 9:27am

          Re: Re: Re: Entire Problem

          You are making a lot of assumptions based on nothing.

          "Every Nation gets the government it deserves"

          This is not clearly demonstrated by history.

          "If you won't participate to help resolve the problem then you become a cause of the problem."

          This is assuming that the people you're talking to aren't participating. How can you know this?

          "People like you refuse to accept responsibility, people like you think doing nothing but running your trap is a cure, people like you add to the burden of society while refusing to contribute to it!"

          Everything here is assuming behaviors and attitudes that you can't possibly know are true.


          In the bigger picture, by the way, if your goal is as you imply (which would mean that you & I are in agreement on this) and you want to encourage active participation in government, you may want to rethink your tactic.

          Berating and accusing people will only harden the attitudes of those people who actually do fit your perception. It works toward the opposite of the result you want.

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

    • icon
      Pete (profile), 22 Jun 2016 @ 3:38pm

      Re: Entire Problem

      I couldn't agree with you more Anonymous Coward.

      Maybe we should start a juror protest group. It works like this. ALL non-violent crime gets a not guilty verdict until the government starts prosecuting corporate crime. No fines. No not admitting guilt. Some real jail time and confiscation of personal property and wealth to pay back the injured parties.

      Ultimately the government will maneuver to invalidate juries and allow their corporate friends to continue their crime spree. Heck they already made their own laws do time travel with "retroactive immunity". The bank foreclosure crimes were a perfect example of government and media working to protect the banks.

      Fortunately, citizens are becoming aware of the problem.

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

  • identicon
    Anonymous Coward, 22 Jun 2016 @ 6:23am

    A traffic stop where reality doesn't match the cop's stated reason for stopping them? One where rather than simply issue a ticket and move on the cops press to search the car and turn up drugs? This sounds suspiciously like a case of parallel construction gone bad.

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

    • identicon
      Anonymous Coward, 22 Jun 2016 @ 6:30am

      Re:

      Word.

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

    • identicon
      Anonymous Coward, 22 Jun 2016 @ 2:32pm

      Re:

      Does sound like the officer in question was high as a kite at the time, maybe he planted his own personal recreational on duty drugs on the defendant.

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

    • icon
      That One Guy (profile), 22 Jun 2016 @ 5:34pm

      Re:

      It may be nitpicky, but I feel it's important not to let them define the terminology for their own benefit. As such try not to use the 'tame' sounding phrase 'parallel construction', call it what it really is: Evidence laundering.

      'Parallel construction' is likely to confuse those unfamiliar with the term, and doesn't convey just what's happening very well, while 'evidence laundering' is much more likely to be understood, and makes it clear just what's going on.

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

  • icon
    Edison Franklin (profile), 22 Jun 2016 @ 6:25am

    Good Faith

    Interesting (not really) that there is not a Good Faith Exception for citizens.

    "Your honor, I was under the good faith impression that standing on the corner looking menacing was illegal for a police officer to do. I tried to bring him into custody peacefully, but he resisted arrest, so I had no choice but to use deadly force. You can imagine my chagrin when I discovered that there was no such law on the books. Boy was there egg on my face. Anyway, glad we got that cleared up, I'll just be going on paid administrative leave for three months now."

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

  • identicon
    Anonymous Coward, 22 Jun 2016 @ 7:02am

    It has apparently been established that Deputy Ernestes had absolutely no reason to stop this particular driver, as opposed to anyone else on the road that day. And yet, surprise, this particular driver happened to have amphetamines in the car, a situation which I would guess isn't particularly common.
    So why exactly did this driver get stopped? Could this have been a botched attempt at parallel construction to justify a search for something already known to be present? As has been pointed out repeatedly on TD, law enforcement use of illegal or at best constitutionally dubious mass surveillance technology is more common than the public has assumed.

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

    • identicon
      David, 22 Jun 2016 @ 7:56am

      Re:

      You know what? The "probable cause" thing is somewhat unique to the U.S. And it's right there in the Constitution:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      This very much reeks like being hand-tailored against evidence laundering, parallel construction intended to mask the actual source of an investigation.

      So for one thing it makes a whole lot of sense to dismiss the results of searches "on a hunch" since that just encourages cover-up inventions.

      For another, it really seems like the War on Drugs needs to go. It may prevent some people from harming themselves. But it is the leading cause for corrupting law enforcement into circumventing the Constitution.

      And in the long term, that causes more damage to innocent people and society.

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

  • icon
    hij (profile), 22 Jun 2016 @ 8:22am

    Jury selection may have something to do with it

    Law enforcement officers, on the other hand, are often treated as unimpeachably credible, even when their recollections of events are less than accurate


    The one time that I served a jury they filled the courtroom beyond capacity and people were standing. The judge asked a couple questions at the start to start seeing who could be dismissed. After each question a couple people left. When he said that police officers would testify and said if anybody has a problem believing an officer's testimony they should not be on the jury, almost half of the people in the room stood up and left. In retrospect I think the judge may have had that statement a bit reversed.

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

    • icon
      John Fenderson (profile), 22 Jun 2016 @ 8:43am

      Re: Jury selection may have something to do with it

      "said if anybody has a problem believing an officer's testimony they should not be on the jury"

      The idea that an officer's testimony should be accepted with any less skepticism than anyone else's testimony is inherently unjust.

      Institutional corruption is institutional.

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

    • identicon
      Anonymous Coward, 22 Jun 2016 @ 9:11am

      Re: Jury selection may have something to do with it

      By your description that sounds more like the judge was trying to weed out people who would flat out refuse to believe a cop, and a lot of people used being willing to be skeptical of an officer's testimony to get out of jury duty.

      Though if that's the case, the judge should have been more specific, and I wouldn't be surprised if he was intentionally vague to achieve just such a self sorting.

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

      • identicon
        Anonymous Coward, 22 Jun 2016 @ 9:35am

        Re: Re: Jury selection may have something to do with it

        The judges question should be classified as jury tampering.

        This question unduly influences the composition of a Jury which exactly fits into definition of what jury tampering is.

        It is okay for people to have a problem with an officers truth telling abilities. The question like you said might have been worded wrongly, but a judge should have already considered such things long ago. And considering that, it should be clear that the Judge is very comfortable with the the habit of jury tampering from his seat of authority.

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

    • identicon
      David, 22 Jun 2016 @ 11:11am

      Re: Jury selection may have something to do with it

      Bet he didn't ask if anyone had a problem believing the defendants testimony.

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

  • identicon
    AnonCow, 22 Jun 2016 @ 8:42am

    One niggling detail of the "good faith exception" is that it requires good faith...

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

  • icon
    JustMe (profile), 22 Jun 2016 @ 8:55am

    Re: David Who said that TechDirt has to publish entirely random articles?

    OF COURSE TechDirt has an agenda. Many of them, actually. One of them being to document a continued campaign of misuse, untruth and outright lies by the people charged with enforcing the law. This officer swore an oath to obey the law and couldn't even be bothered to do that (so says the court, not me). The solution is simple, law enforcement must follow the law - even when it is inconvenient to do so or when they feel it impairs their ability to make an arrest (achieve some quota). And guess what, if he had followed the law he probably could have waited until the driver actually violated the law, and then Hey Presto, the drugs can be used as evidence.

    Random example, the cop driving 65 in a 45 without 'blues & twos' yesterday morning. If he had to be somewhere in a hurry then turn on the lights, if not also the siren, because nobody expects freeway speeds on that road.

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

  • icon
    Cdaragorn (profile), 22 Jun 2016 @ 9:31am

    Not quite how headlights work...

    While I agree with the article, I can't move on without mentioning this.

    "If the taillights are on, the headlights are on."

    This is not actually true. Your taillights come on when you turn on your "running" lights. I've seen plenty of people drive around with just the running lights on.

    It's certainly a good indicator that the headlights may have been on, and still comes back to the fact that the guy didn't need them on in the first place.

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

  • icon
    Coyne Tibbets (profile), 22 Jun 2016 @ 12:13pm

    Facts vs Law

    Looks straightforward enough to me:

    Officer made up the law: Oops, but E for effort and a pass. Officers don't have to be lawyers to prove reasonable.

    Officer made up the facts: Buzz, buzz, fail. Making up facts is never reasonable.

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


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