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

from the lode-bearing-bullshit dept

Mon, Apr 18th 2016 3:45pm — Tim Cushing

"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.

Illegal-Search-NDOK (PDF)Illegal-Search-NDOK (Text)

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

50 Comments

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Anonymous Coward, 18 Apr 2016 @ 4:32pm

Isn't there some kind of word or term for the voluntary violation of an oath or vow either by swearing to what is untrue or by omission to do what has been promised under oath?
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- Anonymous Coward, 18 Apr 2016 @ 4:49pm
  
  Re:
  Isn't there some kind of word or term for the voluntary violation of an oath or vow either by swearing to what is untrue or by omission to do what has been promised under oath?
  
  I think that word starts with the letter "P".
  Let's see... "promotion".
  Yeah, that's it.
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  - Bergman (profile), 18 Apr 2016 @ 9:45pm
    
    Re: Re:
    S.O.P.?
    
    Given that they all told the same story, they had to have worked together to get their facts straight.
    
    S.O.P.: Subornation Of Perjury.
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    - Anonymous Coward, 19 Apr 2016 @ 9:36am
      
      Re: Re: Re:
      You misspelled "Sexual Overreach of Power".
      [ link to this | view in chronology ]
- That One Guy (profile), 18 Apr 2016 @ 5:00pm
  
  S.O.P.
  'Standard Operating Procedure'.
  [ link to this | view in chronology ]
Anonymous Coward, 18 Apr 2016 @ 4:41pm

per·ju·ry
ˈpərj(ə)rē/

the offense of willfully telling an untruth in a court after having taken an oath or affirmation.
synonyms: lying under oath, giving false evidence/testimony, making false statements, willful falsehood
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cjstg (profile), 18 Apr 2016 @ 4:46pm

[citation required]
Where, when, who, how?

Would it really be that hard to provide some information that actually points to where this took place. I can guess that the court was Amarillo, but where did it take place? Who were the officers involved. You mention police officers through most of the article, but then in the court opinion they are suddenly DEA agents.

What gives?
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- Lawrence D’Oliveiro, 18 Apr 2016 @ 5:58pm
  
  Re: [citation required]
  The traffic stop and search was done by cops, the house search was done by cops and the DEA. Relevant quotes:
  
  Initial entry team:
  Those officers include two who were in uniform, Detective Brown, and two other people.
  
  Surveillance outside:
  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.
  
  [ link to this | view in chronology ]
- JMT (profile), 18 Apr 2016 @ 9:09pm
  
  Re: [citation required]
  The court document is right there at the bottom of the article. Is that not citation enough for your contrary ass?
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z! (profile), 18 Apr 2016 @ 4:51pm

If nothing else, let's hope the local public defender(s) make note of these officers and look very closely at any future warrants or testimony from them.
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- Anonymous Coward, 18 Apr 2016 @ 6:33pm
  
  Re: If nothing else...
  Perhaps this can be used in future cases where the cops in question are testifying - i.e. they were caught lying in the past: should the judge/jury believe them or not?
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 Apr 2016 @ 7:32am
    
    Re: Re: If nothing else...
    "Perhaps this can be used in future cases where the cops in question are testifying - i.e. they were caught lying in the past: should the judge/jury believe them or not?"
    
    Except there are no consequences for these cops that committed perjury at this time so it wont be much help later.
    [ link to this | view in chronology ]
    - Anonymous Coward, 22 Apr 2016 @ 4:59am
      
      Re: Re: Re: If nothing else...
      Future defendants' lawyers should be allowed to get to ask questions about this case that go to the police officers' character and veracity, but if these guys are not charged with perjury or even the tiniest black mark on their records, I'm sure it will be next to impossible to get them to admit to anything on the stand. Plus the lawyer has to be aware that these are the cops who lied and got away with it in the first place.
      [ link to this | view in chronology ]
- David, 19 Apr 2016 @ 1:13am
  
  Re:
  Yeah, that's a good hope. It's like a cashier noticing a fraudulent check and then hoping that his colleagues will pay attention every time when the same, known person comes by every week with a fraudulent check for the next ten years.
  
  Why wouldn't he? Where's the harm in trying? Where indeed?!?
  [ link to this | view in chronology ]
  - DannyB (profile), 19 Apr 2016 @ 6:10am
    
    Re: Re:
    I was about to suggest the same thing: that public defenders always cite this court case where the court believed these officers were lying and committing perjury.
    
    This is not quite like a store clerk watching for a fraudulent check. There are not that many public defenders, and not that many cops. Certainly not compared to the number of store clerks and shoppers. It would be very possible for public defenders to maintain a list of lying officers and which previous court cases identify those officers as the liars they are.
    
    And whose fault is it again that people no longer trust the police? That would be the police. It's their own fault. They either lie or help protect those who lie.
    [ link to this | view in chronology ]
- Monday (profile), 19 Apr 2016 @ 10:20am
  
  Re:
  I should think that all of the colluding Officers' (involved in this perjury) past / present cases would fall under some category which would require review. Any civilian who has been sentenced and imprisoned by these Officers, should have grounds for their en masse appeals.
  
  This is how law works, does it not???
  
  The only "Hail Mary" that the Government has produced is the one for previously convicted citizens, through these law enforcement officials.
  [ link to this | view in chronology ]
Capt ICE Enforcer, 18 Apr 2016 @ 5:06pm

Don't blame police.
You can't blame the police officers. Their job is to create a brilliant version of the truth that a judge will believe. Remember the police job is to bust people. Good or bad. Let the judge figure it out.
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- Agonistes (profile), 18 Apr 2016 @ 8:03pm
  
  Re: Don't blame police.
  Oh, I think I'm gonna blame the police officers.
  [ link to this | view in chronology ]
- Anonymous Coward, 19 Apr 2016 @ 4:27am
  
  Re: Don't blame police.
  seems more like their job has become to commit crimes and lie to cover them up.
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 Apr 2016 @ 5:09am
    
    Re: Re: Don't blame police.
    All in the name of providing an income stream to the private prison industry.
    [ link to this | view in chronology ]
- Anonymous Coward, 19 Apr 2016 @ 6:53am
  
  Re: Don't blame police.
  "Remember the police job is to bust people."
  
  Legally.
  [ link to this | view in chronology ]
- Monday (profile), 19 Apr 2016 @ 10:30am
  
  Re: Don't blame police.
  All for the Greater Good?
  
  Shoot 'em all and let God sort 'em out?
  
  We have to keep telling ourselves that there are still really decent, honourable Law Enforcement Officials out there. We shouldn't have to do that. Blame the Police. Make them answerable to questionable, illegal conduct.
  
  "Integrity is the lifeblood of democracy."
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TechDescartes (profile), 18 Apr 2016 @ 5:09pm

Just Get a Pass, Already
The only difference between a warrant and a hall pass at school is that the hall pass is harder to get. Oh, and the severity of the consequences for being caught without one.
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Hugo S Cunningham (profile), 18 Apr 2016 @ 5:14pm

"Giglio-impaired" LE personnel
IANAL, but the legal term of art is "Giglio impaired": in Giglio vs United States (1972), the USSC ruled that prosecutors are required to disclose to the defence important exculpatory information, eg that a key LE prosecution witness has credibility issues. Will the names of these perjuring officers be linked to this judicial finding and put out on the Internet where defenders can find them?
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Whatever, 18 Apr 2016 @ 5:39pm

Due process is hard! Warrants are hard!
If cops cannot be trusted at face value you'd might as well free every prisoner in jail, you disgusting lawbreakers.
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- So Whatever you want for yourself, want for others, 18 Apr 2016 @ 6:40pm
  
  Re: Due process is hard! Warrants are hard! So it should be.
  The basic presumption is "Innocent until proven guilty". Hence, it should be in the favour of the accused always. Irrespective of whether or not they are guilty in reality. You live in a democratic republic which should mean something. If you allow mob rule or allow bully rule, you are in for some real bad times.
  [ link to this | view in chronology ]
  - Anonymous Coward, 18 Apr 2016 @ 8:07pm
    
    Re: Re: Due process is hard! Warrants are hard! So it should be.
    "If you allow mob rule or allow bully rule, you are in for some real bad times."
    
    Foreigners often have difficulty with the complexities of English. Let me help you with that...
    
    Since you allow mob rule and allow bully rule, you are in for some more real bad times.
    
    I know, it's a tricky language.
    [ link to this | view in chronology ]
    - So Whatever you want for yourself, want for others, 18 Apr 2016 @ 11:57pm
      
      Re: Re: Re: Due process is hard! Warrants are hard! So it should be.
      No, I meant exactly what I wrote. The added "more" is an "after the fact" position. Mine is from the "before the fact" position. I did this because there are many who have no understanding of hindsight or history and regularly repeat all the problems of the past.
      
      As I come from the only nation that speaks and writes true English, I leave you with a common comment:
      
      May your chooks turn into emus and kick your dunny door down.
      
      That should give you some knowledge as to where I am from - the best place on planet Earth.
      [ link to this | view in chronology ]
      - nasch (profile), 19 Apr 2016 @ 1:50pm
        
        Re: Re: Re: Re: Due process is hard! Warrants are hard! So it should be.
        The added "more" is an "after the fact" position. Mine is from the "before the fact" position.
        
        His point is that reality is after the fact - that your conditional has already come to pass.
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        So Whatever you want for yourself, want for others, 19 Apr 2016 @ 10:00pm
        
        Re: Re: Re: Re: Re: Due process is hard! Warrants are hard! So it should be.
        Mine is before as the new American Revolution is about to start. Let the games begin. America (USA) is dead and rotting, the new Free States of North America is about to be born.
        [ link to this | view in chronology ]
        
        Monday (profile), 19 Apr 2016 @ 10:30pm
        
        Re: Re: Re: Re: Re: Re: Due process is hard! Warrants are hard! So it should be.
        Are you high???
        
        :D
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- Anonymous Coward, 19 Apr 2016 @ 5:13am
  
  Re: Due process is hard! Warrants are hard!
  I thought your post was sarcasm, Poe's law again?
  [ link to this | view in chronology ]
- Anonymous Coward, 19 Apr 2016 @ 6:32am
  
  Re: Due process is hard! Warrants are hard!
  horse with no name just hates it when due process is enforced.
  [ link to this | view in chronology ]
  - Padpaw (profile), 20 Apr 2016 @ 4:18am
    
    Re: Re: Due process is hard! Warrants are hard!
    do you just shill in your spare time or are you getting paid for this?
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David, 18 Apr 2016 @ 11:10pm

Huh.
Concerted, premeditated and obviously organized action to commit crimes.

The solution for that is throwing out the evidence this time round so that they shoot the wife next time in "self defense" in order not to have her mess up the story?

This department needs to be dissolved and the officers prosecuted for organized crime.

Next time justice will be harder to find. There must be no next time since clearly the officers' understanding of their job and their sworn duty has veered off the salvageable path far too much.
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Anonymous Coward, 18 Apr 2016 @ 11:48pm

Too bad there isn't an online database that lists every time a LEO has been less than accurate on the witness stand. So the next time THEIR credibility can be called into question.
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Anonymous Coward, 19 Apr 2016 @ 1:21am

Water's much easier to hold than those other to things so your leading metaphor is a bit of a nonsense...
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dpaus (profile), 19 Apr 2016 @ 3:03am

"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."

Uh, I'm unclear as to how they should even HAVE careers after their perjury convictions.
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Anonymous Coward, 19 Apr 2016 @ 4:22am

More criminals wearing badges than those without
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Anonymous Coward, 19 Apr 2016 @ 4:24am

I wanted to add this is grounds for revolution. The government openly lying to get what it wants ignoring laws they know exist and pretty much acting like people have no rights.

Other countries have revolted over less
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Anonymous Coward, 19 Apr 2016 @ 4:40am

I guess the bad guys have to lose once in a while.

Collusion: noun
1.
a secret agreement, especially for fraudulent or treacherous purposes; conspiracy:

2.
Law. a secret understanding between two or more persons to gain something illegally, to defraud another of his or her rights, or to appear as adversaries though in agreement:

From dictionary.com
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I.T. Guy, 19 Apr 2016 @ 7:03am

Cops lie. Always.
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Anonymous Coward, 19 Apr 2016 @ 7:26am

All that for pot? What pathetic-criminal liars these cops are.
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Violynne (profile), 19 Apr 2016 @ 7:34am

Court Shoots Down Cops...

I highly doubt that. The cops are doing the shooting, remember.
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Matthew A. Sawtell, 19 Apr 2016 @ 7:35am

Have to ask, was the 'evidence' planted after the fact?
Given the level of lies, one has to wonder...
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- David, 19 Apr 2016 @ 10:46am
  
  Re: Have to ask, was the 'evidence' planted after the fact?
  No, one doesn't have to wonder any more in this case: the judge suppressed this evidence, and given the reliability of the police officers so far, it cannot be considered useful for finding the truth.
  
  If you want to wonder about planted evidence, that would be the issue of a case with the officers as defendants rather than as witnesses of the government.
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Anonymous Coward, 19 Apr 2016 @ 12:12pm

Now, don't go jumping all over the cops for this. They're only following the procedures of their Federal overlords. Someone mentioned the DEA's involvement. DEA has never bothered with legal anything, especially when they think they can get a drug bust. The local LEOs are simply following the DEA example. So, what's new?
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- John Fenderson (profile), 19 Apr 2016 @ 12:57pm
  
  Re:
  Hate the game, not the players, huh?
  
  I think there's plenty of room to hate both.
  [ link to this | view in chronology ]
  - So Whatever you want for yourself, want for others, 19 Apr 2016 @ 10:48pm
    
    Re: Re:There is a fine line between hating the actions and hating the actor
    When you don't recognise the difference then you are no less guilty than those whom you now hate. When the hate for the person arises then hope and reconciliation dies.
    
    When the Free States of North America arises, one can hope that they will have learnt that justice and mercy are the two sides of the same coin.
    [ link to this | view in chronology ]
    - John Fenderson (profile), 20 Apr 2016 @ 6:36am
      
      Re: Re: Re:There is a fine line between hating the actions and hating the actor
      "When you don't recognise the difference"
      
      Huh? What makes you think I don't recognize the difference? I can detest two things regardless of the fact that they aren't identical.
      
      "When the Free States of North America arises"
      
      Ahhhh, I understand now. Never mind.
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