Court Tells Deputy He Can't Lie About Reasons For A Traffic Stop And Expect To Keep His Evidence

from the you-can-lie-to-the-citizens.-you-can't-lie-to-the-court. dept

Mon, Oct 29th 2018 1:39pm — Tim Cushing

The nation's courts don't have a problem with pretextual traffic stops. Any traffic violation -- real or imagined -- can trigger an investigatory stop. There are limits, of course. The Supreme Court's Rodriguez decision says officers can't extend stops past the objective of the stop if reasonable suspicion of additional criminal activity fails to materialize.

It's perfectly legal to pull someone over for crossing a fog line when all you really want to do is search their vehicle for contraband. But you have to stick to the pretext… at least for the most part. A host of excuses and exceptions (good faith, plain view, "I smelled marijuana," etc.) salvage most stops-turned-searches but if a defendant can show the stop itself was bogus, all bets are off.

This short federal court decision [PDF] ordered the suppression of evidence obtained during a pretextual stop, and calls out a sheriff's deputy for lying about the reason for the stop, one that resulted in the discovery of drugs and weapons. (via The Newspaper)

According to the police narrative, a stop was performed on Cedric Gordon's vehicle because his rear license plate wasn't properly illuminated.

In his narrative, Deputy Forbert maintains that he attempted to read the vehicle’s license tag number but was unable to do so because the vehicle’s tag lights were out. Deputy Forbert followed the Defendant’s vehicle for approximately two minutes, or one-half mile, before initiating the traffic stop because the tag lights were out. After initiating the traffic stop, Deputy Forbert approached the Defendant’s vehicle and claims he smelled marijuana coming from the vehicle. Deputy Forbert ran the vehicle’s tag number and the Defendant’s criminal history came back positive. Deputy Forbert subsequently arrested the Defendant and the vehicle was searched, revealing a firearm and controlled substances.

This story might have held up anywhere but in court, where actual evidence needs to be presented. Gordon presented his, which included photos of his vehicle during the traffic stop -- photos that clearly showed his rear license plate was illuminated.

Faced with actual evidence, Deputy Forbert began backtracking on his original testimony, covering up his lies with more lies. The court details the Forbert's attempts to move the goalposts.

At the hearing on this Motion [14], Deputy Forbert repeatedly contradicted the statements contained in his narrative and provided implausible testimony regarding the reasonable suspicion he had at the time of initiating the traffic stop. For example, Deputy Forbert’s narrative stated that he initiated the traffic stop because the vehicle’s tag lights were not working, but when questioned by the Court, Deputy Forbert admitted that the Defendant’s tag lights were working on the night in question. Instead, Deputy Forbert explained that he initiated the traffic stop because the Defendant’s license tag was not illuminated brightly enough. Deputy Forbert claimed that he was unable to read the darkened tag from fifty feet away, as required under the statute. When questioned further by the Court, Deputy Forbert maintained that the tag was too dimly lit to read even forty feet away. However, Deputy Forbert eventually admitted at the hearing that he was able to see that the tag lights were in fact working and that the tag was illuminated once he stopped the vehicle.

With the license plate story destroyed, Deputy Forbert tried to bring in a new set of goalposts. The court wants nothing to do with them.

The Government also argues that even if the Defendant’s tag lights were working properly, Deputy Forbert had reasonable suspicion to initiate a traffic stop because the seatbelt violation alone was sufficient to justify the stop. At the suppression hearing, Deputy Forbert stated that he intended to perform a traffic stop for a seatbelt violation, contrary to the narrative he prepared the day of the traffic stop. Deputy Forbert maintained that he had reasonable suspicion to initiate the traffic stop because he was able to see the passenger attempting to put her seatbelt on through the tinted windows. However, when questioned by the Court, Deputy Forbert admitted that the windows were darkly tinted and stated that he did not actually view the passenger without her seatbelt on. Based on the evidence and testimony presented at the hearing on this matter, the Court finds the evidence of a seatbelt violation unconvincing.

In other words, the court believes the officer is lying. Of course, it's never phrased this way, but a court stating it does not find an officer's testimony credible is about as close to calling them a liar as a federal court will ever get. The end result is the suppression of evidence, the only thing supporting Cedric Gordon's conviction. Without the gun and drugs, all the government's left with is what it had to begin with: a vehicle with properly-illuminated license plates.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, cedric gordon, lies, police, pretextual traffic stops, robert forbert, traffic stops

39 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 29 Oct 2018 @ 1:54pm

Not just lying

In other words, the court believes the officer is lying. Of course, it's never phrased this way

The court believes they're lying under oath, which is a crime (perjury). Even if the prosecutor won't touch them, no police department should either; that should be the end of that career.
[ link to this | view in chronology ]
- Anonymous Coward, 29 Oct 2018 @ 5:47pm
  
  Re: Not just lying
  All Cops LIE, and they do nothing buy LIE!!! They make up laws that don't exist. Or pull out generic laws to force YOU to do what they want. They will flat out LIE!! But if you say anything, it can and will be used in the court of law.
  
  You really shouldn't say anything to the police!!! Some will, in fact, tell you this!!! Keep quiet. Keep your hands on the wheel where they can see them as they walk up. Roll down the window just enough to pass your drivers license and other things when they ask. Keep your answers short. Refuse to let them search your car, even when you have nothing to hide.
  
  ALways good to have a working Dashcam, and one that points both the front and back is better. Especially if it records audio, big plus as if can be recording everything they are saying to you. That way when they LIE in court, you have proof. For whatever reason, courts believe lying police. I really don't think they're any better than a real criminal with facts.
  
  You want to learn something, watch thing Video, Part One and then watch Part 2. Learn a little something!!!!
  
  https://www.youtube.com/watch?v=i8z7NC5sgik
  
  https://www.youtube.com/watch?v=08fZQWjDVKE
  [ link to this | view in chronology ]
  - Jonathan Sherrill, 30 Oct 2018 @ 6:27am
    
    Re: Re: Not just lying
    They can lie to you, making a stop. They cannot lie in court without consequence. Any future testimony this officer makes is prone to having the defense attorney bringing up this testimony as an example of how his word cannot be trusted. It ruins the normal presumption of accuracy cops get.
    [ link to this | view in chronology ]
    - Anonymous Coward, 30 Oct 2018 @ 9:17am
      
      Re: Re: Re: Not just lying
      "They cannot lie in court without consequence"
      
      Hahahahaha - sure
      [ link to this | view in chronology ]
- TRX, 30 Oct 2018 @ 9:38am
  
  Re: Not just lying
  "But it's not perjury when they do it!"
  [ link to this | view in chronology ]
- Rukbat (profile), 30 Oct 2018 @ 10:29am
  
  Re: Not just lying
  At least, in the future, Forbert's credibility can be called into question, if not having his testimony thrown out completely since the court has already found him capable of testimony that's not credible. He can still have a career with the police department - in vehicle maintenance, clerical work, anything that won't bear on the guilt or innocence of anyone. (Or he can move to another state, where he can apply to another department and claim that, during his tenure with the department in Mississippi he was doing "this and that".)
  
  But we all know that's not a happening thing - he;ll make more questionable stops and defendants less knowledgeable than Cedric Gordon will be found guilty.
  [ link to this | view in chronology ]
- Herman Nelson, 30 Oct 2018 @ 12:51pm
  
  Re: Not just lying
  Of course they do and so do the courts. Short story- I was picked for jury duty. I was called in to fill a jury pool. I was handed a questionnaire by the court clerk to fill out before starting. The last question on the sheet- "If you were given testimony by a law enforcement officer, would you find it honest and truthful?". I wrote NO (the police lie and so do judges). Upon handing in the questionnaire, I and several other jurors were called out and were dismissed from the rest of our jury duty period. When we walked out, I asked everybody who was dismissed "how did you answer the last question? yes or no?". Every one of them said "no". If this is going on in one obscure court house, where else is it going on?
  [ link to this | view in chronology ]
  - That One Guy (profile), 30 Oct 2018 @ 1:38pm
    
    Re: Re: Not just lying
    Assuming it wasn't just a straight Yes/No question, I'd have gone with 'No more than any other witness', though given they had that question at all I suspect that even that would have resulted in a boot from the jury pool.
    [ link to this | view in chronology ]
Anonymous Coward, 29 Oct 2018 @ 1:57pm

I don't understand why these cops don't just take the CHP route for getting pretext: tailgate until they nervously speed up then light them up for speeding. Instead they feel the need to piss on proper police work and lie their way in some Machiavellian attitude towards enforcement.
[ link to this | view in chronology ]
- Anonymous Coward, 29 Oct 2018 @ 3:14pm
  
  Re:
  Because many of us have dash cams and will refuse to speed up no matter how illegally close the person behind us drives. Those kinds of attempts just end up with video evidence destroying the credibility of the police who chose that tactic.
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Oct 2018 @ 3:19pm
    
    Re: Re:
    Do dashcams capture the road behind the car?
    [ link to this | view in chronology ]
    - Anonymous Coward, 29 Oct 2018 @ 4:00pm
      
      Re: Re: Re:
      How much does a second camera to look out of the back of the vehicle cost?
      [ link to this | view in chronology ]
    - Whoever, 29 Oct 2018 @ 4:29pm
      
      Re: Re: Re:
      
      Do dashcams capture the road behind the car?
      
      Some do.
      [ link to this | view in chronology ]
  - Anonymous Coward, 29 Oct 2018 @ 4:24pm
    
    Re: Re:
    Or you carefully time it to slow down, causing the cop to rearend you.
    
    Hey presto! massive lawsuit for back pain + whiplash.
    [ link to this | view in chronology ]
    - Anonymous Coward, 30 Oct 2018 @ 6:14am
      
      Re: Re: Re:
      Wrong
      
      Quick trio to jail and permanent lock up for trying to kill a cop by vehicle homicide.
      [ link to this | view in chronology ]
      - Anonymous Coward, 30 Oct 2018 @ 7:49am
        
        Re: Re: Re: Re:
        Even in today's "political/cop" climate I find this response to be ever more hyperbolic than necessary.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 30 Oct 2018 @ 8:01am
        
        Re: Re: Re: Re: Re:
        You must not the watch news.
        [ link to this | view in chronology ]
- Anonymous Coward, 29 Oct 2018 @ 3:20pm
  
  Re:
  I slow down for tailgaterz, nothing sudden, just let off the gas slow like yer on ice.
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Oct 2018 @ 5:48pm
    
    Re: Re:
    Yes, don't brake check!!!!!
    [ link to this | view in chronology ]
  - Agammamon, 29 Oct 2018 @ 9:08pm
    
    Re: Re:
    Then you get popped for 'driving too slow'. See, in my training and experience, I've learned that drivers who are driving below the speed limit are doing so because of the weight of sin on their hearts . . .
    [ link to this | view in chronology ]
    - Anonymous Coward, 30 Oct 2018 @ 1:16am
      
      Re: Re: Re:
      "Then you get popped for 'driving too slow'. I've learned that drivers who are driving below the speed limit"
      
      How is one supposed to be doing the speed limit when there are thousands of vehicles in front of you that are not? Do you even commute?
      
      The typical commute consists of doing the speed that everyone else is doing in front of you because it is bumper to bumper from here to eternity - some folk leave some room between vehicles because it is a wise thing to do. Slowing down a bit in order to attain said room is not going to net you a ticket - what a stupid thing to say.
      [ link to this | view in chronology ]
- Anonymous Coward, 1 Nov 2018 @ 2:11am
  
  Re:
  It's not just the CHP. I live north of Seattle and had an officer pull this trick. It started with me trying to pass somebody who was going under the speed limit, who then sped up as I tried to pass them and matched my speed no matter what I tried to do. Then a cop came up behind me and was so close I could see nothing but their windshield in my rearview mirror. Unable to pull over to the left because there was a barrier, unable to pull over to the right because there was a car matching my every move, and unable to slow down because if I slowed even a tiny bit the police car would hit me, I was forced to speed up to get out of the officer's way. Immediately, so fast the cop HAD to have had his finger on the switch WAITING for it to happen, on comes the lights. I got a ticket for speeding, and in court it was determined that everything else was irrelevant, since I DID speed I was responsible for the ticket.
  [ link to this | view in chronology ]
  - That One Guy (profile), 5 Nov 2018 @ 4:03am
    
    "You know, other than the fact that I had no other option..."
    I must heartily commend you for not walking out of that case with a contempt of court fine/penalty in addition to the speeding one, because I'm not sure I'd have been able to restrain myself from asking(likely rather sarcastically) if the judge would have been fine with me staying in the left lane in that situation, all other options having been eliminated, or if that would have been acceptable grounds for a ticket too.
    
    All three of the other people in your story were idiots. The one refusing to let you pass, the cop tailgating dangerously close, and the judge for whom 'context' was too difficult a concept for them to grasp.
    [ link to this | view in chronology ]
That One Guy (profile), 29 Oct 2018 @ 2:01pm

The good, the bad, and the twisting the knife
It's good that the court found that an officer repeatedly lying under oath made the resulting search illegal, and tossed the case.

It's bad that such a thing happening is not even remotely surprising at this point.

And it's twisting the knife being all but certain that other than costing the department a legal win the officer in question will likely face absolutely zero penalties for their actions(in court or out), such that they and others will be free to try again in the future, though perhaps being a little more careful about the lies they tell.
[ link to this | view in chronology ]
- Anonymous Coward, 29 Oct 2018 @ 4:25pm
  
  Re: The good, the bad, and the twisting the knife
  Those defendants are going to have to watch out.
  
  Once this officer gets back from his PAID suspension in the Bahamas, the defendant will be shot in the back from 100 foot away due to the combined offences of "contempt of cop" "makin' me look foolish" and "I thought it was a black man coming right fer me"
  [ link to this | view in chronology ]
  - Anonymous Coward, 30 Oct 2018 @ 5:03am
    
    Re: Re: The good, the bad, and the twisting the knife
    You are an idiot.
    [ link to this | view in chronology ]
    - Anonymous Coward, 30 Oct 2018 @ 1:10pm
      
      Re: Re: Re: The good, the bad, and the twisting the knife
      I concur.
      [ link to this | view in chronology ]
Uriel-238 (profile), 29 Oct 2018 @ 2:11pm

I thought the rule was one lie.
Juries are informed that if a witness is caught in one lie then it is acceptable to distrust anything else he / she says.

If a police officer lies once, then not only should his testimony be distrusted, but he should be charged with perjury. His job should depend on him telling the truth in court at all times.

That this isn't the case should serve as evidence to challenge the legitimacy of the court.
[ link to this | view in chronology ]
- Anonymous Coward, 30 Oct 2018 @ 12:59pm
  
  Re: I thought the rule was one lie.
  That is all fantasy. The courts get their meat and potatoes from these people in uniform. Prosecutorial bias is a one-edged sword.
  [ link to this | view in chronology ]
Panda Kahn, 29 Oct 2018 @ 2:39pm

Well, at least he can't loose his job!
So how many people are outraged over the idea of the guy not being able to keep his evidence and loosing the case, but not over the fact that he can commit perjury but it won't cost him his job?

One might think that perjury before a court as a sworn law officer would at least carry the same penalties as perjury if you were just an average defendant.
[ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 29 Oct 2018 @ 4:39pm

Damn. out_of_the_blue is not going to like this, is he?
[ link to this | view in chronology ]
- Anonymous Coward, 29 Oct 2018 @ 6:48pm
  
  Re: bawk
  That you little passive agressive way of saying not even you can defend this shit?
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Oct 2018 @ 6:52pm
    
    Re: Re: bawk
    I think the OP meant blue boy can't defend this shit, but then again blue is known for always scraping the bottom of the barrel, no matter how stupid.
    [ link to this | view in chronology ]
Personanongrata, 29 Oct 2018 @ 4:50pm

Today's Episode of Rule of Man or Rule of Law
There are limits, of course. The Supreme Court's Rodriguez decision says officers can't extend stops past the objective of the stop if reasonable suspicion of additional criminal activity fails to materialize.

How does a traffic violation equate to criminal activity?

According to the Supreme Court so long as law enforcement's fishing expedition (ie tyranny) is light and transient it is A-OK to harass any/all persons they decide to encounter based wholly upon a law enforcement officer's arbitrary pretext of the moment.

When a law enforcement officer uses an arbitrary pretext to stop and harass any/all persons they decide to encounter is that:

Rule of Man?

Or

Rule of Law?

What good is a Bill of Rights if law enforcement can circumvent the various limits placed upon their actions with federal/state courts aiding/abetting the tyranny?

Cedric Gordon was forced to play jurisprudence roulette with his money and his liberty in order to fend off the tyranny of law enforcement's arbitrary pretextual stop.

This time the court decided in favor of liberty but alas the court could have easily decided to quash Cedric's motion to suppress the evidence gained during law enforcement's fishing expedition thus paving the way for some possible jail time.
[ link to this | view in chronology ]
- Uriel-238 (profile), 29 Oct 2018 @ 5:52pm
  
  Rule of Man or Rule of Law
  It's all rule of man.
  
  Laws are not enforced consistently. Laws are not prosecuted consistently. Prosecutorial discretion is an accepted norm in the United States.
  
  Oh and then an officer can arrest you for what he believes is a law. Psychology, law enforcement officers decide first whether you're a good guy or a bad guy, and if he chooses the latter, he looks for something to book you for.
  
  So no, it's never rule of law in the United States of America.
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Oct 2018 @ 5:59pm
    
    Re: Rule of Man or Rule of Law
    Yea it's the rule of whatever that dumb cop thinks.
    [ link to this | view in chronology ]
norahc (profile), 29 Oct 2018 @ 6:25pm

"Deputy Forbert ran the vehicle’s tag number and the Defendant’s criminal history came back positive. Deputy Forbert subsequently arrested the Defendant and the vehicle was searched, revealing a firearm and controlled substances."

Ummmm...so he arrested the driver for having a criminal history and then searched the vehicle, finding the weapon and drugs?

What was he originally arrested for in order to justify the search?
[ link to this | view in chronology ]
stderric (profile), 29 Oct 2018 @ 6:51pm

Deputy Forbert: His tag lights were out. I mean dim! Umm... kinda a little dim? Definitely dim. OK, they were fine, but, errr... His passenger wasn't wearing a seatbelt? Yeah! Not wearing a seatbelt. Probably. I mean, maybe, maybe not, I couldn't tell 'til after the stop, but, umm, yeah.

Judge [to court stenographer]: Let the transcript reflect the fact that I've facepalmed my way to major cranial trauma... And please call 911 when you get a chance, thanks.
[ link to this | view in chronology ]
Anonymous Coward, 30 Oct 2018 @ 12:40pm

Twenty years ago I might have appliied a big "Duh!" to a comment, but now, twenty years later I just cry. Because it takes a court to tell a law enforcer what any law enforcer should know by default, DON'T LIE OR YOUR EVIDENCE IS MOOT.
[ link to this | view in chronology ]