Forfeiture Case Shows Cops Don't Even Need Drug Dogs To Alert To Engage In A Warrantless Search
Another magical drug dog case has surfaced, showing yet again why cops like having "probable cause on four legs" on hand to turn stops into searches and searches into seizures. This forfeiture motion [PDF] -- highlighted by Brad Heath -- starts with a stop and quickly devolves into ridiculousness.A drug investigation involving investigators working with ONSET (Ohio Northeast Smuggling Enforcement Team) culminated in the traffic stop of one of the targets, Emmanuel Trujillo Trujillo. Already suspected of drug trafficking, the stop got a whole lot more interesting for officers once some loose cash was spotted.
Deputy Spires approached the pick-up truck and made contact with the driver, Trujillo Trujillo. While speaking with Trujillo Trujillo, Deputy Spires learned that he did not possess a valid driver’s license.Deputy Spires observed a large amount of United States currency below Trujillo Trujillo’s feet on the floorboard of the pick-up truck and requested assistance from Franklin County, Ohio Sheriff’s Office Canine Unit Deputy Zach Cooper (“Deputy Cooper”) and his canine partner “Indy” to conduct an open-air sniff of the pick-up truck.Roughly twenty minutes later, the drug dog arrived. And failed to do what the deputies wanted it to do.
Deputy Cooper arrived at the traffic stop at approximately 6:22 p.m. and approached the pick-up truck with canine Indy. Deputy Cooper noticed that Indy showed an extreme change in behavior when sniffing around the passenger side door and its open window. Indy’s sniffing increased as he stayed and intently sniffed the passenger side door area. As the team moved on, Deputy Cooper noted similar behavior from Indy when he approached the tailgate area of the pick-up truck.There was no alert from Indy. Just a lot of sniffing. But even the lack of an alert wasn't going to keep these officers from searching Trujillo's vehicle. Since the four-legged cop wouldn't give them permission for a search, the deputies decided to give that permission to each other, with Indy's apparently implicit consent.
Deputy Cooper advised Deputy Spires that Indy did not indicate on a pure odor source, but he believed that Indy’s extreme sniffing behavior indicated that a narcotic odor was present within the pick-up truck.And with that the search was on. The deputies discovered more cash, receipts for cash transfers, some paperwork from a Chase Manhattan account, and a non-contractor 1099 miscellaneous income form showing $27,815 in compensation to Trujillo. The search did not, however, turn up any drugs, despite the extreme sniffing allegedly demonstrated by the drug dog.The deputies took $19,104 from Trujillo at this stop. From there, they went to Trujillo's storage unit and took another $32,050. Finally, law enforcement -- using information gleaned from this extreme sniffing -- searched Trujillo's house, where officers found even more cash as well as the drugs the deputies assumed they would find during their initial search of the truck.And, as if to prove the deputies were right to assume the drug dog had meant to give them explicit permission to search the truck for drugs, there's this additional information in the forfeiture motion.
TFO Taylor changed gloves, obtained the bag containing the United States currency seized from the pick-up truck, and opened it. TFO Taylor took a MX908 test strip and wiped it on the rubber bands holding the currency together. TFO Taylor placed this test strip into the MX908 and received a positive result for the trace presence of cocaine.So what? I'll bet if TFO Taylor borrowed some cash from someone in the HSI (Homeland Security Investigations) office and tested it, he would very likely have rung up another positive result for the trace presence of cocaine. This is an unlisted "feature" of most US currency. A positive test means nothing more than the bill tested has been in circulation.This is a stop worth challenging. The deputies admitted they did not see an alert from the drug dog before engaging in a search. That means it's also a seizure worth seizing. And it's yet another data point showing cops love drug dogs because their mere presence at a stop can be converted into probable cause. Even better, these "partners" can't offer up testimony that might undercut assertions made by their handlers. Win-win. Apparently, the drug war needs all the wins it can get, even if certain combatants have to obtain them dishonestly.
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posted at: 12:00am on 14-Sep-2021
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Appeals Court Says Police Ballistics Expert Can Be Sued Helping Wrongfully Imprison Two Men For More Than 17 Years
Judge Alex Kozinski noted back in 2015 there was an "epidemic of Brady violations" occurring during prosecutions in this country. "Brady" refers to the Supreme Court case Brady v. Maryland -- one that established the right for defendants to have access to exculpatory evidence, creating an obligation for prosecutors and law enforcement to produce this evidence during trials.Obviously, this hasn't been an absolute since this ruling. Prosecutors aren't interested in handing over evidence that undermines their cases. And cops are equally unwilling to produce evidence that undercuts their arrests, narratives, and coerced confessions.Here's how it works out for defendants, according to Judge Kozinski, while excoriating an appeals court decision that basically blessed Brady violations as long as the government still presented some inculpatory evidence.
It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it’s best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.Grim stuff. But it's the way the government continues to play the game. That's highlighted in this recent decision [PDF] by the Second Circuit Court of Appeals. Fortunately, the court sides with the two men wrongly convicted of a robbery and murder. Unfortunately, that decision more than 17 years after the fact.Here are the allegations:
After each serving more than 17 years in prison for a robbery and murder they did not commit, plaintiffs Vernon Horn and Marquis Jackson brought civil rights actions against the City of New Haven and law enforcement officials under 42 U.S.C. § 1983. As relevant here, plaintiffs alleged that police forensic examiner James Stephenson violated their due process rights under the Fourteenth Amendment by withholding exculpatory ballistics reports in contravention of Brady v. Maryland.And here's how police investigators developed their case against these two (at the time) teens, based on intuition not too far removed from the Sunday night quarterbacking of "Law & Order" viewers.
On January 23, 1999, Vernon Horn and Marquis Jackson went out on a Saturday night in downtown New Haven. The two teenagers met up with friends at the Alley Cat nightclub and then stopped by Dixwell Deli (the Deli), a 24-hour convenience store, at around 2:45 a.m. After purchasing a few items, they drove back to Jackson’s apartment several blocks away.Around 3:30 a.m., three masked robbers burst into the Deli and opened fire. The shots hit an employee and a customer, Caprice Hardy, who died shortly thereafter. After stealing a cellphone from a store clerk and trying unsuccessfully to raid the cash register, the robbers fled the scene.A few minutes after the robbery, Horn walked back to the Deli. This raised the suspicions of the lead detective on the investigation, who believed that perpetrators of homicides tended to return to crime scenes.The police decided these two were the best fit for the robbery and murder charges. Nothing would dissuade investigators from this predisposition -- not even contradictory evidence. To ensure their preferred theory succeeded in court, the PD almost literally buried all evidence to the contrary.
Numerous pieces of evidence, however, suggested that a group of drug dealers in Bridgeport, Connecticut, not Horn or Jackson, was responsible for the murder-robbery. Call records for the stolen cellphone showed that four out of five calls made after the incident were to the Bridgeport drug dealers or their associates. Because the records did not support the case against Horn and Jackson, NHPD officers suppressed the records for nearly 20 years, hiding them in the basement of a detective’s house.This is not even the issue being examined here, but let's read that last sentence again.
Because the records did not support the case against Horn and Jackson, NHPD officers suppressed the records for nearly 20 years, hiding them in the basement of a detective’s house.What even the fuck, he asked professionally. HOLY SHIT.But that's not even this issue here. The issue here is the supposed "ballistics expert," who also decided to not only bury exculpatory evidence, but whip up new "evidence" that supported the coerced confession the cops had obtained.Here's how we get to this case. A police investigator with a theory unsupported by evidence sent casings to a forensic expert in hopes of obtaining a report indicating the bullets came from a Beretta linked to the nominal suspects. Unfortunately for him, the ballistics report disproved that speculative theory.
On February 3, 1999, defendant James Stephenson, the assigned firearms examiner, generated a General Rifling Characteristics Report (the 1999 GRC Report) that listed all firearm models that potentially matched the ballistics evidence, using a margin of error of +/- 2 thousandths of an inch. A Beretta handgun was not among the possible matches.The first report handed to investigators and the prosecution noted the mismatch. This was noticed by the prosecutor preparing for the trial, who saw that the ballistics report didn't match up with assumptions made by police investigators. Rather than entertain the possibility it was the cops who were wrong, the prosecutor assumed it was the ballistics tech who had screwed up.And, rather than stand by his original findings, the tech reran the test with a higher margin of error to ensure the Beretta cops and prosecutors wanted the murder weapon to be was included as a possible match.
On February 15, 2000, Stephenson generated a second GRC Report (the 2000 GRC Report). This time, using a larger margin of error of +/- 4 thousandths of an inch, the report listed multiple Beretta models as potential matches.And he might have gotten away with it. But he failed to pass on these reports to the defendant -- not the one that said it wasn't a Beretta, nor the second pass which suddenly said it was a Beretta.It took nearly twenty years to expose the ballistics examiner's malfeasance:
In 2018, as part of a re-examination of the case by the Connecticut Federal Public Defender’s Office, the NHPD produced the stolen cell phone’s call records and both the 1999 GRC Report and the 2000 GRC Report. After reviewing the belatedly disclosed evidence, the State’s Attorney’s Office successfully moved to vacate the judgments of conviction for both men. In or around April 2018, after serving 17 and 19 years in prison, respectively, Horn and Jackson were released.These men lost a combined 36 years of their lives. The forensics examiner hasn't lost anything… yet. And yet, he insists he should be allowed to walk away from this lawsuit.
On appeal, Stephenson argues that: (1) he is entitled to qualified immunity because it was not clearly established by 1999 that “firearms examiners” had an obligation under Brady to turn over exculpatory evidence to the prosecutor; and (2) he is entitled to absolute immunity with respect to the 2000 GRC Report because he prepared it at the prosecutor’s direction.Nope, says the court.
We disagree.It was clearly established -- for at least seven years at that point -- that a police employee has similar obligations under Brady.
We disagree and conclude that a police forensic examiner, whether an analyst or technician fulfilling any of the roles associated with forensic analysis, in 1999 reasonably would have understood that he or she was required to turn over exculpatory information to the prosecutor.As the analyst's own testimony pointed out, forensic techs are almost always former cops, at least in New Haven, Connecticut. And if police officers are subject to Brady obligations, it makes no sense to exclude former police officers who still work for the police department.And there's no absolute immunity for the analyst either. He attempted to argue that the prosecutor's call with questions about the possibility of the murder weapon being a Beretta prompted his subsequent report. But he was never asked to perform another analysis or generate another report. He was only asked a question about the certainty of his conclusions. This means Stephenson can't hide behind the immunity afforded to prosecutors. And that means he will have to continue to defend himself and, hopefully, be held responsible for his role in stealing a combined 36 years of life from two teens.
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posted at: 12:00am on 14-Sep-2021
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