STRATEGIES FOR LITIGATING
STREET STOPS
Mining The Testifying Officer’s
Record For Useful Nuggets That
Could Tip The Balance
JOSEPH A. BALTER
DEPUTY FEDERAL DEFENDER
DISTRICT OF MARYLAND
INTRODUCTION
• Presentation based on suppression motion in
U.S. v. Marland Maynor, GWR-13-0371, a
garden variety gun and drug case arising
from Baltimore City street stop.
• Presentation addresses two types of records
that provided useful cross examination
material of officers:
– Baltimore City IID Files
– Baltimore City charging statements filed in other
cases
Baltimore City
Statement of Charges
•
•
•
•
•
•
•
•
•
LOCATION TO BE USED FOR THE ILLEGAL DISTRIBUTION OF NARCOTICS
NUMEROUS NARCOTICS ARRESTS IN AND AROUND THE STORE.
2 INDIVIDUALS QUICKLY WALKED INSIDE THE STORE.
OBSERVED THE DEF. STANDING INSIDE THE STORE.
RECOGNIZED DEF. AS THE SAME INDIVIDUAL WHO WAS ARRESTED AT
THE SAME LOCATION LAST WEEK ON NARCOTICS CHARGES.
UNIDENTIFIED INDIVIDUAL CALLED OUT TO DEF. WHO IMMEDIATELY
TURNED AWAY AND PLACED A SMALL OBJECT INTO HIS WAISTBAND
WITH HIS LEFT HAND
BELIEVING THAT DEF. WAS IN POSSESSION OF CDS APPROACHED DEF.
AND RECOVERED A PLASTIC BAG CONT. (5) GEL CAPS FROM HIS
WAISTBAND AREA.
PLACED UNDER ARREST. (post arrest statement leads to ACCA gun seizure)
[NOTE: OFFICER DESCRIBED “SMALL OBJECT” IN DEF. HAND WITHOUT
PROVIDING FURTHER DETAIL]
Government Response to
Motion to Suppress Evidence
Def. immediately turned away from the detectives and
attempted to secrete a plastic bag inside his waist band.
[NOTE: OFFICER ALLEGES HE OBSERVED “PLASTIC
BAG”, RATHER THAN “SMALL OBJECT”]
Detective observed a plastic bag which based on his
training and experience believed the plastic bag
contained CDS. The detectives had probable cause to
arrest and anything recovered from him as part of a
search incident to that legal arrest is admissible and
therefore the Defendant’s motion should be denied.
[NOTE: GOVERNMENT ALLEGED ONLY PROBABLE
CAUSE TO ARREST, NOT REASONABLE SUSPICION
FOR INVESTIGATORY STOP]
Defense Reply
•
While it may be permissible for the Court to consider the factors cited by the government, it
is also clear that the existence of any of these factors alone would not be sufficient to
provide probable cause.. See United States v. Sprinkle, 106 F. 3d 613, 617 (4 th Cir.
1997)(no reasonable suspicion where officers aware of defendant’s past criminal record;
events occurred in a high crime area; and defendant attempted to hide his face and closely
huddled with another person in vehicle); United States v. Powell, 666 F.3d 180, 188 (4 th
Cir. 2011)(officers’ knowledge of prior record alone not sufficient for reasonable suspicion);
United States v. Davis, 94 F.3d 1465, 1469 (10th Cir.1996) ([Defendant’s] prior criminal
record “is not, standing alone, sufficient to create reasonable suspicion.”); United States v.
Massenburg, 654 F. 3d 480, 486 (4th Cir. 2011)(defendant’s nervous or furtive behavior,
high crime area standing alone not sufficient to establish reasonable suspicion); United
States v. Foster, 634 F. 3d 243; 246-47 (4th Cir. 2011) (combination of factors including
officer’s knowledge of defendant’s prior record, defendant being in crouched position in
vehicle, defendant engaging in erratic activity with his arms, not sufficient to establish
reasonable suspicion; court noting disapprovingly of “ the inclination of government to use
whatever facts necessary to establish reasonable suspicion”); In re Jeremy P., 197 Md.
App.1, 13 (2011) (police officer’s observations of a suspect making an adjustment in the
vicinity of his waistband alone does not give rise to reasonable suspicion).
•
[NOTE: DEFENSE ONLY REPLIES TO PROBABLE CAUSE STANDARD, NOT
REASONABLE SUSPICION STANDARD. AT THE MOTIONS HEARING DEFENSE
ARGUED THAT GOVERNMENT SHOULD BE HELD TO THE PROBABLE CAUSE
STANDARD, A HIGHER STANDARD THAN REASONABLE SUSPICION]
IID FILES:
Initiating the Process
• Subpoena
• Demand letter to government
– We request disclosure to the defense of all disciplinary files, related to any
and all allegations including, but not limited to: official misconduct,
excessive use of force, false statements, misrepresentations, stealing,
misappropriation, dishonest act, or racial discrimination or bias.
Alternatively, we request notification of the existence of the material so that
the parties may request in camera review by the Court.
– We regard such materials from the officers’ personnel files to be Brady
material that must be disclosed. Even unadjudicated acts may trigger rights
under the Fifth and Sixth Amendments to the United States Constitution and
Rule 608(b) and Rule 404(b) of the Federal Rules of Evidence. See Davis
v. Alaska, 415 U.S. 308 (1974) (defendant’s 6th amendment confrontation
rights violated when trial court precluded cross examination about witness’
juvenile record and probation status).
• Practice Tips
–
–
–
–
In Camera review
Government disclosure schedule
Government summaries of files
Protective Orders
IID FILES:
Review For Useful Information
•
Substantiated/Non-substantiated complaints
– Substantiated complaints rare
– Government seeks to avoid using officer with serious IID record
•
•
Departmental Complaints
Citizen Complaints
– Arrestee complaints about excessive force, planted evidence, verbal abuse, theft,
destruction of property, racial bias
– Arrestee rarely follows up on initial complaint
•
Theories for Admissibility
– F.R.E. 608(b)- specific instances of conduct to attack character for truthfulness
– F.R.E. 404(b)- prior bad act offered to show motive, opportunity, intent… (to act in
violation of defendant’s rights under the 4 th amendment).
•
Case Law
– United States v. Leake, 642 F.2d 715(4th Cir.1981)(Fed.R.Evid.608(b) authorizes
inquiry only into instances of misconduct which are relevant to character for
untruthfulness)
– United States v. Harris, 2014 WL 128814 (4th cir. Jan. 2014)(affirming denial of use of
non-substantiated IID allegations for cross examination officers at trial)
IID FILE
Matching IID Information with a
Defense Theory
• Defense theories to be supported by IID information
– The police failure to record the names of the 2 suspects stopped
along with the defendant showed a motive, intent or plan to
avoid recording information about witness identity that could
provide useful or exculpatory information to the defendant.
– The police had a pattern of stop and frisk activity not supported
by articulable suspicion which supported the inference the
search of the defendant was a random stop and frisk not
supported by articulable suspicion.
• IID File; citizen complaint
– The police officers conducted a street stop of a ten year old boy
walking down the street; police searched the inside of his pants
for drugs ; no drugs recovered. The boy’s mother complained
that the police had searched without cause and used abusive
language in addressing her son.
Matching IID Information (2)
•
Results of IID investigation
– Charges of misconduct/improper search and discourtesy not sustained due to lack of
independent witnesses to support
– Officer cited for failure to issue a Citizen Contact Receipt, referred for command
discipline.
•
Although complaint charges not sustained, IID File information provided
basis for impeachment that supported defense theories
– Officer acknowledged incident in which he conducted a search of a ten year old boy
that resulted in no seizure of drugs.
– Officer acknowledged that he was disciplined for failure to to issue Citizen Contact
Receipt which provides a record for each frisk.
– The 2 persons stopped with the defendant were not issued citizen contact receipts; no
drugs were recovered from them; no arrests made.
– Compliance with the requirement for Citizen Contact Receipt would have resulted in
the identification of the 2 witnesses.
– Identification of the 2 witnesses would have supported defense theory that the officers
made many random stop and frisk without articulable suspicion.
– Defendant was denied evidence that would have established he was subjected to a
random stop and frisk in violation of his rights under the 4 th amendment.
Use of Charging Documents in
Non-Related Cases to Impeach
• Issue:
– The government’s case is substantially stronger if the court finds that
the officer observed a “plastic bag” in the defendant’s hand, rather than
a “small object”.
– The officer will testify at the hearing that he observed defendant stuff a
“plastic bag” into his waistband. If cross examined on the “prior
inconsistent statement” of describing a “small object,” the officer will
most likely bridge the 2 terms by characterizing “object” as a generic
term that includes “plastic bag.”
• Cross Examination objective:
– Demonstrate that original use of term “small object” in the charging
document to describe what was observed in the defendant’s hand was
accurate; the subsequent description of a “plastic bag” was recent
fabrication and a material deviation from the statement made in the
charging documents.
• Non-Related case information
– Charging statements from other cases will show the variety of terms
used by officer to describe CDS observations in other instances.
Collecting Charging Documents
in Non-Related Cases
•
Md. Judicial Case Search allows for search of all cases charged by officer
–
•
Collect charging documents in other CDS cases that describe what the officer observed in
the hand of a suspect prior to a drug arrest.
–
•
•
•
Copies of charging documents available at court clerk’s office
Non-Related charging documents revealed a variety of descriptions that officer used to
describe what he observed in the hand of a suspect prior to drug arrest
–
–
–
–
–
•
Search by any time period
“Object”
“Object(s)”
“Objects in size and shape resembling CDS packaged for sale”
“Gel caps”
“Color top vials”
Variety of description supported inference that officer did attempt to accurately describe
specific characteristic of his observations in each individual case.
The term “small object” was the least descriptive term used by the officer to describe
observations of suspect CDS.
Officer said what he meant and meant what he said