N.D.Cal.: Officers’ testimony too embellished and padded to be believable

The court finds the officers’ testimony too embellished and padded to be believable. Their job is to testify factually and not embellish. [See Treatise § 60.47 n.2 (“Counsel should watch for testimony ‘tailored to nullify constitutional objections.’”)] United States v. Hill, 2014 U.S. Dist. LEXIS 156683 (N.D. Cal. November 5, 2014):

As applied here, the Court discounts the entirety of the deputy Scheuller’s and Miguel’s testimony because of the cavalier and over-reaching approach they employed in testifying. Due to the number and quality of the inconsistencies in the witnesses’ testimony, and the surrounding circumstances including that the precipitating event was a completed traffic violation with no immediate threat to the public shown or apparent, the Court does not find credible the testimony suggesting that the defendant’s movement to the backseat of the Mercedes Benz was “furtive,” and thus, a reasonable basis for the defendant’s seizure. The fact that a firearm was later found is not relevant to the analysis.

The Court finds that deputies Scheuller and Miguel each chose to engage in an elaborate explanation of certain events of the night rather than just testify to what they remembered, including, perhaps, an honest and understandable statement regarding the lack of memory as to many details. Had they been honest and not attempted to bolster their own credibility, the Court might have agreed that the testimony, which was so resoundingly contradicted by the video, was ancillary to the key events. However, such was not the case. An officer cannot have a “distinct memory,” testify adamantly without reservation that he “chose not to” use emergency lights for a particular strategic reason, and then expect a Court to believe him when incontrovertible evidence proves he did not so act. Nor can he provide prolonged, detailed testimony regarding the location of the vehicles in use that night, which is then shown to be false, and expect a Court to believe him to be trustworthy and fully honest as it relates to other details.

The Court has additional concerns that the deputies were attempting to fashion their testimony to fit precisely within some understanding of the factors courts frequently consider with these motions. For instance, the deputies’ repeated pre-impeachment claims that the defendant “was not blocked in” (and therefore could have left) suggests that they may have some understanding of the considerations courts use when evaluating custodial detentions. Similarly, in their testimony the deputies used buzz words like “furtive” and “concern for safety” rather than focus on the specific facts that might lead a court to conclude the same. The notion that deputy Miguel could be “concerned” and on “heighten” alert and then loiter around the vehicles, as shown on the video, begs the question and reaffirms that the testimony was not genuine but rather an after-the-fact pronouncement.

Law enforcement officers must understand that their duty to tell the truth includes a duty not to embellish; not to portend confidence as to details, when such confidence does not genuinely exist; and not to swear that testimony is based on distinct memories where, in fact, it is assumed based upon custom and practice. On redirect, only after faced with video coverage demonstrating conflicts with their testimony, did the deputies become much more sanguine about their respective memories. Their reflection came too late. To sanction such testimony condones conduct which should have never occurred and which should not be encouraged. It is only through the granting of these motions that the government will ensure that line officers understand the limits of their authority and duties affiliated with their office. On these bases, the Court finds that the defendant’s Fourth Amendment rights were violated when he was removed from his vehicle as an unreasonable seizure.