M.D.Fla.: “Cops” video of def’s arrest shows officer not credible; frisk invalid

In a case demonstrating how easy it is for a police officer to lie about reasonable suspicion, the officer’s testimony of reasonable suspicion for defendant’s frisk is completely belied by a “Cops” video. On the totality, there was no reasonable suspicion of any possible crime. Defendant was just walking on a sidewalk and was essentially rousted by the cop. United States v. Solomon, 2016 U.S. Dist. LEXIS 17588 (M.D.Fla. Feb. 12, 2016):

On the night in question, Officer Hernandez co-starred with Defendant in an episode of Cops, the television show. The Cops production team filmed the entire stop, thereby providing the Court with indisputable video evidence of the stop from its inception to Defendant’s arrest. Interestingly, there are several discrepancies between Officer Hernandez’s testimony and the Cops video.

Officer Hernandez testified that Defendant was “blading” during the encounter to conceal the right side of his body where the firearm was located. The video, however, shows that Defendant walked straight towards Officer Hernandez after he drove his patrol car up to the sidewalk and activated the overhead lights. At no point did Defendant turn or “blade” and conceal his right pocket where the firearm was eventually located. Once Defendant reached Officer Hernandez, he engaged Officer Hernandez in a brief, face-to-face conversation, during which his body was centered and not bladed. Faced with indisputable video evidence on this issue, the Court finds there is no evidence Defendant was blading his body at any point during the encounter.

Officer Hernandez also testified that Defendant appeared “extremely nervous” because his eyes were bulging and his forehead was glistening from sweat. The video, however, fails to show any unnatural or exaggerated eye movement by Defendant. Nor does the video show Defendant sweating in a manner that indicates nervousness. In fact, it would have been hard for Officer Hernandez to see Defendant’s forehead “glistening” when he wore a hat during the entire encounter. At most, the video shows Defendant endured the typical nerves experienced during any average police encounter. When Officer Hernandez asked Defendant two questions relating to Defendant’s presence in the area, Defendant calmly answered without hesitation. Defendant explained that he just left his girlfriend’s house and was on his way to his own home just down the street. Less than three seconds later, Officer Hernandez grabbed Defendant to frisk him. Faced with indisputable video evidence on this issue, the Court finds Defendant did not exhibit any nervousness that would raise suspicion in a reasonably prudent law enforcement officer.

Beyond the testimony refuted by the Cops video, the Court does not find Officer Hernandez’s testimony regarding the bulge in Defendant’s pocket credible. At the hearing, Officer Hernandez testified that he saw a heavy object/bulge in Defendant’s pocket when Defendant approached him. Significantly, this fact was not included in the incident report/probable cause affidavit that Officer Hernandez was required to complete shortly after the stop. More importantly, the Government failed to mention this fact in its Response. It seems unlikely such a significant fact would be unearthed for the first time on direct examination but rather was discovered after Officer Hernandez had the benefit of watching the Cops video. Therefore, it seems this allegation constitutes nothing more than hindsight observation from the Cops video, rather than an observation made during the very brief encounter.