D.N.J.: Irreconcilable police testimony shows burden of proof of plain view fails

Inconsistencies in officers’ testimony on plain view showed government failed in its burden of proof on defendant’s warrantless search. “[W]hile [the court] finds that the initial stop of Defendant’s vehicle was lawful, it does not find that the Government has demonstrated that the firearm was in plain view at the time it was seized, and will accordingly grant Defendant’s motion to suppress the firearm.” United States v. Williams, 2009 U.S. Dist. LEXIS 48066 (D. N.J. June 3, 2009):

Put simply, the Court finds Defendant’s testimony that the firearm was kept out of sight under the driver’s seat to be more credible than the officers’ contention that the gun was in plain view on the console.

Several considerations inform this determination. First, the testimony of Officer Galiazzi and Officer Diaz on the matter of where they observed the firearm in plain view was irreconcilably inconsistent. …

The location of the handgun was not the only point of irreconcilable inconsistency between Officer Galiazzi’s and Officer Diaz’s testimony as to the events surrounding this arrest. While Officer Galiazzi testified that Mr. Smith was released at the scene upon the officers’ verification that no outstanding arrest warrants existed for Mr. Smith’s arrest, Officer Diaz testified that Mr. Smith was driven to the police station by one of the arresting officers. Each officer personally recalled having driven alone with Defendant from the scene of the arrest to the police station, and each even testified to statements Defendant allegedly made to him while being transported. Both versions cannot be true, as only one officer could possibly have driven Williams and personally heard his statements that night. At least one officer has therefore testified to Williams having a conversation with the officer that could not have happened. These are not trivial discrepancies, but are, instead, fundamental facts concerning the events of February 24, 2008. The officers’ inconsistent testimony on these matters, together with their conflicting testimony as to the more fundamental question of the location of the firearm, erodes the Court’s confidence in the accuracy of the officers’ recollection of these events, and undermines the persuasiveness of the officers’ testimony.

[I’ve never had officers do that in a suppression hearing. It seemed always “close enough for government work.”]