E.D. Mich.: Officers’ (and government’s) assertion of consent is so false it “tarnishes the entirety of the Government’s case.”

Officers’ (and government’s) assertion of consent is so false it “tarnishes the entirety of the Government’s case.” There was nothing near reasonable suspicion or consent. United States v. Smith, 2018 U.S. Dist. LEXIS 62041 (E.D. Mich. Apr. 12, 2018):

Having carefully considered the testimony presented at the hearing, the Court finds that several of the factual assertions that underlie the Government’s opposition to the motion have not been substantiated. One critical factual assertion — that Smith consented to the search — is totally without merit and tarnishes the entirety of the Government’s case.

Although Vang and Jackson testified that the Smith and the others present consented, the Court’s finds that testimony utterly lacking in credibility. Consent would have been an absolute guarantor of the reasonableness of the search. See Purcell, 526 F.3d at 960. Any officer who had secured such consent would surely have recorded that in his or her report, as that would have effectively insulated the search from any later challenge in court. Yet both Vang’s report and Jackson’s report fail to mention consent. The explanation offered for its omission — that Vang “believed at the time that we already had enough probable cause,” 2/1/2018 Tr. at 51 — is particularly lame. No reasonable officer would have omitted reference to the “gold standard” for validating his search just to save a few keystrokes in typing up a report. The absence of such a fundamental “fact” is eloquent evidence that the alleged fact never occurred. See United States v. Covarrubia, 911 F. Supp. 1409, 1411 n.2 (D.N.M. 1994) (finding a Border Patrol agent’s testimony not credible because the agent “omitted any reference to these facts in his police report”). Given the dispositive role consent would have played regarding the search, the false testimony about it appears to have been willful.

Other omissions from the report corroborate the conclusion that Vang and Jackson were not credible witnesses. There is nothing in Vang’s report about Smith appearing nervous, nor is there any statement in Jackson’s report about the driver of the vehicle refusing to keep his hands visible.4 Such “facts” would have been important to establish the reasonableness of the officers’ alleged concern for their safety and belief that Smith or others were armed. See United States v. Pacheco, 841 F.3d 384, 393 (6th Cir. 2016) (explaining that a suspect’s nervousness is “relevant to the reasonable-suspicion calculus”). Accordingly, the Court disbelieves that Vang observed Smith appearing nervous and that Jackson saw the driver refuse to keep his hands visible.

Because both Vang and Jackson were not truthful at the suppression hearing, the Court does not believe other points of their testimony, as it is entitled to do. See United States v. Martinez, 356 F. Supp. 2d 856, 870 (M.D. Tenn. 2005) (applying the doctrine falsus in uno, falsus in omnibus — false in one thing, false in everything — to discredit an agent’s entire testimony due to certain inconsistencies with the record). Thus, the Court concludes that the testimony regarding “blading” and the observation of a “bulge” in Smith’s pocket are similarly not worthy of belief.

Other testimony supports the conclusion that the witnesses testified untruthfully. Both Vang and Jackson testified that, before exiting the car, they noticed an L-shaped bulge in Smith’s pocket that they recognized to be a firearm when Smith bladed his body away from them. But they both also testified that they did not verbally warn each other that Smith might be in possession of a firearm so as to not “alert” Smith. Id. at 50. However, Jackson later testified that they do indeed have “a code word that we say to let officers know [when they find a firearm,] but not suspects.” Id. at 70. Similarly, Jackson testified that, despite knowing that Smith had a firearm on his person, he did not immediately frisk him upon exiting the car but instead physically touched him to move him to the side so that he could open the door of the truck, all while Smith was only in his periphery. Id. at 83. Further, instead of the officers physically escorting Smith between the officers, they allowed Smith to walk unescorted to be frisked by Vang. See id. at 23 (“My partner, Officer Jackson, then directed [Smith] to come to me.”).

If, in fact, they had observed the bulge, why would they not communicate that to each other, at the very least in code? And why would Jackson send an individual he believed armed over to his partner, without physically escorting him? These are not the actions of officers who believed they had witnessed events supporting the inference that Smith was armed and dangerous.

What then is left of the Government’s case for opposing suppression? That Smith was in a high crime area at 10:45 p.m.? That hardly suffices to establish reasonable suspicion that Smith was armed and dangerous or that crime was afoot. Those minimal circumstances would describe virtually anyone encountered by police at night in a rough part of town. See United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006) (explaining that a person being seen late at night in a high-crime area “may not, without more, give rise to reasonable suspicion”).

Viewing the entirety of the record, the Court concludes that there are insufficient facts from which to reasonably conclude that the officers had any reasonable suspicion that Smith had been or was engaged in criminal activity or that he was armed and dangerous. The stop and frisk of Smith violated the Fourth Amendment, requiring that the fruits of the search be suppressed.