Defense counsel successfully argues officer’s general lack of credibility before the stop coupled with story during stop made the stop unreasonable. Need for a frisk was belied by the officer’s actions during the stop. United States v. Eanes, 2008 U.S. Dist. LEXIS 110701 (W.D. N.C. September 5, 2008):
Having carefully considered the testimony and other evidence, as well as the vigorous and able arguments of counsel for the Government and the Defendant in their pleadings and during three different hearings, the undersigned concludes that Officer Wheaton’s testimony is simply not credible. In other words, the undersigned concludes that the Government has failed to establish, through presentation of credible evidence, that the traffic stop in question was properly based on reasonable and articulable suspicion of unlawful conduct or, had the initial stop been proper based on a seatbelt violation or otherwise, that there was reasonable suspicion to justify detention beyond the scope of a routine traffic stop.
As noted in the preceding section, Officer Wheaton’s five-and-a-half year career with the Charlotte-Mecklenburg Police Department has brought his credibility into question long before he stopped the vehicle in which the Defendant was riding on June 2, 2006. Before he became a sworn officer he was caught cheating and had to re-take 20 tests administered by the Police Academy as a result. He has been cited for violating CMPD’s vehicle “pursuit policy.” And, perhaps most seriously, at least two of his cases have been dismissed by state courts for failure to preserve evidence: specifically, MVR tapes, the precise evidence he has again failed to preserve in this case.
As defense counsel ably argues in his “Post-Hearing Memorandum of Law in Support …,” the undersigned finds that the testimony of Officer Wheaton regarding the events leading up to and following the vehicle stop lacks credibility on its face. For example, Officer Wheaton’s testimony that he observed the Defendant make a “stuffing motion” before the vehicle stop, which he alleges he strongly believed to be the Defendant placing a gun under the seat, is inconsistent with his allowing the Defendant to remain in the car after the stop, on that very seat, while he questioned the driver outside the car. It is also entirely inconsistent with his failure to frisk the Defendant — which Officer Wheaton now acknowledges was “an officer safety mistake” — once he finally removed him from the vehicle. Further inconsistencies in Officer Wheaton’s conduct and sworn testimony are the search of other parts of the car before looking under the passenger seat where he now claims to have been virtually certain a gun was hidden; Officer Wheaton’s failure to preserve or test the very evidence he claimed as “an additional legal basis” for the vehicle search (the purported “marijuana stem”); and Officer Wheaton’s failure to call for backup once he realized the passenger had a prior armed robbery arrest and he allegedly deemed the presence of a firearm under his seat a “no-brainer.”
Rather than observing what he claims he observed, the undersigned finds it at least equally likely that, as Officer Wheaton vaguely put it, on the night in question he was simply “looking for people [or] vehicles that stand out.” Observing the vehicle in question, perhaps because the passenger or driver looked at him, it somehow “stood out” in Officer Wheaton’s mind and he decided to follow it. Although Officer Wheaton claims to have noticed the passenger was not wearing his seat belt before the stop, due in part to the many glaring inconsistencies in Officer Wheaton’s testimony, the undersigned finds it just as likely that Officer Wheaton first noticed the Defendant was not wearing his seat belt after the stop. Of course, Officer Wheaton’s failure to preserve the MVR tape means, inter alia, that what may have been the best evidence of whether he observed the Defendant not wearing a seatbelt is now not available to the Court or the Defendant for review.
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
