N.D.Ohio: Def’s version more credible than the police version, and motion to suppress is granted

The court sides with the defense on the credibility of the witnesses that defendant’s gun wasn’t in plain view after all, and it grants the motion to suppress. Even though he has an extensive criminal history, which the government seeks to exploit, his version makes more sense. United States v. Fips, 2020 U.S. Dist. LEXIS 181422 (N.D. Ohio Sept. 30, 2020):

In short, unpacking the hearing testimony reveals several inconsistencies that cast doubt on the Government’s version of events and give the court pause. Because Fips’s account is logical, makes intuitive sense, and is better supported by the record, the court finds that Fips did not open the car door or the center console and, therefore, that Fips did not reveal the firearm. This conclusion is bolstered, not undermined, by Fips’s criminal record. Although the Government challenged Fips’s credibility at the hearing by listing his prior convictions, the court finds it more likely that someone with such an extensive criminal history would have given the excuse that Fips gave to Sergeant Johnson—”that [he] was grabbing [his] phone off the charger”—rather than become flustered and open the center console where the firearm could be easily seen.

Consequently, the court finds that the firearm was not in plain sight and that the police conducted an unlawful search of the vehicle when they discovered the firearm. All subsequently discovered evidence of Fips’s criminal activity—including the bag of crack cocaine and the digital scale in the Buick—flowed from, and is tainted by, the initial violation of the Fourth Amendment. Accordingly, the court grants Fips’s Motion to Suppress.

IV. CONCLUSION

For the foregoing reasons, the court grants Fips’s Motion to Suppress (ECF No. 18). In doing so, the court emphasizes the fundamental principle that “the law holds that it is better that ten guilty persons escape than that one innocent suffer.” Coffin v. United States, 156 U.S. 432, 456 (1895) (quoting 4 William Blackstone, Commentaries at 358). While this maxim sometimes frustrates the prosecution of a defendant caught red-handed engaging in illegal activity, as is the case here, that is the price society pays to ensure government officials remain accountable and liberty remains a reality rather than a theoretical abstraction.