E.D.N.C.: Practice Pointer: One way to show officer lacked credibility on RS for stop

USMJ finds that officer was not credible because the proof at the suppression hearing was developed by leading questions, and the officer seemed to have little independent recollection of the stop, needing to repeatedly look at this file. Also, there was a proven embellishment in the reports. United States v. Northington, 2011 U.S. Dist. LEXIS 153029 (E.D. N.C. November 29, 2011):

Further detracting, at least to some degree, from Daughtry’s credibility is the fact that various portions of the direct examination of him were leading in character. (Id., e.g., 14:21; 15:8-10; 18:3-4; 18:15-17; 19:7-8; 19:10-11; 21:7; 21:15-17; 30:13-15; 30:20-21). In addition, Daughtry repeatedly looked at his report for the first two-thirds of his direct examination before the questioning was stopped and Daughtry provided time to review it. (Id. 21:23 to 22:16). The inference, of course, is that Daughtry lacked a strong, if any, independent recollection of the events about which he was being examined.

The court concludes that Daughtry is not a reliable source of information regarding the stop of defendant. As discussed, his lack of credibility is shown by a broad range of factors, including the implausibility of certain statements he made, the inconsistency of his conduct with certain statements, the inconsistency of his testimony with his report and/or the ATF Letter, the inconsistency of portions of his testimony with other portions, the inconsistency of his testimony with portions of Johnson’s testimony, omissions from his report, and other factors. Some of the statements shown to lack credibility relate to facts central to the question of reasonable suspicion and their unreliability therefore directly undermines the government’s case on that issue. But the other statements are also material to reasonable suspicion because they shed light on Daughtry’s overall credibility.

Similarly, there are statements by Daughtry that do not themselves bear indicia of unreliability and there is some evidence tending to support Daughtry’s credibility, such as Johnson’s corroboration of Daughtry’s testimony that defendant was acting erratically (see id. 92:10-21). However, the number of statements that do bear such indicia, the significance of many of these statements to the issue of reasonable suspicion, and the underlying deficiencies in veracity the demonstrably noncredible statements reveal, such as possible misperceptions, deficient memory, and embellishment, render all of Daughtry’s statements unreliable. Given the government’s reliance on Daughtry’s statements to support its case on reasonable suspicion, his lack of credibility precludes the government from establishing by a preponderance of the evidence that reasonable suspicion existed. Defendant’s motion to suppress should accordingly be allowed.

This case isn’t really precedent for anything, but it is significant for all of us to see how this court discounted testimony when the government carries the burden of proving reasonable suspicion because of “possible misperceptions, deficient memory, and embellishment.” Look, officers: you don’t need to embellish. Your truthful testimony will usually carry the day. If it doesn’t, too bad; you were operating on a hunch. Having made the arrest, you felt you had to follow through to bring some “bad guy” to justice. The ADA or AUSA, however, took your reports at face value, as they are expected to. When you had to be led through the testimony, the AUSA here should have seen this coming. And, AUSA’s, don’t lead. Let the case collapse of its own weight. You got the indictment, but you don’t own this case. Also, this was a Federal Defender case.