M.D.La.: Stop still valid, although officer’s testimony contradicted his report

Defense counsel made headway on the officer’s credibility based on conflicts between his report and his testimony, but the court still finds the stop valid. United States v. Lopez, 2012 U.S. Dist. LEXIS 22812 (M.D. La. February 21, 2012)*:

The testimony did not establish why LoCicero approached Lopez’s truck. LoCicero’s proffered explanation is devoid of an articulable reason for suspecting Lopez had or was about to commit a crime. The sole reason why he approached Lopez’s truck was because he and his companion had been sitting there for several minutes “conducting no lawful business.” This sounds suspiciously like a police euphemism for profiling. It is the presence of unlawful business, not the absence of “lawful business,” which serves as the touchstone for reasonable suspicion analysis. LoCicero had no articulable reason for approaching Lopez’s car. Nevertheless, mere approach and questioning alone does not trigger Fourth Amendment protections. Bostick, 501 U.S. at 435; see also United States v. Brown, 209 Fed.Appx. 450, 452 (5th Cir. 2006) (defense counsel conceding at oral argument that officer’s initial approach of parked car does not implicate Fourth Amendment). At that point, therefore, LoCicero’s interaction with Lopez remained completely lawful.

It is unclear how long LoCicero spoke with Lopez, but LoCicero’s report—filed only a couple of days following the incident—clearly implies that, prior to asking for identification, he perceived the situation to have ripened into a stop. LoCicero’s precise language—”prior to releasing Lopez”—could not be given meaning without necessarily acknowledging that a stop of some sort had already occurred. Citizens who are free to terminate a police encounter do not need “releasing.”

LoCicero attempted during the hearing to backtrack on what he meant in his report, but he did ultimately acknowledge the report’s language implied a stop had occurred. While contending that the imprecise language he used in the report created a misimpression as to whether Lopez had been free to leave at that point, he freely admitted his police report provided a better picture of what happened that night because it reflected his memory of the incident mere days after it occurred. LoCicero’s testimony effectively contradicts his report even though he admits the report provides a more accurate portrayal of how the events unfolded that day because it was written in the wake of the incident. Giving the report a straight-forward reading compels the conclusion that LoCicero thought the questioning ripened into a stop at some point prior to him asking for Lopez’s identification card.

However, an officer’s perception of the legal effect of his actions is not dispositive. …