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):<\/p>\n
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.<\/p>\n
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.<\/p>\n
As defense counsel ably argues in his “Post-Hearing Memorandum of Law in Support \u2026,” 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.”<\/p>\n
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.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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