E.D.Va.: The “Interplay Between Burden of Proof and Credibility” in suppression hearings

The “Interplay Between Burden of Proof and Credibility” in suppression hearings. United States v. Mobley, 2014 U.S. Dist. LEXIS 164844 (E.D. Va. November 25, 2014). This is a warrantless search and the government has the burden:

4. Interplay Between Burden of Proof and Credibility
The Court should employ a credibility analysis and closely analyze the United States’s burden of proof in all cases, but especially when police testimony is contradicted by other evidence. Even when a defendant’s “evidence raises a serious factual issue” as to whether a violation of the law actually occurred, United States v. McGee, 736 F.3d 263, 267 (4th Cir. 2013), it may be insufficient to mandate granting a motion to suppress if the court finds a police officer’s “unwavering” testimony credible that he had reasonable suspicion that a violation occurred. Ellington, 396 F. Supp. 2d at 700. In its consideration, the Court should look to the consistency of a witness’s testimony, McGee, 736 F.3d at 270-71; Harris, 2014 U.S. Dist. LEXIS 75223, 2014 WL 2475925, at *3, * 10, whether the testimony aligns with a previous recording such as a police report, Harris, 2014 U.S. Dist. LEXIS 75223, 2014 WL 2475925, at *2, *10, whether the testimony is “self-serving,” Cucci, 892 F. Supp. at 792, and whether testimony was refuted by other, stronger evidence, see, e.g., Ellington, 396 F. Supp. 2d at 700-01. The Court may also consider whether an important witness, such as an officer involved in the events surrounding a motion to suppress, failed to testify. Cucci, 892 F. Supp. at 792. As always, the Court must make its determination based upon the “totality of the circumstances.” Arvizu, 534 U.S. at 273.

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B. The United States Met Its Burden to Show By a Preponderance of the Evidence that Reasonable Articulable Suspicion Justified the Initiation of the Traffic Stop and Did Not Violate the Defendants’ Fourth Amendment Rights

1. Officer Whitt Testified Credibly that He Had a Reasonable Belief, Based on Articulable Facts, of Unlawful Conduct

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The evidence presented, and the credibility thereof, must be viewed within the lens of the applicable burden of proof. While it rests with the United States, the burden is significantly lower than that required to demonstrate that the Defendants actually committed an improper lane change. The United States need only demonstrate by a preponderance of the evidence that Officer Whitt reasonably believed that he observed a violation of the law. See Ellington, 396 F. Supp. 2d at 699. Officer Whitt, an experienced police officer, consistently testified that he first saw the Buick stopped at the yield sign. His testimony, confirmed by his report, was unwavering that from approximately forty feet away, he witnessed at least two wheels of the Buick cross the solid white line separating the lanes of traffic, that this action constituted a violation of the law, and that the action was unsafe because he had to let off his accelerator to avoid hitting the Buick.16 Mobley and Njiande’s testimony, while relatively consistent, and perhaps conveniently consistent, with one another, did not ring true given the nature of the testimony itself and their unfamiliarity with the area. The Court finds that the United States met its burden to show that a probability exists that Mobley committed a traffic violation by changing lanes improperly, and that Officer Whitt reasonably believed that Mobley did so.