D.Nev.: “Seeming[ly] strategic activation and deactivation of the body camera” leads to finding of no consent

“Seeming[ly] strategic activation and deactivation of the body camera” and less than credible testimony results in court finding government failed in proving consent. United States v. Carter, 2021 U.S. Dist. LEXIS 33379 (D. Nev. Feb. 23, 2021):

The Court finds that the government has not met its burden of establishing by credible evidence that Carter consented to a search of his vehicle.

The government has relied upon the testimony of Officer Pappas to argue that Carter consented to a search of his vehicle. No one else heard this alleged consent or was present when it was obtained. There is no body camera footage of the consent. Indeed, there is no body camera footage of Pappas’ conversation with Carter about the alleged consent or pipe before the search of the vehicle. Department policy requires such conversations be recorded. Officer Pappas’ explanation for this failure was unconvincing and his memory when he testified was foggy. The seemingly strategic activation and deactivation of the body camera by Officer Pappas in violation of department policy as well as his unconvincing and less than credible testimony simply cannot establish that he obtained consent to search from Carter prior to beginning his search of the vehicle and prior to finding the drugs, pipe and firearm in the car.1 While the government seeks to point to other documents to establish that the consent was validly obtained before the search, such documentation was all created well after the search and also relied upon by Pappas. On this record, the government cannot meet its burden of establishing that a valid consent to search was obtained from Carter prior to the search of his vehicle.

In referencing Metro’s policy regarding body camera usage here, the Court is focused on Pappas’ interaction with Carter and not his conversations with other officers. The Court finds that the policy could be different for these different types of interactions and so the Court is basing its findings upon Pappas’ failures as to Metro policy regarding interviews of drivers or detainees at a traffic stop. A violation of policy which was admitted by Pappas.