Officer’s Incredible Hearing Testimony Defied Common Sense, Resulting in Dismissal
A police officer testified at a suppression hearing that at approximately 10:00 in the evening, while he was a passenger in an unmarked car in Brooklyn, he saw three people walking down the sidewalk in the opposite direction. The officer stated that he saw one of the three, the initial target, adjust his waistband, at which point the officer exited the car and approached the group. After the initial target lifted his t-shirt and showed his waistband, the officer touched both sides of the initial target’s waist. During this interaction, the officer claimed he saw Mr. Black, who was standing two feet directly behind the initial target, pull up his pants, causing his shirt to be pulled tight and revealing an L-shaped outline in his waistband. When the officer told Mr. Black to “come over here,” Mr. Black turned and ran. Following a chase, a gun was found in Mr. Black’s pants. The suppression court denied the motion to suppress the gun.
The Appellate Division reversed. Recognizing that on a motion to suppress the prosecution bears the burden of establishing the legality of police conduct, and that the Court “should not discard common sense and common knowledge” when assessing credibility, the Appellate Division concluded that the officer’s “testimony was incredible as a matter of law and patently tailored to meet constitutional objections.” The claim that the officer was able to see an “L-shape” outline in Mr. Black’s waistband when the initial target was two feet in front of Mr. Black and facing the officer “defies common sense and strains credulity.” Moreover, the officer’s testimony was inconsistent with his memo book notes, arrest reports he generated, and grand jury testimony, none of which made any mention of the initial target. The officer’s testimony was also inconsistent with the recording obtained from his body-worn camera. Because the officer’s testimony was “unworthy of belief,” the motion to suppress should have been granted and the indictment was dismissed.
Anders Nelson represented Mr. Black
