February 2nd, 2009 | 1 Comment
When I review evidentiary hearing transcripts for appeals, I cringe when officers opine about what they saw defendants do. Officers are always 100% sure about what was going on, whether their opinions match the facts or not. A lot of the time, an officer’s opinion about what a defendant did can make a defense motion fail.
Any movement by a defendant is a “furtive gesture” suggesting he was hiding something. If the defendant says his pants were falling down and he had to pull them up, the cop will say the defendant was trying to hide something in his pants. “There was no good reason for Mr. So-and-So to be pulling up his pants.” The trial court will almost always agree with the officer and find the defendant was not pulling up his pants. People pull up their pants when they are loose. A number of my clients wear pants that are always on the verge of falling down. Judges must know that, but when an officer says “there was no other reason for Mr. So-and-So to do what he claimed he was doing,” it’s over. The officer’s version of facts justifies the search. A well-coached cop who is adept at sticking with his opinion and selling it to the judge can often make even the strongest defense motions fail.
If every single objective fact suggests the officer’s opinion was wrong or an outright lie, the appellate court is probably going to say the trial court’s factual findings were supported by the record and not clearly erroneous. That’s the standard. Forget about all the evidence the defendant presented showing he was pulling up his sagging pants. Maybe they even fell down in court; it’s a hazard of the style. You can bring the falsity of an officer’s statement to the appellate court’s attention, but you’ll rarely succeed. The officer said the defendant had no reason to pull up his pants, so there’s your basis. Suck it up, the finding wasn’t erroneous. Your best shot is bringing it up in a petition for post-conviction relief, but you’ll be filing that with the same judge that believed the officer in the first place.
Every time I read a ruling that relies an officer’s opinion about the facts to reach its conclusion, I imagine all the unconstitutional searches and seizures that are going to be upheld as a result. I really wish courts would formulate standards that can’t be automatically satisfied by a well-thought-out lie about what the defendant was doing. Just the facts. Let the court apply the law.