Are police officers lying at suppression hearings? That question was raised last week by the Florida Court of Appeals in Ruiz v. State. I think every criminal defense lawyer should read that opinion. In fact, I hope that everyone involved in the criminal justice system reads it.
Why is a court of appeals opinion from another jurisdiction important? It’s important because the court called it the way they saw it. The cops were lying:
Unfortunately, the court didn’t “see” it. They weren’t there to watch the witness testify. Under the standard of review, the appellate court defers to the trial court to judge the credibility of the witness. If the trial judge believed it, the appellate court accepts it.
Reluctantly, the court accepted it in Ruiz. They affirmed the conviction, but not before blasting away at consent.
The opinion quotes extensively from Younger, ‘The Perjury Routine,’ The Nation, May 8, 1967. Again, this opinion is well worth reading.
In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court laid down the rule that evidence obtained by the police through an unreasonable search and seizure may not be used in a state criminal prosecution.
Before Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person. This had the ring of truth. It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided. Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed. Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the policeman arrests him, the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him. Usually the very language of the testimony is identical from the case to another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.
“Dropsy” in 1970 has evolved into “consent” in 2010. The more things change the more they stay the same.