From dropsy to consent

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:

the story told by the police is unbelievable.

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.

1 Comment

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One response to “From dropsy to consent

  1. william doriss

    Here’s a good one: State of Connecticut v. William Doriss, #01-502506, New Haven, 2002. Atty. John DelBarba, on direct examination, asks, “On July 25, 2001, did Offcr. Andres Diaz arrest you?”
    “No, I do not believe he did arrest me.”
    Mr. DelBarba: “Do you know who arrested you?”
    “Yes. It was Offcr. Naccarato.”

    At this point, Mr. DelBarba moved on to the next question. Neither the Court, the prosecutor, nor the public defender called for Naccarato’s presence in order to test my credibility on the witness stand.

    (Not to worry: It’s in the transcript.)

    I proceeded to beat nine felony counts and two misdemeanor charges by dismissal and jury verdict. That would be 67 years prison. I wound up with two misdemeanor convictions and two years prison “engineered” by the Court itself in co-conspiracy with the State. There was a so-called appeal which was a NON-appeal, a walk-through paid for by the State. The Appellate Court naturally “rubber-stamped” the trial court; this was pre-ordained.

    No crimes worth mentioning were ever committed by me in CT. Multiple crimes were committed against me through false arrests and malicious prosecutions by the sovereign; in this case, the corrupt State of CT. The errors in my cases have never been acknowledged or corrected.

    The criminal justice system in Amerika does not work. It is dysfunctional, and in many jurisdictions a total farce. Sadam Hussein got more justice in Baghdad than I got in New Haven.