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Defendant uses ‘Cops’ video footage to suppress handgun evidence

February 23, 2016

By Tom Isler

What to do when bad boys come for you?  Bad boys, in this instance, being cops who stop you for walking in the middle of a street instead the sidewalk, frisk you without reasonably suspecting that you are a safety threat, discover a concealed handgun, and then testify falsely about the stop in court?  Hope that a Cops television crew captured the whole thing on video.

Luckily, for Hubert Lee Solomon, Cops cameras were rolling when a police officer stopped and frisked him last year in Fort Myers, Florida.  (Or, as the court later put it, Solomon and the police officer “co-starred” in “an episode of Cops.”) Solomon successfully used the television footage to contradict the police officer’s testimony about the stop, and convince a federal district court to suppress the gun evidence.

The incident at issue occurred around 11 p.m. on May 11, 2015. Officer Miguel Hernandez, of the Fort Myers Police Department, saw Solomon walking down the middle of a street in a high-crime neighborhood.  Hernandez decided to stop Solomon and cite him for violating a Florida law that makes failing to use an available sidewalk a noncriminal traffic infraction.

When Hernandez approached, Solomon immediately produced his driver’s license.  Hernandez asked why Solomon was walking down the street.  Solomon said he was returning home from his girlfriend’s house. 

Hernandez later testified that Solomon was nervous and sweating.  His forehead was “glistening.” Solomon placed his hands in front of his belt buckle as if he were trying to conceal something, and initially positioned his body to shield his bulging pocket from Hernandez’s view.

Solomon later testified that he was nervous, as anyone might be during a police stop, but denied Hernandez’s other allegations.  According to Solomon, Hernandez had no reason to fear for his safety or the safety of others.

Hernandez frisked Solomon and found a handgun in his front pocket. The entire encounter lasted 23 seconds.

In the resulting criminal proceedings in federal district court, Hernandez moved to suppress the gun evidence on the ground that Hernandez violated his Fourth Amendment right to be free of unreasonable searches and seizures, because Hernandez did not have “reasonable suspicion” to conduct the frisk.  More specifically, Solomon argued that Hernandez did not reasonably believe that his safety or the safety of others was threatened before conducting the pat-down.

Judge Sheri Polster Chappell agreed with Solomon and excluded the evidence of the handgun.  Judge Chappell relied heavily on the “indisputable video evidence of the stop,” which was at odds with Hernandez’s testimony on four main points. 

First, Solomon never positioned his body to shield his pocket from Hernandez.  The government initially tried to argue that the Cops video was edited to omit eight to nine seconds from the encounter, but never alleged that the omitted footage would have corroborated Hernandez’s testimony.  Hernandez eventually admitted that the relevant moment was not omitted from the video.

Second, Solomon was not suspiciously nervous.  The footage “fails to show any unnatural or exaggerated eye movement,” Judge Chappell wrote, and Solomon “calmly answered” Hernandez’s questions “without hesitation.”  Solomon exhibited only “the typical nerves experienced during any average police encounter.”

Third, it would have been hard for Hernandez to see “glistening” sweat on Solomon’s forehead because Solomon was wearing a hat. 

Fourth, Solomon held his hands in front of his belt buckle for less than five seconds, and, when the stop was viewed in its entirety, Solomon did not appear to be concealing anything.

Judge Chappell also discounted Hernandez’s testimony that he saw a bulge in Solomon’s pocket, observing that this detail was noticeably absent from Hernandez’s incident report or probable cause affidavit, and the government never mentioned that fact in its briefing.  “It seems unlikely that such a significant fact would be unearthed for the first time on direct examination,” Judge Chappell wrote, suggesting instead that the detail “was discovered after Officer Hernandez had the benefit of watching the Cops video.”

What’s particularly interesting—or troubling—about this case is the court’s observation that Hernandez’s testimony, in the absence of any other evidence, “could establish reasonable suspicion.”  In other words, Hernandez’s testimony that Solomon had been exceedingly nervous and tried to conceal a bulging pocket might have been sufficient to justify the frisk, and thus admit the gun as evidence, if not for the video footage. 

This raises a few unanswerable questions. In how many other cases have courts accepted police officer accounts of incidents as credible, when the officer actually misremembered the incident (or, more cynically, lied about it), as Hernandez appears to have done?  What evidence has been admitted or excluded based on facts invented or exaggerated in the courtroom? And how much time are defendants serving (or not serving) as a result?

In most cases, testimony will still be the only relevant evidence about a police stop; Cops crews can’t be everywhere all the time.  But the Solomon case illustrates one of the possible benefits of equipping police with body cameras: video evidence may reduce the need to rely on unreliable testimony and enable a judge to form an independent opinion about a police encounter.  If it’s easier to recognize a constitutional violation when it’s on TV, as body cams proliferate, will courts increasingly suppress evidence? Stay tuned.

 

Postscript: Explore more obscure Florida pedestrian laws here.  Other unlawful activity: standing in proximity to a street for the purpose of soliciting the watching of a vehicle about to be parked, and “suddenly” leaving a curb and walking or running into the path of a vehicle that cannot yield.