Coming fresh on the heals of the discussion about  swearing contests at Suppression Hearings, where the tailored or sanitized testimony of a police officer invariably trumps a defendant’s directly conflicting testimony, is this decision via  Volokh Conspiracy from the Eighth Circuit in United State v. Prokupek.

In spectacular fashion, the circuit reversed the denial of suppression, holding the magistrate’s finding that the cop was credible to be “clearly erroneous.”  The cops were busy pulling a cute little move:

Officers put up a sign indicating that there was a drug checkpoint ahead, and they then parked their cars by the nearest exit. Prokupek was driving on the highway, passed the sign, and then pulled over into the exit lane of the highway. At the end of the exit lane, he pulled over on to a country road and was stopped by the police. The police brought out the dogs, the dogs alerted to drugs in the car, and a search of the car yielded 151 grams of methamphetamine in the car.

While there’s nothing improper under existing law about pulling such a scam, the cops still needed an objective basis, even if pretextual, to make the stop.  Here, the easiest was to claim a failure to signal, which could be proven testimonially and no one would be the wiser.  After all, if the cop says you didn’t signal, how could a driver possibly dispute it?

Well these cops weren’t the best and brightest, and the dash cam caught the cop explaining that Prokupek failed to signal as he turned from the exit ramp onto a county road, specifically saying that he wasn’t pulled over for failure to signal when he changed lanes into the off ramp.

At the hearing, however, the cop testified opposite.  On cross, the cop fudged his testimony, playing stupid and claiming he couldn’t understand the question.  Pathetically, this didn’t trouble the magistrate, who found the cop credible.  On de novo review, the district judge found the testimony “confusing,” but not so confusing that he wasn’t satisfied that Prokupek failed to signal somewhere, even if the cop’s testimony couldn’t manage to specify where the offense occurred that justified the stop.

Despite the finding that the officer was credible and the defendant failed to signal somewhere, the Eighth Circuit turned to the dash cam, the only bit of hard evidence of the stop, and called “foul.”

The district court’s factual finding that “Prokupek failed to signal his turn before turning from the exit ramp on to the county road” is supported only by the court’s determination that Trooper Estwick’s testimony at the suppression hearing to that effect was credible. Because Trooper Estwick’s testimony at the hearing is so clearly and affirmatively contradicted by his own statement at the time of the events, in the absence of any explanation for this contradiction that is supported by the record, we conclude that Trooper Estwick’s after-the-fact testimony at the suppression hearing is “implausible on its face,” Anderson, 470 U.S. at 575, and we are left with the “firm and definite conviction that a mistake has been made,” United States v. Pickar, 616 F.3d 821, 827 (8th Cir. 2010) (quoting United States v. Hines, 387 F.3d 690, 694 (8th Cir. 2004)). We therefore hold that the district court’s finding that Prokupek failed to signal the turn on to the county road is clearly erroneous.

Of course, had there been no dash cam, or had the cop not shot off his mouth on camera about why he stopped Prokupek, thus establishing a baseline upon which his hearing testimony could be revealed as wholesale fiction, or better still, having adequately prepared for the hearing by making sure his two stories lined up, there outcome would have been the opposite.

As Orin Kerr notes in his discussion, there would have been no basis for reversal in the absence of this “objective evidence” that the cop was lying through his teeth.  I add that there were numerous opportunities for the cop to have gotten his lies straight, conformed them to the content of the dash cam, and still gotten away with lying. 

While we have video to thank, we also need to appreciate the fact that Trooper Estwick is a moron.  A smarter liar would have easily gotten away with it.

Calls for videotaping, whether by police or civilians, these interactions is often held up as the cure for the disease of police testilying, whether tailoring testimony or fabricating excuses wholesale.  In the instances where a camera shows the wrong or conflicts with testimony, we applaud, as well we should.  Anything that shows when a police officer violates his oath and abuses his authority is a day that another life was saved.

Yet it would have been shockingly simple for this cop, had he not been such a blithering idiot, to conform his hearing testimony to what was recorded on his dash cam.  Had he made the slightest effort to prepare, the dash cam video would have bolstered his fabricated testimony rather than contradicted it.  Suppression denied, end of story.

That said, I would be remiss not to take further note of the little scam played by the troopers who put up the sign warning of a drug check point ahead, motivating drivers with drugs in the car to exit immediately and play right into the hands of the waiting troopers. Yes, Virginia, the police are lawfully allowed to lie to you.

Does such a ploy smell badly?  Does it reflect poorly on the integrity of the police?  Perhaps, but its a perfectly lawful means of goading a driver into revealing that he has no intention of going through a drug checkpoint.  It may seem unfair, but it’s pretty darn effective.  And really, isn’t that what law enforcement is all about?

But the fact that a driver pulls off the road after seeing this faux sign doesn’t give rise to a stop.  After all, he may just as well be pulling off the highway because that’s his exit rather than an intent to avoid a drug checkpoint.  So the cops need an objective basis, an offense committed in their presence, to justify the stop, after which they can lawfully walk the dog around the car for a quick sniff, and a hit constitutes probable cause to search under the automobile exception.

No turn signal?  That’s all it takes to distinguish a lawful stop and the ensuing sniff, search, bust.  Who’s to say that a driver actually did signal, in conflict with the police officer’s testimony that he observed a clear violation of traffic law in his presence?  Only the driver.  We all know how that testimony comes off.