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Craig Mastantuono Nov. 18, 2013

Defense lawyers often complain that police testify falsely in court proceedings in order to serve their own purposes. Officers that do it justify it, DAs ignore it, judges overlook or are fooled by it, and defense lawyers complain but are rarely able to do anything about it. It's a tough task for lawyers to clearly demonstrate that police testimony is false. But recently, case preparation for one of our trials at Mastantuono & Coffee uncovered a rare opportunity to expose false police testimony.

The case involved a quarter pound of marijuana seized during a police search of our client's car after he was pulled over in a routine traffic stop for rolling a stop sign. The officer stated in his report that he smelled the overwhelming odor of marijuana coming from the car during his interaction with our client at the driver's side door. Our client told us this was not true, and that he was pulled out of his car and searched immediately when the officer got to his car. Based upon our client's version of events, we filed a motion to suppress the evidence as the product of an unconstitutional search.

During the discovery process for the motion hearing, Attorney Craig Mastantuono requested a copy of any squad video recording of the traffic stop. Though police squad equipment typically records traffic stops, no such video was provided in the initial turnover of discovery materials. The court ordered the State to make the appropriate inquiries, and the DA subsequently produced a video recording taken from the officer's squad.

At the motion hearing, the officer testified for the DA that he engaged in routine and garden-variety questions with our client after he stopped the vehicle, and that it was during that time that he had the opportunity to smell the marijuana. On cross-examination by Attorney Mastantuono, he elaborated on that as follows (from the motion hearing transcript):

Q: …So when you got up to the car, the window would have been open, right?

A: Yes.

Q: And you testified that you said garden variety traffic stop questions, right?

A: Yes

Q: What you engaged in with him?

A: Yes

Q: And what would those be?

A: Whose car is this? Where are you coming from? Where are you going? I may have asked, why does your car smell like marijuana, but I don’t remember the exact words I used.

Q: Okay. But you are testifying that you engaged in some conversation with him?

A: We spoke of something.

Q: And is it during that time that you detected the odor that you’re testifying about?

A: Correct.

Mastantuono then played the following video for the officer. Pay close attention to the officer's interaction with our client at the driver's side door:

The video clearly shows the officer pulling our client out of the car as soon as he makes contact, and searching him immediately, full-on and quite thoroughly. From a constitutional perspective, this is very important, as an officer must have evidence rising to the level of reasonable suspicion or probable cause to search someone without a warrant. If the search is immediate, it is unsupported by any evidence, and the person's 4th Amendment right to be free from unreasonable searches and seizures is violated.

After playing the video, Attorney Mastantuono again asked the officer about his interaction at the driver's side door:

Q:        It doesn’t appear that there was any conversation engaged in there, does it?

A:        I don’t know.

In our experience, "I don't know" is nearly always the answer when you ask police officers something they don't care to admit. The motion hearing was for the judge to decide whether the officer had obtained enough evidence to conduct a warrantless search of the car. The evidence needed to rise to the level of probable cause, in this case based upon what the officer said he smelled – marijuana – during his interaction with the driver. The video showed that he never had an opportunity to smell anything, and never even engaged the driver in questioning before searching him. So there it was, a clear demonstration of police testimony that was less than truthful, right? Motion by the defense granted, right? Not so fast. 

Our very experienced Milwaukee Circuit Judge somehow ruled that the officer conducted the search after he smelled marijuana, despite the clear contradiction between the officer's testimony and what the squad video showed. The judge upheld the search, allowing the marijuana seized to be used against our client at trial. We couldn't believe the ruling – a terrible demonstration of a judge being blind to the obvious.

So our client was found guilty, right? Again, not so fast. Our client always maintained that the marijuana was put in his car just prior to the traffic stop by his cousin, who had taken the car for a ride. Mastantuono & Coffee investigator Marcus Ruiz found and interviewed the cousin, who verified that he inadvertently left a bag of marijuana in our client's car behind the passenger seat. He said his cousin never knew it was there, and that he, the cousin, was willing to come to court to testify. 

We brought the case to trial before a Milwaukee jury in October 2013, and while presenting the defense, also confronted the officer with his prior inconsistent testimony at the motion hearing. But in another judicial blow to the defense, a different Milwaukee Circuit judge ruled that we were not allowed to play the video above for the jury to demonstrate the officer's search of our client. This judge thought the squad video was cumulative, and not relevant to the officer's credibility. Again, we disagreed strenuously with the ruling. However, despite that, the jury was still able to consider the inconsistency between the officer's trial testimony and his prior testimony exposed during cross-examination, and found our client not guilty. One of the reasons was, we think, because the police officer was simply not credible, and our client, who testified in his own defense, was. The practical effect was that 12 Milwaukee citizens accomplished what the judges would not, protecting our client's rights under our state and federal constitutions.

Craig Mastantuono & Rebecca Coffee recently highlighted this case and others in a presentation called Motion Practice: Pitching Your Case From Start to Finish at the annual Wisconsin Public Defender Conference for criminal lawyers at the Milwaukee Hyatt earlier this month. A copy of their power point presentation can be found here: WI SPD 2013 PowerPoint.

Wisconsin is currently confronting why our State has the highest incearceration rate of black males in the Country. Local National Public Radio station WUWM is highlighting a series of radio pieces on the issue. Traffic stops in Milwaukee like this one are part of the reason. And when courts fail to recognize obvious problems with unconstitutional searches and seizures, or hamper lawyers' efforts to let juries see clear evidence of unauthorized police conduct, these troubling statistics are only worsened.

Fortunately, sometimes our juries know better.