Recently in Chicago, a young man was charged and tried for felony possession with intent to deliver marijuana. During a suppression hearing, it became evident that the five officers had conducted an illegal search of the defendant's vehicle. All five officers systematically lied on the witness stand, claiming the defendant consented to the search. A video proved otherwise. The judge, a former prosecutor, admonished the officers and threw out the evidence against the defendant. The prosecutor dropped all charges against the defendant.
Let's face it -- as humans, we are imperfect. Some of us lie and cheat to make our personal or professional lives easier. Like anyone else, some police officers may also lie and cheat for similar reasons. The difference between a police officer and the rest of us is that we must answer to them while the police have authoritative power to act with impunity, under the color of the law.
When we discover that a police officer has lied, it raises serious questions and concerns. For every falsehood uncovered, how often does one go unnoticed? How often do a police officer's lies end up becoming damning evidence against a defendant? When the police lie, the integrity of our entire system of government comes into question.
I read about the case out of Chicago, and wondered what the reaction of an average person might be. Shock? Anger? Eye-rolling annoyance? In my work as a criminal defense attorney, I leave nearly every courtroom experience feeling that the police have lied or at least exaggerated the facts. My experience is not unique. This happens every single day in every single courtroom throughout the country. To make a case against a defendant, some police officers feel the need to stretch the truth to fit within the confines of the charging crime. The war on drugs, families and our constitution is compromised when police officers lie.
Lawyers challenge the integrity or truth of police officer testimony, as it relates to searches of persons and homes, before the judge and not the jury. The issue of illegal searches is a legal issue and not a factual issue. This means that at no time on behalf of my client can I argue in a jury trial that the police violated my client's constitutional right to be free from illegal searches, and therefore you should find him or her not guilty. That argument is going to be in front of a judge, if at all.
Despite the solemn judicial duty to be the final arbiters of constitutional protections, it could be political suicide to appear to be soft on crime or make rulings that the police officers lied or violated the defendant's constitutional rights. Almost every case that arises from an executed search warrant will ultimately be challenged in court, yet very few result in the finding of any violation or the exclusion or suppression of illegally or unconstitutionally obtained evidence.
This brings us to the case in Chicago. Five officers testified on the witness stand and lied under oath, concocting a story to avoid a finding that they had in fact violated the defendant's constitutional rights. But for a sole dash cam video these officers were unaware of, this would have been an average day in the criminal justice system.
The defendant's story would have been the typical story told in the war on drugs: The bad guy doper wants the judge to believe the police are lying. The doper must be the obvious liar because he was the one caught with drugs. He's found guilty of his felony charges.
Had it not been for the dash cam the officers meant to disable, the lies fabricated by all five police officers would have been accepted as the truth, and the defendant would likely be a felon, and another victim of the war on drugs, added to the growing and senseless list of American citizens.
Some readers may think: the defendant had the marijuana, so even if the officers lied about how they got it, he is still guilty of a crime. Those readers are missing a very important point. We entrust our police officers with great power and a shield of governmental immunity. While they have the power to search, seize, detain, arrest and use deadly force if necessary, they must do so under the strictest of guidelines.
With that in mind, consider the following: can a police officer pull you over and arrest you simply based on a hunch? No, not unless the officer observed a traffic violation or has reasonable, articulable suspicion that a crime is being committed. What if an officer decided they didn't care about the law, pulled you over anyhow, handcuffed you, and then discovered you had a small bag of marijuana hidden in your right shoe? If the officer lied and said they effected the search and arrest within the confines of the law, you may very well end up with a criminal charge and conviction.
When the police abuse their authority by lying, it can lead to innocent people being charged with crimes they did not commit, or simply people being illegally searched and seized, resulting in charges they would not otherwise have.
For years the war on drugs has been waged based upon the truth, veracity and integrity of the law enforcement community. If a police officer doesn't have probable cause to search, they must obtain a search warrant. In order to get a search warrant, an affidavit must be presented to a neutral and detached magistrate. The magistrate is supposed to examine and read the affidavit, and determine if probable cause exists that a crime is occurring at that moment in time. If such a finding is made, the magistrate will sign the search warrant authorizing the government to execute a search warrant.
This finding of probable cause and the authorization to execute the search warrant is the tool used by the government to vitiate and circumvent the protections set forth in the Constitution of both the State of Michigan and the United States.
When officers lie, as in the Chicago case, the problems with the system of justice and the war on drugs is exponentially highlighted. How many times had the officers done this before? In order to have such a coordinated, if dishonest, performance, presumably this had not been the first time. How many other defendants, who also claimed the violation of their constitutional rights, challenged the officers' version of events before a judge but without a video, and were denied the relief they requested?
Without the video, how can one person prove that five seasoned and experienced officers of the law were lying? What judge would ever hear the testimony of five police officers repeating the same story five times over again, yet make a finding that the defendant with drugs in his car was more honest or credible than the officers? Without hard evidence to the contrary, like the miraculous dash cam in the Chicago case, it simply does not happen, ever.
What about the officers who do in fact get caught lying? One would think that for the integrity of the system, each jurisdiction would maintain a list of officers who behaved as such so that these constitutional atrocities cannot ever happen again. Yet no such list exists.
In the rare situations when an officer is found to have violated a defendant's constitutional rights, similar findings often seem to appear on the same day. It's not uncommon to learn later in the day of a similar ruling, with the same officer with an affidavit for a search warrant before the same magistrate who issued the previous search warrant erroneously. Notably missing is any note of the previous transgressions, leaving a fundamental lack of accountability.
The officers in the Chicago case were sent to desk duty. As far as we can tell, there has been no review of the officers' past cases. After some time passes, business will likely continue as usual.
Like many other people, some police officers lie on the job. The difference is that their lies have a resounding ripple effect with devastating consequences. When an individual's reputation, years of their life or life itself hang in the balance and their entire case comes down to their word against that of a lying police officer, the odds are most assuredly not in their favor.
Unfortunately, without hard evidence like a video to document your story, an officer's testimony will be very difficult to overcome. Something like a dash cam video, like the lifesaving evidence from the Chicago case, can be the difference between prison and having your charges dropped. Unfortunately, this evidence can only be collected and provided by the very people who have violated your rights -- the police.
We entrust our police officers with our personal safety, protection and upholding the law. They are burdened with great responsibilities under the law to follow protocol, policies and procedures because they have tremendous power. There cannot be any blurred lines between their duties and authority as law enforcement officers, heavily limited and regulated by state law and various policies and procedures, and their powers of enforcement.