By: Sara Kropf

A few months ago, I wrote about the successful effort by a U.S. Attorney’s Office to convince the First Circuit to remove the name of a prosecutor involved in a case about Brady violations.

Now, in a case in Philadelphia, a USAO did not ask the district court judge to delete a police officer’s name but rather to change his determination that the officer was not credible.

On September 26, 2017, a federal district court judge in Philadelphia, Judge R. Barclay Surrick, granted the motion to suppress of a defendant named Pedro Payano. The judge took the time to draft a written order. The order described what the Pennsylvania state trooper had done when he engaged in the illegal search and noted that the defendant’s “ethnicity very likely figured into” the officer’s actions that day.

The government was not happy.

What Happened During the Traffic Stop

Mr. Payano and his companion (Acosta) were pulled over by Pennsylvania State Trooper Thomas Fleisher on April 3, 2017, at 9:30 am on the Pennsylvania Turnpike. The reasons for the stop were incredibly vague.

The trooper was suspicious because the three men in the car were not wearing business attire at the time of the morning (?), that there were “two males in the vehicle at that time of day” (??) and because it was an older Ford Focus that is “commonly used” by “drug trafficking organizations” (???).

He then followed the car for 14 miles. During this time, Trooper Fleisher ran the plate and discovered that the owner of the car was a “license fraud suspect.” He also learned that the owner’s last name was Velez. After pulling over Mr. Payano and confirming that Mr. Payano was not Velez (and thus not the suspect in license fraud), Trooper Fleisher continued to question him, believing he had a reasonable suspicion of criminal activity.

After 20 to 25 minutes of questioning Mr. Payano, Trooper Fleisher asked for consent to search the car. Mr. Payano consented and the search began. It was thorough, including a search of “every compartment” and “disassembl[ing] the interior panels of the vehicle.” The troopers found a kilogram of cocaine and arrested the two men.

The dash cam of the trooper’s car captured Trooper Fleisher asking another trooper if “license fraud suspect” could mean that one is a victim of license plate fraud.

The District Court’s Ruling

The district court suppressed the evidence, finding that the stop and search went well beyond a reasonable inquiry into criminal activity.

The court did not break any new ground in its legal rulings. What matters is what the opinion said about Trooper Fleisher, who testified at the suppression hearing.

The court said that

None of the observations relied on by Trooper Fleisher—whether viewed separately or together—support a finding that the had a reasonable suspicious to suspect criminal activity adequate to prolong the investigation.

The court went on to explain

The traffic stop occurred on a highway, and not in a high crime area. Trooper Fleisher conceded that Payano was calm and that he did not act nervous . . . Moreover, all of Trooper Fleisher’s observations that allegedly informed his reasonable suspicion were circumstances that appear too innocent to apply solely to individuals engaged in criminal conduct.

Rather than describing factors that Mr. Payano’s conduct as suspicious, Trooper Fleisher’s explanations “seem to broadly characterize what Trooper Fleisher believed to be a narcotics trafficking profile.”

The court went on to say that Trooper Fleisher’s “credibility is called into question” because his testimony was compared to the dash-cam footage, “which reveals Trooper Fleisher’s various embellishments and mischaracterizations of the traffic stop.” The court described several of the embellishments and mischaracterizations.

For example, Trooper Fleisher said he was suspicious because it took Mr. Payano too long to pull over after he turned on his lights. But the dash cam showed that it took only five to six seconds for him to pull over.

The court also noted:

After hearing Trooper Fleisher’s testimony, we cannot ignore the fact that the ethnicity of Payano and Acosta very likely figured into Trooper Fleisher’s motivation for the traffic stop.

The Government Is Upset that the Court Uses Trooper Fleisher’s Name

The government filed a motion for reconsideration of the court’s ruling. Oddly, the government did not ask the court to reconsider its ruling—or to find that there was reasonable suspicion for the stop. In fact, it expressly concedes that the court’s legal ruling “absolutely is warranted by the facts and the law of this case.”

Instead, the Department of Justice asked the court to reconsider its statements about Trooper Fleisher’s credibility.

The government argued that there was no conflict between Trooper Fleisher’s testimony and the dash-cam footage related to the delay in time because he testified that it took Mr. Payano 1/10th of a mile to pull over, which would last about five to six seconds. (This argument, of course, ignores the fact that the trooper’s testimony was not credible when he said that this amount of time made him suspicious because it was too long.)

The government’s main concern was the court’s statement that Mr. Payano’s ethnicity must have played a role in the traffic stop. The government argued that there was no clear support for this statement and that the defense allegation of racial profiling “was not pursued at the hearing.”

According to the government, the statements about Trooper Fleisher’s credibility are “devastating” because it would be required to turn it over as Giglio evidence in future cases.

Given this reality, prosecutors on the federal and state level may be compelled to refrain from using this experienced trooper as a witness . . . Trooper Fleisher thus may not longer be able to performed an essential function of his position.

In addition

[a] judicial finding that this law enforcement officer used racial profiling as pretext for the investigatory traffic stop may expose him not only to public censure and criticism, but also to risk of liability in any civil rights actions, without having had an opportunity to refute or disclaim this finding.

The ACLU and NACDL Get Involved

The ACLU and NACDL were granted leave to file an amicus brief in support of Mr. Payano. The brief, filed by excellent Philadelphia criminal defense lawyer Lisa Mathewson, provides some excellent policy reasons to deny the motion for reconsideration.

The brief’s main theme is that the judicial system needs more transparency about racial profiling, not less. It points out that “[t]he public interest in acquiring accurate information about police misconduct cannot be overstated.”

It appears that this decision is not the first about Trooper Fleisher. As the brief notes:

But the “impression” left by the Court’s opinion is not at all “unfair.” A simple Google search for the officer’s name and “Pennsylvania State Police” yields, for example, a troubling Court of Common Pleas decision denying a Commonwealth forfeiture petition because Trooper Fleisher lacked reasonable suspicion for the car stop and frisk of the suspect, from which the seizure of currency flowed.

The suspect in that case was African American.

The brief makes the valid point that even if the court sanitized its opinion by removing the trooper’s name or the credibility determination, the government would still have the obligation under Giglio to disclose the decision. Removing the name only makes it easier for the government to avoid its obligation.

This paragraph is a strong summation of the organizations’ theme:

The Department of Justice’s response to the Court’s analysis is precisely backward. Rather than commit to rooting out racial bias in law enforcement, it asks the Court to conceal it. Rather than disavow reliance on law enforcement officers who are less than scrupulously truthful, it asks the Court to protect one. Rather than support the law enforcement community’s efforts to discipline officers who violate their oath to support and defend our Constitution, it asks the Court to ensure that this officer remain on the force, and in the courts. Rather than affirm its commitment to seeking justice rather than obtaining convictions, it asks the Court to facilitate future due process violations. And rather than acknowledge the salutary effect of daylight on the criminal justice system, it asks the Court to shroud its findings in darkness – in derogation of the First Amendment and the public interest.

(The defendant also filed a response, arguing (quite correctly) that the government’s arguments are inappropriate for a motion for reconsideration. The rules allow for reconsideration in very limited circumstances, and the government’s concerns are not covered by those exceptions.)

The Result

On January 17, 2017, the court denied the government’s motion in a one-sentence order. It did not offer any explanation for its reasoning.

Why Bother Filing the Motion?

It’s odd that the government chose to file this motion.

First, it drew more attention to a decision that it hoped to keep quiet (see, e.g., ACLU/NACDL brief, this blog post).

Second, the ACLU/NACDL brief made the valid point that hiding indications of racial profiling—rather than making them public—should be our goal.

Third, what was the point? To protect this officer? To make sure he can testify again? But the government concedes that this officer pulled over this person, had no reason to interrogate him and search his car, and still did so. That’s who the government wants testifying?

That—unfortunately—speaks volumes.