Judge Tosses Evidence After 'COPS' Footage Contradicts Officer's Testimony

from the just-trying-to-impress-the-crew? dept

The mutual adoration society that is long-running reality show "COPS" has just landed one of its protagonists in the middle of an evidence suppression order. Evidently forgetting his star turn in an episode of the show, Officer Miguel Hernandez of the Fort Myers (FL) Police Department performed an illegal search of a man walking down the street and concocted a story to cover up his actions. (h/t FourthAmendment.com)



Unfortunately, Hernandez's stop of Hubert Solomon was all captured on tape -- and apparently broadcast as well. Hernandez spotted Solomon walking down the middle of a street. Sidewalks are for walking, Hernandez thought (and Florida law agrees: pedestrians "must use sidewalks if one is available"), and he circled the block to cite Solomon. Solomon was on the sidewalk by this point, and shortly thereafter, so was Officer Hernandez's patrol car.

Officer Hernandez exited his vehicle and approached Defendant, who immediately reached into his pocket and pulled out his driver’s license. Defendant stated, “I don’t know what’s going on man; I just got stopped down the street.” Officer Hernandez informed Defendant that he was being stopped because he “failed to walk on the sidewalk down the street.” By this point, Officer Hernandez was face to face with Defendant. Officer Hernandez continued the conversation by inquiring why Defendant was walking on Lafayette Street at 11 p.m. Defendant responded that he was “coming from his girlfriend’s house,” and that he “lives just down the street.” Officer Hernandez then instructed Defendant to turn around and put his hands behind his back because he was going to pat him down. Defendant complied. During the pat down, Officer Hernandez discovered a gun in Defendant’s front pocket. The entire encounter lasted no more than 23 seconds.

Officer Hernandez provided testimony that could establish reasonable suspicion, but Officer Hernandez’s testimony is not the only evidence of what occurred during the stop. On the night in question, Officer Hernandez co-starred with Defendant in an episode of Cops, the television show. The Cops production team filmed the entire stop, thereby providing the Court with indisputable video evidence of the stop from its inception to Defendant’s arrest.

Interestingly, there are several discrepancies between Officer Hernandez’s testimony and the Cops video.

Officer Hernandez testified that Defendant was “blading” during the encounter to conceal the right side of his body where the firearm was located. The video, however, shows that Defendant walked straight towards Officer Hernandez after he drove his patrol car up to the sidewalk and activated the overhead lights. At no point did Defendant turn or “blade” and conceal his right pocket where the firearm was eventually located.

Officer Hernandez also testified that Defendant appeared “extremely nervous” because his eyes were bulging and his forehead was glistening from sweat. The video, however, fails to show any unnatural or exaggerated eye movement by Defendant. Nor does the video show Defendant sweating in a manner that indicates nervousness. In fact, it would have been hard for Officer Hernandez to see Defendant’s forehead “glistening” when he wore a hat during the entire encounter. At most, the video shows Defendant endured the typical nerves experienced during any average police encounter.

Beyond the testimony refuted by the Cops video, the Court does not find Officer Hernandez’s testimony regarding the bulge in Defendant’s pocket credible. At the hearing, Officer Hernandez testified that he saw a heavy object/bulge in Defendant’s pocket when Defendant approached him. Significantly, this fact was not included in the incident report/probable cause affidavit that Officer Hernandez was required to complete shortly after the stop.



More importantly, the Government failed to mention this fact in its Response. It seems unlikely such a significant fact would be unearthed for the first time on direct examination but rather was discovered after Officer Hernandez had the benefit of watching the Cops video. Therefore, it seems this allegation constitutes nothing more than hindsight observation from the Cops video, rather than an observation made during the very brief encounter.

In sum, Defendant was stopped for a sidewalk violation – a section of Florida law not typically associated with armed and dangerous criminals. Defendant did not attempt to evade Officer Hernandez or take any evasive measure.



There is no evidence Officer Hernandez suspected Defendant was engaged in more serious criminal conduct, or that any criminal conduct had occurred in the immediate area before the stop occurred. Cf. Id. Nor is there any evidence that Defendant acted in a manner that would make Officer Hernandez fear for his safety or the safety of others during the 23-second encounter. The video evidence is clear: Defendant was walking home to his residence, which happens to be a high-crime area, and conveyed this fact to Officer Hernandez in a calm manner. Nevertheless, Officer Hernandez almost immediately subjected Defendant to a pat down with no articulable basis for why he feared for his safety or the safety of others. Because Officer Hernandez lacked the requisite reasonable suspicion to frisk Defendant for weapons, the evidence found during the pat down and any subsequent searches must be suppressed.

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It only takes 23 seconds to violate someone's rights. Both parties agree Hernandez had every right toSolomon, but disagreed on the legality of the search. Solomon's lawyer asserted the frisk had no basis. The government argued otherwise, stating Solomon was walking through a "high-crime area" and was "nervous" when speaking to Hernandez.The court might have agreed with the government, if not for the footage captured by "COPS" cameramen.And here's why some cops are extremely resistant to the notion of additional recording devices. (Although, up until this point, Hernandez was apparently unopposed to the ridealong "COPS" crew…)Because of Hernandez's "misstatements," "COPS" ended up arguing for the defense.And:Not only did COPS sell Officer Hernandez out, but the court finds that he helped himself to additional reasonable suspicion by watching the same video thathis other claims.Supposedly, this "bulge" Officer Hernandezuntilhe'd viewed the recorded footage (in a presumably safe location) made him "fear for his safety and the safety of others." The court finds this no more credible than the steady stream of misstatements surrounding it. It agrees the defendant was in a high crime area and was dressed as Hernandez described him, but finds the totality of the circumstances to be nowhere what was needed to escalate a minor pedestrian stop to a frisk for contraband.The court does commend Officer Hernandez for "instinct, experience and intuition." After all, the officer did recover a weapon during his unconstitutional search. But it points out that the Fourth Amendment isn't only supposed to be viewed after the fact. It's supposed to govern these interactions as they happen and deter the sort of thing Hernandez did.Unfortunately, the court doesn't follow through on this thought process and wonder aloud whether Officer Hernandez's "instincts" and "intuition" also include lying about unconstitutional stops. It's entirely possible for police officers like Hernandez to both make tons of busts and violate several peoples' rights. This lying may have cost Hernandez a bust here, but having contradictory video documentation on hand and held by a third party is the sort of "perfect storm" violated citizens can't rely on saving them from law enforcement abuse.

Filed Under: cops, evidence, florida, fort myers, hubert solomon, miguel hernandez, police