New York Federal Criminal Practice Blog
December 29, 2008

EDNY Judge Finds US Marshal and NYPD Officer Incredible at Suppression Hearing in "Dropsy" Case, But Grants Government's Motion to Reopen

Defense lawyers are no strangers to the concept of “testilying” or false testimony from law enforcement witnesses.  Especially common are those suspiciously opportune observations that render a search or seizure constitutional, like in “dropsy” cases, where the officers claim the defendant conveniently dropped his contraband in plain view as they approached or followed him.  But when it comes to he said/he said in criminal cases, the balance usually tips in the government’s favor.  As Judge Irving Younger observed in People v. McMurty:

The judge has no reason to disbelieve [“dropsy testimony”] in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in Every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.  (314 N.Y.S.2d 194, 196 (N.Y.Co. Crim.Ct. 1970))

But which ones?  In McMurty, Judge Younger advocates scrutinizing police testimony in dropsy cases with “especial caution,” rejecting it if it seems “inherently unreal,” and suppressing the evidence if there is the “slightest independent contradiction of the policeman’s testimony or corroboration of the defendant’s testimony.”  

In United States v. Matos, 07 cr 870 (E.D.N.Y. September 23, 2008) (Matos I), Judge Garaufis confronted a dropsy case that came under the “inherently unreal” category, and finding the testimony of the government’s witnesses “incredible,” “unfathomable,” and “absurd,” suppressed all evidence seized as a result of a warrantless arrest.  Later, in United States v. Matos, 2008 WL 5169112 (E.D.N.Y. December 8, 2008) (Matos II), he granted the government’s motion to reopen the hearing to present the testimony of six additional marshals, as well as additional testimony from the two witnesses he had already found incredible, but warned that “the court is not inclined to disrupt its well-founded determination that ‘[e]ach step of the officers’ story defies credibility.’”  The decisions are important, both as a rare acknowledgement by a federal judge that an officer’s badge is no guarantee of truth, and because of its discussion of the standard that applies to a motion to reopen.

Matos I

In Matos I, the defendant moved to suppress all evidence seized as a result of his warrantless arrest outside an apartment building, where police officers and marshals were conducting a stakeout for his cousin, a suspected murderer.  The key issue in determining whether probable cause existed to arrest him turned on “a single disputed fact: the officers’ allegation that, before Matos was detained, he threw [] two Ziploc bags of cocaine to the ground in plain view of the officers outside his apartment.”  Matos denied he threw anything, and claimed he had been “surrounded by officers with guns blazing when he exited the apartment.”  (The officers also claimed that Matos then invited them into his apartment, whereupon he volunteered that he had a large quantity of drugs stashed in a cabinet.  They conceded that they did not give him his Miranda warnings until between one to two hours after his arrest.)  

Judge Garaufis concluded that “the officers’ chronicle of events [was] a complete fabrication.”  Each step of their story “defie[d] credibility.”  Ostensibly seeking a fugitive, “[i]t strain[ed] credibility to believe that these officers would see Matos leave that apartment and ‘calmly walk[] towards him’ to ‘interview him.’”  They “offered no rationale to explain why they would abandon their cover so casually, and so jeopardize their whole operation and their own safety when possibly approaching a dangerous felon on the street.”  The court was especially skeptical of their reaction to the alleged moment when Matos reached for his waistband for the Ziploc bags.  “[T]he officers’ mutual insistence that they witnessed this motion but neither drew a weapon or even screamed at him is too absurd to be credible.  Police officers routinely profess that reaching into a waistband is a threatening move in circumstances where criminal activity is suspected, because ‘[w]eapons frequently are carried or hidden in the waistbands.’”  Matos’ testimony, on the other hand, was “a far more sincere and plausible account of these events” and “more consistent with the logical reaction of police officers anticipating a face-to-face encounter with a dangerous fugitive.”  

Since the government had failed to present “reasonably trustworthy information” demonstrating probable cause for Matos’ arrest, the court concluded the arrest was unlawful, and all evidence seized must be suppressed.  Significantly, acknowledging the broader ramifications of this conclusion, Judge Garaufis also directed the parties to “address the question of whether the court should make a referral to the United States Attorney for possible prosecution respecting the [officers’] false testimony” at the suppression hearing.  

One cannot help but hear echoes of Judge Younger’s call – almost 40 years ago – to prosecutors to recognize and address the widespread problem of “dropsy testimony,” which happens to be the basis of hundreds if not thousands of seizures each year after the Supreme Court’s seminal decision in Mapp v. Ohio.  Noting the spike in dropsy testimony post-Mapp, Judge Younger concludes in McMurty: “Beyond any doubt, then, the problem exists. Its solution, I suppose, is prosecutors’ work. The courts can only deplore. They are ill equipped to persuade the police to change their practices or alter their philosophy.”

Matos II

In Matos II, the government – clearly concluding that what was needed here was not prosecution of the testifying officers but corroboration – moved to reopen the hearing, so that it could present the testimony of six additional marshals, as well as more testimony from the two witnesses the court had already found incredible.  The government claimed the new testimony – which it had previously viewed as “cumulative” – would corroborate the testimony presented at the suppression hearing, bolster the credibility of the testifying officers, and “provide context for the actions of the Fugitive Task Force” team on that date.

Granting the motion, Judge Garaufis was guided by the Second Circuit’s decision in the infamous case of United States v. Bayless, 201 F.3d 116 (2d Cir.2000), which held that SDNY Judge Baer did not abuse his discretion when he reopened a suppression hearing and reversed his prior grant of the suppression motion, amid a firestorm of criticism in the media.  As in Bayless, the government was seeking in Matos II to reopen a hearing “in order to offer the testimony of additional police officers on the scene, following a judicial determination that the original officer’s testimony was not credible,” and provided the same justification – that it had not presented this testimony earlier because it mistakenly believed it would be cumulative.  Judge Garaufis concludes: “The suppression of evidence is a potent remedy for unconstitutional acts by law enforcement.  In this case, the court determined not only that the officers acted unconstitutionally, but also that their testimony was not credible and possibly perjurious.  If additional information is available to challenge the accuracy of those serious conclusions, the court is obliged to grant an opportunity for that information to be heard.”

Judge Garaufis added that in Bayless, the Second Circuit did not actually decide the question of what legal standard applies to a motion to reopen a suppression hearing, and he expressly declined to adopt the more stringent standard adopted in several southern district cases that only permit a suppression hearing to be reopened on the basis of new evidence if it “was unknown to the party, and could not through due diligence reasonably have been discovered by the party, at the time of the original hearing.”  Nonetheless, Judge Garaufis warned the government that it has an uphill battle to persuade him “to disrupt [his] well-founded determination that ‘[e]ach step of the officers’ story defies credibility’” and that even after reopening, “the court may not find it necessary to reconsider its conclusions.”  

Stay tuned to see if this second bite only digs the government in deeper.  One hopes that all eight witnesses proffered at the reopened hearing have consulted with individual counsel.

Lawyers: Guy Oksenhendler, Jay H. Schwitzman (defendant); AUSA James Donald Gatta

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