After listening carefully to the two policemen, the judge had a problem: He
did not believe them.
The officers, who had stopped a man in the Bronx and found a .22-caliber
pistol in his fanny pack, testified that they had several reasons to search him:
He was loitering, sweating nervously and had a bulge under his jacket.
But the judge, John E. Sprizzo of United States District Court in
Manhattan, concluded that the police had simply reached into the pack without
cause, found the gun, then ''tailored'' testimony to justify the illegal search.
''You can't have open season on searches,'' said Judge Sprizzo, who refused to
allow the gun as evidence, prompting prosecutors to drop the case last May.
Yet for all his disapproval of what the police had done, the judge said he
hated to make negative rulings about officers' credibility. ''I don't like to
jeopardize their career and all the rest of it,'' he said.
He need not have worried. The Police Department never learned of his
criticism, and the officers -- like many others whose word has been called into
question -- faced no disciplinary action or inquiry.
Over the last six years, the police and prosecutors have cooperated in a
broad effort that allows convicted felons found with a firearm to be tried in
federal court, where sentences are much harsher than in state court. Officials
say the initiative has taken hundreds of armed criminals off the street, mostly
in the Bronx and Brooklyn, and turned some into informers who have helped solve
more serious crimes.
But a closer look at those prosecutions reveals something that has not been
trumpeted: more than 20 cases in which judges found police officers' testimony
to be unreliable, inconsistent, twisting the truth, or just plain false. The
judges' language was often withering: ''patently incredible,'' ''riddled with
exaggerations,'' ''unworthy of belief.''
The outrage usually stopped there. With few exceptions, judges did not ask
prosecutors to determine whether the officers had broken the law, and
prosecutors did not notify police authorities about the judges' findings. The
Police Department said it did not monitor the rulings and was aware of only one
of them; after it learned about the cases recently from a reporter, a spokesman
said the department would decide whether further review was needed.
Though the number of cases is small, the lack of consequences for officers
may seem surprising, given that a city commission on police corruption in the
1990s pinpointed tainted testimony as a problem so pervasive that the police
even had a word for it: ''testilying.''
And these cases may fuel another longtime concern that flared up again in
recent days: suspicions that the police routinely subject people to unjustified
searches, frisks or stops. Last week, the Police Department reported a spike in
street stops, which it said were ''an essential law enforcement tool'': 145,098
from January through March, more than during any quarter in six years.
The judges' rulings emerge from what are called suppression hearings, in
which defendants, before trial, can argue that evidence was seized illegally.
The Fourth Amendment sets limits on the conditions that permit a search; if they
are not met, judges must exclude the evidence, even if that means allowing a
guilty person to go free.
Prosecutors and police officials say many of the suppressions stem from
difficult, split-second judgments that officers must make in potentially
dangerous situations about whether to search someone for a weapon -- decisions
that are not always easy to reconstruct in a courtroom.
But one former federal judge, John S. Martin Jr., said the rulings are
meant to deter serious abuses by the police. ''The reason you suppress,'' he
said, ''is to stop cops from going up to people and searching them when they
don't have reason.''
Federal judges rarely suppress evidence, Judge Martin said, and the unusual
number of suppressions in New York City gun cases raises questions about whether
such tactics may be common. ''We don't have the statistics for all the people
who are hassled, no gun is found, and they never get into the system,'' he said.
Whatever one makes of the legal debate, these cases offer a revealing
glimpse into some police practices -- in the street and on the witness stand --
that have gone largely unexamined outside the courtroom.
'A Dismal Record'
In one case, the officer explained that he had a special technique for
detecting who was hiding a gun. He had learned it from a newspaper article that
described certain clues to watch for: a hand brushing a pocket, a lopsided gait,
a jacket or sweater that seems mismatched or out of season.
That was one reason, he told a judge, that he was certain the man he saw
outside a Brooklyn housing project last September was concealing a gun. The man,
Anthony McCrae, had moved his hand along the front of his waistband, as if
moving a weapon, the officer said. Sure enough, a search turned up a gun.
The judge, John Gleeson of Brooklyn federal court, asked the officer, Kaz
Daughtry, how successful his method had been in other cases.
Officer Daughtry replied that over a three-day period, he and his partner
had stopped 30 to 50 people. One had a gun.
Calling that a ''dismal record,'' the judge said the officer's technique
was ''little more than guesswork.''
Moreover, Judge Gleeson said he did not believe that Officer Daughtry could
even have seen the gesture he found so suspicious: Mr. McCrae's hand was in
front of him and the officer was about 30 feet behind.
The judge would not allow the gun as evidence, and on April 24, federal
prosecutors dropped the charges. A law enforcement official said the Brooklyn
district attorney's office learned of the ruling and was reviewing Officer
Daughtry's other cases to see if there were problems.
The Police Department declined to make Officer Daughtry, or any other
officers, available for comment.
The decisions to suppress, which The New York Times found by interviewing
lawyers and examining more than 1,000 court dockets since 2002, came from 18
federal judges in Manhattan and Brooklyn.
Several rulings involved police raids on homes without warrants -- and
judges' doubts that the owners had consented to a search, as the police claimed
and the law requires.
In one case, a group of officers investigating a fatal shooting in 2002
entered an apartment in the Bronx and arrested a man named Justice Taylor after
finding a shotgun in a bedroom. Sgt. Brian Branigan, who led the search,
testified in federal court in Manhattan that Mr. Taylor had given the officers
permission to enter.
But Mr. Taylor denied that. Two other officers did not mention his giving
consent. And the judge, Jed S. Rakoff, said that Sergeant Branigan ''felt the
need to embellish his account with details indicating consent that the court
finds unbelievable.''
Judge Rakoff even took issue with the demeanor of the sergeant, ''whose
cockiness was evident even on the stand.'' His apparent ''disregard for
niceties,'' the judge wrote, made it ''wholly plausible'' that he had forced his
way into the apartment.
The case was dismissed, and the city, while denying liability, paid
$280,000 to settle a civil rights lawsuit by Mr. Taylor and others in the
apartment.
In another case, a judge did more than cast doubt on an officer's
testimony. She proved it wrong.
The judge, Laura Taylor Swain, heard the officer, Sean Lynch, testify that
he had shined his flashlight through the window of a parked sport utility
vehicle one night in the Bronx and had seen a gun. The driver's lawyer said that
Officer Lynch could not have seen the gun because the car's windows were heavily
tinted.
So after sunset one evening in January 2006, the judge walked outside the
Manhattan federal courthouse and shined a flashlight into the vehicle. She could
see nothing.
Her inspection and other evidence, she wrote, ''give the lie'' to Officer
Lynch's account, which she called ''impossible.'' Prosecutors dropped the case.
The police, to be sure, have a difficult job trying to root out guns
without overstepping the law. Some judges acknowledged this in court, saying
they believed not that officers had lied, but rather that they had failed to
recall an event accurately, perhaps because of its brevity, a limited vantage
point or the subsequent passage of time.
And some expressed sympathy for the police. Judge Gleeson said in one case
that while he found two officers' testimony contradictory, he did not want to
imply they had lied.
''I'm always reluctant in these circumstances, having been in the executive
branch myself, having a feel for the consequences of an adverse credibility
determination -- I'm sensitive to it,'' he said last November.
Judges typically do not discuss cases, but some have said that, in general,
it is not their responsibility to follow up their criticisms of officers. The
rulings are on the record, for prosecutors or others to act on if they wish.
Paul J. Browne, the Police Department's chief spokesman, said that only one
of the critical rulings had been reported to the police, by a federal prosecutor
in Brooklyn who said he had no doubts about the officer's truthfulness. The
police took no action.
More broadly, Mr. Browne said an officer's failure to convince a judge that
his suspicions were justified ''doesn't necessarily mean the officer did
something wrong.''
''In each case,'' he added, ''the suspect in fact had a gun.''
Federal prosecutors would not comment on individual cases. But Michael J.
Garcia, the United States attorney in Manhattan, said his office reviews any
negative rulings about an officer's credibility to decide whether any action is
necessary.
''Any time evidence gets suppressed is a serious thing,'' he said.
In court, prosecutors have vigorously defended the officers' conduct and
testimony. In one brief, a prosecutor argued that a police lieutenant had no
reason to lie, because that could ''jeopardize a fast-moving N.Y.P.D. career.''
But writing in response, a federal defender, Deirdre von Dornum, cited cases in
which officers faced no repercussions -- ''not the loss of their jobs, not
disciplinary action.''
Still, one judge was so struck by what he said were an officer's lies that
he tried to do something about it.
Two officers had arrested a man and confiscated a gun in a Bronx apartment
in 2002. But Judge Martin, then on the Manhattan federal court, was troubled
that one officer had given the district attorney's office an account of how she
gained entry to the apartment, then largely contradicted it on the stand.
''This has to be one of the most blatant cases of perjury I've seen,''
Judge Martin, a former United States attorney, said in his courtroom in
September 2003. He said he doubted the officer, Kim Carillo, had ''any use for
the truth.''
''She will tell it, I think, whatever way it suits her to tell it,'' he
added.
The judge told the prosecutor to ask his superiors to review Officer
Carillo's testimony. They later replied that they had found no perjury, he said,
and that the officer was not at fault.
Side Effects
If the fallout for police officers has been slight, the judges' rulings
have exacted other costs.
For one thing, they may free a weapons offender, and scuttle the chance to
win his cooperation in more significant prosecutions, like investigations into
violent gangs or gun trafficking. ''The lost value of those bigger cases is
really incalculable,'' said Alan Vinegrad, a former United States attorney in
Brooklyn.
Questions about police credibility can also hamper other cases. When a
judge finds, for example, that an officer has lied, prosecutors must alert
defense lawyers in other cases involving that officer.
Judge David G. Trager of Brooklyn federal court was so indignant over what
he called an officer's ''blatantly false'' testimony in an October 2005
suppression hearing that he told prosecutors, ''I hope you won't darken my
courtroom with this police officer's testimony again.''
Judge Trager did not suppress the gun, concluding that some of the
officer's testimony had been credible. But the officer, Herbert Martin, was
about to testify in a federal trial stemming from another gun arrest.
The defense lawyer in that case, Howard Greenberg, said that learning of
Judge Trager's findings ''was like manna from heaven.''
When Officer Martin took the stand in that trial, Mr. Greenberg confronted
him, asking, ''Didn't you commit perjury a week ago when you said in this very
building, in an altogether different case, that someone had a gun in his
waist?''
The officer denied that he had lied. But Mr. Greenberg said he believed
that his question made an impression on the jury. His client was acquitted.
Copyright 2008 The New York Times Company