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Surveillance Camera Video of the Car Stop (Article Below)
It looked like an open-and-shut case. A cop pulls over a car, walks up
to the driver's door, and sees a plastic baggy of marijuana. He brings
in a drug-sniffing dog to prove probable cause for a search, gets a
warrant, and finds a kilo of weed in the trunk.
That's what Officer Steven Lupo put in his report and testified to in
Philadelphia Municipal Court.
Then defense attorney Michael Diamondstein produced the video.
Turned out reality was different.
The video taken from nearby surveillance cameras contradicted key facts
in Lupo's report and sworn testimony. Most crucially, Lupo and an
unidentified supervisor are seen rummaging through the trunk hours
before a warrant was issued. On the witness stand just moments before
the video was played, Lupo emphatically denied that had occurred.
After Lupo's testimony was compared against the video, Judge Lydia Y.
Kirkland tossed out the case.
Philadelphia's internal affairs investigators are now probing Lupo's
conduct, and he will no longer be used as a witness in criminal cases,
law enforcement sources said.
The defendant with two pounds of illegal marijuana is free, and defense
attorneys say the Lupo video shows what their clients often tell them:
Police frequently fudge the facts on the stand.
"I can just tell you from my experience," said veteran defense attorney
Diamondstein, "in the majority of cases, while the clients may not deny
having narcotics, in the vast majority of cases the circumstances
surrounding the arrest did not happen as it was described in the
paperwork or in court."
The District Attorney's Office declined to comment on the case or
Diamondstein's assertion.
Worries about testimony from some officers are not new. Under the former
district attorney, Lynne Abraham, city prosecutors would not allow
officers deemed untrustworthy to testify in court. Edward McCann, acting
first assistant district attorney, declined to say whether that practice
was still followed by the current district attorney, Seth Williams.
Earlier this week, a municipal court judge tossed out a drunken-driving
case against a state legislator "based on credibility" issues with the
testimony of city police officers.
Car stop
The Aug. 5 car stop in East Germantown initially involved only Lupo and
his partner. About 30 minutes into the incident, a uniformed supervisor
arrived. Lawyers involved with the case say they have not been able to
identify him.
Lupo was the only officer to testify Oct. 18, when Kirkland held a
hearing on Diamondstein's motion to suppress the evidence uncovered by
police. Police said Lupo would not be made be available for an
interview, and the officer did not respond to messages seeking comment.
Before the hearing, Lupo provided a detailed written narrative in his
incident report, and he repeated those facts under oath.
Lupo said that after stopping the car, he immediately walked to the
driver's door and had a 30-second conversation with the defendant,
Amiraria Farsi, 25, of Philadelphia, during which he saw Farsi push a
plastic baggy into his pocket. It looked like it contained marijuana,
Lupo testified under oath.
His official incident report says:
"As P/O Lupo approached the driver side of the Buick he told the driver
to stop moving his hands. The driver then said to Lupo 'I'm getting my
drivers license.' Lupo then observed the driver later Id'd as [Amiraria
Farsi] shoving a clear plastic bag cont. a green weedy substance into
his right pants pocket."
Lupo's testimony
In court, Diamondstein asked Lupo to confirm that account, according to
a transcript of the hearing.
"Before you got to Mr. Farsi, did you open the rear driver's side
passenger door and take that individual out and pat him down?"
"No," Lupo said.
Then Diamondstein asked, "I just want to make sure that we are clear
that you certainly didn't just open the door prior to any conversation,
take him out, and pat him down. That definitely didn't happen?"
Diamondstein said.
"Correct," Lupo replied.
But the video shows that Lupo walked immediately to the rear door,
ordered the passenger out, searched the man, and then within a second or
two pulled open the front door. There is no conversation with Farsi.
Instead, Farsi stands up and Lupo searches him.
Under state rules of evidence, Diamondstein did not have to provide the
video to police or prosecutors in advance of the hearing. The first time
police or prosecutors saw the video was moments after Lupo's testimony,
when Diamondstein played the recording in the courtroom.
Lupo's report also said the trunk of the car was searched in a police
lot at 4:45 p.m., after a warrant was obtained based on a state police
drug dog indicating there were drugs in the trunk.
On the witness stand, he repeatedly said he never searched the trunk
until after the dog arrived.
"While you were there, did you search the trunk?" Diamondstein asked.
"No" Lupo said.
The video shows that no K-9 dog had arrived when Lupo and an
unidentified supervisor unlocked the trunk, rummaged through its
contents for about a minute, and then shut it. That occurred at 12:37
p.m.
Under Pennsylvania law, "police often need warrants to search cars and
more particularly trunks of cars, and that's been common knowledge for
15 years," said Jules Epstein, an associate professor at Widener Law
School and a former public defender.
Even if Lupo did find a baggy of marijuana on Farsi, that would not
necessarily allow him to search the trunk, according to state courts,
Epstein said.
"A basic rule is that you can't go in the trunk without a warrant," in
most circumstances, he added.
After seeing the video, Kirkland took over questioning. In response to
her questions, Lupo admitted that his testimony about never having
searched the trunk was incorrect.
"I totally forgot about he asked me to open it at one point," Lupo said,
referring to the supervisor on the scene.
"Without a warrant?" Kirkland asked. "Did you have a warrant?"
"No," Lupo said.
Lupo then said that the sergeant had called for a dog, and that one was
not immediately available. The search occurred as the officers waited
for the state police unit. Both police and the District Attorney's
Office declined to address the issue of police credibility.
Farsi himself is no stranger to police. Court records show he has been
arrested eight times since 2006, largely on minor drug charges. He was
once sentenced to a year's probation. This time, Lupo said, he found
$1,233 in cash in Farsi's left pocket.
Exactly how often police testimony is discredited in court is not
tracked by the courts or public defenders. Bradley S. Bridge, a lawyer
with the Defender Association of Philadelphia, said he was not surprised
at the illegal search. "This is not an infrequent occurrence."
Bridge said he was particularly troubled that a sergeant was present.
"Apparently there were supervisors on the scene, and if you look at the
video, you can see they chose to do nothing about an improper
unconstitutional search."
