“Officers search a trunk in the drug arrest by Officer Steven Lupo that Judge Lydia Y…. It looked like an open-and-shut case.”
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.”
“Everyone knows he can’t do it.”
See what the local and national media are saying about Michael Diamondstein and his cases.
Baltimore Ravens running back Ray Rice will be allowed to enter a program to avoid prosecution in an alleged assault of his now-wife. Upon successful completion of the program — which will be a minimum of one year — the third-degree charge of aggravated assault causing serious bodily injury would be dismissed. The arrest would remain on his record, but with no conviction.We were concerned that Mr. Rice would be treated more harshly because of his celebrity status. We are thankful that he was not. We are thankful that he was given the same treatment as anyone else in a similar situation.
- Michael J. Diamondstein
DT had spent three years in jail and was facing lifetimes more for multiple counts of child rape in Pennsylvania and Maryland. But Michael Diamondstein’s thorough investigation and strategic cross-examination forced prosecutors to withdraw their case mid-jury trial.“Michael Diamondstein is the best lawyer on Earth. He saved my life.”
- DT
Mark Young had been serving a life sentence for what prosecutors say was his role as a coconspirator in a 1974 bar robbery that ended in the shooting death of a patron. The 67-year-old Young, who maintained his innocence for almost 50 years, is now slated to be released from prison after a negotiated guilty plea. The judge vacated Young’s previous conviction and sentence.“The district attorney recognized the inequities in the case and we are thankful for the compassion and justice they decided was appropriate.”
- Michael Diamondstein
Willie Stokes's release comes after the U.S. District Court for the Eastern District of Pennsylvania vacated his murder conviction, concluding that the state violated Stokes's constitutional rights by "withholding" crucial evidence about the false testimony of a key witness in the case, according to court documents.He took his first free breaths this afternoon after almost 40 years, and he is very happy and humbled.
- Michael J. Diamondstein
Despite that fact that multiple videos showed local rap singer, Monte Small Atwell aka Benjy killing the decedent, a Philadelphia jury found Mr. Atwell Not Guilty of Murder. The video clearly showed that the unarmed decedent was chasing Mr. Atwell. Mr. Atwell’s attorney, Michael Diamondstein litigated a very effective self-defense case. After a number of withering cross examinations and a closing wherein Mr. Diamondstein exhorted the jurors that his client “would rather be judged by 12 than carried by 6” the jury agreed that Mr. Atwell’s actions were justified.Mr. Diamondstein saved my life. He is the best there is.
- Monte Small Atwell aka Benjy
Six members of an elite Philadelphia narcotics squad were acquitted of federal corruption charges – a verdict the men described as “vindication” after nearly a decade of federal scrutiny surrounding their conduct. A jury of six men and six women took 5 1/2 days to reject prosecutors’ arguments that former Officers Thomas Liciardello, Brian Reynolds, Michael Spicer, Perry Betts, Linwood Norman, and John Speiser routinely beat and robbed drug suspects during their time as members of the Narcotics Field Unit.The things that were said about these honorable men and police officers over the last eight to 10 months were ridiculous. A lot of people in this city owe these heroes an apology.
- Michael J. Diamondstein
Philadelphia District Attorney Seth Williams pleaded not guilty to 23 counts of fraud, extortion, and bribery-related charges. But the problems of the city’s cash-strapped top prosecutor continued to mount outside the courtroom, a day after federal authorities accused him of repeatedly selling his influence to wealthy benefactors willing to bankroll his luxury tastes.This indictment is 24 hours old and yet too many politicians and commentators have already tried and convicted Seth Williams in the media. Simply because the government makes explosive allegations in a complaint doesn’t mean they’re going to prove it in a court of law.
- Michael J. Diamondstein
It's 8:00 on a September morning but Michael Diamonstein has already been in his office for hours. A criminal defense lawyer, Diamondstein likes to be prepared before he goes to court. That preparation paid off to get an innocent man cleared of all charges.The man gave me my life back.
- Yusef Bey
With evidence missing and the investigation tainted by the involvement of a detective who pleaded guilty to impeding justice, the District Attorney’s Office has withdrawn murder charges against a 28-year-old man, Dante Hill, in a 2011 shooting outside a North Philadelphia sports bar.Tremendous day, not only for Mr. Hill but for the entire Philadelphia justice system.
- Michael J. Diamondstein
Michael Diamondstein argued the original jail sentence is illegal because the previous judge assigned the case failed to address if Risoldi was eligible for re-entry, which would allow her to be released from jail early.Diamondstein added that Berks County Senior Judge Stephen Lieberman, who is now overseeing the case, has authority to reconsider the sentence made by the previous judge, who retired last year.
On October 10, 2014, the Pennsylvania Superior Court upheld a lower court’s ruling that by failing to provide the defense with a copy of police paperwork in a criminal case (Com. v. Jordan, T., 175 EDA 2014 (Pa. Super. Ct. 2014 )), the Commonwealth of Pennsylvania was barred from the evidence at trial.On behalf of Mr. Jordan, we are extremely happy that that the Superior Court upheld the sound decision of Judge Means.
- Michael J. Diamondstein