Legal Commentary

Police Officers Committing Perjury in Testimony About Consent Searches?

By Orin Kerr

Last week, a Florida appellate court handed down a fascinating decision affirming the denial of a suppression motion while making perfecting clear the court?s strong suspicion that the officers? testimony was false. The case is Ruiz v. State.

Ruiz is a drug case involving an alleged consent search at the suspect?s home. The officers testified one way; the defendant testified very differently. The officers testified that they approach Ruiz on the street and politely asked him for ID. Ruiz invited the officers to his home, where his ID was located, and asked the officers to come with him. When the officers entered the home with Ruiz, they saw drugs in plain view. RUiz then agreed to tell the police about all the drugs he had stored there. Ruiz testified that the officers approached him on teh street with guns drawn, ordered him to provide ID, and then told him that if he didn?t produce ID they would arrest him. The officers then brought him to his home where they searched his entire apartment without his consent. The trial court found the officers? testimony credible and the suspect?s testimony not credible.

The appellate court decision in Ruiz makes very clear that the appellate judges found the officers? testimony hard to believe. Their testimony was not so inconceivable that the trial judge?s factual findings were clearly erroneous and could be overturned. But it was unlikely enough that the court used the opinion as a platform to talk about perjured police testimony and the need for trial judges to scrutinize police testimony to ensure the vitality of Fourth Amendment rights. From the opinion:

Cases like this one call into question the fairness of some trial court proceedings. On the pages of the record, the story told by the police is unbelievable?an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is ?nonchalantly? and ?casually? approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment.

Yet, as an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives? testimony supports the court?s ruling. This case demonstrates the importance of an independent judiciary. This case involves the search of a person?s home, but were the factors bearing on the voluntariness of the consent scrutinized ?with special care?? Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement. The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of ?consent? cases that have come before us, the finding of ?consent? in so many curious circumstances is a cause for concern.

Thanks to FourthAmendment.com for the link.

Full post as published by The Volokh Conspiracy on January 17, 2011 (boomark / email).