AT1 justices differ on credibility of officer

In People v. Creer (1st App. Term 12/30/2010), Justices of the Appellate Term, First Department, reached different conclusions regarding the credibility of a police officer in a DWI suppression case.  The majority reversed the motion court's decision to grant the Defendant's motion to suppress.  The appellate court found probable cause based on the Defendant's "class signs of intoxication," including bloodshot, watery eyes; alcohol on his breath; and unsteadiness.  The court noted:

while the suppression court found that the officer's testimony was "at times" not credible, the court made no specific finding that the officer's testimony regarding his observations of defendant (or defendant's pre-arrest admission) was not credible. 

Justice Schoenfeld, in dissent, analyzed the officer's testimony in depth to show inconsistencies.  "The self-contradictory and confusing testimony of the arresting officer entitled the trial judge to find that there was no probable cause for [the] arrest."  The dissent also makes a reference to the officer's possible testilying—using the "'magic' words to establish probable cause."  In sum, the dissent concludes:

The trial judge assessed the credibility of Officer Ulich firsthand. The court found that the myriad inconsistencies in his testimony undermined his credibility with respect to his description of defendant's condition that morning and that there were therefore no facts upon which to base a finding of probable cause. Although the trial court also found it important that the Officer did not use roadside coordination tests or a portable breathalyzer or that the Officer was not trained to identify intoxicated individuals, this Court does not find those issues compelling. Nonetheless, based on the Officer's testimony, it appears that the findings of the lower court were not clearly erroneous and the decision should therefore be affirmed.

This case is one of the rare insights into credibility determinations in the suppression context.  The majority focuses on what was not in dispute by the officer's testimony.  In a sense, the majority finds some of the timing and other discrepancies in the officer's testimony irrelevant.  What was not in dispute was the Defendant's signs of intoxication, which in turn gave rise to a finding of probable cause.  (LC)

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