Gravity knives and testilying

I have previous written and blogged about testilying—the phenomenon of some police officers committing perjury to further their cases.  The police who commit testilying view it as a small indiscretion serving a greater good, the conviction of a criminal.  Testilying often comes about in the Fourth Amendment/suppression hearing context, where the police officer need only mouth certain "magic words" that establish probable cause, reasonable suspicion, or some other lesser standard.

In People v. Brannon (Ct. App. 5/5/2011) (Pigott, J.) (6-1), the issue was whether, in two companion cases, the police officers established sufficient reasonable suspicion that the defendants had gravity knives.  The Court of Appeals held that reasonable suspicion in the gravity knife context requires specific facts that led the police officer to believe that the object was a gravity knife and not some other type of knife.  But, ordinarily, a person cannot tell if an object is a gravity knife unless it is opened.  The court responded:

Reasonable suspicion, however, does not require absolute certainty that the knife the individual is carrying is a gravity knife. Rather, the issue is whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.

Using this standard, the court was able to distinguish the two cases.  In Brannon, while the officer saw the "hinged top of a closed knife" and saw the "outline" of a knife in his pocket, he was unable to testify that it was a pocket knife.  However, in Fernandez, the officer's testimony was that he saw the "head" of a knife and "based on his experience that gravity knives are commonly carried in a person's pocket, attached with a clip, with the 'head' protruding."

Judge Jones dissented from Fernandez but concurred in Brannon.  He noted a key problem with the court's articulated standard:

In my view, had the officer in Brannon merely testified that he believed a gravity knife, and not a pocketknife, was present, then the outcome in that case would have been different. Instead of requiring the police and the People to articulate a specific factual basis for reasonable suspicion justifying these stops, in these types of cases, prosecutors will now be encouraged to present police officers who can describe their training and experience with gravity knives, and testify that a gravity knife, and not a "typical pocket knife", was observed. Given the highly intrusive nature of these stops, the acceptance of these conclusory statements at Mapp/Dunaway hearings as a minimal basis for the admission of evidence poses a significant danger.

(LC)

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