Court Tosses Evidence After PD’s Own Pole Camera Undercuts Officer’s Claims About Seeing A Gun

Does this look like someone carrying a gun?

That's from a recent federal court decision [PDF], granting defendant Luis Cerda's motion to suppress. NYPD sergeant Christopher Colon saw something else. He saw a gun. He needed to see a gun. He was so desperate to bust someone else entirely (Alberto Santiago, a.k.a. Dot Com") that he completely reinterpreted images captured by the same pole camera he had mounted during this investigation. He used his singular belief to obtain search warrants that ultimately led to the recovery of an illegal weapon and criminal charges against Cerda. (via Volokh Conspiracy)

Santiago is the person caught on camera. And that's the supposed gun" in his hands. This image - along with long list of omissions - generated the probable cause to search the residence Santiago entered while carrying the flowers/gun. That was Luis Cerda's residence.

The whole case is full of suspicious stuff - almost all of it generated by Sgt. Colon and his actions. But it started with a bunch of cops (who were aware of Colon's targeting of Santiago) basically agreeing to see something that wasn't there.

Two days later, a fellow officer advised Colon that in reviewing the pole camera footage, that officer had observed Santiago take what appeared to be a long gun" into the Fresh Meadows residence. Tr. 80. Reviewing the footage frame-by-frame, Colon formed a belief that the object in question was a firearm, yet he was not 100 percent sure." Tr. 82. He sent a copy of the video to another officer with firearms expertise, indicating that he saw what appears to me to possibly be a rifle," and asked for a second opinion. Tr. 83. That officer responded that the object [l]ooks like a possible long gun with a wood attachment." Tr. 83. During an oral conversation with a yet another officer asked for an opinion, that officer told Colon that [b]asically, that's a firearm." Tr. 85.

A handful of cops saw a gun because they wanted to see a gun. Colon definitely wanted to see a gun because he desperately wanted to obtain a search warrant for the residence. He took this bunch of hearsay to prosecutors, who helped him draft a severely deficient warrant affidavit. Colon made this assertion in the warrant request:

I further state that I viewed video surveillance from the above mentioned camera from outside the subject location from December 8, 2020 at approximately 3:53 PM which depicts the target exiting a vehicle, which is parked in the driveway at the subject location, and holding between the target's legs, what I recognize to be, based on my training and experience as a police officer, a long rifle. Said video then depicts the target zip up the target's jacket so as to conceal said rifle, then the target walks into the subject location.

All the court was given were Colon's supposedly factual assertions. He did not provide the judge with screenshots or the recording itself, which might have dead-ended this long before Colon started violating the Constitution. I'm sure any judge with functioning eyes might have had a few questions about the gun" Colon claimed Santiago was carrying. So, this omission was deliberate.

There are indications Colon knew he wasn't exactly playing by the rules but hoped that a successful bust would prevent people from raising questions about his tactics, much less his eyesight.

Execution of the warrant occurred on December 11, 2020. In the early morning hours before the execution of the search, Colon reiterated the urgency with which he sought a search warrant to apprehend Santiago, writing a text to the informant, We need com [Santiago's nickname]. Fuck." Tr. 144-45. Then, in a curious, unexplained reference, Colon added, This should erase it all if I'm successful tonight."

The earlier Franks hearing didn't go well for the government, which decided to defend Colon and his material misrepresentations.

THE COURT: Looking at that still, it is hard to credit a subjective belief that this was a gun. If you look at it, the subject, not our defendant here, the codefendant, is holding this thing with one finger. He has his thumb under it. He's just clasping it with one finger. [ ] This is a bouquet of flowers. It's a real problem.
MR. WENZEL: Judge, respectfully, I do not agree with your analysis. He has his hand on this item -
THE COURT: You are looking at Defense Exhibit 6 and you think that's a gun?
MR. WENZEL: Judge, I don't know what it is and no one does. No one does.

The government made things even worse with its motion in opposition to the motion to suppress.

Here, the Government posits a curious argument, suggesting:

at the hearing, the Court stated that it believed the item in the video was flowers. The Court may very well be right: the object in the video could be flowers. However, the first time the Court viewed this video, it had already been informed by the defendant's motion that the object in the video was flowers . . . Once one is told the disputed object is flowers, it is difficult to view the video in any other way.

The thought appears to be that the Court, having succumbed to the power of suggestion, remains under some kind of delusion as to the nature of the evidence.

The more the government argued it was impossible for anyone to definitely say what Santiago was holding, the worse it made its case. The fact that the screenshot was subject to multiple interpretations is exactly what makes the government wrong. It can't factually assert something in a warrant affidavit and then tell the court it's impossible to claim something is one thing or another thing when its warrant is challenged.

Even assuming, however, that the image was sufficiently unclear as to be subject to multiple interpretations, Colon's statement, which conclusively describes the image as that of a rifle, is rendered sufficiently inaccurate4 to satisfy the first element of the Franks inquiry. Coreas, 419 F.3d at 155 (Franks permits challenge of search predicated upon inaccurate representations by the Government").

Then there's the reckless disregard for the truth, which was all over Colon's warrant affidavit. He did ask other officers and one firearms expert for second opinions, but those opinions were far from definitive. Every person asked only stated that it might be a gun. That input never made its way into the warrant request.

And, yet, when the affidavit was submitted to the judge in support of a search warrant, all uncertainty disappeared.

That uncertainty made a reappearance during the Franks hearing. Only then did Colon admit it was possible the object might not have been a gun. And those admissions further undercut the sworn statements he made when obtaining the search warrant.

Thus, Colon's actions and statements revealed that he had reason to doubt the truth of the allegation that Santiago brought a firearm into the residence. Against this backdrop, his unqualified statements that he recognize[d]" the object as a long rifle," and that such recognition was based on my training and experience as a police officer" (emphasis added) can only be characterized as reckless disregard.

With these bullshit statements about a gun removed, the warrant can't connect Santiago to the residence or the residence to any other illegal activity. Everything recovered in the illegal search of Cerda's residence is suppressed. And, at the end of the (court) day, Colon's right back where he started: still trying to put Santiago behind bars. Only now, this court and other criminal defendants are aware Sgt. Colon is willing to break rules and bend the truth to get what he wants. And that's going to hurt his credibility going forward.

It also shows reliance on passive surveillance has the chance to bite the hands that installed it. Without this pole camera footage, Sgt. Colon would have been in the most advantageous position: his word against the criminal defendant's. But he so desperately wanted to retain this evidence he provided the court with the very thing that undermined his claims.