Dropsy, Smells-Me, Front Seating, and Other Testilying Testimony Has To Be Weighed On It’s Own Merit
Jun 2, 2020
People v. Campbell, 2019 IL App (1st) 161640 (April). Episode 630 (Duration 11:07)
Court is not insensitive to claims of “dropsy” testimony and “testilying.”
Charges
Campbell was charged with nine counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C)) stemming from a traffic stop. He got one year in prison.
Sees A Gun
Due to a spade of recent shootings police were patrolling in unmarked convert vehicles.
Police stopped in front and behind a double parked car. Police immediately smelled cannabis. Defendant opened a rear door and started to run until told to get back in the car and he complied.
As Campbell was returning to the Durango, an officer saw him retrieve a handgun with a wooden grip, later identified as a Smith & Wesson .38-caliber revolver, from his waistband and throw it onto the floorboard of the back seat.
Campbell then got in and shut the door.
Arrested
The officer drew his service weapon and immediately began yelling “gun” to inform the other officers, who were surrounding the vehicle. Defendant was removed from the Durango and placed into custody.
The incident happened within seconds.
Defendant’s Story
Defendant did not have a firearms owner’s identification card. He was just getting a ride home and the car stopped to let him out. When he got out police yelled at him so he got back in the car. At no point did he ever have a handgun on his person.
Trial Court Believes The Officer
The court noted that every witness has a bias, but it found that the officers’ testimony was consistent and credible and the varying terminology as to how the gun arrived on the floorboard was insignificant.
Trial Court Didn’t Believe Defendant
The court had some issues with the credibility and consistency of Campbell and his girlfriend’s testimony.
Specifically, it was odd that she said that she had not spoken to defendant about the case and that he did not have a key to an apartment where he had been living for several years.
Issue
Campbell argues that the evidence was insufficient to convict him on several grounds. He points to inconsistencies between the officers’ testimony and the police reports. He notes the lack of physical evidence connecting him to the gun.
What Is More Plausible?
He describes his own testimony as the more plausible version of events.
Most importantly, however, he argues that the officers are incredible because it is beyond human experience to believe that he tossed the gun into the Durango in sight of the officers. This type of testimony is referred to as “dropsy” testimony.
The State argues that, to the extent “dropsy” testimony exists, it is not a basis on which to categorically disbelieve the officers’ testimony.
Dropsy Testimony
Many courts trace the origin of this description of officer testimony to a decision out of the New York Criminal Court in People v. McMurty, 314 N.Y.S.2d 194 (N.Y. Crim. Ct. 1970). See, e.g., United States v. Janis, 428 U.S. 433, 448 n.18 (1976) (citing McMurty, 314 N.Y.S.2d 194); State v. Brunori, 578 A.2d 139, 142 n.6 (Conn. App. Ct. 1990) (same); Ruiz v. State, 50 So. 3d 1229, 1232-33 (Fla. Dist. Ct. App. 2011) (same).
In McMurty, the court explained the problem of “dropsy” testimony in some detail. The proliferation of “dropsy” testimony, arises out of the United States Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, the court incorporated the exclusionary rule and held that it was enforceable against the states. Id. at 655. Before Mapp, a local police officer who engaged in unconstitutional conduct—an arrest based on less than probable cause, for example—could still see the evidence admitted at trial.
In other words, a police officer could truthfully testify in state court that he or she stopped someone for no reason and the prosecution against that person would be unaffected. After Mapp, an officer’s truthful testimony that he or she stopped someone for no reason would result in suppression of the evidence. So, police made the great discovery that if the defendant drops the contraband on the ground, after which the policeman arrests him, the search is reasonable and the evidence is admissible.
Put simply, Mapp led to police officers lying about their encounters with citizens to ensure that the evidence they unlawfully obtained would nonetheless be admitted later. See Janis, 428 U.S. at 447-48 n.18 (“exclusionary rule tends to lessen the accuracy of the evidence presented in court because it encourages the police to lie in order to avoid suppression of evidence” (citing McMurty, 314 N.Y.S.2d 194)).
Illinois Courts On Dropsy Testimony
Illinois courts have similarly defined “dropsy” cases as those in which an officer falsely testifies that a defendant dropped contraband in plain view “to avoid the exclusion of evidence on fourth-amendment grounds.” People v. Ash, 346 Ill. App. 3d 809, 816 (2004). See also A. McClurg, Good Cop, Bad Cop: Using Cognitive Dissonance Theory to Reduce Police Lying, 32 U.C. Davis L. Rev. 389, 400 (1999), and People v. Cunningham, 333 Ill. App. 3d 1045, 1049 (1st Dist. 2002) (drug case reversed because officer’s testimony found to be contrary to human experience and unworthy of belief the testimony of the arresting officer was so unlikely and improbable that it was unworthy of belief when he said he saw defendant drop the drugs in the car). But see People v. Cunningham, Docket No. 94971-Agenda 1-May 2004 (Illinois Supreme Court overules Cunningham and reinstates drug conviction where “one bad apple spoils the lot”)
In Ash, however, the defendant made a far bolder claim, asserting that the mere existence of “dropsy” testimony in some cases meant that officers should be viewed as less trustworthy in all cases. More recently, this court has viewed the phenomenon of “dropsy” testimony with skepticism, describing the “widespread nature” of this kind of testimony as “alleged” and based only on anecdotal evidence. People v. Moore, 2014 IL App (1st) 110793-B, ¶¶ 12-13.
Is It A Problem?
Outside of Illinois, “dropsy” testimony has been acknowledged as a genuine problem confronting the criminal justice system. See, e.g., Janis, 428 U.S. at 447-48 n.18 (citing “studies and commentary” showing that the exclusionary rule “encourages the police to lie *** to avoid suppression”); United States v. Contreras, 820 F.3d 255, 267 (7th Cir. 2016) (finding, “cases in which defendants drop drugs in plain view invite skepticism” and noting scholarly documentation of “an increase of ‘dropsy’ cases” after Mapp); Dixon v. State, 327 A.2d 516, 517 (Md. 1974) (describing “dropsy” cases, along with inventory searches, as “afflict[ing] law enforcement with the yawning credibility gap”).
In New York, the problem was so pervasive that the police themselves named this kind of false testimony: “testilying.” Of particular relevance here, a New York City report regarding police corruption indicates that officers frequently “testilied” about things like traffic violations, observing bulges in pockets, or plain view sightings of guns or drugs to justify potentially unlawful searches and seizures. City of N.Y., Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department: Commission Report 38 (1994). See also Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037, 1040 n.11 (1996) (citing City of N.Y., Commission to Investigate Allegations of Police Corruption and the AntiCorruption Procedures of the Police Department: Commission Report 36 (1994)).
One Bad Apple Does Not Spoil The Lot
Of course, it is not enough for us to conclude that untruthful “dropsy” testimony exists; we also must be cognizant of the way courts have treated it.
As we see it, there are essentially three categories of treatment of “dropsy” testimony.
1) At one extreme, there are courts that decline to acknowledge at all that this type of testimony can be problematic. See Moore, 2014 IL App (1st) 110793-B ¶ 13 (assuming, but refusing to say, that the evidence of “dropsy” testimony “actually establishes a trend or problem”).
2) At the other extreme, courts have issued wholesale condemnations of this type of testimony. See People v. Cunningham, 333 Ill. App. 3d 1045, 1049 (1st Dist. 2002). See also People v. Quinones, 402 N.Y.S.2d 196, 198 (N.Y. App. Div. 1978) (rejecting officer’s “dropsy” testimony “as a matter of law” where it has “all appearances of having been patently tailored to nullify constitutional objections”).
3) But, the largest group of cases, including McMurty, sees “dropsy” testimony as a lurking saboteur of the fair administration of criminal justice while recognizing the testimony in each individual case must be evaluated for its own credibility. Even in McMurty, 314 N.Y.S.2d at 197 the court said judges must only decide the cases that come before them.
A Way To Analyze These Cases?
Critical whenever an officer testifies that the defendant dropped contraband in plain view is this question:
would the officer’s detention or search of the defendant have violated the fourth amendment if he or she had not seen the defendant drop the contraband in plain view?
This Case
Aside from a conclusory statement that, absent the plain view sighting of the gun, the officers “illegally searched the vehicle,” Campbell does not argue that the officers’ conduct would have violated the fourth amendment absent the “dropsy” testimony.
Not Because They Smelled Cannabis
Other officer’s said they could smell cannabis.
While we are skeptical that an officer would have been able to smell cannabis in his moving car, even if the Durango’s windows were open, the observation of a traffic violation is a valid reason to conduct a Terry stop. People v. Hackett, 2012 IL 111781, ¶ 20 (decision to stop a car is reasonable where officer has probable cause to believe that driver committed traffic violation).
But Because A Stop & Passenger Removal Is Legal
The Durango was illegally double-parked. Double-parking, or even stopping a car next to another car parked against the curb, violates the Illinois Vehicle Code. 625 ILCS 5/11-1303(a)(1)(a).
Our supreme court has said it is well established that following a lawful traffic stop, police may, as a matter of course, order the driver and any passengers out of the vehicle pending completion of the stop without violating the protections of the fourth amendment. People v. Sorenson, 196 Ill. 2d 425, 433 (2001). In sum, removing the testimony about the tossing of the gun and keeping everything else the same, we cannot say that there would have been any illegality to cover up as far as the fourth amendment is concerned.
Several officers testified that they pulled up to the Durango to do a “narcotics investigation,” but even pretextual traffic stops are constitutional as long as the objective facts demonstrate cause for the stop. Whren v. United States, 517 U.S. 806, 812-13 (1996). In United States v. Robinson, 414 U.S. 218 (1973), we held that a traffic-violation arrest would not be rendered invalid by the fact that it was a mere pretext for a narcotics search.
…But Court Is Skeptical
We are skeptical of the idea that a person, with knowledge of the presence of a police officer, would throw contraband in view of that officer.
But, the recognized reasons for an officer to present untruthful “dropsy” testimony are not present and so no reason exists for us to intrude on the trial court’s express credibility findings or second guess the officers’ testimony that defendant tossed the gun into the back seat. See People v. Henderson, 33 Ill. 2d 225, 229 (1965) (“Far from being contrary to human experience, cases which have come to this court show it to be a common behavior pattern for individuals having [contraband] on their person to attempt to dispose of them when suddenly confronted by authorities.”)
Holding
While we have serious reservations about the plausibility of a suspect openly discarding contraband with knowledge of police presence, on the facts and in light of the standard of review, we ultimately agree with the State and affirm defendant’s conviction.
On the facts here, we cannot say that the officers would have been so overcome by a temptation to lie as to render their testimony incredible.
Conviction affirmed.
See Also
- Do We Make “Testilying” Easy?
- Episode 250 – People v. Wall, 2016 IL App (5th) 140596 (October) (Police Tell A Little Lie To Encourage Signing The Consent To Search)
- Episode 015 – People v. Abdur-Rahim, 2014 IL App (3d) 130558 (August) (trooper thinks he can smell cannabis)
