Video of pot bust spotlights lapses by police

Officers search a trunk in the drug arrest by Officer Steven Lupo that Judge Lydia Y. Kirkland later threw out.
Officers search a trunk in the drug arrest by Officer Steven Lupo that Judge Lydia Y. Kirkland later threw out.
Posted: November 04, 2011

It looked like an open-and-shut case. A cop pulls over a car, walks up to the driver's door, and sees a plastic baggy of marijuana. He brings in a drug-sniffing dog to prove probable cause for a search, gets a warrant, and finds a kilo of weed in the trunk.

That's what Officer Steven Lupo put in his report and testified to in Philadelphia Municipal Court.

Then defense attorney Michael Diamondstein produced the video.

Turned out reality was different.

The video taken from nearby surveillance cameras contradicted key facts in Lupo's report and sworn testimony. Most crucially, Lupo and an unidentified supervisor are seen rummaging through the trunk hours before a warrant was issued. On the witness stand just moments before the video was played, Lupo emphatically denied that had occurred.

After Lupo's testimony was compared against the video, Judge Lydia Y. Kirkland tossed out the case.

Philadelphia's internal affairs investigators are now probing Lupo's conduct, and he will no longer be used as a witness in criminal cases, law enforcement sources said.

The defendant with two pounds of illegal marijuana is free, and defense attorneys say the Lupo video shows what their clients often tell them: Police frequently fudge the facts on the stand.

"I can just tell you from my experience," said veteran defense attorney Diamondstein, "in the majority of cases, while the clients may not deny having narcotics, in the vast majority of cases the circumstances surrounding the arrest did not happen as it was described in the paperwork or in court."

The District Attorney's Office declined to comment on the case or Diamondstein's assertion.

Worries about testimony from some officers are not new. Under the former district attorney, Lynne Abraham, city prosecutors would not allow officers deemed untrustworthy to testify in court. Edward McCann, acting first assistant district attorney, declined to say whether that practice was still followed by the current district attorney, Seth Williams.

Earlier this week, a municipal court judge tossed out a drunken-driving case against a state legislator "based on credibility" issues with the testimony of city police officers.

Car stop

The Aug. 5 car stop in East Germantown initially involved only Lupo and his partner. About 30 minutes into the incident, a uniformed supervisor arrived. Lawyers involved with the case say they have not been able to identify him.

Lupo was the only officer to testify Oct. 18, when Kirkland held a hearing on Diamondstein's motion to suppress the evidence uncovered by police. Police said Lupo would not be made be available for an interview, and the officer did not respond to messages seeking comment.

Before the hearing, Lupo provided a detailed written narrative in his incident report, and he repeated those facts under oath.

Lupo said that after stopping the car, he immediately walked to the driver's door and had a 30-second conversation with the defendant, Amiraria Farsi, 25, of Philadelphia, during which he saw Farsi push a plastic baggy into his pocket. It looked like it contained marijuana, Lupo testified under oath.

His official incident report says:

"As P/O Lupo approached the driver side of the Buick he told the driver to stop moving his hands. The driver then said to Lupo 'I'm getting my drivers license.' Lupo then observed the driver later Id'd as [Amiraria Farsi] shoving a clear plastic bag cont. a green weedy substance into his right pants pocket."

Lupo's testimony

In court, Diamondstein asked Lupo to confirm that account, according to a transcript of the hearing.

"Before you got to Mr. Farsi, did you open the rear driver's side passenger door and take that individual out and pat him down?"

"No," Lupo said.

Then Diamondstein asked, "I just want to make sure that we are clear that you certainly didn't just open the door prior to any conversation, take him out, and pat him down. That definitely didn't happen?" Diamondstein said.

"Correct," Lupo replied.

But the video shows that Lupo walked immediately to the rear door, ordered the passenger out, searched the man, and then within a second or two pulled open the front door. There is no conversation with Farsi. Instead, Farsi stands up and Lupo searches him.

Under state rules of evidence, Diamondstein did not have to provide the video to police or prosecutors in advance of the hearing. The first time police or prosecutors saw the video was moments after Lupo's testimony, when Diamondstein played the recording in the courtroom.

Lupo's report also said the trunk of the car was searched in a police lot at 4:45 p.m., after a warrant was obtained based on a state police drug dog indicating there were drugs in the trunk.

On the witness stand, he repeatedly said he never searched the trunk until after the dog arrived.

"While you were there, did you search the trunk?" Diamondstein asked.

"No" Lupo said.

The video shows that no K-9 dog had arrived when Lupo and an unidentified supervisor unlocked the trunk, rummaged through its contents for about a minute, and then shut it. That occurred at 12:37 p.m.

Under Pennsylvania law, "police often need warrants to search cars and more particularly trunks of cars, and that's been common knowledge for 15 years," said Jules Epstein, an associate professor at Widener Law School and a former public defender.

Even if Lupo did find a baggy of marijuana on Farsi, that would not necessarily allow him to search the trunk, according to state courts, Epstein said.

"A basic rule is that you can't go in the trunk without a warrant," in most circumstances, he added.

After seeing the video, Kirkland took over questioning. In response to her questions, Lupo admitted that his testimony about never having searched the trunk was incorrect.

"I totally forgot about he asked me to open it at one point," Lupo said, referring to the supervisor on the scene.

"Without a warrant?" Kirkland asked. "Did you have a warrant?"

"No," Lupo said.

Lupo then said that the sergeant had called for a dog, and that one was not immediately available. The search occurred as the officers waited for the state police unit. Both police and the District Attorney's Office declined to address the issue of police credibility.

Farsi himself is no stranger to police. Court records show he has been arrested eight times since 2006, largely on minor drug charges. He was once sentenced to a year's probation. This time, Lupo said, he found $1,233 in cash in Farsi's left pocket.

Exactly how often police testimony is discredited in court is not tracked by the courts or public defenders. Bradley S. Bridge, a lawyer with the Defender Association of Philadelphia, said he was not surprised at the illegal search. "This is not an infrequent occurrence."

Bridge said he was particularly troubled that a sergeant was present.

"Apparently there were supervisors on the scene, and if you look at the video, you can see they chose to do nothing about an improper unconstitutional search."

"Everyone knows he can't do it."


Contact staff writer Nathan Gorenstein at 215-854-2797 or ngorenstein@phillynews.com.

|
|
|
|
|