Thomas G. WitkopLaw Offices

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Conflicting police testimony leads to an acquittal

My client and his girlfriend ran out of bus money and called a friend to pick them up in the middle of the night. The friend picked them up and was stopped for weaving outside of his lane and almost striking the police officer's vehicle. The officers approached on both sides of the defendant's vehicle. My client was in the passenger seat and with the help of his flashlight the officer immediately noticed flakes of marijuana on his jacket. Everybody was taken out of the car and the car was searched and half an ounce of marijuana was found in a bag in the car as well as cigars allegedly used for smoking marijuana.

At trial I sequestered all the witnesses which means that they could not hear what the other one said on the stand. The officer that came up on the driver side testified that the 11 g of marijuana was found under the driver seat in a plastic bag. The cigar paraphernalia was found in front of the passenger seat where my client was sitting. This was consistent with his police report. Nowhere in his report did it state that there was a smell of marijuana. Nowhere in his report did it state that the backseat passenger claimed ownership of the marijuana. The officer testified that he could smell marijuana from the car and that it smelt of freshly burned, perhaps burned in the last hour or so. The officer also testified that there were tobacco crumbs on the floorboard in front of the passenger.

The officer who came on the passenger side where my client was sitting testified that the other officer found the cigars and that the package was open and that at least two of the cigars had been hollowed out to receive marijuana. He also testified that the 11 g of marijuana was found on the passenger side of the vehicle. Dissemination he admitted that he was not the one who found the marijuana and that he was mistaken and that the marijuana was found under the driver seat. I showed him the evidence of the cigars. The cigar package was completely sealed. It had never been opened and none of the cigars were taken apart.

My client testified that he had called his friend to pick him up and borrowed his friend's jacket. He put the jacket on in the car. He did not notice that there was any marijuana on it. The marijuana was not his and he had no idea that it was in the car.

At the close of the evidence the judge had trouble with the testimony from the police. The officer testified that the cigar package was open and that the cigars had been tampered with. The evidence clearly showed that the package was sealed and the cigars were intact. The person in the back claimed ownership of the marijuana. It was not clear whether the marijuana was under the driver seat or under the passenger seat. It was not clear about the smell of marijuana. It was not clear whether there was a burnt marijuana cigarette in my client's pocket. The judge had a reasonable doubt in my client was acquitted.

With respect, I do not believe that the police officers were as ready as they could have been. They left many important facts out of the report which I brought to light. In other words, they testified to things that were not contained in the report. These were important matters such as the officer who had my client claimed that there was the remains of the marijuana cigarette in the jacket. That was nowhere in the report. They also tried to testify what my client said. That was nowhere in the report and because they did not turn over this information prior to trial the judge excluded using that information. They had a videotape of what happened that the arrest scene but that was not used by the prosecution. Experienced cross examination brought out the conflicts and problems in the state's case and led to an acquittal.
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