United States Court of Appeals
For the First Circuit
No. 03-1888
UNITED STATES OF AMERICA,
Appellee,
v.
MARCEL HENDERSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Lipez, Circuit Judge
Cyr and Stahl, Senior Judges.
Jane Elizabeth Lee for the appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for the United States.
September 8, 2006
LIPEZ, Circuit Judge. Marcel Henderson was the passenger
in a car stopped by Michael Kominsky, a patrol officer for the West
Bridgewater, Massachusetts Police. After demanding Henderson's
social security number and date of birth, Kominsky found that a
police database listed an old warrant for Henderson's arrest.
Acting on the database, which turned out to be wrong about the
warrant, Kominsky searched Henderson and found a gun. Before
trial, Henderson moved to suppress the gun, arguing that it had
been the product of an illegal stop and that Kominsky had no basis
for investigating the passenger in a stopped car. The district
court denied Henderson's motion to suppress the gun and held a
trial. After the government belatedly produced evidence relevant
to Henderson's motion to suppress, the district court declared a
mistrial and held a second suppression hearing. After the district
court again denied Henderson's motion and held a second trial, a
jury convicted Henderson of being a felon in possession of a
handgun.
Henderson now appeals his conviction and sentence,
focusing on the district court's finding that he was not wearing
his seatbelt in the stopped car. Henderson argues that the
district court clearly erred in believing Kominsky's testimony that
he was not wearing a seatbelt. In support of this assertion,
Henderson emphasizes that Kominsky's testimony was riddled with
proven inaccuracies and contradictions and that the district court
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explicitly disbelieved important portions of Kominsky's testimony.
We agree with Henderson. After a careful review of this unusual
record, we are convinced that this is one of those rare cases in
which a district court's credibility determination is clearly
erroneous.
Anticipating the possibility of this result, the
government offers "officer safety" as an alternative basis for
investigating Henderson and affirming the conviction. However,
Kominsky admitted that he did not have any particularized reason to
suspect Henderson of dangerousness or wrongdoing, nor any specific
basis apart from a purported seatbelt violation for prolonging the
stop in order to investigate Henderson. On these facts, we reject
the government's alternative argument as well. Accordingly, we
vacate the conviction.
I.
We review here some of the background facts and the
procedural history of this case, leaving the details for a
discussion of Kominsky's credibility.
A. Background
At about ten P.M. on a May evening in 2001, Henderson and
his girlfriend, Patrice Alford, were in Brockton, Massachusetts,
attempting to get back to Boston, where they lived, after visiting
relatives. The couple -- who had stopped dating by the time of the
trial -- were in a blue Nissan sedan. Henderson was sitting in the
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front passenger seat. Alford, who was driving, was lost. Looking
for the expressway, Alford proceeded down Plain Street in Brockton.
As it turned out, Alford was going in the wrong
direction. Rather than towards the expressway to Boston, which is
just west of downtown Brockton, Plain Street goes southeast from
downtown Brockton to the town of East Bridgewater, where it becomes
Pleasant Street. Alford observed a police car pull behind her and,
because she was being followed, she drove especially carefully.
Between Brockton and East Bridgewater, Plain Street cuts through
the extreme northeast corner of the town of West Bridgewater. A
car driving from Brockton to East Bridgewater on Plain Street
travels through West Bridgewater for approximately three tenths of
a mile (about 500 yards). At the 35 mile-per-hour speed limit, the
transit takes about 30 seconds. Plain Street cuts a straight line
through West Bridgewater, without substantial curves.
Kominsky, assigned to patrol that corner of West
Bridgewater, stopped Alford's car. He later gave three reasons for
the stop, saying that the car was driving slowly, had crossed over
the center line of the short stretch of Plain Street in West
Bridgewater between two and five times, and was registered to a
woman, Alford, who had a suspended driver's license. During the
stop, Kominsky asked for Henderson's license and then, when
Henderson said he did not have a license, demanded Henderson's
name, date of birth, and social security number. Kominsky later
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testified that he wanted Handerson's identification in order to
cite Henderson for not wearing a seatbelt. By entering Henderson's
information into a database he could access from his laptop
computer, Kominsky discovered that there was a five-year-old
warrant for Henderson's arrest. Kominsky acted on the information
in the database to arrest Henderson. As he was searching Henderson
pursuant to the arrest, Kominsky found some ammunition. Henderson
then told Kominsky that he was carrying a handgun as well. That
gun was the basis for this prosecution.
A second police officer, Carlos Oliveira of the East
Bridgewater Police, arrived on the scene in time to see and hear
the end of Kominsky's initial encounter with Alford and Henderson.
However, Alford and Kominsky both testified that Oliveira did not
approach the car until Henderson was arrested.
As it turned out, the warrant Kominsky relied on in
arresting Henderson had long since been revoked. However,
Henderson accepts for the purpose of this appeal that Kominsky
could rely in "good faith" on the computer system. Henderson's
theory throughout this case has been that Kominsky never should
have obtained from him the personal identification information that
led to the computer error and then to his arrest.
B. Procedural History
In October 2002, the district court held a two-day
evidentiary hearing on Henderson's motion to suppress. Henderson
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contested both the legality of the vehicle stop and the legality of
Kominsky's demand for his identifying information. Kominsky,
Alford, and an investigator for Henderson testified for the
defense. Concerned about the discrepancy between Kominsky's
testimony that Alford's car did not have automatic seatbelts and
Alford's testimony that it did, the district court took a view of
Alford's car and determined that it did indeed have automatic
seatbelts. Nonetheless, the district court denied Henderson's
motion in a published opinion. United States v. Henderson, 229 F.
Supp. 2d 35 (D. Mass. 2002) (Henderson I).
The case then proceeded to trial. Kominsky was the first
witness. After his direct examination, the government belatedly
produced documents indicating that Kominsky had been the subject of
complaints for subjecting drivers to baseless and harassing stops,
along the same stretch of road where he stopped Alford and
Henderson. Henderson asked that the trial be stayed and the motion
to suppress reopened. The district court conducted a voir dire of
Kominsky and then allowed the trial to continue while it considered
Henderson's motion.
During a break in Alford's testimony, an Assistant United
States Attorney told defense counsel, while Alford was sitting
nearby, that Alford was "going to jail for perjury." Alford heard
the remark and, according to the defense, became nervous about
returning to the stand. The district court examined Alford and
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determined that there was no impediment to her continued testimony.
The next day, however, citing the government's delayed disclosure
and the other "appellate issues" that had arisen, the district
court declared a mistrial and announced that it would consider
whether to dismiss the case with prejudice, in light of
prosecutorial misconduct.
Ultimately, the district court decided not to dismiss the
indictment. It did, however, reopen the suppression hearing. At
the reopened hearing, the district court heard testimony from
Kominsky, Oliveira, other officers who worked with Kominsky, and a
young man, Christopher Bellas, who previously had complained of
improper vehicle stops by Kominsky. The district court credited
Bellas's testimony that Kominsky had twice stopped his car without
cause and had acted improperly during the stops. (Kominsky had
denied any such misconduct.) Nonetheless, the district court again
denied Henderson's motion to suppress in another published order.
United States v. Henderson, 265 F. Supp. 2d 115 (D. Mass. 2002)
(Henderson II). The district court acknowledged that its decision
to credit Bellas's testimony over Kominsky's "lends weight to the
contention that Kominsky's testimony relating to Henderson should
not be believed." Id. at 116. The district court then stated:
"Other credible evidence, however, tends to support Kominsky's
testimony" that Henderson was not wearing his seatbelt during the
vehicle stop. Id.
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The district court briefly reopened the suppression
hearing a third time shortly before the second trial, when the
government produced two recent complaints about vehicle stops by
Kominsky and a statement by Oliveira that contradicted Kominsky's
previous testimony about the language he used while arresting
Henderson. The district court declined to reconsider its ruling on
the motion to suppress, reasoning that the additional evidence was
"cumulative" and that "I don't need to hear any more to have a low
regard for Officer Kominsky as a law enforcement officer."
Henderson was convicted at a second trial. At
sentencing, the district court stated:
I two times found by a preponderance of the
credible evidence that Mr. Henderson was not
wearing a seat belt. That much of Officer
Kominsky I credited. But, in candor, I'm not
close to sure about that.1
II.
The government argues that Kominsky could demand that
1
Henderson's conviction carried a statutory mandatory minimum
sentence of fifteen years. Given his criminal history level of VI,
the guideline sentence range was 235-264 months. The district
court found at sentencing that Henderson's criminal history level
substantially overstated "the likelihood that he'll commit further
crimes," and that in Henderson "I also saw a kind of intelligence
and maturity that caused me to think that a slightly lower sentence
. . . is the most appropriate sentence." The district court
imposed a sentence of sixteen years, or 192 months, based on a
downward departure of two criminal history levels. The court
added: "I've been listening for months and months and months and
wondering whether I would find in the presentence report that you
were dealing drugs or that you were involved in some gang. And I
don't have any evidence of that."
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Henderson write down his identifying information because Henderson
was not wearing his seatbelt. It is a civil infraction in
Massachusetts, carrying as its maximum consequence a fine of $25,
for an adult passenger not to wear a seatbelt while "riding" in a
car. See Mass. Gen. Laws ch. 90, § 13A. Henderson responds that
the court clearly erred when it accepted Kominsky's testimony that
Henderson was not wearing his seatbelt during the stop.
A. Two unaddressed legal issues
Before addressing these arguments, we note, without
resolving, two legal issues alluded to in the district court but
never pursued or resolved. We identify these issues only to avoid
any suggestion that we are resolving them by implication.
First, Kominsky did not believe that he had the power to
demand a passenger's identification in order to write a citation
for a seatbelt violation. In fact, no witness testified that it
would be reasonable for a police officer to demand a passenger's
identification in order to write a citation for a seatbelt
violation. To the contrary, Kominsky testified that "there's no
legal way for me to force [a passenger who is not wearing his
seatbelt] to give me the information . . . he's entitled to get a
citation [] but if he doesn't give me his information I know of no
other way [to issue a ticket] other than citing the driver for the
violation."2 Kominsky had testified that he asked Henderson to
2
The Massachusetts seatbelt law makes a driver liable for
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write down his identifying information and that Henderson
voluntarily complied. But the district court never credited this
account of voluntary compliance, finding after the first
suppression hearing that "Henderson asked Kominsky why he had to
provide that information. Kominsky did not answer the question,
but insisted that Henderson give him the requested information."
Henderson I, 229 F. Supp. 2d at 37 (emphasis added). Kominsky's
supervisor, Lieutenant Ray Rogers, also testified that a passenger
could be asked but could not be required to produce identifying
information unless there was suspicion that he had committed or was
committing a crime. In Massachusetts, a seatbelt violation is not
a crime. We have found no Massachusetts case that permits a police
officer to demand a passenger's social security number and date of
birth in order to write a citation for a seatbelt violation.
The second legal issue relates to the absence of any
evidence that Henderson failed to wear a seatbelt while the car was
moving. Kominsky did not say that he observed any such infraction.
Rather, he said that he did not see inside the car until after it
stopped. The district court did not say that it had inferred that
Henderson was wearing his seatbelt while the car was moving. It is
uncontested that some time passed between the stop and Kominsky's
permitting a passenger to ride without a seatbelt. See Mass. Gen.
Laws ch. 90 § 13A (2006), "[a]ny person sixteen years of age or
over who rides as a passenger in a motor vehicle without wearing a
safety belt in violation of this section, shall be subject to a
fine of twenty-five dollars."
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approach to the car because Kominsky first made a radio call. The
one relevant Massachusetts case that we found concluded that a
passenger in a vehicle is not obligated to wear a seatbelt after
the vehicle has been stopped by a police officer and cannot be
cited on the basis of not wearing a seatbelt during a vehicle stop.
See Commonwealth v. Nuñez, 15 Mass. L. Rptr. 536, 2002 WL 31973248
at *3 (Mass. Super. 2002).
However, we need not decide the legal question of whether
Kominsky could demand Henderson's social security number and date
of birth for the purpose of a passenger seatbelt violation
citation. Similarly, we need not decide whether Henderson could
even be cited for failing to wear his seatbelt on the facts
presented. The premise for both of these legal issues would be a
finding that Kominsky credibly testified that Henderson was not
wearing his seatbelt during the stop. As we now explain, we cannot
accept that premise.
B. Standard of review
We recognize that "a district court's choice between two
plausible competing interpretations of the facts cannot be clearly
erroneous." United States v. Weidul, 325 F.3d 50, 53 (1st Cir.
2003). Moreover, our inability to see witnesses face-to-face or to
appraise in person their "demeanor and inflection," Anderson v.
City of Bessemer, 470 U.S. 564, 575 (1985), makes us "especially
deferential" to the district court's credibility judgments, United
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States v. Ivery, 427 F.3d 69, 72 (1st Cir. 2005). Still, as the
Supreme Court stated in its seminal case on clear error review:
[F]actors other than demeanor and inflection
go into the decision whether or not to believe
a witness. Documents or objective evidence
may contradict the witness' story; or the
story may be so internally inconsistent or
implausible on its face that a reasonable
fact-finder would not credit it. Where such
factors are present, the court of appeals may
well find clear error even in a finding
purportedly based on a credibility
determination.
Anderson, 470 U.S. at 575. See also United States v. Forbes, 181
F.3d 1, 7-8 (1st Cir. 1999) (vacating after clear error review
factual findings based on a police officer's testimony as to a
vehicle stop, where the officer's testimony was "improbable" and
"call[ed] into question" by "extrinsic evidence," and the district
court "did not explain why it found [the police officer] to be
credible"). The basic standard is familiar: we will overturn a
district court's factual findings after a suppression hearing "only
if, after reviewing all of the evidence, we have a 'definite and
firm conviction that a mistake has been committed.'" Ivery, 427
F.3d at 72, quoting Anderson, 470 U.S. at 573. Such instances are
rare, especially when the factual findings at issue are made by
such a careful and able judge. But this is such an instance.
C. Kominsky's testimony
To explain the clear error in the district court's
finding about the seatbelt, we discuss Kominsky's testimony topic
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by topic, focusing on its documented inaccuracies, internal
inconsistencies, and implausibilities. We also note the district
court's rejection of Kominsky's credibility on important issues,
and the district court's stated impressions of Kominsky's
character, demeanor, and professionalism.
1. Testimony empirically disproved
On several points, Kominsky gave testimony that was later
shown to be simply wrong.
a. The automatic seatbelts
Alford's car had automatic seatbelts, a point obviously
pertinent to Henderson's appeal. Alford testified that the car had
automatic seatbelts. The district court confirmed, after taking a
view of the car, that "[t]he automobile in which Mr. Henderson was
riding on the evening in question does, as Ms. Alford testified,
have an automatic seat belt for the front seat passenger."
Kominsky, however, testified repeatedly and with certainty that the
car had non-automatic seatbelts.
Not surprisingly, the district court probed this seatbelt
issue carefully. At the first suppression hearing, the court
questioned Kominsky about the seatbelt itself.3 The district court
3
We quote the colloquy between the court and Kominsky:
THE COURT: Did you observe whether . . . the car had seat
belts?
KOMINSKY: Yes, your Honor, the car had seat belts.
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took a view of Alford's car the next day. These were its findings:
The automobile in which Mr. Henderson
was riding on the evening in question does, as
Ms. Alford testified, have an automatic seat
belt for the front seat passenger. It's a
belt that attaches to the frame and, when
connected, pushes away from the seat toward
the windshield when the door, passenger side
door, is open. If a passenger got in and sat
down and closed the door, the seatbelt would
automatically come back and go diagonally
across his chest from his right shoulder to
his left waist. There is also a lap belt that
needs to be connected manually. The seat
belts are black or dark gray.
The automatic belt can be disconnected
from the door frame and will then roll down
into the left-hand side of the passenger seat
by the place that the lap belt, I believe,
connects or starts from.
The district court's observations contradicted Kominsky's
testimony in two important ways. First, Kominsky simply was wrong
about there being a non-automatic-type seatbelt in Alford's car.
THE COURT: Do you have a memory of where the front seat
passenger seat belt was?
KOMINSKY: You'd see the straps, your Honor on the door that
it's a lap -- the kind that comes across the shoulder, buckles
on the seat, your Honor.
THE COURT: And so where was the passenger side seat belt when
Mr. Henderson was arrested?
KOMINSKY: You'd see, on the door, sir, when he gets out of
the car, you can clearly see the seat belt is on the side of
the door frame. You can see that clearly . . ..
THE COURT: Was this the kind of seat belt that rolls back up
into the frame and you pull it down?
KOMINSKY: It's the strap kind, your Honor, the kind that you
do pull out.
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Second -- and even more important -- Kominsky's emphatic testimony
about seeing Henderson's "seat belt [] on the side of the door
frame," could not have been true. If the seatbelt had been
connected, it would have been attached to the frame of the car, as
described by the court. If it were disconnected, it would have
rolled down into the left hand side of the passenger seat, also as
described by the court. It was a physical impossibility for the
strap to be in the position Kominsky described. As the district
court itself immediately recognized:
I think [Kominsky] testified, and I'll have to
refresh my recollection -- that it wasn't an
automatic seat belt. He remembered it hanging
there after Mr. Henderson got out of the car.
And whether it was connected or disconnected,
it wouldn't have been hanging in the place
that a non-automatic seatbelt hangs, in my
experience. It either would have been pushed
forward if it was connected or it would have
been down by the left-hand waist if it was
disconnected.
The government argues that Kominsky's testimony was not
inaccurate because Alford's car had manual lap belts in addition to
automatic seatbelts. This argument is unpersuasive because it
parses Kominsky's testimony too finely. While Kominsky did testify
that Henderson was not wearing a seatbelt across his lap, he also
testified emphatically that Henderson "did not" have "a seat belt
going diagonally across his chest." Kominsky never testified that
he would give a seatbelt citation to someone wearing a shoulder
belt but not a lap belt.
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b. Number of citations
Kominsky testified at the first suppression hearing that
he had issued "over a hundred" seatbelt citations "just in this
last year." To the government, and conceivably to the district
court, this was important testimony. The government placed great
emphasis on the frequency of Kominsky's seatbelt citations as an
explanation for the inaccuracy of his recollection about Alford's
car. In light of further questioning, however, neither Kominsky's
tabulation nor the government's excuse held up. Asked the same
question at trial, Kominsky said that he averaged 25 citations,
admitted the inconsistency, and said that he had misunderstood the
question "how many seat belt violations have you written in the
last year?"
As Henderson points out, the record plainly belies
Kominsky's statement -- and the government's argument on appeal --
that he misunderstood the question before stating that he issued
100 seatbelt citations a year. In response to follow-up questions
at the first suppression hearing, Kominsky reiterated that he had
written 100 seatbelt citations "just in the last year," and that he
issued a seatbelt citation "every three days." There was no
confusion by Kominsky.
At the second suppression hearing, defense counsel again
impeached Kominsky on this point -- with documentary evidence that
Kominsky had averaged only fifteen seatbelt citations per year.
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Kominsky again had an excuse: he had issued more citations but they
were missing from computer records because of his bad handwriting.
c. Henderson's attire
Kominsky testified that Henderson was wearing a dark-
colored shirt on the night of the arrest. However, documentary
evidence -- the inventory list from the jail where Henderson would
spend the night -- proved that Henderson was wearing a white shirt.
The government argues that the issue is immaterial and points out
that Kominsky expressed no certainty when testifying about
Henderson's attire. Still, the inaccuracy about the shirt, like
the inaccuracy about the automatic seatbelts and the number of
seatbelt citations he had written, provides a further ground for
questioning Kominsky's credibility.
2. Inconsistent testimony: his motivations for demanding
Henderson's identifying information
Henderson points out that Kominsky's testimony was
inconsistent on the obviously pertinent matter of why Kominsky
either asked for (in Kominsky's view) or demanded (in Henderson's
view) his identifying information. At a detention hearing that
occurred shortly after Henderson's arrest, Kominsky said that he
secured the identifying information for two reasons: to see if
Henderson could drive Alford's car and because Henderson was not
wearing his seatbelt. At the first suppression hearing, Kominsky
added a third reason: he said that he sometimes asked passengers
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in stopped cars for their identification because: "If I feel like
asking everybody in the car for their license, I will." Kominsky
also indicated for the first time at the suppression hearing that
he could request Henderson's identifying information in order to
see whether he could drive even after Henderson denied having a
license in his possession. At the second suppression hearing, the
other officer on the scene, Oliveira, rejected this purported
justification, saying that "naturally, he couldn't drive the
vehicle" without presenting a valid license.
At the second trial, after the denial of the suppression
motion, Kominsky reversed course twice more, first explicitly
denying on direct examination that he had any reason to ask for
Henderson's identification apart from the purported seatbelt
violation, and then stating on cross examination that the seatbelt
violation was his "primary" motivation, but that "[t]here's a
number of reasons [] that I could ask him for his identification."
The government rightly notes that this testimony at the second
trial came in after the court ruled on the suppression motion, and
hence cannot contribute to the clear error analysis. But the
government says nothing to explain Kominsky's inconsistent
testimony about his motivations before the district court made its
findings. In any case, Kominsky's inability to remember
consistently -- at any point in the proceedings -- why he demanded
Henderson's identification is another negative factor in the
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evaluation of his credibility.
3. Implausible testimony: observations leading to the
vehicle stop
As Henderson argued at length before the district court
and repeats here, even if Kominsky had a legal basis for pulling
Alford over, it is implausible that the events before the stop
unfolded as he testified. According to his testimony, Kominsky
pulled behind a blue Nissan at the intersection of Plain Street and
Waverly Park Avenue, which Kominsky testified was in Brockton, "40,
50 yards" from the West Bridgewater town line. He said that the
Nissan was going slower than the speed limit allowed, between 20
and 25 miles per hour. Kominsky further testified at the first
suppression hearing that while driving through West Bridgewater he
saw the Nissan stray across the yellow center line at least twice
-- and maybe as many as five times; typed the Nissan's license
plate into his laptop computer (looking at the keyboard as he did);
used the license plate number to search the Massachusetts Registry
of Motor Vehicles database, which required the laptop to initiate
a cellular phone call; waited "at a minimum, 20 seconds" for the
computer to process the search (a search that he said often took
several minutes to produce results); and, while still in West
Bridgewater, received a computer report indicating that Alford, the
registered driver of the car, had a suspended license. Kominsky
testified that he decided to stop the Nissan while he was still in
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West Bridgewater, at the intersection of Plain Street and Belmont
Street, but that he actually initiated the stop in East
Bridgewater, because he was waiting for a moment when he would have
a tactical advantage.4 According to the undisputed testimony of
Henderson's investigator, it takes no more than 49 seconds to
travel at 20-25 miles per hour from the intersection of Plain
Street and Waverly Park Avenue in Brockton, where Kominsky said he
first saw Alford's car, to the intersection of Plain and Belmont
Streets.
Everyone agrees that Alford was perfectly sober at the
time of the stop. The uncontested evidence is that she was driving
especially carefully because she knew that she was being followed
by a police officer. Yet, according to Kominsky's testimony, he
observed Alford drive the two left tires of her car across the
center line of a straight street between two and five times -- over
a distance of three tenths of a mile. At the same time, Kominsky
said, he was conducting a computer search that often took several
minutes to complete. All of this, according to Kominsky, happened
in no more than 49 seconds. The idea that Kominsky could observe
all of this in such a short time verges on physical impossibility.
Attempting to blunt Henderson's demonstration of this
4
The transcript of the October 22, 2002 proceedings quotes
Kominsky as saying: "I like to stop motor vehicles where I feel
safe, where it's tactfully to my advantage." The court reporter
apparently reproduced the word "tactically" as "tactfully."
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implausibility, the government argues that Alford's testimony about
the minutes leading to the stop was equally implausible. Alford
said that at some point while she and Henderson were still in
Brockton, Kominsky began following her. Alford testified that
Kominsky was sitting at an intersection. When her car approached,
he activated his cruiser's flashing lights. She stopped to allow
Kominsky to pull out ahead of her, but Kominsky flashed his bright
lights and then signaled for her to go ahead of him. After she
passed by, she testified, Kominsky began following her. Kominsky
followed for several minutes -- she thought it could have been as
long as twenty minutes, but stated that she was not keeping track
of the time and did not know -- and then pulled her to the side of
the road.
In the government's view, Alford's statement that
Kominsky may have been following her for as long as twenty minutes
somehow shows Kominsky to be reliable about the minutes before the
vehicle stop. This argument fails. Alford's testimony about the
number of minutes Kominsky was following her was self-consciously
uncertain. She only professed to be sure that Kominsky was
following her for a fairly long time. Alford's testimony that
Kominsky was following her for longer than he said relates a more
plausible sequence of events than Kominsky's testimony. If
Kominsky actually saw what he professed to see, it is virtually
certain that he was following Alford for significantly longer than
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49 seconds, which would mean that Alford's statement that Kominsky
began following her while she was still some distance from West
Bridgewater may have been correct. Indeed, the district court
noted as an aside at sentencing that Kominsky "might have been off
on the times" in his testimony about the minutes before the vehicle
stop.
4. Testimony disbelieved by the district court
The district court disbelieved Kominsky on at least two
important points relating to his initial encounter with Henderson,
and on another matter relating to Kominsky's ability to testify
accurately about his conduct and motivations during vehicle stops.
a. A demand or a request
The district court disbelieved Kominsky on the question
of whether he requested or demanded that Henderson write down his
identifying information. Kominsky testified that "I observed that
the passenger, who turned out to be Mr. Henderson, wasn't wearing
a seat belt, and asked him if he had any identification on him . .
. . He said 'no, I don't have any ID on me' . . . . I then asked
him if he would mind writing down [his] name, date of birth, and
Social Security number on a piece of paper . . . [which] he did."
Kominsky said that when Henderson asked why he had to write down
his identifying information, he said: "You're not wearing your seat
belt, sir." At that point, Kominsky said, Henderson voluntarily
"complied . . . He picked up a piece of paper. He used my pen. He
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wrote down his information." Kominsky later clarified that he did
not even think that there was a "legal way for me to force" a
passenger in a stopped car to write down his identifying
information in order to be cited for a seatbelt violation.
Alford contradicted Kominsky both as to whether he
mentioned anything about a seatbelt violation to Henderson and as
to whether Kominsky merely requested -- rather than demanded --
Henderson's information. She testified that when Henderson asked
Kominsky why he needed to write down his social security number and
date of birth, Kominsky responded: "Just write your fucking
information on the paper before I snatch you up." Alford's
testimony on this point was consistent. However, Alford related
Kominsky's profanity only reluctantly, after the district court
told her that she was "required" to state Kominsky's words
accurately, "even if it's language we wouldn't ordinarily use." In
its written findings, the district court said that after "Henderson
told Kominsky that he did not have a license or any
identification,"
Kominsky instructed Henderson to write his
name, date of birth, and social security
number on a piece of paper. Henderson asked
Kominsky why he had to provide that
information. Kominsky did not answer the
question, but insisted that Henderson give him
the requested information.
Henderson I, 229 F. Supp. 2d at 37 (emphasis added). The district
court indicated that this finding was significant. In talking to
-23-
counsel after the second suppression hearing, the district court
noted its findings on these points before saying: "back on [sic]
October, I didn't believe everything that Mr. Kominsky said and I
still don't."
b. Any statement by Kominsky at the scene about
a seatbelt
On the important question of whether Kominsky said
anything about a seatbelt violation while speaking with Henderson
and Alford, the district court also specifically sided with
Alford's testimony over Kominsky's. Kominsky testified that he
told Henderson, after he asked why he had to write down his
information, "You're not wearing your seatbelt, sir."
The district court found, to the contrary, that when
"Henderson asked Kominsky why he had to provide that information[,]
Kominsky did not answer the question." Later, speaking to counsel,
the district court summarized the testimony on this issue and its
finding: "Mr. Henderson says: 'Why do I need to give you that?'
And according to Kominsky he says 'because you're not wearing a
seat belt.' You don't find that in my [first decision on the
motion to suppress]." On an issue directly relevant to Kominsky's
insistence that Henderson was not wearing a seatbelt, the district
court's finding was contrary to Kominsky's testimony.
c. Profanity during the demand
The government avers that the district court made no
finding as to whether Kominsky actually used the profanity Alford
-24-
ascribed to him. However, the district court orally indicated that
it found Alford's testimony more credible than Kominsky's on this
point as well, stating after hearing Bellas's account of Kominsky's
language at the second suppression hearing that "my sense [is] that
Officer Kominsky, you know, was not, well, was not likely to have
been, you know, quite as polite in talking to Mr. Henderson as he
[] described in his testimony." Whether or not the district court
credited every word of Alford's quotation of Kominsky, the
important point is that the district court again rejected
Kominsky's credibility on an issue closely related to his
insistence that Henderson was not wearing his seatbelt.
d. The Bellas stop
The district court also disbelieved Kominsky's account of
his interactions with Bellas, the high school student who testified
that he had twice been stopped by Kominsky while driving on Plain
Street from his school in Brockton to his home in East Bridgewater.
According to Bellas, the first time he was stopped, Kominsky
approached the car and said: "I smell marijuana. And he asked me
how much marijuana had I smoked in the nighttime." Bellas denied
having smoked marijuana. There is no indication that he had.
Kominsky did not even perform any kind of sobriety check. Bellas
testified that Kominsky then ordered him out of the car, told him
that he "was going to jail" if he did not say where he was hiding
marijuana, and then searched him in a "very physical manner."
-25-
Kominsky took off Bellas's shoes and unbuckled his pants, and did
the same to Bellas's friend, a young man named Carlos Gomes
Pereira, who was riding as a passenger. Then, Bellas said,
Kominsky "ransacked" the car, throwing his schoolbooks and homework
into the street, and pulling up the carpet. Lieutenant Rogers, the
second-ranking officer on the West Bridgewater Police (subordinate
only to Kominsky's father, the Chief), later confirmed that
Bellas's belongings had been thrown into disarray and that the
carpet had been dislodged. After completing his search and finding
no contraband, Kominsky left Bellas's belongings in the street and
told him he could go. Bellas went home, and the next day his
parents took him to the police station and filed a complaint.
Rogers, who investigated, told Bellas and his family that he had
been the victim of a "profile" stop. Noting Rogers's comment and
documents in evidence indicating that Kominsky stopped minority
drivers at a higher rate than their proportion of the local
population, Henderson argued to the district court that the
"profile" remark suggested Kominsky's possible motive in stopping
their vehicle and in investigating Henderson. Henderson and Alford
are African-American.
Kominsky also pulled Bellas over a second time in the
same area, purportedly to cite him for having a muffler that was
too loud. The car was towed for unrelated reasons. Rather than
giving Bellas a ride home, Kominsky made Bellas walk. When
-26-
Bellas's father complained again to Rogers, Rogers went to the tow
yard with Bellas, found that the car's muffler was not loud, and
voided the citation that Kominsky had issued. Kominsky admitted
that he had stopped Bellas and searched him, and that he had not
given Bellas any citation pursuant to the first stop. But Kominsky
denied that he had been unduly aggressive during that stop or that
he had asked about marijuana instead of asking Bellas for his
license and registration.
The district court found Bellas's testimony more credible
than Kominsky's. In its oral remarks after the second suppression
hearing, after calling attention to the fact that it "didn't
believe everything that Mr. Kominsky said," the district court
stated: "in fact, I'm not inclined to believe his rendition of
events with Bellas either. If I had the Bellas case in front of me
it wouldn't be that hard." In its written findings, the district
court stated that: "the court finds Christopher Bellas's testimony
concerning Kominsky's conduct when Bellas was stopped to be more
accurate than Kominsky's version of events." Henderson II, 265 F.
Supp. 2d at 116. Again, the district court discredited Kominsky on
an important issue even though the only evidence contrary to
Kominsky's testimony was the testimony of a driver whom he had
stopped.
5. Testimony contradicted by other police officers
In at least two ways relevant to the question of whether
-27-
Kominsky's testimony about Henderson's seatbelt was accurate,
Kominsky's testimony was contradicted by other police officers. As
the government points out, the district court did not explicitly
resolve these contradictions. However, these contradictions are
relevant to our inquiry, and, with respect to at least one of them,
the district court did, in effect, reject Kominsky's account.
a. Kominsky's language during the arrest
Oliveira contradicted Kominsky as to whether Kominsky
used profanity while arresting Henderson. When the suppression
hearing was opened for the final time, the parties informed the
district court that Oliveira would testify that Kominsky used
profanity during Henderson's arrest. (He did so testify at the
second trial.) Kominsky, on the other hand, testified that he was
polite throughout the encounter. The government now argues that
this matter is immaterial because Oliveira's testimony did not
occur until after the final decision on the motion to suppress.
This argument is misleading. The district court knew that Oliveira
would contradict Kominsky before it finally denied the motion. In
fact, defense counsel presented the district court with the
government's e-mailed statement that: "Oliveira stated [in a pre-
trial conversation with the government] that he recalls in essence
that Officer Kominsky used some form of the f--- word when asking
Mr. Henderson to get out of the vehicle."
The district court declined to hear Oliveira's testimony
-28-
in person before reconsidering the suppression motion for the final
time because "I don't need to hear any more to have a low regard
for Officer Kominsky as a law enforcement officer."
b. The conversation at the station
Kominsky also was contradicted on the important question
of whether his shift supervisor on the night of Henderson's arrest,
who considered himself Kominsky's mentor, provided Kominsky with an
opportunity to fabricate his recollection that Henderson was not
wearing a seatbelt. As we discussed above, Kominsky testified that
he made a statement about the purported seatbelt violation while
talking to Henderson at the scene. As already noted, the district
court rejected this account. No other witness testified that
Kominsky said anything about a seatbelt violation before returning
to the police station. Oliveira testified that Kominsky said
nothing about a seatbelt to him at the scene. Kominsky did not
actually write a seatbelt citation until he returned to the
station. The district court expressed interest in this sequence,
telling defense counsel: "I told you that I'm interested in knowing
what happened back at the station and whether there was any
discussion about the ticket. Ordinarily, I don't call witnesses.
But don't you want to ask [his shift supervisor] that?"
Philip Tuck, who was Kominsky's direct supervisor on the
night of Henderson's arrest, testified at the second suppression
hearing, largely at the district court's urging. Defense counsel
-29-
said: "I do not have any intention of calling Sergeant Tuck,"
immediately before the remarks by the district court above. After
the district court again asked: "do you want to call Sergeant
Tuck?" defense counsel agreed to call the witness, responding: "I'm
happy -- yes, your Honor, I'll put him up on the stand." In the
end, after some questioning by both counsel, the district court
examined Tuck itself, at some length.5
Tuck said that he "felt a certain fondness for" Kominsky
and watched out for him. Tuck testified that when Kominsky
returned to the station with Henderson, he asked him why he had
stopped Alford's vehicle and why he had asked Henderson to get out
of the car. We reproduce that testimony in part:
THE COURT: When Mr. Henderson was arrested,
did you have some discussion with Mr. Kominsky
about the law with regard to when you could
properly ask a passenger for identification?
TUCK: I believe I asked him his reason for
having Mr. Henderson get out of the vehicle.
* * *
THE COURT: So is it fair to say you didn't
hear about a seat belt before, or no seat belt
before, Officer Kominsky came in with Mr.
Henderson?
TUCK: I believe that's probably a fair
statement
THE COURT: Then I think you told me a moment
ago, you asked Officer Kominsky why he took
5
Indeed, the district court questioned several of the
witnesses, including Kominsky, at length.
-30-
Mr. Henderson out of the car or something to
that effect?
TUCK: Yes, I did.
THE COURT: In connection with that, did you
discuss what was necessary for that to have
been lawful, as you understood the law?
TUCK: It would be a violation of some sort.
THE COURT: That there had to be a violation?
TUCK: Yes.
THE COURT: Was that discussed with Officer
Kominsky on that evening?
TUCK: At some point, yes.
* * *
THE COURT: . . . I'm asking you to tell me
what to the best of your memory was said in
the conversation between you and Officer
Kominsky? Apparently, if I understand your
testimony right, you said, you know, what
caused you to order him to go out of the car?
What caused --
TUCK: How did this happen, or something like
this.
THE COURT: And someplace in that conversation
there was some discussion about what's
necessary for that to have been lawful, right?
TUCK: That's correct, sir.
THE COURT: And now I'm asking you -- I guess
I should ask you as a threshold matter, do you
remember the chronology?
TUCK: Okay, I've got a vague recollection of
the conversation that went along the lines of,
you know, how did this come down or how did
you end up with him out of the car or
something along that line? And he indicated
-31-
that he had not [seen] a seat belt on.
Tuck also said that, while Alford's citation and
Henderson's arrest on the old warrant were listed in the "daily
log" kept by the police, nothing was listed there about a seatbelt
violation (he also stated that this was not unusual). Tuck said
that he knew, while talking to Kominsky on the night of Henderson's
arrest, that it was "a big deal" for the police department to make
a federal felon in possession case and agreed that "whether there
was a seatbelt violation or some other violation was important to
the future of the case against Mr. Henderson."
The district court asked Kominsky about the same
conversation. To illustrate how markedly Kominsky's testimony
differed from Tuck's, we reproduce the relevant exchange:
THE COURT: Did Sergeant Tuck ask you any
questions?
KOMINSKY: Not really, that I can recall, your
Honor. Other than the basic information
pertaining to Mr. Henderson.
THE COURT: Do you recall Sergeant Tuck asking
you why you asked Mr. Henderson for his date
of birth and identity?
KOMINSKY: No, sir.
THE COURT: Do you recall Sergeant Tuck
discussing with you whether it was lawful to
insist that a passenger provide identifying
information so it could be run through the
computer?
KOMINSKY: I did it again, sir, because Mr.
Henderson wasn't wearing his seat belt. It's
a civil violation.
-32-
THE COURT: Right now I'm asking you about
your conversation with Sergeant Tuck. I'm not
asking you --
KOMINSKY: Okay.
THE COURT: -- what happened on the spot. Do
you understand that?
KOMINSKY: Okay, your Honor, I'm sorry.
Pertaining to Sergeant Tuck, no, he did not
ask me about the identification process with
Mr. Henderson pertaining to the seat belt.
The government argued before the district court that
Tuck's testimony "evol[ved]" and that, after repeated questioning,
Tuck was not sure what he specifically asked Kominsky, but only
that there was an "understanding" reached in the conversation that
"there had to be a violation." That argument prompted this
response from the district court: "But why shouldn't I find his
first answer to be more accurate than the evolving answer?"
Orally, the district court indicated that Tuck's
testimony gave the court further pause about Kominsky's account of
the events on the night of Henderson's arrest. Speaking on the
record with counsel after the second suppression hearing, the
district court articulated its concern:
Then [Kominsky] got back to the station, he
had a conversation with Sergeant Tuck who
knows that if there's no seat belt violation
or something similar that [Kominsky's] conduct
[] is very problematic . . .. [C]onceivably
back at the station Tuck and Kominsky talk.
Tuck says why, why did you ask for his
identifying information? Kominsky says, well,
I always do that, or I do it whenever I feel
like it. Then Tuck says you got a problem,
-33-
they might have contrived the seat belt
excuse.
6. The district court's general impressions of Kominsky
Obviously, a court of appeals is not in as good a
position as the district court to assess a witness's "demeanor and
inflection." Anderson 470 U.S. at 575. That reality is an
important impediment to the rejection of a district court's
credibility determinations on appeal. Here, however, that
impediment has little force. Every time the district court spoke
generally about matters relating to Kominsky's "demeanor and
inflection," it cast doubt on his reliability as a witness. We
relate some notable examples and their contexts.
In response to a question by the government at the first
trial, Kominsky stated that he had testified at the motion to
suppress "about four days ago." In reality, Kominsky's testimony
had been 22 days earlier. On recross examination, defense counsel
followed up on this misstatement. When defense counsel raised the
issue, Kominsky confirmed his belief that the suppression hearing
had taken place "four to six days" earlier. Defense counsel asked
Kominsky what day it was. He said: "Wednesday." It was actually
Thursday. Defense counsel then asked: "Do you know what the date
is today?" Kominsky responded: "No, I don't sir. I don't know the
day or the month today. I'm sorry. I've lost it." The
government later explained this testimony by telling the district
court that Kominsky was sick.
-34-
Despite this excuse, the district court clearly was
concerned about Kominsky's performance on the stand. After
agreeing to grant Henderson a mistrial, the district court urged
the government to "reconsider whether this federal case ought to be
voluntarily dismissed. . .. [W]hether he's ill or not, we now have
a federal case where the government's prime witness testified
yesterday that he didn't know what month it was."
Kominsky was scheduled to testify on the first day of the
second suppression hearing. However, Kominsky missed his
scheduled appearance, again because he was sick. The district
court refused to take Kominsky's word on this excuse. The district
court also refused to believe that Kominsky's poor performance on
the witness stand was a result of illness. In the district court's
words:
I'll tell you, you know, my law clerk said to
me several days ago, it will be interesting to
see Officer Kominsky on the stand when he's
not sick. Because you may recall on Thursday,
November 14, he thought it was Wednesday, he
didn't know it was November, and he didn't
know it was the 14th. And I said, I don't
think he's going to be any better. And I'll
leave it there for now. . . . But, you know,
a police officer shouldn't be unnaturally
anxious about coming to court and testifying.
(Emphasis added.) The court then insisted on questioning
Kominsky's doctor about the new illness, which the doctor confirmed
was a gastrointestinal infection.
Kominsky's subsequent performance did not improve the
-35-
district court's impression of him. As noted above, the district
court stated before the second trial that it had "a low regard for
Officer Kominsky as a law enforcement officer." Similarly, at
sentencing, the district court said: "I'll candidly state that, in
a general sense, I have disquiet about Officer Kominsky and the
West Bridgewater police . . . . And the idea that the U.S.
Attorney's office is bringing cases which in effect have 20-year
mandatory sentences when there's no parole in federal court based
on that kind of police work and that kind of testimony disturbs
me."
The district court also was blunt about Kominsky's
capacity to testify accurately. At sentencing, looking back at
Kominsky's entire testimony during the proceedings, the district
court summed up its impression: "Officer Kominsky, even if he were
trying to tell the truth, is perhaps the worst law enforcement
witness, who was trying to be candid, assuming he was trying to be
candid, that I've ever encountered."
D. The evidence on the seatbelt issue
The only evidence that Henderson was not wearing his
seatbelt before Kominsky demanded his identifying information was
the uncorroborated testimony of Kominsky. In his testimony before
the district court, Kominsky was empirically wrong on three points,
markedly inconsistent on at least one highly relevant point,
implausible on another point, expressly disbelieved by the district
-36-
court on at least three and probably four points, and contradicted
by other police officers on two important points (as to at least
one of which the district court indicated orally that it was
disinclined to accept Kominsky's story). In addition, Kominsky
forgot the day of the week and month of the year while testifying
in front of a jury in federal court. This performance prompted the
district court to say that it had "disquiet" and was "disturb[ed]"
about the case's very prosecution in federal court.
Yet Kominsky unwaveringly testified that Henderson was
not wearing any seatbelt in the stopped car. On this ultimately
crucial point, despite its serious reservations about Kominsky's
credibility and his capacities as a law enforcement officer, the
district court believed Kominsky because "other credible evidence"
bolstered Kominsky's story. The district court did not explain
what that "other credible evidence" was. The government does not
contend that there was any "other credible evidence," apart from
Kominsky's own testimony, to bolster the district court's finding.
We cannot find that "other credible evidence" in the record.
Kominsky said that he told Henderson and Alford that
Henderson was not wearing his seatbelt, as a justification for
asking for his license. As we discussed above, the district court
did not believe this story. No other witness indicated that
Kominsky said anything about a seatbelt until he returned to the
police station where, according to Tuck's testimony, Tuck advised
-37-
him that he would need to articulate a reason for investigating the
passenger in a stopped car. As the district court observed to
counsel: "He didn't write the seatbelt thing . . . [until] he went
back and spoke to somebody." Kominsky also did not say anything to
his supervisor on the radio about a seatbelt violation -- even
though he did discuss the citation that he would give Alford for
driving with a suspended license.
The government does not argue that Oliveira's testimony
corroborates Kominsky's report that Henderson was not wearing his
seatbelt. Indeed, the government does not argue that Oliveira was
even on the scene of the vehicle stop in time to see whether
Henderson was wearing his seatbelt during the stop. To do so, it
would have to disbelieve Kominsky on the question whether Oliveira
even arrived at the side of the car in time to see whether
Henderson was wearing his seatbelt before Kominsky demanded
Henderson's identifying information. At the first suppression
hearing, Kominsky testified that "Officer Oliveira was arriving at
the time that I was speaking to Mr. Henderson. He was pulling up
behind us." At the second hearing, Kominsky said: "no, sir" when
asked whether Oliveira was at the side of the car during his
initial encounter with Alford and Henderson. It is true that
Oliveira testified that he was at the car earlier than Kominsky and
Alford said, and that he thought he would have remembered if
Henderson was wearing a seatbelt and that he did not remember that
-38-
he was. However, Oliveira also testified that he did not "remember
looking in [Alford's car] and making a mental note" whether
Henderson was wearing his seatbelt. And Oliveira said that he had
talked about the incident with Kominsky after the first trial ended
in a mistrial, and that the issue of the seatbelt "may have come
up." Finally, Oliveira testified that Kominsky did not say
anything to him about a seatbelt while they were at the scene. For
all of these reasons, Oliveira's testimony does not bolster
Kominsky's account about Henderson's seatbelt.
Finally, the district court heard ample evidence that
Kominsky had a tendency to exceed the proper bounds of a vehicle
stop and to make unwarranted demands on drivers and passengers.
This was the unmistakable import of the evidence about the Bellas
stops, which the court credited. Tuck testified that Kominsky had
amassed "more than the average" number of complaints about his
conduct. Rogers testified that he had had to review proper vehicle
stop procedures with Kominsky after concluding that Kominsky was
overstepping the proper bounds of vehicle stops. Even as this case
was ongoing, citizens were complaining about Kominsky's performance
of his duties during vehicle stops. Kominsky himself testified:
"If I feel like asking everybody in the car for their license, I
will," even though, as the other officers testified, such conduct
by a police officer was a violation of Massachusetts state law.
All of these factors leave little doubt that Kominsky would have no
-39-
compunction about demanding Henderson's social security number and
date of birth even if Henderson had not violated some law.
This is not a case in which a witness's inaccuracies were
collateral. The most inaccurate parts of Kominsky's testimony --
the topics on which he testified with certainty but was clearly
proven wrong -- relate directly to the officer's account of the
vehicle stop of Alford and Henderson and to the short period during
which he professed to observe Henderson not wearing his seatbelt.
On every point relating to the stop where empirical evidence could
contradict Kominsky, it did. Kominsky repeatedly insisted that
Alford's car had standard manual seatbelts. The car itself proved
otherwise. Kominsky recalled that Henderson was wearing a dark
sweatshirt. The documentary evidence showed that he was wearing a
light-colored one. Kominsky testified that he was perfectly polite
during the vehicle stop. Both Alford and Oliveira testified
otherwise, and the district court indicated orally that it believed
them. Kominsky testified that Henderson voluntarily wrote down his
identifying information. The district court concluded that he did
not. Kominsky said that he had Henderson's purported seatbelt
violation in mind from the moment he demanded his identification
and said so. No other witness testified that Kominsky said
anything about a seatbelt until after returning to the police
station and being reminded that he could not investigate a vehicle
passenger without cause. The district court said that it did not
-40-
believe Kominsky's statement to the contrary. On each of these
points save the color of Henderson's shirt, Kominsky's testimony,
though inaccurate, contradicted, or inconsistent, was just as
emphatic as his testimony about Henderson's seatbelt. All told, in
a record that runs well into the thousands of pages, there is
nothing apart from Kominsky's own testimony to indicate that
Kominsky was telling the truth about Henderson's seatbelt -- even
though he was lying or mistaken about so many related facts.
In the end, the district court acknowledged the
difficulty of believing Kominsky about the seatbelt. Considering
only the information in the record after the first suppression
hearing, the district court termed the issue of Henderson's
seatbelt a "close" one. After hearing more information at the
second suppression hearing that challenged Kominsky's account and
credibility, the district court, although again denying the
suppression motion, observed that: "the question whether Henderson
was wearing a seatbelt . . . continues to be close." At
sentencing, the district court said: "I two times found . . . that
Mr. Henderson was not wearing a seat belt. That much of Officer
Kominsky I credited. But, in candor, I'm not close to sure about
that." Later, in the same hearing, the district court stated: "I
might only be 55 percent sure of the facts."
What apparently tipped the balance for the court on the
seatbelt issue was "other credible evidence" that somehow salvaged
-41-
Kominsky's badly damaged credibility. Yet neither the district
court nor the government has specified what "other credible
evidence" might bolster Kominsky's story. As indicated, we have
not found that "other credible evidence" anywhere in the record.
We can understand the district court's continued
uncertainty about its seatbelt finding. In light of all the
factors we have discussed, and after a careful review of the
record, we are left, respectfully, with "a definite and firm
conviction that a mistake has been committed." Anderson, 470 U.S.
at 575. Wholly dependent as it was on the credibility of Kominsky,
the court's finding that the government met its burden of proving
that Henderson was not wearing his seatbelt during the stop was
clearly erroneous.
III.
Anticipating the possible rejection of its seatbelt
argument, the government asks us to conclude that Kominsky could
demand Henderson's identifying information and conduct a computer
search of his records "for reasons of officer safety." There may
be cases where an officer is warranted in demanding a passenger's
identification for safety reasons, but this is not one of them.
The scope and duration of a vehicle stop must be
"'reasonably related [] to the circumstances that justified the
[stop] in the first place'" unless the police have a basis for
expanding their investigation. See United States v. Cook, 277 F.3d
-42-
82, 85 (1st Cir. 2002) (quoting Terry v. Ohio, 392 U.S. 1, 20
(1968); see also United States v. Chhien, 266 F.3d 1, 6 (1st Cir.
2001). It is also well established that a police officer cannot
stop a citizen and demand identification "without any specific
basis for believing he is involved in criminal activity." Brown v.
Texas, 443 U.S. 47, 52 (1979). Attempting to establish that
Kominsky's investigation of Henderson was not proscribed by these
principles, the government cites cases in which certain "de
minimis" intrusions on privacy have been allowed as a matter of
course during vehicle stops.
The government emphasizes the Eleventh Circuit's holding
in United States v. Purcell, 236 F.3d 1274, 1277-80 (11th Cir.
2001). In Purcell, the question was not whether a police officer
could demand a passenger's identification. Instead, the question
was whether a police officer could extend a vehicle stop by at most
three minutes -- a period the same court later characterized as "de
minimis" -- to run a criminal history check on identification he
already had. United States v. Boyce, 351 F.3d 1102, 1107 n.4 (11th
Cir. 2003). Furthermore, in Purcell, there were circumstances not
present here that could have helped legitimate the police officer's
particularized suspicions of the subject in that case. The car was
stopped in "a very high crime corridor," and it was rented, but not
to the driver of the car. See Purcell, 236 F.3d at 1280.
The Eleventh Circuit has clarified that Purcell should
-43-
not be read to legitimate extending vehicle stops in order to
conduct investigations that are not related to the reason for the
stop. See Boyce, 351 F.3d at 1107 (concluding that it was not
reasonable for a police officer to prolong a vehicle stop for 12
minutes, to investigate the car for narcotics without reasonable
suspicion for doing so).
The government relies also on three Supreme Court cases.
The first two establish that the Fourth Amendment does not require
that a police officer have cause to order the occupants of a
vehicle to exit during a stop. See Pennsylvania v. Mimms, 434 U.S.
106, 111 n.6 (1977) ("[O]nce a motor vehicle has been lawfully
detained for a traffic violation, the police officers may order the
driver to get out of the vehicle without violating the Fourth
Amendment's proscription of unreasonable seizures."); Maryland v.
Wilson, 519 U.S. 408 (1997) (same for passengers). The premise of
both of these cases is that ordering a person out of a car for the
duration of a traffic stop, without more, is a minimal imposition
on persons already detained. Such an order does not extend the
duration of a traffic stop and represents only a "minimal"
intrusion on privacy. See Wilson, 519 U.S. at 414-15.
In Hiibel v. Sixth Judicial District Court of Nevada, 542
U.S. 177 (2004), the final Supreme Court case the government cites,
the Supreme Court rejected a challenge to a Nevada law requiring
subjects of Terry stops to state their name. The Court held that
-44-
the Terry line of cases "permit a State to require a suspect to
disclose his name in the course of a Terry stop." Id. at 187
(emphasis added). The demand in Hiibel survived Fourth Amendment
scrutiny because it "does not alter the nature of the stop itself:
it does not change its duration." Id. at 188.
The facts here are markedly different than the facts in
any of these cases. Most notably, Kominsky's demand for
Henderson's identifying information and his subsequent
investigation of Henderson expanded the scope of the stop, changed
the target of the stop, and prolonged the stop. Alford, not
Henderson, was the subject of the initial stop. According to
Kominsky, Henderson was not detained at all prior to the demand for
his identification; rather "he could have just walked away."
According to Oliveira, it took Kominsky between ten and fifteen
minutes to run a criminal history check on Henderson and longer,
after that, to confirm the results of the check with the
dispatcher. Oliveira's time line is consistent with Alford's
testimony that twenty minutes elapsed between Kominsky's demand for
Henderson's information and his return to the car.6 As the
officers testified, apart from the records check on Henderson,
there was no other reason to prolong the stop. Kominsky already
6
Kominsky testified that he did not remember how long the
records check took to process, but that it was "fairly quick."
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knew everything that he wanted to know about Alford.7 The standard
procedure in the circumstances, the officers testified, would have
been to issue a citation to Alford, arrange to have the car towed,
and let the driver and passenger leave the scene (either by foot or
by a ride in a police cruiser to a place from which they could call
a taxi). Presumably, if Kominsky had not demanded Henderson's
identifying information and investigated him, Henderson would have
"just walked away."
There was no particularized reason, discounting the
discredited seatbelt violation, for Kominsky to launch into an
investigation of Henderson. Kominsky might reasonably have asked
Henderson for his license to see if he could drive the car back to
Boston. But when Henderson responded that he did not have his
license, there was, as the district court found, no further reason
to inquire about his ability to drive Alford's car back to Boston.
Henderson, of course, could not drive the car without producing a
license. Nor was there any other remotely particularized rationale
for investigating Henderson. Kominsky did not perceive any danger
from Henderson, nor did Kominsky have any reason to suspect that
Henderson was engaged in any kind of illegal activity. The stop
was not made in a dangerous location. Alford's underlying traffic
violation -- driving with a suspended license -- did not raise the
7
Kominsky emphatically reiterated that there was "no need in
[his] mind to reenter [Alford's] name" into the computer database
for a records check.
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specter of criminal activity involving Henderson. Henderson was
not acting suspiciously. Indeed, the government conceded to the
district court that "the government is not contending in this case
that Mr. Henderson at the time Officer Kominsky asked for
identification was engaged in other suspicious conduct or that the
evidence supports that." In light of these facts, the government's
"officer safety" argument fails.
IV.
The district court handled this difficult case with skill
and care. Troubled by the government's belated disclosure of
evidence pertinent to Kominsky's conduct at vehicle stops and other
issues, the court declared a mistrial of Henderson's first trial
and reopened the suppression issue. The court said that it was
"disturb[ed]" about the government's reliance on the person it
called "perhaps the worst law enforcement witness, who was trying
to be candid, assuming he was trying to be candid, that I've ever
encountered." The court stated: "I am concerned about the
competence and practices of . . . Kominsky." Still, on the
critical factual issue in this case -- whether to believe
Kominsky's testimony that Henderson was not wearing his seatbelt --
the district court accepted Kominsky's account on the basis of
"other credible evidence" not specified by the court or by the
government.
In reviewing the record, we have found no such evidence.
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Instead, we have found that Kominsky's testimony was riddled with
implausibilities and inconsistencies, and that it was disbelieved
by the district court in important respects and contradicted by law
enforcement witnesses in others. Under these circumstances, we are
left with a firm and definite conviction that the district court's
critical finding that Kominsky credibly testified that Henderson
was not wearing a seatbelt was clearly erroneous. The government
established no other justification for Kominsky's investigation of
Henderson's identifying information. Therefore, we must reverse
the order denying the motion to suppress and vacate the judgment of
conviction.
So ordered.
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United States v. Henderson
Court: Court of Appeals for the First Circuit
Date filed: 2006-09-08
Citations: 463 F.3d 27
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