United States v. Henderson

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."
-20-
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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