Judge on gun case: no body-worn camera footage, no probable cause, case dismissed
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A frustrated and angry Supreme Court Justice dismissed a gun-involved assault case when both officers on the scene could not produce body-worn camera footage of the moments preceding the arrest.
On July 24, 2019, around 6:30pm, Rochester Police Department (RPD) officers Michael Mortillaro and Jeremy Lindauer, II were driving down the 200 block of Weyle Street in Rochester, NY, which is a part of their beat, and observed “a group of five to six males sitting in law chairs on the front yard and on the sidewalk area,” according to a suppression hearing transcript from November 21, 2019. Based on their knowledge of the “area,” they believed “some sort of drug sales [were] going on at that time.”
The original reporting and update, done by 13WHAM, indicated that Treiquan Hawkins “pulled a loaded gun on [the officers] and they fought to gain control of it” after officers approached the men and asked for identification.
Court papers, on cross-examination of officer Mortillaro, indicate a different situation entirely: there was no probable cause for officers to approach the men and no body-worn camera footage to back-up the officers’ claims.
Read the November 21, 2019 suppression hearing transcript:
Paul A. Gerrieri (representing the defendant) is asking the questions. RPD officer Michael Mortillaro is answering them.
Q. In essence, Officer Lindauer was interacting with my client [Mr. Hawkins], and my client walked away from him?
A. That is incorrect.
Q. He was talking with him, right? What did my client do?
A. He began to run.
Q. So, he runs away. He hadn’t committed a crime, right?
A. Not at that time.
Q. So, in essence, you guys chase after him without him having committed a crime, right?
Ms. Catalano [the prosecutor]: Objection.
Mr. Guerrieri: I think it goes to the heart of the matter.
The Court [Supreme Court Justice Thomas E. Moran]: I’m going to overrule. I want to hear the answer. Go ahead.
A. We were investigating the odor of marijuana being five, six males. We don’t know which male had marijuana on them.
Q. You never posted up the street to see whether or not someone was dealing drugs there?
A. Correct. Because when you do that, a lot of times dealers will have lookouts and tip people off, and they will leave the area before we can get to them.
Q. You stated you don’t know what individual, if anyone, had marijuana, correct?
A. Correct. That was part of our investigation.
Q. At that point, Mr. Hawkins hadn’t committed a crime, right?
A. No, he did not.
Ms. Catalano: Objection.
The Court: Overruled. Let him answer. What was the answer?
The Witness: No, he did not commit a crime at that time.
Officer Mortillaro then testified that his body-worn camera was in its docking station in the patrol car before he and his partner exited the vehicle. According to the transcript, the officers removed their cameras and put them in the docking stations in their vehicles in order to log and file other, earlier encounters caught on tape in order to reduce paperwork at the end of the day. When officers dock their cameras, the cameras shut off. Neither officer Mortillaro nor Lindauer checked to make sure their cameras were on when they exited the vehicle to confont the men sitting in their lawn chairs.
At this point, Justice Moran excused the witness but asked him to stay in the room. He went on to explain to Mr. Hawkins that the charges against him were very serious but that he found himself in a “difficult position.”
He told Mr. Hawkins that he was an ex-cop and, as a judge, he had seen “a lot of gun cases.” He went on to state that he was seeing “a pattern that I find deplorable.”
“In this case, there are two officers involved in this case that are integral to determining what the probable cause was, and low and behold, both of them can’t provide body-worn camera. I have had it. That’s enough,” court papers stated. “My ruling is this. There was no probable cause. Your case is dismissed unless the people want to do something about it in the future.”
When Ms. Catalano pressed and insinuated that Justice Moran didn’t believe the officers, the transcript reads:
“I can’t today take his truthful and accurate Officer Mortillaro’s testimony because I have seen a pattern of behavior that is coming from the Rochester Police Department that indicates that there is some kind of situation going on involving the body-worn cameras. In the last couple of cases we have had a consistent problem in cases involving apprehensions where all of a sudden the body-worn camera doesn’t work, and it’s happening all the time.”
Because of this, Justice Moran couldn't "find truthful and accurate” the testimony given at the hearing.
The case of Mr. Hawkins raises some disturbing questions: how many other cases are similar to this one? How many officers have committed some kind of body-worn camera misconduct? Why doesn’t the RPD’s body-worn camera program include consequences for violations of policy? Why isn’t there a clean reporting requirement where the officer has to write their report before viewing the footage (unlike the current policy, see page 12)? And finally, why aren’t officers like Mortillaro and Landauer held accountable by being charged with perjury and prosecuted appropriately? (These questions don’t even get to the Freedom of Information Law issues! (see 1 and 2).)
The RPD must act now and reform its body-worn camera policies and hold problematic officers accountable. The RPD could modify its current body-worn camera policy so that officers would have to write an initial report without viewing the video and then write an addendum following review (see part 5 on clean reporting). Officers should be prohibited from viewing footage before they write their initial reports; this needs to be changed in the current RPD body-worn camera policy. Violations of the policy should have consequences spelled out and enforced promptly and fairly. Those officers, mentioned by Justice Moran, who consistently have problems with their cameras should be investigated immediately. Finally, officers who lie on the stand ought to prosecuted for perjury.
Justice Moran is absolutely right to be “mad as hell about this.”
Related: Body Worn Camera Program - Rochester Police Department | InfoDoc on Rochester's failed Body Worn Camera draft policy | Police reform group makes policy recs to city for body cameras
