SMILE, YOU’RE ON CAMERA PLANTING CROPS

A New York Police Officer Was Caught on Camera Apparently Planting Marijuana in a Car — for the Second Time

By Alice Speri

The Intercept
March 18, 2020

When a police officer in Staten Island was caught by his own body camera in the apparent act of planting marijuana in the car of a group of young men, the video evidence against him was strong enough to prompt prosecutors in the resulting case to throw out the marijuana charge in the middle of a pretrial hearing. A judge cut short his testimony, and prosecutors recommended he get a lawyer. But an internal review by the New York Police Department found that no misconduct had occurred.

Now a new video — published exclusively by The Intercept — shows the same officer again seemingly planting marijuana during a different traffic stop just a few weeks after the first, raising questions about the credibility of internal review processes and highlighting the lack of transparency in cases of police misconduct. The video, which didn’t emerge for nearly two years, also underscores the limited information available not just to the public but also defendants, and validates criticism by police accountability advocates that body cameras are of no use if the evidence they capture remains inaccessible.

On both occasions, two officers — Kyle Erickson and Elmer Pastran, of the 120th Precinct — stopped cars for minor traffic infractions, then claimed the vehicles smelled like marijuana. In both instances, body camera footage shows the officers extensively searching the cars for several minutes and finding nothing. In the first incident, in February 2018, Erickson’s body camera is then suddenly switched off and then back on just as he discovers a marijuana cigarette that did not appear to be there when his partner was first searching the car. The New York Times published that video later that year after attorneys for the driver, Lasou Kuyateh, obtained it through discovery. Kuyateh, who in the video can be heard shouting that Erickson is “putting something in my car,” was arrested and spent two weeks in jail. He fought the charges in court, and late last year he began proceedings to sue the city for $1 million over the incident.

But Jason Serrano, the man arrested during the second stop, in March 2018, took a plea deal to avoid jail time and didn’t learn of the footage’s existence until earlier this year, when attorneys with the Legal Aid Society showed it to him. “There’s nothing to say, the video speaks for itself,” Serrano told me during a recent interview. “I didn’t have no marijuana, I had no weed, I had no drugs, I wasn’t driving, it wasn’t my car, the taillight wasn’t broken.”

The car’s driver, who was issued a summons even though she would have normally been the one charged for the marijuana found in the car, could not be reached for comment. Erickson and Pastran did not respond to The Intercept’s requests for comment. A spokesperson for the NYPD declined to comment. The Richmond County District Attorney’s Office did not respond to a request for comment.

“We Gotta Find Something”

Serrano was sitting in the passenger seat of his friend’s car when Erickson and Pastran stopped them. The officers later claimed the car had a broken taillight, but according to Serrano, the officers had been further up the road and made a U-turn to pull up by the car, and they couldn’t have seen the taillight from that position. As soon as the driver rolled down the window, Erickson and Pastran claimed the car smelled “like weed” and ordered her and Serrano out, both officers’ camera feeds show. The videos then show Serrano, who was recovering from abdominal surgery after being stabbed, lifting his clothes to show his wound to Erickson and telling him “I can barely move” (“I don’t want to see that,” the officer responds). Once out of the car, the officers demand to search Serrano’s jacket and he refuses, telling them “There’s nothing in there. … I’m not getting searched for no reason.” As Serrano grows agitated, the officers become more aggressive, grab him, push him to the ground, and handcuff him.

“They said I was resisting arrest, but I just didn’t want to hit the floor, the only thing I was thinking about was this,” Serrano said during a recent interview, pointing to his stomach. “I still had staples in me. … I couldn’t even stand up straight.”

As Serrano curls up on the sidewalk, bleeding from his wound, and as more officers and bystanders gather on the scene waiting for an ambulance, Pastran searches Serrano’s jacket. “We gotta find something,” Erickson tells him. The footage then shows Erickson using a flashlight to search around the front seat where Serrano had been seated. When he finds nothing, he can be heard murmuring an expletive to himself before returning to Pastran to ask him, “Should I search the whole thing?” Erickson again returns to the car and continues to meticulously search it, while Pastran briefs a supervisor who has arrived on the scene. Erickson then appears to place something in the car’s drink holder, before opening the front seat’s console and a small toiletry box. Erickson then says “I smell a little weed” just as he appears to pick up and move the little bud he seemed to have dropped in the drink holder moments earlier. Erickson then searches the back of the car, and when Pastran approaches, the two exchange a charged look as Erickson tells Pastran “I see nothing. … You know what I mean?” He then returns to search the front seat area for a third time, this time dropping a larger bud in the drink holder and saying, “There’s a little bit of weed.” He then again returns to the car console, opening a wallet and continuing to search where he had already looked. “Good?” Pastran asks him. Erickson continues to fiddle with something for a couple more minutes. At the end of the search, as Serrano is about to taken away on a stretcher, it’s Erickson’s turn to ask Pastran, “You good?” The two officers then fist-bump each other.

The few words exchanged between the two officers on the occasion of Serrano’s arrest are almost identical to those they exchanged during Kuyateh’s arrest. “We have to find something. … You know what I mean?” Erickson can be heard saying in footage from the earlier stop. On that occasion, too, the search had ended with Erickson asking Pastran, “You good?”

In the first incident, Kuyateh refused prosecutors’ offers for a plea deal and continued to fight the charges. In one of several court hearings, Erickson testified that the camera had shut off at a crucial moment in the recording due to a “technical difficulty.” But Erickson’s testimony was cut short when the body camera footage was presented as evidence, and the judge called lawyers in the middle of a pretrial hearing for an off-the-record exchange. Prosecutors dropped the marijuana charge right after that exchange, and later advised the police department that Erickson might need an attorney. The judge in the case blocked Legal Aid attorneys’ subsequent efforts to discuss the video, and ultimately dismissed and sealed the case.

The police department’s internal affairs division conducted its own review of that incident and ruled that accusations of misconduct on the officers’ part were “unfounded.” A spokesperson for the Civilian Complaint Review Board, a civilian agency that investigates allegations of police misconduct, confirmed the agency received complaints stemming from both incidents, but declined to comment further. A spokesperson for the Department of Investigation, which independently oversees city government, including police, said that the “DOI is aware of the matter” regarding Erickson and Pastran, but declined to comment further. The two officers remain on patrol in Serrano’s neighborhood.

More Jason Serranos

Serrano spent the five days after his arrest handcuffed in a hospital room, waiting for his abdominal wound to close. When he arrived there, he recalled, a medic told police “this guy is in no condition to resist anyone.”

Yet he was charged with resisting arrest, as well as obstruction of government administration, unlawful possession of marijuana, and criminal possession of a controlled substance. That last charge stemmed from a zip-close bag police claimed they found in Serrano’s jacket — even though Erickson and Pastran can be seen repeatedly searching the jacket in the video, and finding nothing. It’s not clear what was in the bag: a laboratory analysis of its contents reviewed by The Intercept says that “federally controlled substances are indicated; however, their identification is not confirmed at this time.” Serrano and his attorneys maintain that there was no bag at all in his jacket, and body camera footage shows Erickson fiddling with Serrano’s jacket for several minutes after searching the car, although it is impossible to see what he is doing.

After leaving the hospital Serrano was sent home on supervised release. Three months later, a judge found that he had violated the terms of his release and set his bail at $500 — but Serrano couldn’t pay it, and in order to avoid jail, he agreed to plead guilty to the resisting arrest charge only. “The court put him in the position of having to make that choice of whether he was going to continue to fight charges that he knew he was innocent of, or whether liberty was more important to him,” said Christopher Pisciotta, the attorney in charge of Legal Aid’s Staten Island division. “This is something that with our bail reform laws would not have happened. And even under the old law, a judge would have been extremely reluctant to ever set bail where there was actual video proof that the person was innocent.”

Under sweeping criminal justice reforms that were recently implemented in New York state — prompting a swift backlash — prosecutors would have accessed police body camera footage within 24 hours, and Serrano’s attorneys would have received it within 15 days of his arraignment. That would have allowed them to push for the charges to be dismissed. But Serrano and his attorneys didn’t learn there was camera footage of the incident until much later.

The new laws eliminated cash bail for most defendants and put an end to prosecutors’ ability to withhold evidence until trial. But within days of their implementation on January 1, the reforms came under a string of ferocious attacks from police, prosecutors, and some pundits, and elected officials quickly began giving in to pressure and signaling their intention to scale back the reforms.

“There is a push right now to try to repeal the very laws that would have protected Jason had they been available,” said Pisciotta. “If we repeal the discovery laws and push back on what has to be turned over and when it has to be turned over, and if we expand when judges can set bail again, there are going to be more Jason Serranos. And we’re going to be right back where we were.”

Last year, New York state also passed legislation decriminalizing marijuana — reducing possession of small quantities to a violation — after officials admitted marijuana laws had long been disproportionately enforced against black and Latino New Yorkers. But while marijuana arrests have drastically dropped since then, racial disparities remain. Legal Aid attorneys have repeatedly argued against the use of marijuana “odor” to justify a stop and search. Police can currently use the smell of marijuana to legally justify searching a vehicle, but attorneys say that justification is regularly abused — and in a growing number of cases, judges have questioned the credibility of officers claiming they smelled marijuana. In a particularly explicit rebuke, a judge recently ruled in favor of two defendants in such a case, arguing that “the time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop.”

The video of Serrano’s arrest is also emblematic of the widely disputed protections afforded to officers accused of misconduct in New York state. For years, advocates have called for the repeal of a law known as “50-a,” which refers to a section of the New York Civil Rights Law that makes the personnel records of law enforcement officers “confidential and not subject to inspection or review.” The law, which has been on the books for decades, has come under scrutiny as the movement for police accountability has grown stronger. But as the public pushed for more transparency, police departments and unions countered with ever-stricter interpretations of the law, making everything from complaints of misconduct, to the findings of internal reviews, to body camera footage itself largely inaccessible to the public. Efforts to fight the law in court have failed, and the battle has since shifted to Albany, where it remains a hotly debated issue by state legislators.

“50-a protects police officers from being held accountable,” said Pisciotta. “The community should have more information about the police officers who are serving them, and they should know when an officer has done something unlawful.”

Pisciotta, who called for Pastran and Erickson’s firing, also pointed to the disparity in the information that is accessible to the public. “The officers violated several laws by planting evidence in this case and falsely arresting an innocent person, but the information that the public has is that Jason Serrano was arrested and charged with these offenses, and that information will always be in the public’s eye, out on the internet,” he said. “Meanwhile, the officers who committed these crimes, who violated the public’s trust — their information remains secret and protected.”

The incident is also likely to fuel ongoing criticism of police’s use of body camera footage. A report released last month by the Civilian Complaint Review Board, which relies heavily on the footage as it investigates complaints of police misconduct, noted that officers “often failed to properly use their cameras by turning on the BWC late, turning the BWC off early, or not turning the BWC on at all,” the report noted, using an acronym for body-worn cameras. The report also confirms that officers are trained by the department to “inform other officers when their BWCs are active” — including by using nonverbal signals or code phrases like “I went Hollywood,” “Green,” and “I’m hot.”

In both incidents involving Erickson and Pastran, the officers seemed aware of their cameras — with Pastran at one point talking about Serrano getting “combative” and saying “thank God it’s on video.” After the first incident, as Pastran drove Kuyateh away, his body camera kept rolling as the teen accused Erickson of having planted evidence in his car. “The man just planted weed in my car,” Kuyateh said. “He has a camera, I have a camera. Why would he do that?” Pastran replied. “For him to do that, that would be the dumbest thing ever. He’d lose his job over a dumb arrest like this?”

But neither Erickson nor Pastran lost their jobs then, or after they stopped Serrano a couple weeks later. As Serrano watched the video of his arrest one more time, narrating over the footage, he kept shaking his head in disbelief.

“They had no reason to stop me at all, besides harassment,” he said. “They couldn’t even tell me what I did wrong. Oh, you smell weed? You smell weed because you placed the little nugget there. You smell weed because it’s on you, that’s why.”