[B]URLINGTON — The Chittenden County state’s attorney’s office plans to dismiss 14 cases this week after determining that a Burlington police officer lied under oath about a drug investigation.
Officer Christopher Lopez resigned Monday, the day before police had made clear they planned to fire him at a disciplinary hearing. Lopez wrote in a sworn affidavit that he smelled marijuana during an October traffic stop, but footage from his body camera contradicts that assertion, according to a transcript of the footage filed in court.
State police and the state’s attorney have begun a criminal investigation of Lopez, who has hired attorney Lisa Shelkrot, with the firm Langrock Sperry and Wool. Shelkrot declined to comment Thursday.
State’s Attorney Sarah George said she has enough evidence Lopez made “patently false statements” in his affidavit that her office can no longer rely on his testimony in other cases. Whether that amounts to a crime is still being investigated, she said.
The Burlington Police Department had received one “courtesy complaint” about Lopez since he joined the force in September 2014. Lopez previously served with the Baltimore Police Department since 2012. Burlington police said he had no disciplinary actions in his personnel file from Baltimore.
The state’s attorney’s office will dismiss pending charges that can’t be proven without Lopez’s testimony, George said. The office has identified 26 pending cases where Lopez is involved, but plans to dismiss 14 where his testimony is crucial to the state’s case.
“The remaining charges are not being dismissed because Lopez was not a critical officer involved, or we are able to prove the charge without his testimony,” George said in an email.
George said she believes that in some cases guilty defendants could go free as a result of the dismissals. She said none of the cases being dismissed involves a violent crime and that no one is currently being held in jail in any of the cases involving Lopez.
However, Michael Mullen, 25, whom Lopez arrested on suspicion of cocaine possession in October, spent nearly three months in jail on a charge that was ultimately dismissed after it was determined Lopez lied in the affidavit.
The discrepancy came to light only because he appears to have accidentally left his body camera on during a conversation with Officer Nicholas Rienzi during the traffic stop where Mullen was arrested.
A transcript of their conversation, as recorded by Lopez’s body camera, was filed in court, along with a motion from Mullen’s attorney, public defender Leroy Yoder, to have the charge dismissed.
“You’re off right?” Lopez asks Rienzi, who responds in the affirmative.
“I’m just trying to get creative about how I’m going to get in his car,” Lopez says.
“Do you smell anything?” Rienzi asks.
“No. I mean I can if I need to, but I don’t like going that way if I can’t back it up,” Lopez responds, according to the transcript.
However, in his affidavit Lopez wrote that, “While speaking to Mr. Mullen I observed what I know based on my knowledge training and experience to be the odor of fresh marijuana emitting from the vehicle.”
Trust in officers
George said she has “no concerns” about how Officer Rienzi handled the situation, and he is not being investigated. Burlington Police Chief Brandon del Pozo said no disciplinary action has been taken against Rienzi, who responded as backup for Lopez. There’s no reason Rienzi would have known what Lopez ultimately wrote in his affidavit, del Pozo said.
Mullen eventually consented to a search only after a K-9 unit was called, according to court documents. Lopez discovered several grams of cocaine and a small amount of marijuana. That led to a cocaine possession charge that carried a maximum sentence of five years in prison.
Yoder said it took a team effort by the defender general’s office to discover that Lopez had lied in the affidavit. He said Mullen showed great courage, because he was offered a chance to settle the case and continued to fight the charge. If the state had not agreed to dismiss, Mullen could have faced months or even years of litigation.
It was “shockingly clear” once he saw the body camera footage that Lopez lied, Yoder said, adding that he’s never seen a similar transgression before in his career as a public defender.
“If there was not video we would only be left with the officer’s word, and I think it’s clear what the officer’s word is worth today,” Yoder said.
Asked why the state’s attorney’s office didn’t review the body camera footage on its own, George said her office generally assumes officers’ sworn statements to be true. The office gets as many as 30 pieces of body camera footage per day and handles close to 100 cases per week, she said.
“It isn’t until the defense challenges something in an affidavit that we would go out of our way to do a full review of all the evidence in a case,” George said.
Cameras not always on
Currently, the Burlington Police Department’s body camera policy doesn’t require officers to have their cameras on at all times while on duty. That wouldn’t be possible, according to the policy, because the camera batteries have limited capacity.
Officers are supposed to have their body cameras on for traffic stops and searches, but included in the reasons an officer can turn off a body camera are “conversations with other officers or staff (unless pertinent to a criminal investigation such as formal processing or interviews),” the policy states.
Del Pozo said the policy allows officers to turn off their cameras to speak privately about investigative tactics. Both del Pozo and George said they were not aware of body camera policies anywhere in the country that require officers to keep them recording continuously while on duty.
“I would hesitate to say that police officers should be the only public servants in America who have to have themselves under constant unabated audio and video surveillance just in case they make utterances” that could reveal wrongdoing, del Pozo said.
The chief acknowledged that Lopez’s actions and the way they came to light could prompt renewed debate over when an officer should have the body camera turned on.
“It does call into question the integrity of Burlington police, and it does give license to our critics and skeptics, and we won’t tolerate that,” he said.
Those questions are why he’s tried to be transparent about how the department is handling the situation, del Pozo said.
Del Pozo has said Burlington police are conducting an internal investigation into noncriminal aspects of the episode.
