Editor’s note: The relevant portion of the video starts at minute 4:50. This video contains profanity.
[B]URLINGTON — Body camera footage released Friday captures an exchange in which former Burlington Police Officer Christopher Lopez contradicts his statement in a sworn affidavit.
Lopez resigned earlier this week after it became clear he was going to be fired, according to police. He is being investigated for perjury by the Chittenden County State’s Attorney and Vermont State Police.
Lopez stopped Michael Mullen on Oct. 24 for having expired tags on his car. After determining that Mullen, 25, had a suspended license and his passenger didn’t have a license, Lopez returned to his cruiser.
In a conversation captured on video with fellow officer Nicholas Rienzi, Lopez asks Rienzi if his body camera is off. Lopez appears to believe that his camera is turned off as well. Lopez then says he wants to get “creative about how I’m going to get into this car.”
Rienzi asks Lopez if he smells anything, and Lopez responds, “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 explains to Rienzi that Mullen and his passenger are heavily tattooed, but they have no drug history. He says “I might not have shit on this, but something doesn’t feel right” about the condition of the car and how the two men are behaving.
The officers later call in a K-9 unit. In an exchange not captured on the video, Mullen allegedly consented to a search. Lopez then discovered six grams of cocaine, a small amount of marijuana, seven .22 caliber bullets and $104 in cash.
Lopez later wrote in a sworn affidavit establishing probable cause for a possession of cocaine charge that, “While speaking with 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.”
In a Thursday news conference, Burlington Police Chief Brandon del Pozo said officers are encouraged to use creative investigatory tactics, and legal cases have upheld the use of deception by officers to obtain consent for a search.
However, Lopez crossed the line when he lied about smelling marijuana in the affidavit. The chief said that’s why his department acted quickly to suspend Lopez when commanding officers first learned there might be a problem earlier this month. It’s also why they moved to fire him once they confirmed he had lied in the affidavit, del Pozo said.
Del Pozo acknowledged that Lopez’s misconduct would not have come to light without the video evidence to contradict his affidavit, but he said that officers should still be allowed to turn off their cameras to discuss tactics and strategies during traffic stops and searches — currently permitted by the department’s body camera policy.
https://www.burlingtonvt.gov/sites/default/files/police/files/DD14%20-%20Digital%20Imaging%2C%20Digital%20Audio%20%26%20Video%2C%20and%20Body%20Worn%20Camera%20Systems.pdf
Del Pozo said he understands that this case may prompt renewed discussion of when officers should be able to turn off their cameras while on duty. He also acknowledged that the case raises other concerns for his department.
“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.
Del Pozo said that’s why the department made the incident public earlier this week in a news release, and why it acted quickly to remove Lopez from the force. The chief also requested that the state’s attorney and state police investigate.
Officer Rienzi faced no disciplinary action because he did not know what Lopez later wrote in the affidavit and was only responding to the scene as backup. State’s Attorney Sarah George confirmed that Rienzi is not being investigated.
George and state police are handling the Lopez perjury investigation. She said she has sufficient evidence that he lied to the extent that prosecutors can no longer rely on his testimony in court.
That led her office to dismiss 14 cases this week that rely on Lopez’s testimony. Twelve other cases in which Lopez was involved won’t be dismissed because he’s not the primary witness or George believes her office can prove the case without his testimony.
If a defendant already pleaded guilty in a case that involved Lopez, the state does not plan to vacate those convictions. However, if a defense attorney has concerns about a specific conviction, the state’s attorney’s office will review the evidence, she said.
None of the 14 cases being dismissed involve violent crime, and no one is currently being held in jail for any of those cases, George said. However, Mullen did spend several months in jail as a result of the cocaine possession charge, which the state has since dismissed.
Mullen’s public defender, Leroy Yoder, said Mullen showed courage in fighting the case, because he had the opportunity to settle but chose to continue fighting the charge. That could have meant months or years of litigation.
“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.
