Published: June 26, 2015 — 1:37 PM EDT | Updated: June 27, 2015 — 1:07 AM EDT
The Philadelphia Inquirer
by Joseph A. Slobodzian, Inquirer Staff Writer
To prosecutors, it’s a case of a cop caught lying on the witness stand when a defense lawyer confronted him with a video of his warrantless search of a drug suspect’s car.
To the lawyer for former Philadelphia Police Officer Steven Lupo, it’s a case about the practicalities of real-world policing and a good cop with a faulty memory.
“You’ll find that ultimately, his testimony and the video don’t add up,” Assistant District Attorney Sybil Scott-Murphy told the Common Pleas Court jury Friday in her opening statement.
Defense lawyer Brian J. McMonagle called Lupo, 38, “a good cop” who followed his father onto the force and was in his sixth year when he and partner Matthew Crosson stopped a car that ran a stop sign at noon Aug. 5, 2011 at Baynton and High Streets in East Germantown.
Three men were removed from a car that police said reeked of marijuana and were taken into custody. Driver Amiraria Farsi, 25, was arrested after about two pounds of marijuana were found in the trunk of his white 1998 Buick Regal sedan.
What led to the charges against Farsi being dropped and Lupo’s being charged with perjury was Lupo’s testimony at Farsi’s Municipal Court trial in October 2011.
Questioning Lupo, Farsi’s lawyer, Michael Diamondstein, asked if he ever opened the trunk of Farsi’s car at the scene. Lupo said he did not. Diamondstein then confronted Lupo with a surveillance tape showing him and a police sergeant opening the trunk of the Buick and looking inside for about 20 seconds before closing it.
Municipal Court Judge Lydia Y. Kirkland ruled that Lupo had performed an illegal warrantless search and quashed the evidence, and the prosecutor withdrew the charges against Farsi. Lupo was dismissed from the force after being charged with perjury in 2014.
“He was trying to testify about events that occurred a couple of months before,” McMonagle told the jury in his opening. “His great sin is that he forgets that he opened the trunk for 23 seconds.”
McMonagle said the prosecution must prove Lupo testified intending to lie: “You can forget and it can be a mistake. It’s not a crime, because if it was, no one would ever get on the witness stand.”
McMonagle argued that Lupo opened the trunk on his supervising sergeant’s order because they feared weapons or explosives were inside.
Lupo’s reports said he obtained a search warrant for the Buick after a drug-sniffing dog had “hit” on the car. He reported that the trunk was opened – and drugs discovered – after he got a warrant and the car was taken to a police impoundment lot.
The video shows Lupo and the sergeant opening the trunk at 12:37 p.m., but on it, the drug dog does not arrive until shortly before 1:40 p.m., when Crosson drives away the Buick with Lupo following in their police SUV.
The trial resumes Monday before the jury of eight women and four men.
On Friday, Crosson testified about the car stop and arrest, and told the jury he was busy with one of the three men in the car and did not see Lupo and Sgt. Lawrence McKinny open the Buick’s trunk.
Questioned by McMonagle, Crosson insisted the car stop was valid. He said that a baggie of marijuana was found in Farsi’s pants pocket and that all three men were moving around in the car as if trying to hide something.
Crosson said he worked with Lupo for two years, and called him a “very good” officer and friend.
McKinny testified that he ordered Lupo to open the trunk because he feared one of the men had stashed a weapon in a rear-seat “ski hole” providing trunk access from inside.
In 2011, it was illegal for police to search a vehicle without a warrant unless the owner consented. In May 2014, the Pennsylvania Supreme Court gave officers more leeway, ruling that police may search a vehicle – including the trunk – based on probable cause or the officer’s reasonable belief the car contains drugs, illegal goods, or evidence of a crime.