 Jason Serrano (Photo: Ariel Zambelich/The Intercept)
The officers said in a report that they smelled marijuana when the driver rolled down her window, and they ordered her and Serrano out of the car.
At the time, Serrano was recovering from abdominal surgery to repair a stabbing wound, and he had trouble getting out of the car. He told Erickson, “I can barely move.” The officers demanded to search Serrano’s jacket, and he refused. He shook the jacket out before them and said, “There’s nothing in there … I’m not getting searched for no reason.” After Serrano resisted the search, the officers pushed Serrano to the ground and handcuffed him. The events were captured on Erickson’s body-worn camera.
The officer then began to search the car, later stating in a report that they found a small amount of marijuana in a cup holder and an unnamed controlled substance in a baggie in Serrano’s jacket. The driver was not charged. Police charged Serrano with possession of marijuana, possession of a controlled substance, resisting arrest and obstruction of government administration. The controlled substance was said to be crack cocaine found in Serrano’s jacket.
After the arrest, Serrano was taken to an area hospital, where he spent five days while his abdominal wound healed. He was discharged into supervised release. Three months later, he was found to have violated the terms of that release. A judge set his bail at $500.
Unable to pay, and wary of being sent to Rikers Island to await trial, Serrano pled guilty on June 18, 2018, to misdemeanor resisting arrest. He received a civil judgment for court costs and a sentence of time served for the five days he was in the hospital. At the time of his plea, his defense attorney did not have a copy of Erickson’s body camera footage.
In November 2018, the New York Times published a story about an incident involving the same officers that occurred a month before Serrano’s arrest. In that case, the officer stopped a car and searched it for marijuana. The driver and passengers admitted to smoking marijuana earlier but said they were not in possession of drugs at the time of the traffic stop.
Pastran searched the car and found nothing. Then Erickson searched. During a four-minute stretch, his body camera was turned off, then turned back on just as he found a marijuana cigarette on the backseat floor. The driver, Lasou Kuyateh, was charged with possession.
At a pre-trial hearing, Erickson testified about the footage, which was entered into evidence. Before he finished testifying, the judge informed the police department that Erickson might need a lawyer. Prosecutors then dismissed the charge, citing the four-minute gap in the video.
Lawyers with the Legal Aid Society of New York began a more rigorous examination of Erickson’s body cam footage and obtained the video from Serrano’s arrest.
During the 25-minute video, Erickson can be seen and heard searching the car. At one point he said, “We gotta find something,” and became frustrated at finding nothing. The video appears to show Erickson planting a small bud of marijuana in the cup holder, carefully positioning it before calling Pastran over to confirm the identification of the substance.
On the video, neither officer appeared to find an illegal substance in Serrano’s jacket, although the substance listed in the arrest report was later submitted to the police department’s lab for testing. An analyst said on March 28, 2018, that “Federally controlled substances are indicated; however, their identification is not confirmed at this time.”
On June 23, 2020, attorneys Marion Elizabeth Campbell and Olivia Clement with the Legal Aid Society of New York filed a motion to vacate Serrano’s misdemeanor conviction for resisting arrest.
“The body-worn camera video proves that probable cause did not exist for any crime, no exigency existed, there was no reasonable basis for the officers to have believed Mr. Serrano armed and dangerous, and the confiscation and search of the jacket was unlawful,” the motion said. “As shown on video, Mr. Serrano does not punch, kick, or otherwise assault any officer. He does not attempt to run away (and given his clear physical distress, it seems unlikely that he could have fought back or fled even if he had tried). Rather, Mr. Serrano verbalizes that he does not consent to the search of his jacket – as is his right – and officers forcibly take him to the ground, where he remained throughout their search, until an ambulance arrived to take him, cuffed, to the hospital.”
The Richmond County (Staten Island) District Attorney’s Office opposed the motion. It said in its response of September 25, 2020, that Serrano had shaken his jacket to get rid of marijuana flecks. It also said the video wasn’t clear cut and permitted “competing inferences." It said “A review of the body worn camera footage of the search of the car in which the defendant was a passenger could lead a finder of fact to conclude either that P.O. Erickson had done nothing untoward in recovery of the marijuana from the cup holder of the car, or that he had dropped the marijuana at issue into the car.”
The Legal Aid lawyers submitted a reply to the district attorney’s response on October 20, 2020. It included information they had learned from George Joseph, a reporter at the Gothamist website, about disciplinary actions taken against Erickson in January 2018 and April 2018. Both actions involved Erickson’s failure to properly invoice marijuana or controlled substances. “The failure to correctly invoice marijuana and controlled substances in this context, in the months immediately preceding and following Mr. Serrano’s arrest, can hardly be seen as a minor clerical error. Rather, it is further evidence of Mr. Serrano’s innocence,” the reply said. The filing also noted that Erickson and Pastran had been the subject of numerous complaints to the city’s Civilian Complaint Review Board.
These personnel matters, which went to the officers’ credibility as witnesses to Serrano’s arrest, constituted exculpatory evidence that should have been disclosed to Serrano before he entered a plea, the reply said.
On November 29, 2021, Justice Tamiko Amaker of Richmond County Supreme Court vacated Serrano’s conviction. She said that Serrano would normally not be entitled to a new trial, as she believed his plea removed the obligation of prosecutors to turn over exculpatory evidence. “However, this court finds that the body-worn camera footage, taken with the officers’ disciplinary files, demonstrate that the defendant may have been searched and seized in violation of his constitutional rights,” Justice Amaker wrote.
Campbell told the Gothamist website: “We’re thrilled that the court has finally recognized that Jason Serrano’s rights were violated when he was arrested, when evidence was planted on him, and then when he was prosecuted without disclosure of any of that information.”
Richmond County District Attorney Michael McMahon dismissed the charge against Serrano “in the interest of justice” on November 5, 2021. McMahon noted that Erickson had resigned from the police department, He said in a statement that his office had conducted a review of Erickson’s arrests since February 2018. While the review found that “in no instance did the Body Worn Camera (BWC) footage indicate that Officer Erickson, acted criminally,” it also concluded that he did not follow police department guidelines and best practices.
Serrano filed a federal civil-rights lawsuit against the City of New York in April 2022, seeking compensation for his wrongful conviction. It was settled in November 2022 for $200,000.
– Ken Otterbourg
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