NOT FOR PUBLICATION

UNITED STATES OF AMERICA,

.

KOLE AKINOLA,

LINARES, District Judge.

Currently before the Court is the Government’s application to exclude Defendant’s

Expert Witness from testifying. The Government contends that the Expert’s opinion will not

help this Court determine whether “the officers justifiably stopped the Defendant, had probable

cause to arrest the defendant, and appropriately searched and inventoried the contents ofthe car

in view of the Fourth Amendment and/or the GRPD inventory policy.” Gov’t Letter to the Court,

May 9, 2012 (CM/ECF No. 63.)

Specifically, the Government contends that Defendant’s Expert’s opinion on the proper

administration ofthe alcotest should be excluded as irrelevant. The Court agrees. As the

Government correctly points out, “whether the alcotest was administered appropriately. . . has no

bearing on the appropriateness of any prior conduct by the GRPD officers.” While these

opinions may ultimately be relevant to Defendant’s state charge of driving while intoxicated,

they have no bearing on the instant motion to suppress.

The Government further contends its appropriate to exclude Defendant’s Expert’s opinion

on the proper administration and validity of on-site field sobriety tests (“FST’s”) because 1) the

expert does not offer any opinion about whether Officer Faranda performed the FST’s incorrectly

in this case; and 2) the Expert does not indicate the point of unreliability at which probable cause

to arrest is undermined, if it ever is. The Court disagrees. Although, the Expert does not

explicitly opine whether Officer Faranda administered the FST’s correctly, that does not mean

that the Expert’s Opinion on the proper administration of FST’s would not assist the trier or fact

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Criminal Action No.: 11-310 (JLL)

ORDER
in making its own determination on that issue. This Opinion is not, as the Government contends,

irrelevant because it still informs whether Officer Faranda performed the FST’s correctly.

Officer Faranda’s acknowledgment that there is an appropriate way to conduct FST’s does not

satisfy this function because he is not in a position to objectively describe the proper method,

particularly ifthe evidence ultimately indicates that his method of administering the tests was a

departure from the proper method

As to the second issue, the Expert could not have indicated a point at which probable

cause is undermined because “the probable cause standard is not capable of precise measurement

• . . its meaning is roughly the same as ‘strong inference’.” Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 335, 127 S. Ct 2499 (2007). As the Government concedes, the

Officers based their probable cause determination on many other factors in addition to the FST

results that were presumably not known to the Expert. Accordingly, without knowing the other

factors influencing an Officer’s probable cause determination, no expert can ever be a position to

indicate the point at which improper administration of FST’s undermines probable cause.

However, the Expert’s opinion is useful to this Court in evaluating the appropriateness of the

Officers’ ultimate probable cause determination, which he claims to have based, at least in part,

on the FST’s. The Government argues that whether Officer Faranda misapplied any or all ofthe

FST’s is irrelevant because an officer’s mistake of fact does not negate probable cause to arrest.

Illinois v. Rodriguez, 497 U.S. 177, 185 (1990). Rather, the Government notes, the probable

cause inquiry focuses on the facts reasonably believed by the officers at the time of the arrest

even if it later turns out that the officers were mistaken. Williams v. Town of Greenburgh, 535

F.3d 71, 78-79 (2d Cir. 2008). This is true except that in finding the Expert’s testimony

irrelevant, the Government has overlooked the reasonableness requirement that is necessary to

rely on a mistake of fact. While it is correct that Officer Faranda may make a probable cause

determination based on a reasonable mistake offact, he may not do so based on an unreasonable

one. The Expert’s Opinion helps informs the degree of departure that Officer Faranda made, if

departure it be, and therefore helps the Court evaluate the reasonableness ofthe Officers’

ultimate probable cause determination.

Accordingly, IT IS on thisf day ofJuly, 2013,

ORDERED that Defendant’s expert may only testify as to the proper administration of
the FST’s; and it is further

ORDERED that if at any time the Court finds that the Witness has exceeded the scope of

allowable or appropriate testimony, the Court reserves the right to impose further restrictions

pursuant to the Court’s inherent power to control the presentation of evidence.

SO ORDERED.

L. Linares,

States District Judge