A former Fairfax County police officer is under FBI investigation and accused of making racially motivated traffic stops.
SUSPICION OF LYING ABOUT STOPS Prosecutor cites possible ‘racial component’
A former Fairfax County police officer, who resigned last month after three years on the force, is under criminal and internal investigation on suspicion of lying about the reasons he stopped drivers, and there may have been a “racial component” to his actions, the Fairfax County commonwealth’s attorney’s office said in a court filing. One of his stops led to the arrest, and ongoing imprisonment, of a black D.C. firefighter on gun and drug charges.
The Fairfax investigations also revealed “issues beyond and in addition to the unlawful stops,” according to the court filing by Fairfax prosecutors, leading to the FBI opening a “parallel criminal investigation.” The Fairfax police, the county prosecutors and the FBI all declined to describe the focus of the federal investigation.
When Fairfax police began an internal review of the officer, they randomly selected 40 of his traffic stops out of nearly 1,400 conducted during his three years on the street, according to the May filing in Fairfax County Circuit Court. “In each one of the 40 randomly selected cases,” Deputy Commonwealth’s Attorney Kyle Manikas wrote, “the basis used by the officer to justify the stop, as memorialized in the police report, was untruthful.”
“Moreover,” Manikas added, “there appears to have been a racial component with respect to the drivers that the officer unlawfully stopped.” Police and prosecutors declined to say why they thought the traffic stops had a racial component. But prosecutors said they have been dismissing the officer’s pending cases.
The officer, Jonathan Freitag, 24, has not been charged with any crimes and was not formally disciplined by the department, although he was suspended without pay during its investigation, a police spokesman said. The investigation and Freitag’s suspension began in September, spokesman Anthony Guglielmi said, and the investigation is continuing.
In an interview, Freitag said that he had done nothing wrong and that he resigned simply out of frustration with the Fairfax police.
“I was cleared of everything,” he said. “I resigned on my own terms. I didn’t want to work with the police department anymore.”
The former officer said he was being investigated internally for “things that never happened. Internal Affairs did an audit of my traffic stops, and I was cleared of any wrongdoing.” He said that he had not heard about the allegations in the prosecutors’ filing until The Washington Post contacted him and that he did not know he was under FBI investigation.
“This is all news to me,” Freitag said. “I was cleared of any criminal misconduct.”
Freitag was interviewed by the internal investigators and resigned after he was presented with findings of alleged violations involving how he identified himself during traffic stops, said Brandon Shapiro, his attorney. He and Freitag said the filing by Manikas was the first time they had heard the allegations of racial profiling.
It is not clear why police began investigating, and then suspended, Freitag in the fall. The investigation was made public in the case of former D.C. firefighter Elon Wilson, who is questioning the validity of the traffic stop that led to his arrest.
Wilson, then 23, was stopped about 2:15 a.m. on April 6, 2018, as he drove away from a recording studio on Telegraph Road in the Rose Hill area of Fairfax County. The studio, Midieast Studios, was frequented late at night by both aspiring and high-profile rappers, and in 2019 was the scene of two shootings. Freitag wrote in his arrest report that Wilson’s car crossed the solid yellow line once and had illegally tinted windows.
When Freitag pulled the car over, he “observed an odor of marijuana coming from the vehicle,” according to Fairfax prosecutors. The officer removed Wilson and a passenger from the car, and then searched it because of the marijuana smell. Court records show he found two handguns and numerous plastic bags containing more than 460 pills, most of them oxycodone. Wilson’s attorney argued in a court filing that the pills and guns belonged to a family member of Wilson’s who was also in the car.
Wilson was arrested and charged with possession with intent to distribute a controlled substance and possessing a gun while intending to distribute a controlled substance. The Fairfax police placed Wilson’s photograph and details of the arrest in their daily crime report, and some local news media reported the arrest. The D.C. Fire and EMS Service issued a statement saying that they were aware of the arrest, that Wilson had been suspended and that he had been with the department for four years.
Marvin D. Miller, Wilson’s attorney, contends that Wilson’s windows were not illegally tinted and that the traffic stop and search were illegal. Freitag initially said that he had been surveilling the recording studio,
Miller said, but then claimed that he stopped Wilson for a routine traffic violation. Miller said that “the odor of marijuana” was a preferred legal basis for police in Northern Virginia to conduct a search without a warrant.
But Miller said that he was unable to get a suppression motion heard before a preliminary hearing last year and that Wilson ultimately decided to enter a plea.
“Everything I did was found to be good,” Freitag said. “He pleaded guilty.” Records show that Wilson entered an Alford plea, in which a defendant does not admit guilt but acknowledges that prosecutors have enough evidence to convict. A judge then enters a finding of guilty.
In July 2019, Fairfax Circuit Court Judge Grace Carroll sentenced Wilson to three years and one month in prison. The gun charge alone carried a two-year mandatory minimum. Wilson had no criminal history.
But then Miller started to hear rumors that Freitag was under investigation. In February, Miller filed a motion saying that Freitag was being investigated “for providing false information to justify traffic stops.” In April, he filed another motion seeking post-trial discovery on Freitag, because “his veracity on that issue affected the reliability of the outcome in this case.”
Fairfax prosecutors contacted the Fairfax police, according to Manikas’s response to Miller’s motions, and found that Freitag had been under internal investigation since last year and placed on leave. “The information relayed to the Commonwealth,” Manikas wrote, “renders the officer unreliable as a witness.”
Manikas said in the motion that prosecutors reviewed video of Freitag’s stop of Wilson and were “unable to determine from the video whether the purported basis for the stop was valid, and therefore, whether the Officer was truthful and made a lawful stop.”
Fairfax Commonwealth’s Attorney Steve Descano declined to comment on the case beyond the allegations made in the prosecution’s motion.
Apprised of the situation, the Fairfax prosecutors sought to obtain Freitag’s internal affairs files. But because officers’ statements to internal affairs are mandatory as a condition of employment, they cannot be used against them in criminal cases — that would be a violation of a person’s Fifth Amendment right against self-incrimination, as enshrined in the Supreme Court ruling in Garrity v. New Jersey.
The statements can, however, be used when the officer is merely a witness, thus not violating his
Fifth Amendment right against self-incrimination.
So the prosecutors, in a motion to Carroll last month, proposed establishing a separate review team that would not be involved in any criminal cases, would review Freitag’s files and produce any unprotected information to Miller, the firefighter’s attorney.
“The primary purpose of exercising such caution,” Manikas wrote, “is not for the protection of the officer, but rather for the protection of a possible criminal prosecution of the officer.”
Carroll granted the prosecutors’ request for a special review team of Freitag’s files in an order entered June 2. Fairfax Police Chief Edwin C. Roessler Jr. said his officers would cooperate with the team.
In Wilson’s case, Miller said that if Freitag “has a pattern and practice, after this review, about not being truthful about the bases of traffic stops, that’s exculpatory evidence and I’m entitled to it.”
But it was not clear whether Fairfax or the FBI are examining Freitag’s other cases and what criminal activity might be alleged. The FBI investigates civil rights violations, and improper use of authority under “color of law,” and could seek federal charges if Freitag were accused of abusing his police powers.