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’

The Washington Post - - FRONT PAGE - BY TOM JACK­MAN

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.

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