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LOCKPORT – Niagara County Judge Matthew J. Murphy III threw out a drug indictment against two men Friday, accusing a Niagara Falls police officer of engaging in “racial profiling” for a traffic stop that resulted in the seizure of drugs.

Murphy said repeatedly he didn’t believe the testimony Officer Thomas V. Rodriguez gave in a pretrial hearing.

Murphy said he thought the stop of the maroon Hummer on May 9 at 18th and Niagara streets in the Falls was a case of “driving while black.”

However, the driver of the Hummer, Shateek L. Payne, 36, of Fillmore Avenue, Buffalo, pleaded guilty Friday to running a stop sign and was fined $150 after Murphy ruled that all the evidence connected to the drug charges had to be suppressed.

That included the 7 pounds of marijuana officers found in the back seat of the Hummer, as well as 27 oxymorphone pills and a stack of counterfeit money on a passenger, Joachim S. Sylvester, 38, of Ontario Avenue, Niagara Falls. Both defendants are black.

The third man arrested in the incident, Payne’s brother Michael A. Payne, 29, of Buffalo, was shot to death June 14 in Buffalo.

“No court is ever pleased that guilty men go free because the constable has blundered,” Murphy said. “Even the guiltiest of men are entitled to the protection of the laws.”

Murphy said Rodriguez’ testimony “was patently tailored to avoid constitutional objections.”

The judge’s opinion was that Rodriguez “saw a shiny, expensive vehicle driven by young, black, African-American males in a neighborhood where it had never been seen before. He was bound and determined to search that vehicle.”

Rodriguez said he saw Michael Payne, the front-seat passenger, reach into the waistband of his pants and thought he might have a weapon. He didn’t.

Attorney E. Earl Key, who represents Shateek Payne, said the younger Payne was adjusting his seat belt. The other officer on the call, Patrick K. Hennegan, testified that he was putting on his tactical vest when Michael Payne allegedly went for his waistband, and said he was guarding that suspect when Rodriguez allegedly asked Shateek Payne for permission to search the Hummer.

Assistant District Attorney Peter M. Wydysh raised his hands in apparent astonishment as Murphy said Hennegan “reminds the court of Sgt. Schultz,” a character from the 1960s sitcom “Hogan’s Heroes,” who famously said in a German accent, “I know nothing.”

As for permission to search, Shateek Payne testified that the officers never asked him, and Murphy said he believed Payne, not Rodriguez.

“Hunches cannot retroactively legalize police conduct that was improper,” Murphy said. “This court simply does not find Officer Rodriguez credible on certain key aspects of his testimony.”

Later, the judge said, “I don’t believe Rodriguez ever asked for consent (to search). Moreover, he was not entitled to ask for consent under the circumstances.”

Wydysh tried to rescue the case by presenting three Appellate Division rulings that said passengers in traffic stops lacked legal standing to challenge the legality of searches.

Defense attorney Angelo Musitano, representing Sylvester, cited a U.S. Supreme Court ruling that said a passenger does have standing to object in certain circumstances.

Murphy sided with Musitano.

The judge said the prosecution may appeal his ruling, and told Wydysh to come back to court April 4 to say if there will be an appeal. Key said he wasn’t worried.

“This won’t go anywhere,” he said. “There’s no appellate court that would overturn this.”

Defense attorney Key said he was pleased with the judge’s decision.

He said he believes that racial profiling and “driving while black,” a term applied to bogus vehicle stops of African-American drivers, “is a problem in Niagara County. I think it’s a problem in Erie County.”

“Being black myself, I can’t tell you the number of times I’ve been pulled over and not given a citation,” Key said.

Police Superintendent E. Bryan DalPorto denied the allegation.

“The Niagara Falls Police Department doesn’t engage in racial profiling,” he said. “We’re in the business of arresting criminals.”

email: tprohaska@buffnews.com