Cops doubted they found cocaine but charged him anyway. Now they're suspended

That gave them reason to search Eaton’s Audi.

Minutes later, the officers were accusing him of possessing and peddling cocaine, despite their own debate about whether they had found cocaine at all.

A lab test confirmed the powder was not cocaine, or any controlled substance. But the results came long after Eaton lost a paid coaching job and drew suspicion from family and friends.

The factory worker and father of four calls it a case study in Driving While Black.

His complaint against the two Buffalo officers has gained traction. They were suspended last week pending the full results of an internal investigation, a department spokesman said. The first 30 days are without pay. 

Erie County prosecutors, meanwhile, are determining whether false statements were knowingly placed on an arrest document, said a spokeswoman for District Attorney John J. Flynn. 

John Evans heads the union representing Buffalo police. 

"We welcome a full complete comprehensive investigation of this incident," he said. "We are confident that these officers did nothing wrong."

The episode unfolded on the afternoon of March 8, a Sunday, on a tidy block of Strauss Street, just north of Broadway. The officers found a personal use amount of marijuana that Eaton told them about, and what they called a marijuana blunt. Eaton contends it was a cigar butt that didn’t contain marijuana. Regardless, the items warranted two violation-level counts but no criminal charge.

The cops soon focused on a pink laptop bag in back. Resting near a child safety seat, it held, among other things, an unlabeled vial with capsules inside. They belonged to Eaton’s fiancée. 

Inside each capsule was white powder. The two Buffalo police officers, with their body cameras rolling, assumed they were looking at cocaine.

“Ooh, are those all coke?” Officer John M. Davidson said when his partner showed him the bottle.

“I think so, I mean, unless ... ” responded Officer Andrew Moffett, who never finished the sentence.

“That’s awesome. That’s a lot,” Davidson said, noting that each capsule would contain around a gram of cocaine, and the total weight could lead to a serious felony charge.

Moffett tested some of the powder. He tore open a small, sealed envelope, unfolded the swab inside, dismantled a capsule and spread the contents on the swab. He rubbed it around.

“It’s not coke,” Moffett told Davidson. “I don’t know what it is ...

“I wonder if it’s meth,” he continued.

Davidson continued to suspect cocaine.

“I mean, that looks just like crack,” he said, adding that it was just of poor quality. He suggested charging Eaton with cocaine possession anyway but telling the crime lab to test the substance for all types of drugs.

Moffett held firm. He explained the substance couldn't be cocaine because it dissolved when he examined it. They looked at the swab. They turned to their cellphones to research other possibilities: bath salts, PCP, fentanyl, vitamins?

Police Lt. Mark Ambellan arrived. Despite the negative result of the field test, the lieutenant told Eaton that the test showed the substance to be cocaine, or maybe PCP. So which was it? he asked Eaton.

The U.S. Supreme Court has allowed police to use deception in questioning suspects, but if that's what the lieutenant was doing it yielded no new information. Eaton stressed he knew nothing about the contents and didn't sell drugs. The lieutenant suggested he was lying and told him he was going to jail.

Ambellan's role at the scene is part of the internal investigation, the department said. 

The police went on to charge Eaton, 38 at the time, with possessing cocaine he intended to sell. The formal count was criminal possession of a controlled substance in the third-degree, a class B felony that could have sent him to prison for at least a year.

Davidson signed the key document accusing Eaton: “I, Officer John Davidson, through my training as a Buffalo police officer, and through numerous previous narcotics arrests, which have been confirmed by laboratory analysis do recognize the white powder like substance in question to be powder cocaine.”

“Dude,” Davidson said to Moffett as they calculated a total weight of 30 grams of cocaine, “that’s actually a huge charge.”

The news spreads

Eaton said he spent the night in the city’s cell block, was arraigned the next morning and placed in the Erie County Holding Center. Then he was brought to the Town of Tonawanda Court to answer to the unpaid traffic ticket that had led to his license being suspended and the charge of aggravated unlicensed operation of a motor vehicle that the officers added on that Sunday in March. Even without the cocaine charge, the town's arrest warrant would have forced the night in jail. After the Tonawanda court appearance, Eaton was released on $1 bail, he said.

Eaton and fiancée Dominique Calhoun have three children, ages 1, 5 and 6. Eaton also has an 18-year-old son from another relationship. The arrest shook the teenager’s faith in his father, Eaton said. Calhoun, who is active in Black Lives Matter, said friends and acquaintances looked at the couple differently as the news spread.

Eaton said his job coaching youth basketball, which could pay him up to $400 a weekend, vanished when his employer heard “Coach Morgan” was charged with selling cocaine. Fortunately, Eaton said, his job at the Tesla factory was not jeopardized, though he’s not working now because of the pandemic.

‘No controlled substances’

With the pandemic, the courts slowed to a crawl and the case went on longer than Eaton and Calhoun thought it should have, because both knew the vial did not contain cocaine. Over the weeks, Eaton said, he rejected offers to take a plea bargain. He did not know that on April 3, roughly a month after his arrest, Erie County’s Central Police Services laboratory had completed its analysis of the pills.

“No controlled substances were identified,” the report said.

That’s because, Calhoun said, they were suppositories she had bought over the counter to help with a yeast infection. She paid $17 for them, according to records she showed The Buffalo News.

Case dismissed

In discussing a plea, the District Attorney’s Office had been willing to adjourn the case in contemplation of dismissal if Eaton pleaded to disorderly conduct, said Amanda Wadsworth, the Legal Aid Bureau lawyer who defended Eaton. While the plea could have forced jail time or a fine, any public record of the matter would be purged if Eaton lived a law-abiding life for six months.

When the lab results became known, the DA’s Office offered the ACD without expecting Eaton to plead to anything, Wadsworth said. But considering the lab results and the body camera video, which she saw months after the arrest, she wanted the charges dismissed outright.

“The basic test on the side of the road showed that it wasn’t cocaine,” she said. The field test isn't always reliable, she added, but the results should have given the officers pause before filing charges.

On July 7, the District Attorney’s Office sent the judge a letter asking that the charges be dropped, and they were.

Interviewed days ago, Eaton said he’s “not in a good place” with his anger. On the body camera video, the police seem to know the pills do not contain cocaine, but they charge him with a serious felony anyway, he said.

To Eaton, the police stopped him because he was a Black man driving a nice car, a used Audi Q7 that he and his wife had recently purchased. As a 2008, it was 12 years old.

“If I was a white man, they would have rolled right past me,” he said.

As for the Audi, its electronics were ruined by rain, Eaton said, because it was left in the Buffalo impound lot with the windows open.

Davidson elsewhere

Eaton argues that Davidson and Moffett should be fired for dishonesty – Davidson especially, Eaton says, because he has a history.

On Memorial Day 2019, Buffalo resident Bruce C. McNeil had his car searched by Davidson and another officer. They found nothing and released him from the back seat of their patrol car, according to the narrative in a federal lawsuit McNeil and his lawyers filed. When McNeil found that the front end of his vehicle was damaged, presumably by the officers, he went to C District headquarters to file a complaint but was rebuffed by a lieutenant, the lawsuit said.

When he returned later to try again, Davidson told him he had found crack cocaine in the back of the patrol car and alleged McNeil left it there, the lawsuit said. He was placed under arrest. According to the suit, McNeil stood trial and was found not guilty, but he and his lawyers say he has since been harassed by the second officer who searched his car on Memorial Day, Patrick Garry.

In their formal response, City Hall lawyers deny McNeil's allegations and say the matter should be dismissed. The court, following its routine, referred the matter to mediation.

On Jan. 7, Davidson and Garry stopped a Dodge Durango driven by Cortez Foster, said Foster’s attorney, Matthew Albert. The officers went to the window to retrieve Foster’s license and, after a background check, learned Foster had a criminal history, Albert said. The officers returned to the window to tell Foster they had smelled marijuana and would search the vehicle.

Albert has taken statements from friends of Foster who say they were in the Durango around the time of the search and did not smell marijuana. Further, no marijuana was found, the arrest report says.

But the officers did find 67 grams of crack cocaine, Davidson wrote in a report. Police charged Foster, 29, with criminal possession of a controlled substance in the third degree, the same Class B felony Eaton faced. 

Marijuana searches

New York is among the states that allow officers to search a vehicle if they smell marijuana. Though New York has decriminalized small amounts of marijuana, the smell still gives the police "probable cause" to investigate. The state Appellate Division’s fourth department, which covers Buffalo, reaffirmed that stance just last year.

Still, some judges are skeptical when police pick up the odor of marijuana so often. In a widely reported legal opinion, a State Supreme Court judge in the Bronx, April Newbauer, said last year that New York City police claim to smell marijuana so often it strains credulity. Newbauer called on judges across the state to stop letting police officers get away with lying about it.

In its proposed reforms, the Minority Bar Association of Western New York urged Buffalo Police Commissioner Byron Lockwood to block his officers from searching vehicles based on marijuana smell alone. The association said Black people in America are disproportionately targeted for drug crimes though statistics show white people are as likely, and in some studies more likely, to use drugs. Mayor Byron W. Brown had already suggested this change to the commissioner in an executive order presented after two officers pushed protester Martin Gugino to the ground in June, drawing worldwide criticism. In February 2019, Brown instructed the police to stop enforcing low-level marijuana offenses.

Albert, Cortez Foster's attorney, says claims by Officers Davidson and Garry that they smelled marijuana should not be believed, especially since none was found. In a letter to the assistant district attorney handling the case, Albert mentions the search of Eaton's Audi to further question Davidson's credibility. He says Davidson should have been prosecuted for filing a false report and wonders why he's allowed to testify in court.

Albert, who intends to file a lawsuit on Eaton’s behalf, is waging a write-in candidacy against the district attorney in this year’s election, arguing that Flynn has taken a pass in prosecuting police officers when they victimize people of color.

A Flynn spokeswoman said a decision about Davidson's fitness to testify in criminal matters will be made after the office completes its investigation.