AFFIDAVIT OF TROOPER GERALD LINCOLN

Place where AFFIDAVIT OF TROOPER GERALD LINCOLN was Filed:
District Court, City and County of Denver, State of Colorado
Case Number 96 CV 6563
Courtroom 9

Document AFFIDAVIT OF TROOPER GERALD LINCOLN was attached to:
MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

Date AFFIDAVIT OF TROOPER GERALD LINCOLN along with MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT was filed:
Approximately March 1997

Date Trooper Gerald Lincoln signed affidavit:
March 4, 1997

Plaintiff: Franklin Perez

Defendants:
THE COLORADO STATE PATROL; RANDY RAHNE, individually, and in his official capacity as a Colorado State Trooper; GERALD LINCOLN, individually, and in his official capacity as a Colorado State Trooper; and, TIMOTHY McCLINCHY, individually, and in his capacity as a Colorado State Trooper

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Contents of Web Page:
The AFFIDAVIT OF TROOPER GERALD LINCOLN that came attached to the MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT as well as my comments & rebuttals to the AFFIDAVIT OF TROOPER GERALD LINCOLN

How can you view my comments & rebuttals?
Just click on the hyperlinked parts that link to "Rebuttal_?" - where "?" is my rebuttal number. Please note that not all hyperlinks in this web page are rebuttals - only the ones that link to "Rebuttal_?".

I, TROOPER GERALD LINCOLN, being first duly sworn upon oath, depose and state as follows:

1. I have been employed with the Colorado Department of Public Safety for 10 years. At all times relevant to Mr. Perez's allegations in the lawsuit, I served as a state trooper with the Colorado State Patrol.

2. I am a named Defendant in the above-captioned case. The allegations contained in the Complaint in this matter relate to the performance of my duties as a Colorado state trooper.

3. This affidavit is made upon personal knowledge.

4. As a Colorado State trooper, it is my responsibility and obligation to the people of Colorado to ensure their safety on Colorado highways. It is also my responsibility to instruct classes on the detection and apprehension of the drinking and drugged driver at the Colorado State Patrol Academy.

5. On December 7, 1995, at approximately 6:00 p.m., Trooper Randy Rahne and I were on our way home from the Colorado State Patrol Academy taking two people with us who had participated in a DUI alcohol lab and were under the influence of alcohol. When approaching eastbound I-70 and Wadsworth Blvd., we noticed that a Nissan Pathfinder in the center lane was driving very erratic. The stop-and-go traffic was heavy. The Pathfinder would wait for traffic to get ahead of it by 50-75 feet. Then it would accelerate rapidly and dangerously up to the stopped traffic, then it would suddenly brake and at times skid the tires. We suspected this driver to possibly be drunk. The driver would not look at us even when I tried to get his attention. He appeared as if he was dazed or intoxicated.

6. Trooper [Randy] Rahne and I were driving a marked State Patrol vehicle which had an "Out-of-Service" cover on the light bar. I was in the passenger seat and there were two passengers from the DUI class at the Academy in the back seat. Neither Trooper [Randy] Rahne nor I were in our State Patrol uniforms.

7. We then contacted CSP dispatch for assistance and continued to follow the driver onto northbound I-25 due to his actions causing an unjustifiable risk to other drivers. Denver dispatch continued to monitor our location. By now traffic was not stop-and-go, but was moving at approximately 45 m.p.h.

8. As we approached I-25 and I-76, we were told by Denver Police that other patrol cars were maneuvering to assist us. At approximately one fourth mile north of Colorado Hwy. 36, a Denver Police Department car made the traffic stop. We then stopped approximately 30 feet behind the Nissan. Trooper [Timothy] McClinchy arrived and stopped behind our vehicle. Trooper [Randy] Rahne spoke with the Denver Police officer and for a few minutes I stayed in the patrol car with the students for safety reasons.

9. I was then asked to take a look at the driver's nystagumus. Trooper [Randy] Rahne and I then evaluated the roadside test. We determined that since the driver had no alcohol odor that possibly he might be under the influence of drugs. I asked the driver his name and he said it was Franklin Perez.

10. I then asked Mr. Perez if he would voluntarily take a preliminary breath test. Mr. Perez agreed, producing a BRAC of .000%. When I asked him if he had any medical problems, he just stared at me. Mr. Perez got agitated when I repeated the question, then he immediately said "No".

11. I then asked Mr. Perez if I could see his tongue. Since the tongue appeared to have a whitish brownish coating on it, I asked him if he had been smoking Marijuana. One again he stared at me as if in a daze. I repeated the question two more times and Mr. Perez did not respond. I spoke with Trooper [Randy] Rahne about a DRE evaluation and Mr. Perez suddenly said, "No, I have not done any drugs."

12. After completing the roadside sobriety test, Trooper [Randy] Rahne and I determined that Mr. Perez's roadside maneuvers did not provide enough probable cause for a DRE evaluation. We then suspected that Mr. Perez's poor driving might be caused by a medical problem. We also considered the possibility that he was not from the United States because he spoke with an accent.

13. We determined that Mr. Perez was not under the influence of alcohol or drugs. However, his erratic driving did violate State Statutes dealing with careless driving. Trooper [Timothy] McClinchy issued Mr. Perez a citation for careless driving and he was released.

14. At all times during this incident, Mr. Perez was treated with the utmost respect, as is any other citizen. Mr. Perez, on the other hand, was irrational and argumentative throughout the whole process.

15. As State Troopers, we have a duty to stop and investigate any suspicious behavior to safeguard the public. All stops are based on probable cause. Our stopping Mr. Perez had nothing to do with race or any other factor other than his observed erratic driving, which was the probable cause for the traffic stop.

FURTHER AFFIANT SAITH NOT.

DATED the 4th day of March, 1997.

Below are my numbered comments and rebuttals to the AFFIDAVIT OF TROOPER GERALD LINCOLN:

1. I was not driving erratically!!! It was stop-and-go traffic. Whenever there was space ahead of me, I would move up; whenever there was no space in front of me, I would back off. I did not "accelerate rapidly and dangerously up to the stopped traffic, [and] then... suddenly brake and at times skid the tires." That is simply not true!!!
   [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]
   [Go back to Rebuttal 2 of AFFIDAVIT OF TROOPER RANDY RAHNE.]

2. So much for their expert observation of me! I was not drunk, as proven by the 0.000 on the breathalyzer that I took.
   [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

3. I never saw the Colorado State Troopers try to get my attention while I was driving along I-70 East!! If they wanted my attention, they should have turned on their police lights when they were right behind me and stop me immediately just 10 minutes after leaving the Denver West Boulevard exit on I-70 East, which is the approximate time frame that I noticed that the "Out-of-Service" police car was behind me. Instead the Colorado State Troopers followed me all along I-70 East and a portion of I-25 North. I noticed 10 minutes after exiting the Denver West Boulevard exit on I-70 East that a police car was following me. They just kept following me without turning on their stop lights!! Every time I would change a lane to get to a faster moving lane, they would just follow along right behind me. They had approximately 30 - 40 minutes to get my attention simply by turning on their police stop lights while I was driving along I-70 East!! But, they opted not do do that!!!
   [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

4. I was not dazed or intoxicated. They are obviously making this up. Also, they did not write in their police report or careless driving citation that I appeared dazed or intoxicated. They're only saying it now to cover their behinds for their mistreatment of me!!!
   [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

5. Please note that Colorado State Trooper Gerald Lincoln has admitted that neither he nor Colorado State Trooper Randy Rahne were in their police uniforms. That is one of the few facts they apparantly have gotten correctly and confirms that they were acting as police officers while not in uniform - something that, to the best of my knowledge, they are not suppose to do in a police stoppage situation such as mine!!!
   [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

6. I was never driving in a way that in any manner would cause an "unjustifiable risk to other drivers"!!! That statement is pure bull s---!!!
   [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

7. Trooper Gerald Lincoln was not in the Patrol car while Trooper Randy Rahne was ordering me to perform the roadside tests. Trooper Gerald Lincoln was outside about 2 - 3 feet away from me. He was observing.
   [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

8. Nystagmus is defined as "a rapid involuntary oscillation of the eyeballs." My understanding of this statement is that Trooper Gerald Lincoln is saying that he performed the eye test portion of the roadside sobriety tests I was ordered to perform. That's incorrect! It was Trooper Randy Rahne who looked at my eyes; in fact, it was Trooper Randy Rahne that did all of the roadside sobriety tests I was ordered to do up to the point that I was ordered by Trooper Gerald Lincoln to do the breathalizer. Trooper Gerald Lincoln took over starting at the point when the breathalizer was performed; Trooper Gerald Lincoln performed the breathalizer test. He did nothing (but watch) for all the roadside sobriety tests before the point that he ordered me to do the breathalizer test.
   [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

9. I never got the impression that any of these roadside sobriety tests were voluntary due to Trooper Timothy McClinchy's statement to just "shut up and cooperate".
   [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

10. I was never asked by any of the police officers whether I had any medical or mental problems!!! I did not get agitated throughout this ridiculous ordeal, but inside I was seething and very angry at the disrespectful way I was being treated by these rogue cops. The staring was due to the marijuana question asked by Trooper Gerald Lincoln. In fact, I was asked three times, repeatedly, whether I had smoked marijuana and every time I responded no. After getting 0.000 on the breathalizer, they still were not satisfied to just let me go!!! They had to ask me three times whether I had smoked marijuana. For someone that has made a point in his life to not do drugs and to not ever have done drugs at any time in my life, that question posed by Trooper Gerald Lincoln was an extreme insult to me!!!
    [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

11. Trooper Gerald Lincoln is distorting the facts. It was Trooper Randy Rahne, not Gerald Lincoln, who ordered me to open my mouth and have it looked at with a flashlight!! Also, the looking into my mouth and tongue with a flashlight by Trooper Randy Rahne was done prior to being asked whether I had taken marijuana three times by Trooper Gerald Lincoln!! The marijuana and drug questions were done after looking into my mouth with a flashlight. With respect to the "whitish brownish coating" on my tongue, that coating is formed due to the flem that one spits out (discretely in the bathroom toilet) when excess flem forms in one's throat and had nothing to do with smoking marijuana, since I have never in my entirely life smoked marijuana! With respect to "staring at... [Trooper Gerald Lincoln] with a daze": I was not staring at him with a daze. I was staring at him with anger!!!! With respect to "I repeated the question two more times and Mr. Perez did not respond": that is entirely incorrect; I was asked the marijuana question three times and on each time I was asked whether I had taken marijuana, I responded no, although I admit since I was seething inside I did not respond to Trooper Gerald Lincoln's questions immediately, especially when he tried to buddy up to me and say in a confiding and friendly manner to me "Oh, come on... You can tell me... You've taken marijuana before haven't you?..." to which I responded an emphatic no!! Also, I never got the impression from any of these officers that the roadside sobriety tests were voluntary, especially after Trooper Timothy McClinchy's statement to me to just "shut up and cooperate".
    [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

12. Gerald Lincoln is obviously full of s---. His brains must be made of s--- for him to make the conclusion that I speak with a foreign accent. Anyone who sees me and has a five miniute conversation with me will notice that I speak English with no foreign accent. This is one statement that can be easily proven to be false and that lessens to a very large degree the credibility of his other statements in Trooper Gerald Lincoln's affidavit. If he can make such an off-the-wall statement here, he is perfectly capable of making other off-the-wall statements elsewhere and thus most probably has destroyed the credibility of the other statements in his affidavit.
    [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

13. I was not driving erratically!!!!!! Blatant lie!!!!!!
    [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]

14. Please see Rebuttal item #6 on the MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT. Being told to "shut up and cooperate" by a police officer is not a sign of respect merely for saying to a police officer "Officer, I have to state this is turning into harassment", especially for something that is suppose to be voluntary, such as the roadside sobriety tests. Being coerced and compelled to take roadside sobriety tests that are suppose to be voluntary via Trooper Timothy McClinchy's "shut up and cooperate" statement is not a sign of showing respect.
    [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]
    [Go back to AFFIDAVIT OF TROOPER RANDY RAHNE.]

15. I was not irrational and argumentative!! I was questioning the police officers' actions and was stating that this was now turning into harassment before being told by Trooper Timothy McClinchy to just "shut up and cooperate". If police officers in a nation that is suppose to respect individual rights and liberties behave in this manner for questioning them, I sure hate to be stopped by a police officer in a totalitarian state. I think that is where these police officers - Randy Rahne, Gerald Lincoln, and Timothy McClinchy - would feel most comfortable in practicing law enforcement.
    [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]
    [Go back to AFFIDAVIT OF TROOPER RANDY RAHNE.]

16. True. "As State Troopers,... [Gerald Lincoln does] have a duty to stop and investigate behavior to safeguard the public," but that does not mean that a police officer has the right to
    • verbally abuse the person he/she is stopping,
    • stop someone for no probable cause and then lie about it by making up a story that there was probable cause to stop, nor
    • does it also mean that a police officer has the right to compel a motorist to perform roadside sobriety tests when that police officer has no such authority to do so!!!!
    [Go back to AFFIDAVIT OF TROOPER GERALD LINCOLN.]
    [Go back to AFFIDAVIT OF TROOPER RANDY RAHNE.]