On the second day of a jury trial against Detective Andrew Holmes for racial profiling in his stops of black motorists—the first of five such suits—plaintiffs’ attorney Jeff Fogel rested his case around noon March 22, and Judge Norman Moon ordered it tossed because Fogel did not prove Holmes treated white people differently.

“There is no evidence he did not subject other races to the same treatment,” said Moon in U.S. District Court.

“You have to prove a negative,” said Fogel after the hearing—that Holmes did not stop and search white people in the same situations as he did Fogel’s clients to prove their complaints that Holmes violated their 14th Amendment rights to equal protection.

Bianca Johnson and Delmar Canada brought the suit after Holmes stopped Canada for driving with a suspended license April 26, 2014, and then turned up at their apartment five days later after 11pm on a Friday night with a search warrant for the Department of Motor Vehicles license suspension notice that Canada said he never received.

Holmes, said Fogel, “believes black people driving fancy cars are likely to be drug dealers.”

Holmes’ attorney, Jim Guynn, said his client is “very interested in investigating drug crimes because so many other crimes are related to the drug trade.” And Holmes, who has been promoted since he searched the couple’s Turtle Creek apartment, had recently learned that using search warrants to look for a piece of paper as a pretext is a “beneficial tool” in finding drugs and is perfectly legal.

The day the officer stopped Canada, he was staking out the Super 8 parking lot on Greenbrier Drive because it’s “one area with higher than average calls for service,” Holmes testified. He turned his license plate scanner to the nearby 7-Eleven and ran the tags on Johnson’s BMW 7 Series parked in the lot.

Albemarle police use a database called PISTOL, which besides providing personal information, also reveals whether one has been a victim, an offender or has visited the jail. Holmes said he recognized Johnson’s name because officers had gone to her apartment on a domestic call, and the system offered up Canada’s name as well. He checked Canada’s driving record and saw that his license had been suspended—all before he knew who was driving the car.

When Canada came out of the convenience store, Holmes pulled him.

Canada testified that he never received the license suspension notice because of child support nonpayment, and said that he’d paid the support more than a year earlier.

For Holmes, Canada’s 2009 arrest for crack cocaine was another factor in his hunch that there could be drugs in the apartment, even though the drug charge was dropped. Canada testified he was a passenger just off work when the arrest happened.

Holmes, who had applied to join the Jefferson Area Drug Enforcement Task Force a couple of times, asked a JADE investigator about Canada, who told him “there was no active investigation, but they knew the name,” said Holmes.

Canada and Johnson were asleep when three officers knocked at their door. “It made me nervous because it was so late,” said Johnson. The couple had to sit on the sofa while the officers rummaged through papers for about an hour, and then left without the DMV notice—or drugs.

“I felt violated,” said Canada. “I still think about it.”

Fogel entered into evidence statistics from Albemarle police that show in the sectors Holmes mostly worked, although the population was 68 percent white and 18 percent black, in 2015, 51 percent of the summons he issued were to African-Americans. That same year, 22 percent of county cops tickets were to blacks and 74 percent to whites.

When asked why he cited blacks with greater frequency than other races, Holmes took a long pause and said he couldn’t answer without knowing more about the context and breakdown of the summonses.

“The color of one’s skin alone is not a determining factor” in traffic violations or in drug use, testified Holmes.

Fogel called as witnesses three black men who had been stopped by Holmes. Sergio Harris, who has filed a lawsuit, said Holmes stopped him three times in one day and searched his 2001 Monte Carlo.

UVA library facilities manager Robert Douglas said Holmes stopped him several times with “bogus” excuses to search his Lincoln Town Car, including a claim he smelled marijuana. “I don’t even smoke weed,” said Douglas, who filed a complaint with the county.

And Rodney Hubbard said Holmes stopped him as he was driving his mother to Maryland on U.S. 29, said he smelled pot, handcuffed him and held them both for two hours during a search of his 2007 Yukon Denali, which yielded no drugs. The Hubbards are plaintiffs in another suit against Holmes.

The witnesses and statistics were not enough for Moon, who said a Fourth Circuit Court ruling required proof “similarly situated individuals in different races were not prosecuted.”

Acknowledged Moon, “They’ve created an impossible burden.”

Fogel said he will appeal the decision. “If you have to prove something that can’t be proven, you have no remedy.”

And Johnson said that while she was disappointed with the decision, “It’s not over. We’re going to keep pressing forward.”

Holmes declined to comment.

Correction 11:30am March 23: Sergio Harris was misidentified in the original story.

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