A jury could rationally credit Gatling’s testimony and conclude that she could determine whether she passed those tests based only on hearing Trooper West’s instructions, especially with tests as basic as standing on one leg and finger-counting. As to Trooper West’s testimony regarding his belief that she passed only two of the tests, upon which the district court relied, we recognize that probable cause may exist even if it is based on mistaken information, as long as the officer acted in reasonable reliance upon that information. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994).
However, if Gatling performed the tests exactly as instructed by Trooper West, a rational jury could find that he fabricated her negative test results or, at a minimum, any belief that she failed was not reasonable. Moreover, Gatling notes that, at his deposition, Trooper West was unable to explain which “clues” or factors led him to conclude that she had failed three of the tests, and no such explanation exists in his paperwork. Therefore, viewing the record as a whole, a jury is not required to credit Trooper West’s testimony that he believed that she failed three tests, nor is it required to find that any such belief was reasonable.
although there was a 911 call regarding erratic driving by a car meeting the general description of Gatling’s Impala (i.e., the color and model), Trooper West’s observations as he followed the car did not corroborate the 911 call; to the contrary, he testified that he followed Gatling’s car for one-half mile and witnessed no erratic driving whatsoever. Moreover, Trooper West’s observation that Gatling was travelling too close to the car in front of her in that she was twenty-five to thirty-five feet behind the car travelling at a rate of fifty to fifty-five m.p.h. – even if true – hardly provides probable cause for charging the driver with driving while impaired by drugs.