DECATUR, Ga. - A man who claims a police officer planted drugs on him will have the charges dismissed one day before his case was set to go to trial.
But the DeKalb County Solicitor General's Office said the dismissal has nothing to do with a surveillance video Alphonzo Eleby said proves the officer set him up.
Eleby said his nightmare began in July 2012 at the Chevron gas station on North Hairston Road.
He said he stopped to speak to someone who was sitting in a black
SUV when an officer said he smelled marijuana and arrested the driver on charges of marijuana possession with intent to distribute.
"I was searched twice," Eleby said. He said no drugs were found on him and he was told to sit down.
An officer stood guard over him for several minutes and Eleby said he never moved.
His attorney said surveillance video from the location shows the officer call the officer guarding Eleby over to the SUV he had been searching.
As she searches the vehicle, Zenobia Waters said the video shows the officer circle back to her client and toss marijuana next to him. She said the officer then picks the drugs up and repositions them.
"I was shocked," Waters said.
"And then he stands up and yells, 'Look what you tried to throw,'" Eleby said.
The video shows Eleby vehemently protesting what he sees the officer do and the officer then puts him in a chokehold while other officers look on.
Waters said in the police report the officer says he saw Eleby throw the drugs down. That's something she said the video clearly shows is not true.
"It didn't happen. It simply did not happen," she told Channel 2's Tom Jones.
Jones contacted the Solicitor's Office about the allegations.
Spokesperson Terrie Clark sent a statement saying, "This case is being dismissed due to insufficient evidence because the alleged marijuana is not available. While preparing for trial, the Solicitor-General's Office requested a release of the alleged marijuana to be used as evidence at trial.
"The DeKalb County Police Department could not produce the alleged marijuana. Therefore, the State is without the evidence needed for trial. The dismissal is not related to how the alleged marijuana came into existence at the scene of the crime nor the videotape made at the scene of the crime."
Another one of Eleby's attorneys thinks the video is why the case is being dismissed.
"When they say the proof is in the pudding it's right there on videotape," attorney Morris
Fair Jr. said.
Eleby is just thankful he no longer faces a year in jail. He knows how valuable the surveillance video was in keeping him from behind bars.
"I'm at their mercy, guaranteed, without that camera as my witness," he said.
Mekka Parish with the DeKalb County Police Department also sent a statement when asked about the video saying, "The DeKalb County Police Department has not received any formal complaints nor has anyone been shown any video involving alleged officer misconduct.
"The Department takes these accusations very seriously and encourages the individual with the grievance to come forward and file a formal complaint. Because we are unaware of the allegations it would be inappropriate to comment without a thorough investigation being conducted."
A judge is expected to formally dismiss the marijuana possession charge against Eleby Thursday morning.