Federal Court: The Police Can Stop and Search You for Behaving Innocently

[Ichingcarpenter]

A federal appeals court just ruled that the police have a legal right to stop, search and arrest you for innocent behavior including driving with your hands at the ten-and-two position on the steering wheel at 7:45 p.m., taking a scenic route and having acne.

To the Tenth U.S. Circuit Court of Appeals, these factors added up to fit the profile of a person smuggling undocumented immigrants and drugs. The court said, "Although the factors, in isolation, may be consistent with innocent travel ... taken together they may amount to reasonable suspicion."

In other words, the police can now stop you for no reason at all. Law enforcement just needs to add a sinister context to your behavior, and off you go to jail. The court endorsed this expansion of aggressive police behavior in USA v. Cindy Lee Westhoven, No. 13-2065.


http://www.huffingtonpost.com/larry-bodine/federal-court-the-police-_b_5223918.html

[BlindTiresias]

1. Typical

I'm no longer surprised by the trajectory of the emergent police state. Can't wait to see this get turned over to the SCOTUS and have it 5-4'ed.

[Downwinder]

2. No reason drivers should be exempt from "stop and frisk."

Applies to pedestrians, air travelers, rail and bus passengers, why not autos and trucks?

[2pooped2pop]

12. it should apply to no one. n/t

[truebrit71]

15. ^^^ This^^^

[2banon]

46. Yeah, well that's the way they do it in Russia.. so ya know. we're down with that.

The Stasi didn't have anything on what we've got going.. yeah we're cool with that.

[Downwinder]

47. I have been told by local law enforcement that,

"Any pedestrian should expect to be stopped and IDed."

I guess in this day and age it is suspicious to be walking or too poor or disabled to have a car.

I can't speak for Russia or the Stasi but a fellow from Romania tells me that our Police thugs are worse than Ceaușescu's Police thugs.

[2banon]

48. I can believe that..

I forgot to insert the sarcasm coda in my previous post, but I take it that you got it..

[Fairgo]

3. I draw the line at random colonoscopy

Even a patriot has to have boundaries.

[Nevernose]

30. They actually have random colonoscopies in New Mexico

It's some pretty scary stuff.

[woo me with science]

4. What the HELL?

[B Calm]

5. As a retired truck driver, I've known this for years.

[Scuba]

6. "Reasonable suspicion" is an oxymoron.

[Brigid]

7. The first thing I did was look to see if this was "The Onion."

Unfortunately, it wasn't.

[randome]

8. That's a trifle hyperbolic to say 'off you go to jail'.

LE should always have reasonable suspicion to stop someone but that's not the same as arresting someone and having a captain or a DA or a judge decide you should be imprisoned.

I mean, I agree this is an egregious decision but the hyperbole is too much, isn't it?
[hr][font color="blue"][center]A 90% chance of rain means the same as a 10% chance:
It might rain and it might not.[/center][/font][hr]

[Ichingcarpenter]

9. Publisher of the National Trial Lawyer Association or randome?

I'll go with Larry.



Larry Bodine is the Publisher of The National Trial Lawyers - http://www.thenationaltriallawyers.org/legal-news-for-consumers. A lawyer and journalist, he is the former Editor in Chief of Lawyers.com and American Bar Association Journal.

[JJChambers]

10. It's nice of the HuffPo alarmists to leave out this key section of the ruling:

Beyond the reasonable suspicion based on Agent Semmerling’s stated reasons for stopping Ms. Westhoven, a traffic violation also supported reasonable suspicion for the stop. Agent Semmerling testified that after he turned around to follow Ms. Westhoven, he paced her at 70 miles per hour. The speed limit in the area was 60 miles per hour. “An observed traffic violation or a reasonable suspicion of such a violation under state law plainly justifies a stop.”

HuffPo is becoming a joke and shouldn't be considered reliable.

[X_Digger]

11. Reasonable Suspicion to stop, yes. The search? Not so much.

https://www.ca10.uscourts.gov/opinions/13/13-2065.pdf

Give that a read. Fucking ridiculous. Acne + tinted windows + two cell phones + nervous talking to border patrol? Well hell, that's reasonable suspicion for a search!

[2pooped2pop]

14. you don't have to actually violate any laws

they will just say you did and in court the police always tell the truth.

[JJChambers]

20. A drug dog alert is PC to search

And I would say the alert was founded given the presence of the drugs that were then located in the vehicle.

[X_Digger]

21. The ends justifies the means, eh?

What was the RS for calling the canine unit?

The agent didn't smell pot (at least not according to his testimony.)

Nervous driver + acne + tinted windows + two cell phones. That's what it boils down to.

If you're cool with that being good enough for the cops to toss your car, we're done talking.

[JJChambers]

22. She was trafficking marijuana; apparently their reasonable suspicion was reasonable

They were right.

[X_Digger]

23. Which isn't an answer to my question. What was the RS for the drug dog?

I linked you to the decision further up.

Go ahead, find it.

[JJChambers]

24. I read it prior to this forum discussion; seems reasonable to me, and to the court, too.

[X_Digger]

26. So to confirm: You're cool with acne + nervous driver + tinted windows + two cell phones being RS?

That's hunky dory to you?

[JJChambers]

38. I think you're confused

You claim that acne, nervousness, tinted windows and two cell phones were the basis of the reasonable suspicion. The reasonable suspicion to justify the stop was, according to the court, none of those things. Here's what the court had to say:

2. Analysis
The district court concluded Agent Semmerling had objectively reasonable suspicion to justify stopping Ms. Westhoven. Based on the totality of the circumstances we agree. The reasonable suspicion factors here included: (1) the stop location’s characteristics, including proximity to the border; (2) traffic patterns on the road; (3) Ms.Westhoven’s travelling during the border patrol shift change; and (4) Ms. Westhoven’s driving behavior and vehicle characteristics.

First, Ms. Westhoven was driving in a relatively mountainous area 40-45 miles away from the U.S./Mexico border. Agent Semmerling, from his three years on the job, knew this stretch of road, because of its terrain, proximity to the border, and lack of border checkpoints, had high activity for drug and undocumented immigrant smuggling. Agent Semmerling testified this road is one of the only ones leading from Douglas, Arizona, a border town known for smuggling, that does not have a border checkpoint. Thus, smugglers attempting to avoid the Border Patrol’s detection frequent this road.

Second, Agent Semmerling knew out-of-state drivers rarely used the road. Ms. Westhoven’s license plates indicated her truck was registered in Tucson, Arizona. The agent also knew that travelling on this road was particularly unusual for a Tucson driver because it added approximately 100 miles to the drive. The more direct routes had border checkpoints. These facts indicated smuggling activity.

Third, Border Patrol agents changed shifts between 6:00 p.m. and 8:00 p.m., and Agent Semmerling stopped Ms. Westhoven at 7:45 p.m. Smugglers frequently exploited that two-hour window. See Arvizu, 534 U.S. at 277.

Fourth, Agent Semmerling noticed as Ms. Westhoven was driving past him that she appeared stiff with elbows locked and hands in the ten-and-two position on the steering wheel. After he turned around, he had to drive significantly faster to catch up, indicating she increased her speed by an estimated 10 or more miles per hour after passing him. As he approached her vehicle from behind but before he turned on his lights, she abruptly hit her brakes.

1 These circumstances can contribute to reasonable suspicion depending on context. See Arvizu, 534 U.S. at 275-76 (“We think it quite reasonable that a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona).”). The dark tinted windows on Ms. Westhoven’s truck raised Agent Semmerling’s suspicion that she might be concealing something or someone in the back of her truck. This case is similar to Arvizu. Driving stiffly, having tinted windows, slowing down when seeing law enforcement, and driving in an out-of-the-way area may be innocent conduct by themselves. But when taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity. “It was reasonable for [Agent Semmerling] to infer from his observations, his registration check, and his experience as a border patrol agent that 1 Agent Semmerling testified that when he caught up to Ms. Westhoven, he paced her at 70 miles per hour and the speed limit was 60 miles per hour. Although Ms. Westhoven’s driving behavior can factor into reasonable suspicion, because border patrol agents do not have jurisdiction over New Mexico traffic laws, a traffic violation such as speeding cannot form the sole basis of reasonable suspicion. See 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States.”); United States v. Barron- Cabrera, 119 F.3d 1454, 1456, 1461 (10th Cir. 1997) (finding that a defendant’s traffic violations only “partially satisf[ied] the ‘driver’s behavior’ prong of Brignoni-Ponce”). [Ms. Westhoven] had set out . . . [on a] route used by smugglers to avoid the [border] checkpoint[s]” for a criminal purpose. Arvizu, 534 U.S. at 277.

Beyond the reasonable suspicion based on Agent Semmerling’s stated reasons for stopping Ms. Westhoven, a traffic violation also supported reasonable suspicion for the stop. Agent Semmerling testified that after he turned around to follow Ms. Westhoven, he paced her at 70 miles per hour. The speed limit in the area was 60 miles per hour. “An observed traffic violation or a reasonable suspicion of such a violation under state law plainly justifies a stop.” United States v. Gregoire, 425 F.3d 872, 876 (10th Cir. 2005) (citing United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (enbanc)). “Once an officer observes a traffic or equipment violation, a Terry stop is objectively justified, regardless of the detaining officer’s subjective motives.” United States v. Winder, 557 F.3d 1129, 1135 (10th Cir. 2009) (holding that a stop was reasonable based on an observed speeding violation even though the officer justified the
stop on other grounds) (quotations omitted).

[X_Digger]

39. We're not talking about the stop, we're talking about the search. *sigh* See post 11.

Unless you think RS for a stop is the same as RS for a search, now?

Free clue: it isn't. Keep reading the decision.

[JJChambers]

40. I think you're even more confused

The search was based on probable cause, not reasonable suspicion. A drug dog alert is probable cause; it is well-established law.

[X_Digger]

41. And what was the PC for calling the k-9 unit and detaining the person until then? (A search, btw.)

What, you think that RS for a stop is the same as PC for a search?!?

[JJChambers]

42. You should quit before you dig yourself deeper into your hole

An officer does not need PC to utilize a K9. If a K9 alerts to the presence of drugs, that alert gives the officer probable cause to conduct a search. The courts have consistently ruled that an officer can run a K9 around a vehicle during the course of a routine traffic stop for no reason at all. Additionally, as is the case here, an officer may briefly extend the duration of a routine traffic stop to await the arrival of a K9 even after the routine stop would normally have been over, with the presence of reasonable suspicion. The opinion of the court in this case is that there was plenty of reasonable suspicion to briefly prolong the encounter.

This is all fairly well established case law; the outcome of this case should surprise no one.

[X_Digger]

45. Detaining a motorist to wait for a dog is a search, absent specific RS.

See Illinois v Caballes. If it had been a k-9 unit that pulled the motorist over, or the k-9 unit showed up during the stop, we wouldn't be having this discussion. Read the text here-

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-923

A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002). We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.

Lawful detention would be with reasonable suspicion.

during the course of a routine traffic stop

Except, the CBP agent wasn't writing a speeding ticket, was he?

Additionally, as is the case here, an officer may briefly extend the duration of a routine traffic stop to await the arrival of a K9 even after the routine stop would normally have been over, with the presence of reasonable suspicion.

What RS was articulated by the officer?

Acne + nervous driver + tinted windows + two cell phones.

And you've circled right back to the original question.

Are you cool with acne + nervous driver + tinted windows + two cell phones being grounds for a search?

[X_Digger]

34. *tap* *tap* *tap* Is this thing on?

You have a couple of questions pending.

1. What was the reasonable suspicion for calling the k-9 unit?

2. Are you cool with the cops turning out your car for acne + nervous + two cell phones + tinted windows?


Waiting with bated breath.

[Vattel]

13. You omit this:

"Although Ms. Westhoven’s driving behavior can factor into reasonable suspicion, because border patrol
agents do not have jurisdiction over New Mexico traffic laws, a traffic violation such as
speeding cannot form the sole basis of reasonable suspicion."

You also ignore the search, which would have made the founders spin in their graves.

[JJChambers]

19. It adds to reasonable suspicion; I thought the search was the result of a drug dog alert ?

And they found drugs, no? Enough to constitute trafficking?

[Vattel]

29. Yes, but the use of the dog was itself a search.

And the court should have ruled that it was an unconstitutional search.

[JJChambers]

35. Actually running a dog around the exterior isn't a search and if the dog alerts

THEN a search can be conducted. This is all well established law.

[Vattel]

36. Nope. It depends on the circumstances.

See Illinois v Caballes. If a car pulled over for a traffic violation is delayed longer than necessary so that a dog can be brought in to do a sniff, then it is a search. In the case at hand, the border patrol officer delayed held the vehicle so that a dog could be brought to the scene to do the search.

[JJChambers]

43. A sniff still isn't a search, it's a sniff

And officers can legally extend traffic stops to await the arrival of a K9 with articulable reasonable suspicion. Which this officer had.

[Vattel]

44. A sniff has been ruled by SCOTUS to be a search

in certain circumstances, and for very good reasons. And as the requirement of probable cause is replaced with a reasonable suspicion standard and then reasonable suspicion devolves into "Gee, she seemed really nervous, and she had acne scars and her hands were at ten and two on the steering wheel, etc," we see the gradual loss of our once robust fourth amendment rights.

[Erich Bloodaxe BSN]

31. Almost every car on the road in Ohio is going 10 miles over the speed limit

at some point. Generally, the highway patrol ignore you until at least you hit 11 mph over. But even doing 75 in a 65, there will be cars passing you as if you're standing still.

So maybe it justifies a speeding ticket, but not a search.

[JJChambers]

32. The drug dog alert justified the search, not the speeding

[Lizzie Poppet]

16. Might as well just view cops as the enemy.

Because they sure as fuck view you as one...

[davidn3600]

17. Nope...we're not a police state

[Octafish]

18. Remember when judges thought the Constitution was more than a piece of paper?

Gosh, I've gotten old.

[onecaliberal]

27. What the fuck?

We have to get some Ds on these federal benches before they deem breathing a federal crime. The fucking republicans really are trying to turn this country communist. No wonder they are rushing to defend Putin.

[Blue Owl]

28. They hate us for our WUT?

n/t

[aggiesal]

33. Thought crime ...

Hollywood and True life merge in Minority Report.

They can now arrest you for a future crime.

[ileus]

37. It just gets worse and worse...