Appeals Court: Driving Attentively While Black Isn't Probable Cause For A Traffic Stop

from the ends-still-not-a-justification-for-the-means dept

The courts have allowed police officers to engage in pretextual traffic stops. Minor moving violations -- including some that aren't actually moving violations -- have been used to engage in fishing expeditions for drugs, cash, or evidence of some other criminal activity. The Supreme Court dialed this back a bit with its Rodriguez decision, allowing pretextual stops but forcing them to end once the stop's objective is complete. When an officer hands out a citation or warning, the person is free to go, no matter how much the officer may want to ask more questions or run a drug dog around the vehicle.

This hasn't deterred fishing expeditions as much as one might hope. If a drug dog can be summoned while the officer slow-walks paperwork, it will probably be found Constitutional by the courts. And the hopes of netting bigger fish with stops for improper signal use or whatever will never completely die. The risk/reward factor still favors law enforcement, so pretextual stops will continue.

But, as the Sixth Circuit Appeals Court points out, even pretexts need to have some statutory basis. A recent decision [PDF] comes as close as the courts ever have to decrying law enforcement's tendency to pull people over for "driving while black." The lower court's awful decision finding all of this Constitutional is reversed. [h/t Keith Lee]

Ohio State Trooper Hartford knew three things about Tyrone Warfield before stopping his car. He knew that Warfield, having recently exited a construction zone, was driving under the speed limit with both hands on the steering wheel. He knew that Warfield had touched the lane line twice. And he knew that Warfield was black. From there, Hartford cast off on a freewheeling investigation that began with a supposed marked lane violation, moved to suspicions of drunk driving, then to suspicions of trafficking untaxed cigarettes, and then on to drugs. The offense Warfield pleaded guilty to was even further adrift: the possession of gift cards re-encoded with stolen information. Because the initial stop was not supported by probable cause or reasonable suspicion, we reverse the district court’s denial of the motion to suppress and remand for further proceedings consistent with this opinion.

The government probably didn't want to have to defend this one, but since the decision was appealed, it had to. The court goes into detail about the legal rationales offered by the State Troopers who had -- at least momentarily -- seen blatant Fourth Amendment violations transformed into criminal charges.

The court doesn't hide its disdain for the creative license deployed by the testifying officer.

Just after midnight, Trooper Hartford saw a car driving at a speed that, by his visual estimation, was under the 70-mile-per-hour speed limit. The car had passed through a construction zone, requiring slower speeds, about a mile from where Hartford was stationed. As the car passed, Hartford observed that the driver—later determined to be Warfield—was sitting upright and rigidly in his seat, staring straight ahead, and had his hands on the steering wheel at ten and two. His suspicions aroused (apparently) by the textbook careful driving, Hartford followed the car. He caught up to Warfield and paced the car at around 50 to 53 miles per hour. Hartford testified that in the two minutes he was following Warfield, he saw the car “weaving a little bit” (which he incorrectly describes as “veer[ing]”) and that the car’s tires touched the solid lane line and the hash line dividing the lanes. These lane touches, along with Warfield’s slow driving, were the basis for the traffic stop. We need not just take Hartford’s word on what happened: the traffic stop was recorded on a dash cam video.

Warfield passed the field sobriety test with "flying colors," according to the trooper. But that didn't end the "investigation." Eight cartons of cigarettes lying on the backseat turned this from a drunk driving arrest into a "selling untaxed cigarettes" investigation, even though it was perfectly plausible the vehicle's passenger would have purchased cigarettes for personal use.

Warfield's information was run through law enforcement databases, returning zero hits. Still, the trooper continued his ad hoc investigation, hoping to find something criminal to justify the unjustified stop. A drug dog was brought in -- not because the trooper suspected drugs would be found in the vehicle -- but because why not?

Even though drug dogs are not typically used during DUI investigations, Hartford thought that the cigarettes plus Warfield and Knox’s nervous body language and inconsistent answers to his questions were suspicious and indicated general criminal activity. This activity— “not necessarily drugs”—encouraged Hartford to “exhaust what options” he had “available to [him].” Suppression Hr’g Tr., R. 27 at PageID 165, 201. According to [Trooper] Stroud, this option, a drug dog walk-around, is exercised more frequently when the driver is a person of color. The dog was led around the car twice and did not indicate the presence of narcotics.

This failed search led to a more fruitful one. Warfield agreed to let the trooper search the trunk. More cigarette cartons were found -- some from another state Warfield claimed he hadn't driven through. This led to a search of the glove compartment, where the re-encoded gift cards were found. Even though consent was given for these searches, the court finds the trooper didn't have enough probable cause to make the stop, much less question the driver until he consented to a search.

It doesn't take much to establish probable cause for a stop, but this low bar wasn't even approached by the trooper's own testimony (and dash cam footage).

Merely touching a lane line is not a violation of Ohio’s marked lane statute. Trooper Hartford thus lacked probable cause when he stopped Warfield’s car for a marked lane violation when Warfield’s tires only touched the solid edge line and the hash line for the lane divider.

The attempt to escalate this into suspicion of drunk driving fares even worse, considering the driver did not engage in any actual moving violations.

The dash cam footage from the traffic stop shows, at most, that Warfield touched the lane lines on two occasions and slightly drifted within his lane. Because touching the lane line is not a violation of Ohio’s traffic code, it cannot be evidence of intoxication in the same way that driving exactly at the speed limit cannot. [...] Warfield’s driving was far from erratic—he was driving under the speed limit with his hands properly positioned on the steering wheel. Warfield’s only mistake was his failure to follow a perfectly straight line down the highway. Id. at 466. This is insufficient to suspect Warfield of driving under the influence. A different holding would subject many of us to regular invasions of our privacy.

The government tried to claim Warfield's failure to meet the speed limit was somehow a moving violation and/or evidence of drunk driving. This argument fails as well.

But wait, says the government: Aren’t Warfield’s slow speed and rigid position other indicia of drunk driving? We think not. Warfield’s speed was not illegal. Under Ohio Revised Code § 4511.22, it is a misdemeanor to travel “at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic.” Hartford testified that Warfield was not impeding traffic by driving around 50 miles per hour, and the dash cam footage corroborates this fact. Nor was it unreasonable for Warfield to be driving at this speed. The law does not require a driver to travel at exactly the posted speed limit. It is a limit, not a mandate. Additionally, Warfield’s slow speed is easily attributable to driving through a construction zone, which Hartford knew about, less than a mile before the car was stopped.

Then the government posited that careful driving -- the kind they teach you in drivers ed -- is somehow indicative of illegal behavior.

Warfield’s “rigid position” with hands at ten and two is also insufficient to suggest that Warfield was driving drunk. We have held that such a position is “law-abiding behavior” and “cannot be the basis of . . . reasonable suspicion to stop a vehicle.”

The court then goes on to say it's impossible to combine three incidences of law-abiding behavior and somehow come up with probable cause for a traffic stop. The only other factor -- Warfield's race -- cannot be used to justify a stop either. Thanks to the trooper's admission drug dogs are more often deployed when motorists are black, the court has some pointed words for the government.

While the law allows pretextual stops based on minor traffic violations, no traffic law prohibits driving while black. The protections of the Fourth Amendment are not so weak as to give officers the power to overpolice people of color under a broad definition of suspicious behavior.

It then goes on to chastise the government for its own inconsistent behavior.

Accepting the government’s arguments that Warfield’s driving was suspicious would drain the Fourth Amendment of any meaning. Here, the government argues that Warfield could be pulled over for, essentially, driving too cautiously. It finds fault in Warfield’s “rigid position,” yet in other cases the government justified a stop in part because the defendant was slouching. Gross, 550 F.3d at 580. It says that it may stop Warfield for driving below the speed limit, but the government has also argued that it can pull over a driver for driving a mere two miles per hour over the speed limit. United States v. Akram, 165 F.3d 452, 454 (6th Cir. 1999). And it says that Warfield’s nervous, shaking hands are indicators of supposed criminal activity, even though it has also cited overly deliberate, rehearsed conduct as suspicious behavior.

The lower court's findings basically erase the Fourth Amendment. The Appeals Court firmly reinstates the right of motorists to travel without continual molestation by law enforcement officers hoping to get lucky.

A different result in this case would neglect our duty and would allow the police to stop you, demand your identification, check for outstanding warrants, and call for a drug dog—even if you are doing nothing wrong.

This is what law enforcement truly desires. But the rights granted to the public keep getting in the way. That's why law enforcement supporters trot out lines like "nothing to hide, nothing to fear." Citizens should be an open book to be read at the government's convenience. Only criminals exercise their rights.

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Filed Under: 4th amendment, 6th circuit, driving while black, police, pretextual stops, probable cause, traffic stops