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

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Anonymous Anonymous Coward (profile) says:


Two negatives do not make a positive, except in some math problems. However, in Ohio three positives make a negative. Which doesn’t work in any math problem.

One would think that law enforcement these days has had sufficient experience lying in court to be able to come up with, at least, semi-credible lies. Maybe they are just lacking in creativity.

Creativity is a skill set required by law enforcement, isn’t it?

Anonymous Coward says:

First they came for the Socialists, and I did not speak out—

Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—

Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Anonymous Coward says:

Re: Re:

While I understand the point of the poem something is left out and that is that the NAZI’s actually came first for the mentally ill and the disabled this may seem like a petty grip, but those are both groups that EVERYONE despises so if you want to watch for fascist propaganda look for that since the will be the first again. Attack the weak and the powerless, demonize and let others victimize then you can start attacking people with some supports.

Uriel-238 (profile) says:

Re: Re: First They Came...

Niemöller noted in his earlier speeches (from which the poem was later derived) that first they always come for those that are most easily derisible or dismissable, e.g. incurables and convicts.

(It’s funny now in 2018 how convict is still, despite so many known exceptions, regarded to indicate certitude one has committed a terrible crime.)

I remember a version of First They Came… that was seven or eight stanzas long, but most of them that are engraved are reduced to the list to four.

The message is simple: Once I decide that a people or group or society should be regarded as less than I, then I should expect to have others regard me as lesser. Once I decide a people are undesirable to society, I too, should expect to be classified as undesirable.

And once the purges start, the purges will not stop before they come for me.

(Or until the Allies reach Stutthof.)

Anonymous Coward says:

First they came for the dreamers, and I did not speak out—

Because I was not a dreamer

Then they came for the pro gunners, and I did not speak out— I actually helped on that one

Because I was not a pro gunner.

Then they came for the journalists , and I did not speak out—

Because I was not a journalist.

Then they came for me—and there was no one left to speak for me.

Anonymous Coward says:

Re: Basic search rights education

The driver was an idiot for agreeing to a search.

But this is a cop who thinks that obeying the law is enough of an indication that the driver is breaking the law to be pretext enough for a traffic stop. I suspect that "not agreeing to a search of your car" would be enough of an indication of guilt to form probable cause for a search. And probably a charge of obstruction of justice, and a charge of assaulting the officer’s fists with his face. That is, if he isn’t killed for reaching for the cartons of cigarettes on his passenger seat (which looked like a gun, I swear!).

When a cop doesn’t care about due process, and cops aren’t punished when they don’t follow the rules, there really isn’t a winning scenario.

Uriel-238 (profile) says:

Re: Basic education: Obey.

You do realize there is basic education. Nationwide we teach our children that the police are there to protect us, and we should cooperate with them at all times.

Despite my occasional run-ins with the police as a teen, I didn’t learn differently until my college years. But it was the Dotcom raid when I realized the United States was beyond the event horizon of being a nation of laws.

Yes. I’m slow.

Wendy Cockcroft (user link) says:

Re: Re: Basic education: Obey.

Or maybe you believed as you did because you found no reason to do otherwise until the Dotcom raid. It’s entirely reasonable to believe the police are there to protect and to serve when our peers and popular culture tell us so. It’s a bit of a shock when we discover they’re wrong because it means we have to either a) ignore a truth we don’t like or b) recalibrate our notions of what constitutes reality.

Since I’m basically conservative I tend to respect authority and authority figures. This tendency is being eroded by the constant stream of Cops Behaving Badly stories. Someone needs to get in there and clean it up but since the problem is structural racism and a siege mentality, it’ll be a while before anything meaningful is done.

Nicola Lane (profile) says:

Or perhaps he was simply black . . .

Perhaps he wasn’t an idiot – perhaps he was simply worried that the cop was looking for an excuse to kill him?

After all Justice Sotomayor has recently cooented “It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

If he said “no” and then walked away the officer would probably get all scared and shoot him in the back. After all that is much less likley to be considered unreasonable.

Uriel-238 (profile) says: we yet have a measure for excessive persecution?

Where this is a clear incident where law enforcement officers really wanted to arrest a guy regardless of wrongdoing. And this story isn’t an isolated incident, hence we have terms like driving while black to describe our institutionalized oppression.

We need some clear measures of how much suspicious behavior a person must engage in (over a limited period of observation) before they are eligible for arrest, since it’s evident that human law enforcement officers making such determinations by instinct or intuition really suck at it.

Or, we can come to terms with the reality that the police don’t necessarily enforce the law rather enforce the pretense of order and propriety as they personally imagine it. (which changes from officer to officer). And the governing bodies of our nation have condoned, even endorsed this state of affairs.

Anonymous Anonymous Coward (profile) says:

Re: we yet have a measure for excessive persecution?

As you point out, ‘suspicious behavior’ is very, very subjective. What we need are standards that are more objective, or only very, very slightly subjective as the former may not be reasonable (another very subjective word). What we want is evidence. Evidence that is not made up or planted. Evidence in sufficient quantity to remove subjectivity from the equation.

Personanongrata says:

Unalienable Rights*

But the rights granted to the public keep getting in the way.

Our Rights are not granted by government they are inherent to our humanity.

Something granted may be revoked at a later time for arbitrary/capricious motives as governments are all too wont.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Uriel-238 (profile) says:

Re: The Munroe Robot Future Threshold

I’m pretty sure that our rights that we cannot defend by force are granted to us by society, and if someone else violates those rights, it is up to society law to determine a response.

Regarding personal use of force: You can, of course, decide for yourself to get your three brothers and their autocannons and hunt that sonofabitch down who done you wrong. That’s revenge, but not justice. You could have done so before his wrongdoing, and his family may not perceive your vengeance as rightly deserved. This is a part of appointing a government and a body of law: the state supposedly has the ability to define what force can be used, and implicitly what force cannot be used. Thus, punishment, incarceration, slaying are all done by agents of the state, and retaliation by the opposing party is not authorized.

But the failure of natural rights is going to become highlighted in sharp relief once we reach the Munroe Robot Future Threshold At that point, one person can control an entire army of units that do not respond to human appeals. Where natural rights before relied on empathy between human beings, there’s just going to be nothing for when Emperor Boston Dynamics’ murderbot decides you are an obstruction to its goals. And we’re going to find that the human capability to assert force is limited when murderbots under one command outnumber us and outgun us by magnitudes.

We who would resist oppression have done so on the difficulty of fighting against irregular militias and guerillas, and the unwillingness of proper militaries to turn on their own civilian peoples. When the crawling murdermines come, they’re not going to stop and think of their families.

So far, I haven’t been able to figure out a logical delineation that separates natural versus granted rights: My rights vanish as soon as the might mustered by those who would kill me is greater than that of those who would defend me, hence, on paper, I live under the jurisdiction and protection of a sizeable state, and its defense of me is included in the defense of my community, my county and state.

Off paper, I live under the protection of having few enemies, most of which are busy with lower-hanging fruit. But that’s a different conversation.

Anonymous Coward says:

Re: JFK 1961

Funny how these "inalienable rights granted by God" only started showing up a few hundred years ago, and only in certain parts of the world.

As recently as the eighteenth century, a bunch of guys wrote about how Liberty was an inalienable right, and then turned around and specifically enshrined slavery into their new Constitution (Article IV, Section 2, if you’re curious).

And I’m sure that having an inalienable right to free speech and freedom of religion was all very comforting to all those people throughout history who hat their tongues cut out for sorting out of turn to their "betters," or were killed because they refused to convert. You should Google a list of Catholic martyrs. It’s really quite a substantial list.

If these rights were really granted by God, as opposed to a populace a bit more enlightened than their ancestors, you’d think they’d show up consistently through history, and especially in theocracies. To my knowledge, that hasn’t been the case at all.

Wendy Cockcroft (user link) says:

Re: Re: Re: JFK 1961

Needless to say, this state of affairs was supposed to have been "granted by God" via kings, lords, and associated underlings. It began to fall apart after the Black Death broke up the feudal system and the Guild system arose, giving more power to the merchants and artisans than they had heretofore enjoyed. This was the beginning of the idea of a free market.

Anonymous Coward says:

SO basically the reason for the stop (in the police officers mind) was “he’s a nigger and niggers are all criminals”

I’m surprised the officer didn’t accuse him of rape.

But officer, no-one has said I raped them.

AHA! so you murdered them and cannibalized the corpse in your big cooking pot with a bone through your nose eh?

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