Court Shoots Down Cop's Assertion That Driving Without Breaking Any Laws Is 'Suspicious'

from the scofflaws-not-even-bothering-to-break-the-law-anymore dept

Must be tough out there for cops. Literally everything is suspicious. And there are only so many hours in the day. Since no court is willing to end the tradition of pretextual stops, anything that can be described as suspicious has been used to initiate fishing expeditions.

A few courts have called out this tendency to view almost everything humans do as indicative of criminal behavior. This is one of the better call-outs, as it gives some indication of just how many “training and experience” assertions the court has had to wade through while dealing with law enforcement assertions about reasonable suspicion.

A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, or looking at a peace officer, or looking away from a peace officer, or a young person driving a newer vehicle, or someone driving in a car with meal wrappers, or someone driving carefully, or driving on an interstate, most anything can be considered as indicia of drug trafficking to law enforcement personnel.

Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W.3d at 896 (observing that “[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. Some have nice cars, some do not. Some eat spaghetti, some do not. And, sometimes, some even engage in innocent activity.”)

This is in addition to these data points, all presumed to be “suspicious” behavior by law enforcement officers:

That’s the standard law enforcement holds itself to. Fortunately, some courts refuse to accept this lower standard of suspicion. The Arizona Court of Appeals is one of those courts. This recent decision [PDF] overturns a lower court’s inexplicable support of a cop’s extremely dubious “reasonable suspicion” claims. (via The Newspaper)

The defendant was pulled over by a police officer shortly after leaving a bar. According to the unnamed officer, the defendant’s driving was suspicious. Here’s what the officer observed:

At the June 2018 evidentiary hearing, the officer testified that, while on patrol for a DUI task force on December 7, 2017 around 9:30 p.m., he first observed Flynn when he was exiting a strip mall parking lot near Dobson and Guadalupe Roads in Mesa. The strip mall contained several restaurants that were open at the time but, because the officer knew there was a hole in a fence on the opposite side of the complex that separated the strip mall parking lot from an adjacent bar, he followed Flynn for approximately two miles. During this time, the officer estimated Flynn’s speed at between twenty-eight and thirty-five miles per hour, never reaching the posted limit of forty-five miles per hour. In the course of following Flynn, the officer observed no traffic violations or other clues of impairment.

This was the entirety of the officer’s assertion: that he had observed literally nothing else than a person leaving a strip mall and driving home while obeying all traffic laws and otherwise appearing to be sober.

The officer tried to claim that the driver’s inability to hit the posted speed limit was itself suspicious. This ignores that fact that a speed limit limits top speed. It does not make driving at a lower speed illegal, nor necessarily indicate the driver is impaired.

On top of that, the officer could not deliver any reliable testimony about his speed limit-related observations.

The officer testified he initiated the stop solely because Flynn left the vicinity of a bar and then traveled at a speed that varied but remained below the posted limit. However, the officer did not remember how many times Flynn’s speed varied. He did not have any clear recollection of where the fluctuations occurred or whether Flynn had been required to stop or slow down for any of the seven light-controlled intersections the pair encountered. Nor was he able to testify as to how frequent or great a speed variance would need to be to qualify as a clue of impairment.

With that, the suppression order is reinstated and the prosecution loses all the evidence the cop obtained during his suspicionless stop. The problem, of course, is that a ruling like this won’t deter officers from performing suspicionless stops. It will just make them work a bit harder when crafting their assertions. People are still going to get stopped for completely bullshit reasons and allow taxpayers to fund the redress of grievances.

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Comments on “Court Shoots Down Cop's Assertion That Driving Without Breaking Any Laws Is 'Suspicious'”

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Anonymous Coward says:

Re: Suspicious

I wouldn’t recommend this. Particularly if it’s late at night. I was once pulled over for going 40 in a 35 late on a Friday or Saturday a few years ago. The cop even said to me "I pulled you over because you were going a little fast. It was only about 5 mph over and it’s not something I’d normally stop you for but I can use it as a DUI check." He told me that because he had already quickly determined I was not under the influence and then let me go without any tickets. I would always recommend obeying every law to the letter if you are worried about being pulled over. You make them at least justify with cause the reason for being pulled over. Also, a lawyer friend of mine who’s a public defender told me a good sign of a bullshit stop is when the officers don’t ticket for anything but somehow the driver winds up arrested for drinking or drugs or something else. All good cops doing the job lawfully tend to issue the citation for the original stop in addition to the DUI one. If you are swerving or something, they’ll definitely give you the ticket for whatever that violation is and then arrest you for DUI as well. Don’t make it easy for them.

Anonymous Coward says:

You know, if I saw somebody leave a bar and then poke along fluctuating between 28 and 35 in a 45 zone, I have to say that I would give it about a 70 percent chance that that person was over the limit. Later in the evening it would be more like 85 percent.

Unlike a lot of things cops use, that’s actually "probable".

Anonymous Coward says:

Re: Re:

The decision covers legitimate reasons for the behavior. For example, there were seven traffic lights in two miles, and the cop was unable to come up with an answer to whether or not the suspect had been stopped by any of them. If the lights were evenly spaced, that’s only about 1/3 of a mile between them.

It’s also possible the driver didn’t know the speed limit for certain. There are stretches of road in my town that don’t have posted speed limits for at least a full mile, sometimes more. If I don’t know, I assume 35.

Mononymous Tim (profile) says:

Re: Re:

Did you read the whole story? How ’bout The Newspaper one that was linked to? How does this mean he was seen leaving a bar?

The strip mall contained several restaurants that were open at the time but, because the officer knew there was a hole in a fence on the opposite side of the complex that separated the strip mall parking lot from an adjacent bar, he followed Flynn for approximately two miles.

Nerys (profile) says:

Re: Re:

He did not leave from a bar. He left from a shopping center with restaurents. From what I am reading there is a bar nearby and he is asserting with NO PROOF AT ALL that “people park here” and walk across a field through a hole in the fence to a bar.

yeah. NO PC at all. None. and the speed limit is not the speed you are supposed to drive. the PSL is the max speed you may drive “conditions permitting” Nighttime would reduce this max speed to something appropriate to the night time conditions. so 35mph might be spot on right for night time on this 45mph daytime road.

Anonymous Coward says:

Re: Re: Re: hello, "Nerys"!

[Trouble getting in again! Hello, Timmy!]

Fearless Zombie Hunter

Tonight’s Zombie: "Nerys" with a pretty good 55 month gap!

2 comments total, the first Jan 29th, 2015.

Saw the three from 7:15 show up in quick order on previously dead dull topic and just had to look in. Paid off.

Thank you, "Nerys" and Zombie / Astroturf Master (who are both pretty obviously Timothy Geigner right before his piece came out) for so clearly confirming my bias that many of the accounts here are astro-turfing!

Anonymous Coward says:

Re: Re: Re:4 Re:

The spam detection system seems to have picked up more of his tells. He’s recently complained about not being able to cram obnoxiously long titles in his posts.

But let’s face it, it’s the same case with John Smith/Whatever/MyNameHere/horse with no name. Even without a silly pseudonym it’s not hard to pick them out from other Anonymous Cowards. One’s a whore for anyone who criticizes Section 230 and the other pounces on "zombies" like it’s the Watergate scandal.

PaulT (profile) says:

Re: Re: Re:4 Re:

He’s lazy. I think he was trying that to throw off the spam filter, and now he’s worked out that doesn’t work he’s not bothering.

Well, I say lazy – I haven’t seen anyone put in so gargantuan an effort to continue talking to a community that’s told him he’s not wanted so many times, so he has a work ethic. Just not related to anything useful.

Gary (profile) says:

Re: Re: Re:5 Re:

He’s more than welcome to pick a screen name and register IMHO. I’m fairly sure that most of his posting problems are due to his attempts to remain anonymous combined with obnoxious titles, content and names slamming up against the spam filters.

Filters he claims are a horrible violation of his "rights" under Cabbage Law.

Honestly, if he’d just buck up set his own blog he’d understand the issues he bitches about better. We could see if he’d last two days without blocking my screen name.

Scary Devil Monastery (profile) says:

Re: Re: Re:6 Re:

"I’m fairly sure that most of his posting problems are due to his attempts to remain anonymous combined with obnoxious titles, content and names slamming up against the spam filters."

Well, not really. His named sock puppets all tend to get banned simply because any time he gets into an actual debate he simply can’t hold back from death threats, rape threats, abusive language, and low-grade flame spam. As soon as Torrentfreak started using disqus account verification I was a bit torn over it…but it made Baghdad bob/Blue go away very effectively.

He’s only capable of posting on forums where accounts aren’t required these days. And that’s where I think he got his hate for section 230 from, believing that acting like a shit in someone elses digital living room is his god-given right…

Scary Devil Monastery (profile) says:

Re: Re: Re:8 Re:

"Eh, he’s probably used to Disqus sites."

Most of which require you to have an actual account with disqus, facebook or google before they let you post. With every account of his getting banned from those platforms in record time because of recurring threats of death, rape, racial or gender-based slurs, racist exposition or general bigotry, flaming and spamming it’s unlikely he’s EVER managed to post much on a disqus site at all.

Scary Devil Monastery (profile) says:

Re: Re: Re:4 Re:

"What’s with Blue Balls not doing his insane names?"

He may, by now, have picked up on the fact that posting the same easily recognizable gibberish from 50+ new sock puppets each month isn’t helping his credibility?

That said, his "zombie hunter" shtick where he claims, using sock puppets and block workarounds, that OTHER people are astroturfing/trolling, is a new low.

On top of that he tries to make the claim that accounts which have been INACTIVE for a time are, for some odd reason, astroturfers. Apparently in his little world marketing is more effective the less active it is…

Pro Tip for anyone looking for astroturfers – the real tell is NOT that an account has been inactive, which only indicates the holder has some sort of real life going on – it’s a scattered spew of stale propaganda and one-line commentary across dozens of forums in order to establish a comment history.

To exemplify Blue/Baghdad Bob had, before his aliases all got banned and blocked, just this type of history. And we can still all recognize him from his unmistakable "prose" and cheap rhetoric tricks.

Kal Zekdor (profile) says:

Re: Re: Re:2 hello, "Nerys"!

Are you still going on about this shit? Really?

Not everyone is as obsessed with this site as you are.

I have a massive gap in my comment history starting around 2006/2007. 1 comment in 5 years. I was fighting/recovering from cancer at the time, and techdirt wasn’t really on my list of priorities.

For fuck’s sake…

Peter says:

Re: variable speeds

The route home from my pub is a 50mph limit. However, because of the varying conditions I could at at particular point be doing between 50 and 20. In fact if I stuck to 50 I would probably crash. Driving under the speed limit, with no indication of road conditions (which is exactly the situation in this court case), is of no use as an indicator of DUI at all.

Anonymous Anonymous Coward (profile) says:

If only 'peace officers' were required to know the law

If I worked in an environment that allowed me to do my job without knowing about the rules and/or consequences of not knowing the rules or how to do my job, it wouldn’t take much before I would be fired. Even in right to work states. It just takes a bit of documentation to fire me. In employment at will states it would take even less.

But then two things. The first is that public employees have been allowed to have unions, and those unions negotiate contracts under the threat of withholding public services lest the public acquiesce to their demands (maybe the only thing Reagan got right when he didn’t), and the Supreme Court, where they held that law enforcement officers didn’t need to know the laws they are required to enforce.

Not only should the police be required to know the laws they enforce, in detail, but they should also know the appropriate methodologies for applying those laws. The whole concept of ‘qualified immunity’ comes from there being no established reason for the public official to know that what they did was wrong, yet many untrained public persons can tell that the violation obfuscated the Constitution, regardless of precedent. We have few courts that are willing to establish that precedent so that the same, or similar violations would be illegal in the future. Is it possible that it is because their decision will not be told to or trained to police officers who have no reason to know the law?

There is a four part article at Reason called "Imagining a World Without Qualified Immunity" (Parts I-Iv)(I could post all four links but the search isn’t that hard) where the author goes through three articles spouting statistics about how little impact the removal of qualified immunity would have, and in the fourth discusses the incentives that the lawyers may or may not have in pursuing civil rights cases.

What I found lacking was any analysis of whether there should or should not be any pre-existing case law about whether a particular act violated the Constitution and/or whether or not the individual doing the alleged violation should have known or didn’t need to know if it was in fact a violation prior to committing that act?

Professionals should know their business. Are they arguing that police are not professionals? If they are, what are the implications of that?

James Burkhardt (profile) says:

Re: If only 'peace officers' were required to know the law

"Right to work" does not mean "Employers have to go through hoops to fire you". It is not a contrast to "At will employment".

At will employment means there are no employment protections in your employment contract, and that as long as you aren’t fired for explicitly illegal reasons, there is no need an employer let you go ‘For cause’. All states in the US are at will employment states, though some states recognise some exceptions.

"Right to work" states bar employers from requiring you be a part of a union, and therefore bar Unions from requiring employees be members. Nothing about right to work requires an employer to document ’cause’ to fire you. In fact, right to work makes it more likely you won’t be covered by the biggest reason they might not be able to fire you: A bargaining agreement with a union.

Please stop conflating At-Will employment and Right to Work laws. They aren’t comparable situations, they aren’t mutually exclusive, and nothing you said makes any sense when you know what they are.

Anonymous Coward says:

Speedometers in automobiles are not known for their accuracy, and yet there are stories of some who get tickets for a few miles per hour over the limit. Now you can get pulled over for a few under the limit.
Why do they not just admit it … they can pull you over for anything or no reason at all. Is it law enforcement or bullshit enforcement?

nasch (profile) says:

Re: Re:

Speedometers in automobiles are not known for their accuracy, and yet there are stories of some who get tickets for a few miles per hour over the limit.

A few points about that:

  • speedometers must be accurate to within 5 mph at 50 mph in the US
  • in Europe, or at least UK, speedometers are not permitted to read low (in other words you’re going faster than it says) at all, so most manufacturers make sure their cars follow that rule
  • you’re responsible for your speed
  • it doesn’t matter how accurate speedometers are, as long as the radar gun is accurate enough for the ticket issued (see above – you’re responsible for your speed, and "my speedometer said 55" is not a valid excuse)
ECA (profile) says:

Simple logic(dont always work)

the Illegals with problems with ID and insurance…TEND to Drive Very safely..
whats fun about this, is those LEGAL, that forget this. They loose a Insurance, and KNOW they must drive safe, but everyone in the car is Smoking weed.(including a minor)

But Mostly the illegals Go out to the back roads when they have had a few beers..

There are things we NEED to teach our kids.
There are things we need to teach the police.

I was stopped for a bad light..and wanted to go check it, but the cop wouldnt let me. he decided to only warn me.. i checked later…NO BAD LIGHT..

For some reason it seems our police are becoming opportunistic Capitalists..

Bud says:

To whatreallyhappened readers: Techdirt HATES you!

You are EVIL nationalists, populists, racists, anti-semites, and conspiracy kooks to this site.

Don’t fall for pieces like this. Just a front.

You guys who are desperate for good news should actually read here for a week, see the fanboy opinions, and the "hiding" of all dissent.

This is not the site you’re looking for.

nasch (profile) says:

Re: To whatreallyhappened readers: Techdirt HATES you!

So here are the links at the top of the site WhatReallyHappened (I don’t recommend it):
You can probably draw pretty good conclusions just from that. Why he thinks there are any others readers from that site around here, I don’t know.

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