Appeals Court Reminds Cop That Calling Normal Human Behavior Suspicious Is No Way To Secure A Conviction

from the being-a-human-being-isn't-evidence-of-wrongdoing dept

Since cops are trained to view everything as suspicious, they tend to believe everything is suspicious. The list of things considered to be suspicious often contradicts other things on the list of things considered suspicious. That should be considered suspicious, but somehow cops never think it is.

Even if they don’t believe everything is suspicious, they swear that pretty much everything is while testifying in court. Because if you don’t claim normal human activity is “reasonably suspicious,” it makes it very difficult to salvage unconstitutional stops and searches.

The cop involved in this gun possession case hoped to convince a court a driver’s very normal reaction was inherently suspicious, but the Fourth Circuit Court of Appeals is far from convinced. Overturning the lower court’s dismissal of the arrestee’s motion to suppress, the Appeals Court says it doesn’t see the things the cop saw that he felt justified (illegally) extending the stop and performing a search of the car. (via Short Circuit)

Here’s how the Appeals Court describes [PDF] what it saw, which is not what Officer Helms claimed.

When Officer Helms turned on his lights, Phillips’s vehicle was essentially parallel with a turn lane that led to a well-lit parking lot. Phillips hit her brakes just four seconds after Officer Helms’s lights came on and activated her blinker three seconds after hitting her brakes. Phillips came to a complete stop seventeen seconds after Officer Helms turned his lights on.

After Phillips came to a stop, Officer Helms approached the driver’s side of the vehicle. His body camera captured his exchange with Phillips. Shortly after Officer Helms approached Phillips’s vehicle, she began searching for her license. While Officer Helms testified that Phillips’s hands were shaking during the encounter, her hands did not appear to be shaking while she was handing Officer Helms her license or her insurance information. The next time that Phillips’s hands were in view, it still was not evident that she was shaking.

The first part — the time it took for Phillips to stop — is noted because it contradicts the lower court’s findings. The second part is essential because the officer’s own body cam contradicts what he claimed he observed.

Officer Helms continued to insist Phillips was shaking, an observation (one not based on actual observation, mind you) he made to the other officer arriving on the scene. And then, with the ticket already printed, he decided to extend the stop.

When a backup officer arrived, Officer Helms told him that he was suspicious of the vehicle’s occupants because Phillips was shaking and tapping on the car door. At approximately the same time, Officer Helms printed Phillips’s warning ticket. Soon thereafter, Officer Helms approached Phillips’s vehicle, asked Phillips to exit the vehicle, and told her he would be leading his canine around the vehicle to sniff for illegal drugs. After the canine indicated that there were drugs in the vehicle, officers performed a full search. During the search, they located two handguns in Miller’s backpack.

Teresa Miller was only a passenger in the car. She was riding in the backseat. Her backpack was searched because… well, apparently the officer felt this search was justified because of the dog’s alert on the car. But there’s nothing on the record that says the officer asked the dog to sniff the backpack on its own. Either way, the search was performed, contraband was found, and Miller was charged.

The lower court rejected her suppression attempt. It said it couldn’t tell from the footage whether or not the driver was shaking. It also said Phillips was “slow to pull over” and passed a couple of well-lit streets before pulling over on a “dimly-lit section of Route 7.” For some reason, the district court also added that Route 7 was a “known drug corridor,” something that’s completely irrelevant because the car wasn’t travelling on the drug corridor and there were no drugs discovered in the car.

The Appeals Court says the lower court is wrong.

Here, the video evidence from Officer Helms’s dashboard camera shows that Phillips stopped within a reasonable amount of time. Phillips could not have pulled into the well-lit parking lot that Officer Helms intended her to because she was parallel with the entrance when Officer Helms activated his lights. And contrary to the district court’s findings, the video shows Phillips did not pass any other area, well-lit or otherwise, where she could have safely stopped. There were no earlier exits, and the road did not have a shoulder. Next, Phillips began braking just four seconds after Officer Helms turned his lights on, indicating that she was in the process of stopping. Four seconds is a reasonable time for a person to react and determine that an officer intends to pull her over. While it ultimately took Phillips thirteen seconds to come to a complete stop after first engaging her brakes, she stopped at the first available place on the road where she could safely do so. Under these facts, she came to a stop in a reasonable amount of time.

It’s also wrong about the supposed “shaking” Officer Helms claimed to observe.

While the district court is correct that the video does not show Phillips’s hands the entire time, the video clarity is quite good, and shows that her hands were not shaking. Moreover, her hands can be seen both at the beginning of the encounter and at the end, and the video footage shows that her demeanor did not change throughout the conversation. Thus, the district court clearly erred by finding that Phillips was shaking during the traffic stop.

Then there’s the “tapping” Officer Helms told another officer he believed was indicative of the driver’s nervousness while weaving together his reasonable suspicion tapestry. It’s indicative of nothing, says the Fourth Circuit.

The only (arguably) nervous behavior the Government can point to after Officer Helms’s statement is Phillips tapping her fingers on the car door. But tapping is not an indicator of excessive or sustained nervousness because it is completely consistent with law abiding behavior. Although fidgeting may certainly be a sign of nervousness, tapping one’s fingers may just as likely be a sign of annoyance, impatience, or even boredom—any of which may be expected when a person is stopped by a police officer and is awaiting the results of a license check. By itself, tapping one’s fingers is a very weak indicator of nervousness.

Away goes the evidence. The conviction and sentence are vacated. At long last, Miller is actually free to go. Pretending something is happening when it actually isn’t turns out to be a great way to violate rights. And when rights are violated, every so often the victim of the violations scores a win in court.

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Comments on “Appeals Court Reminds Cop That Calling Normal Human Behavior Suspicious Is No Way To Secure A Conviction”

Any interaction with police can cause nervous shaking because you don’t know if you are going to die that day.

— Anonymous

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Diogenes (profile) says:

lower court colluded

It sounds like the lower court was in collusion with the officer’s deception. They literally entered facts in the record inconsistent with evidence. That court needs to be cleaned up along with those officers.

This comment has been deemed insightful by the community.
Boba Fatt (profile) says:

This is not a win

All the prosecution’s fees and the officer’s salary while appearing in court are paid by taxpayers. The defendant has to pay all their own costs. Nothing in the judgement changes that. This isn’t a “win in court” for the defendant. At best it’s a “spent a large amount of time and money to not lose more”.

Stephen T. Stone (profile) says:


This isn’t a “win in court” for the defendant.

Their lawyer(s) got a conviction overturned. A victory may have its price, but it is still a victory.

z! (profile) says:

Re: Re:

I’m not sure correcting a wrong counts as a “victory” and it certainly shouldn’t cost the victim to achieve the correction. In this case Miller was the victim of law enforcement malpractice.

Stephen T. Stone (profile) says:

Re: Re: Re:

I’m not sure correcting a wrong counts as a “victory”

What more do you want, the cops thrown off the force (and maybe into a shallow grave)? Take a W when you see one, damn.

Anonymous Coward says:

Re: Re: Re:2

I would consider it a “win” when the victim is made whole.

Or in other words, compensated for the time and money they needed to spend in order to defend themselves against the unlawful behavior they were subjected to by the police. Court fees reimbursed, payment for time lost at work. Payment for time lost which they would have otherwise used for relaxation. Payment for mental anguish while preparing to defend themselves, etc.

MrDamage says:

Re: Re: Re:2 what more do I want?

the cops thrown off the force

Hell yes. the cop is a lawbreaker, guilty of perjury and deprivation of rights under color of law. Unfit to be a police officer.

and maybe into a shallow grave?

Tempting, but no.

dadtaxi says:

Re: Re: Re:2

The problem is that this is a single snapshot of that cops behavior. One that only came to light because there was an arrest made, a conviction imposed and an appeal made. An unusual set of circumstances for a single cop to encounter.

What we are not able to ascertain is if this is a single “one-off” aberration or if this is a sustained behavioral pattern. Why, because this behavior was only inspected on this single case. Something that the Courts basically never get round to looking at

So, its a small win. Sure. But it will never be a sustained win until judicial notice is taken of behavior that happens outside of the individual and specific cases brought before them.

Bergman (profile) says:

Re: Re:

A victory means you came out ahead. Breaking even is a draw. But unless the defendant’s lawyer was working pro bono, the defendant never spent a minute in jail, was never announced to the public as a criminal and didn’t miss any days of work, you can’t plausibly claim she won, because she lost plenty along the way.

tom (profile) says:


From the linked pdf, one of the points was violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

Guessing Miller has a felony record which is pretty much a no go for possessing a firearm in the US.

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Call me Al says:

I assume that if someone they pulled over is completely calm, polite, responsive and agreeable then they’ll be suspicious as they clearly have something to hide.

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Anonymous Coward says:

Any interaction with police can cause nervous shaking because you don’t know if you are going to die that day.

Anonymous Coward says:

No mention of how we suddenly decided to extend the stop and introduce a “drug-sniffing” dog?

  • Or how the dog was utterly wrong? Yeah, that’s asking a lot from a court, i know.
The baker says:

Agreed, this is Not a win

As pointed out previously, the time, money, and anguish the victims encountered do not go away with the “win”
I seriously doubt that the property (firearms) were returned to the owner.
After this, I imagine she will be a target for further scrutiny by the police.

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