pretextual stops – Techdirt (original) (raw)
Federal Monitor Expands Consent Decree To Cover PD’s Stop-And-Frisk Shift To Traffic Stops
from the you're-not-fooling-anyone,-CPD dept
After the ACLU obtained a settlement from the city of Chicago over the PD’s unconstitutional “stop and frisk” program, the Chicago PD decided to take the show on the road. Literally.
The number of traffic stops in Chicago surged after the settlement with ACLU Illinois over stop-and-frisk pedestrian stops, while pedestrian stops fell from a high of 710,000 in 2014 to just 107,000 in 2016.
By 2022, CPD officers were making more than 600,000 traffic stops a year, a majority of which targeted Black and Latino drivers. The PD claimed these traffic stops weren’t the result of biased policing, insisting they were the organic result of patrolling “high crime” areas. But if there was more crime in the areas the PD chose to flood with officers, the officers were having an extremely difficult time finding any evidence of increased criminal activity.
Analysis of public data further shows that CPD officers recover contraband in only a minuscule portion (0.3% between 2016 and 2022) of the traffic stops they conduct, and they recover weapons even less frequently: only 0.05% of traffic stops between 2016 and 2022 resulted in the discovery of a weapon.
Those numbers undercut the assertion officers are their busiest where most criminal activity is taking place. And this data, compiled from public records by (um) The Record, undercuts any claims officers may make about traffic stops being unbiased because they don’t know the race of the driver until the car is pulled over.
Our research, published in June 2024, used data on the racial composition of drivers on every street in Chicago. We then compared who is driving on roads with who is being ticketed by the city’s speed cameras and who is being stopped by the Chicago police.
Our findings show that when speed cameras are doing the ticketing, the proportion of tickets issued to Black and white drivers aligns closely with their respective share of roadway users. With human enforcement, in contrast, police officers stop Black drivers at a rate that far outstrips their presence on the road.
For instance, on roads where half of drivers are Black, Black drivers receive approximately 54% of automated camera citations. However, they make up about 70% of police stops.
On roadways where half of the drivers are white, white drivers account for around half of automated citations – and less than 20% of police stops.
It’s still the same old biased policing, but with a bit more plausible deniability built in. That this deniability has been undercut by the PD’s own numbers probably won’t change anything. The PD will continue to insist it’s more interested in stopping cars than pedestrians for purely organic reasons, rather than for the actual reasons, which involve dodging oversight and limiting public exposure of its biased policing tactics.
This shift from pedestrians to cars was deliberate. To avoid limitations placed on pedestrian stops, the Chicago PD engaged in malicious compliance — increasing the number of traffic stops since those weren’t subject to the same restrictions or the federal monitoring established by a consent decree.
On top of dodging compliance with a settlement and consent decree, officers also eluded the reporting mandates governing traffic stop, hiding more than 20,000 traffic stops in 2023 alone from its oversight by simply refusing to document these interactions.
Finally, after years of the PD ducking oversight and accountability by moving the goalposts, the government is stepping back in to, hopefully, force a little more accountability and constitutionality back into the system.
A federal court order requiring the Chicago Police Department to change the way it trains, supervises and disciplines officers should be expanded to include traffic stops, but the city’s new police oversight board should be given some power over the hot-button issue, according to a new recommendation released Friday by the team overseeing the reform push.
This proposal followed a shooting two months ago, during which Chicago PD officers fired 96 bullets in 41 seconds during a traffic stop, killing the driver, 26-year-old Dexter Reed. Officers claimed Reed fired first, something the Civilian Office of Police Accountability (COPA) has backed in its official report.
Unfortunately, this isn’t likely to change anything either. The proposed expansion is meeting opposition because, in its original form, there’s no option for community accountability groups to provide input and/or assist in ensuring compliance with the expanded order.
[T]he proposal to expand the consent decree for the fourth time ran into a brick wall of opposition from of progressive alderpeople and a coalition of police reform groups that sued the city over CPD’s use of traffic stops in June 2023, including the American Civil Liberties Union of Illinois.
A spokesperson for the Chicago Police Department declined to endorse the recommendation from the monitoring team, which was contained in a new report released Friday.
The previously mentioned COPA isn’t part of the equation at the moment. Not that it would matter. COPA has no legal power to enforce its misconduct rulings, which means recommended punishments for officers are routinely reduced if not rejected completely by the PD’s internal oversight. There are other outside accountability groups — ones far more independent than COPA — but they’re not being asked to assist in the monitoring most likely because they have no legal authority to do so.
For now, the CPD has at least established an alliance of sorts with another oversight group, one that appears to be still on the outside of any proposed expansion of the DOJ’s consent decree.
Anthony Driver, Jr., the president of the Community Commission for Public Safety and Accountability, known as the CCPSA, said the police oversight board should be “an equal partner” with the monitoring team, judge and the office of Illinois Attorney General Kwame Raoul.
“We don’t want to chip away at the power of the CCPSA by expanding the consent decree,” Driver said.
While it would make sense to expand the decree to cover the stops officers are performing far more frequently than those targeted in the original order (pedestrian stops), the past several years has shown the Chicago PD is not only capable of eluding oversight by focusing on tactics not enumerated in the original order, but also completely willing to sandbag and stonewall any reform mandates handed down by the DOJ.
CPD has fully complied with just 6% of the court order known as the consent decree designed to require the police department to change the way it trains, supervises and disciplines officers.
That’s less than 1% compliance per year. The consent decree was issued in 2017, but the CPD seems determined to outlast any reforms foisted upon it by outside agencies. And it sure as hell isn’t interested in fixing the problems from the inside. A drastic change is needed — one that starts at the top and doesn’t stop until it’s rooted out every last bad apple. But no city in America has ever been willing to do this, no matter how out of control its law enforcement officers are. And a city with a long history of police abuse and government corruption is about the last place we should expect this sort of miracle to take place.
Filed Under: chicago pd, consent decree, police misconduct, pretextual stops, stop and frisk
Court Reminds Cops That Smelling Decriminalized Weed Ain’t The Probable Cause It Used To Be
from the still-rolling-hard-on-the-legal-contraband-assumption dept
If there’s anything that’s going to severely reduce the number of pretextual stops performed by cops, it probably won’t be the handful of traffic stop reform efforts being made by legislators. It’s going to be the continued legalization (or decriminalization) of marijuana possession.
One of law enforcement’s favorite tricks is to pull over a car for bullshit reasons, pretend officers smelled marijuana, and engage in a warrantless search in hopes of finding something far more illegal than the pretense that initiated the stop.
But “odor of marijuana” is no longer as effective as it used to be. Smelling marijuana now just means smelling a legal substance in many cities and states. It’s like a cop initiating a search after saying they smelled gasoline. Smelling burnt marijuana is the hot new action, since it means officers could be dealing with someone driving under the influence.
The problem with relying on that supposed indicator of crime is that it doesn’t immediately mean officers have permission to search stopped vehicles. At best, they can engage in an equally pretextual “inventory search” if the vehicle needs to be towed. But even at best, smelling marijuana is no longer a permission slip for invasive searches of stopped vehicles on its own.
There’s more precedent on the law books now, thanks to the Illinois Supreme Court. A recent ruling makes it clear that cops are no longer free to search vehicles simply because they’ve (allegedly) detected the odor of a substance that’s now a misdemeanor to possess, rather than a felony. Cops can issue citations, but they can’t treat smelling weed like it’s probable cause for a search. (via FourthAmendment.com)
This stop, in which Illinois State Police Officer Hayden Combs imitated a stop and search of resident Ryan Redmond’s car, was completely pretextual. The state’s top court doesn’t make a note of it, but its recounting of the stop in its precedential decision [PDF] makes it clear this stop had nothing to with Redmond’s driving.
On September 15, 2020, Officer Combs saw a car with an improperly secured license plate traveling at a speed of 73 miles per hour in a 70-mile-per-hour zone on Interstate 80 in Henry County.
Yep, that’s what we want to spend our law enforcement dollars on: hassling people for missing a screw or two from their license plate mounts while traveling at a speed that normally would be considered a speedometer accuracy fluctuation, rather than a driver thumbing his nose at the law while endangering other drivers.
Once Officer Combs had stopped the car, he turned to a bunch of bullshit to justify a search.
Combs initiated a traffic stop of Redmond’s vehicle. Combs approached on the passenger side, and when Redmond rolled down the passenger-side window, Combs smelled burnt cannabis. According to the complaint, Combs searched Redmond’s car and found one gram of cannabis in the center console in a plastic bag.
There are two problems here. First, the discovered cannabis was of the un-burnt variety. Second, under state law, that amount doesn’t support criminal charges. It’s an amount that’s only subject to a citation.
Furthermore, the officer didn’t come across anything that supports his claim that he smelled “burnt” marijuana. On top of that, he admitted lots of other stuff that undercut his supposition he had a legal right to search the car.
Combs’s examination of the vehicle did not reveal anything that was lit or currently emitting the odor of cannabis from the vehicle. Combs also agreed that he did not see any cannabis in plain view. Combs had Redmond step out of his vehicle and seated him in the squad car. With Redmond out of his vehicle, Combs could still smell the odor of burnt cannabis in the vehicle, but he could not recall smelling the odor of burnt cannabis on Redmond’s person. Combs admitted he saw no signs of impairment when he spoke to Redmond.
Redmond did not produce his license and registration. Using information obtained from Redmond, Combs retrieved a record showing that Redmond had a valid Illinois license with a Chicago address. Combs testified that Redmond failed to give a straight answer to questions about where he lived, but Combs admitted Redmond said he lived in Chicago and had stayed with a friend in Des Moines.
Then Combs went on to claim that Redmond was probably in the drug trafficking business because (in a statement that surely must come as a surprise to Des Moines, Iowa) both Chicago and Des Moines are “hubs of criminal activity.”
But it’s hard to pretend finding a gram of weed makes someone a drug dealer, especially when that quantity isn’t subject to criminal charges in Illinois. Resolving a split in the state’s lower courts, the state’s top court says the smell of marijuana (whether “burnt” or not) is no longer sufficient on its own to justify the search of stopped vehicles.
[B]ased on our precedent and the state of cannabis laws at the time of the search, we hold that the odor of burnt cannabis is a fact that should be considered when determining whether police have probable cause to search a vehicle, but the odor of burnt cannabis, standing alone without other inculpatory facts, does not provide probable cause to search a vehicle. In light of our holding, Stout’s core holding—that an officer’s detection of the odor of burnt cannabis emanating from a vehicle, standing alone, establishes probable cause to conduct a warrantless search of the vehicle—is no longer valid for searches that occurred on or after January 1, 2020.
Note that last sentence: not only does this set precedent going forward, but the ruling is retroactive, affecting anyone who was subjected to this kind of law enforcement bullshit since the law’s enactment in 2020. Good stuff. More top courts should do this sort of thing more often, rather than just refuse to address the (pardon the pun) burning question of legality or constitutionality until a case more to its liking bubbles to the surface.
In addition, the court points out that a poorly mounted license plate adds nothing to the justification for a search. This is purely an external vehicle issue. No amount of searching the interior is going to uncover any more evidence of this “crime.”
The evidence is suppressed. Going forward, law enforcement officers in the state are now on notice simply claiming to smell a (mostly) legal substance isn’t going to prevent illegal searches from being rejected by the state’s court. And, going backwards, anyone with an unresolved motion to suppress or a string of rights violations initiated by searches predicated on cops smelling weed now have all the precedent they need to take cops to court.
Filed Under: 4th amendment, hayden combs, illinois, pretextual stop, pretextual stops, probable cause, warrantless vehicle search
Court To Cops: Sucking At Your Job And Slow-Walking A Stop Means You Lose All Your Evidence
from the pls-tell-me-about-yr-training-and-expertise dept
Pretextual stops. Let’s talk about it.
Cops who perform traffic stops are rarely performing traffic stops because they care about traffic safety. They’re looking for something — anything — else. Driving a car on public roads puts you on the outside of the Fourth Amendment. Warrants aren’t required. Reasonable suspicion is the low bar that has to be reached to search a car.
Then there’s a bunch of other stuff. Asset forfeiture encourages pretextual stops because rolling the dice on a traffic stop may mean walking away with a whole lot of cash. If the violation is severe enough, officers may claim the vehicle must be towed, which means they’ll get a freebie search as they “inventory” the contents of the car before handing it over to the impound lot.
The requirements are so low for warrantless searches of cars that courts have had to do a bit of double-duty to ensure the Fourth Amendment didn’t become completely irrelevant. Exploitation of this loophole finally resulted in the Supreme Court setting down a few limits with its Rodriguez decision. Cops can keep their pretense, but they must make an effort to honor it. Artificially extending the stop to engage in a fishing expedition got a little more difficult. Most importantly, it meant cops couldn’t just screw around in hopes of bringing in a drug dog to give them the reasonable suspicion they needed to perform a search.
In reality, this just means cops with K-9 s are constantly on the road, hoping to be within minutes of any pretextual stop. It also means cops have expanded their theories about suspicious behavior. Courts, to their credit, are pushing back more frequently on both tactics following the Rodriguez decision. But the fact remains that, like nearly everything else involving law enforcement, you can’t push back against the government until after it’s already locked you up.
The nice thing is that courts are far more critical of pretextual stops, especially when the officers can’t be bothered to maintain the pretense. In this case, via FourthAmendment.com, the pretense couldn’t be maintained because the officers were so incompetent they weren’t even capable of exploiting the many constitutional loopholes still available to them.
In this case, defendant Said Alan Angulo-Gaxiola got stopped and, following a lot of fortuitous bungling by officers, managed to get hit with multiple drug possession charges. The officers’ luck ran out once Said moved to suppress the evidence, but oh man, that is a trip worth taking, even if we all know what the destination is.
This is from the opening of the Utah federal court decision [PDF]:
On Saturday, March 18, 2023, near six o’clock on a sunny spring night, Sevier County Sheriff’s Deputy Bodee Wells stopped a truck Said was driving because Wells suspected its dark window tint violated Utah law. Said did not have a driver’s license but produced valid border crossing cards issued by the United States to him and his passenger, his brother Saul Angulo-Gaxiola. Said also offered that Saul had a Mexican driver’s license. But Wells did not ask for Saul’s license, or the truck’s vehicle registration, or proof of insurance.
There’s the pretext. Window tint, like the odor of marijuana, is always in the optical/olfactory senses of the beholder. All you need is a reason, and things like window tint or marijuana odor produce no evidence that can be thoroughly challenged in court. They produce nothing in terms of documents, inventories, lab results, or anything else. They are things officers claim to perceive, which limits the discussion to “your word against ours,” which is an equation that almost always favors cops.
It didn’t work here. First, there’s the immediate abandonment of the pretense by failing to ask for registration or insurance info. Then there’s Deputy Bodee Wells, who was incapable of recognizing legal documents beyond (apparently) Utah-issued drivers licenses.
The border crossing cards and the names on them confused Wells, who had only been working as a patrol officer for a few weeks. So he requested help from Sevier County Sgt. Aaron Richards.
While it’s fine to ask for help, that doesn’t keep the Rodriguez clock from ticking. Extending a stop for anything other than the reason for the stop isn’t permitted, even if it’s just to seek clarification from another law enforcement officer.
This initiated a 30-minute traffic stop that ultimately resulted in a search of the car. As the court notes, neither officer ever bothered to write up, much less issue, a citation. The window tint level was never checked. And the compound ignorance of the officers led them to conclude innocent things were “suspicious.”
The search was initiated after a third deputy showed up with a drug dog, which “quickly alerted,” according to the officers’ testimony and the court’s own depiction of the events.
Fortunately, most of this stop was documented by body camera recordings. So, if the deputies wanted to raise factual disputes, they were limited by the far more forthright depiction of the events captured by their recording devices.
Not that it mattered. The testimony immediately distanced itself from the recordings.
Trooper Wells testified he remembers it was “pretty cold” that evening, but on the body camera footage, neither Said nor any of the (what becomes four) officers on the scene is ever wearing a coat or jacket and there is no visible breath vapor. Indeed, at one point while in his patrol car, the footage depicts Deputy Wells roll down his window during a stretch he is in his car for a few minutes.
This seems minimal, but it’s actually important. One might assume (logically) that the trooper might be mistaken about the weather during a traffic stop performed weeks prior to his testimony. But that’s not the case. It’s just one of many misrepresentations by the testifying officers — you know, the sort of thing regular people call “lies.”
Wells exited his car and approached the truck on the passenger side so he would not be in the path of passing traffic. By that time, the truck’s four side windows were all rolled down. Wells testified he thought this was “kind of odd because it was cold outside,” and “people only roll down one window to speak to us,” so that raised some suspicion that the occupants were airing out the truck. Wells did not further investigate any odors, ask the occupants to roll up any windows, or ask why all the windows were down.
That’s why the officer mentioned the temperature. (I have no idea why the court switches to “trooper” when referring to Wells. The first mention of Wells in the opinion states that he is a sheriff’s deputy. I’ll just use “officer” to refer to any of the officers and the court can do whatever it wants.)
Wells asked about the window tint. Said responded that he had just had it done and was told by the installer that he could take it back if it was too dark. Said also noted he resided in Las Vegas, something Wells acknowledged by stating he didn’t know the details about window tint legality in Nevada.
However, he was pretty sure that Said offering to have the tint fixed was “out of the normal.” Then he tripped up when testifying, claiming he had not heard whether or not the passenger had a valid drivers license — something that only would have made sense if he hadn’t said “OK, so neither of you have a drivers license here?”
After being confused by the identification cards he had received from the two people in the truck, Officer Wells finally moved forward with the stop. Or, at least, sideways. He called in another officer. And then he fucked up again.
Richards asked Wells if the men spoke English, and Wells responded that one does, explaining “[o]ne says he’s from Nevada and he just picked up his friend in Mexico.” Of course, that description is inaccurate in multiple ways. Said did not state that he had “picked up” Saul in Mexico. And Said told Wells Saul was his brother, not just a friend— which would explain their identical surnames on the border crossing cards.
It wasn’t until 13 minutes into the stop that Wells bothered to run the vehicle registration past dispatch. That call confirmed the truck belonged to the man driving it: Said Alan Angulo-Gaxiola. It had been registered in Nevada, confirming Said’s earlier assertions about having the window tint installed in Las Vegas.
Once all of this happened, Wells just sat in his car, waiting for the K-9 unit he had requested. He did nothing to move forward with his stated reason for the stop: the window tint. He also did nothing to answer any unanswered questions he might have had about the men in the truck.
A whole lot more screwing around went on. The other officer on the scene asked a bunch of questions unrelated to the stop. Said again stated he would try to take care of the tint problem when he returned to Las Vegas. Some other exploratory “small talk” was initiated by Officer Richards. None of this led to anything resembling reasonable suspicion. The only problem was the supposed lack of a valid Utah drivers license. Said’s brother, Saul, gave his Mexico drivers license to the cops to run in hopes of preventing the truck from being impounded.
Even though they had nothing to work with 20 minutes into an alleged window tint violation stop, the officers dragged it out even longer. Not only that, but Richards joined Wells in lying to the court about the details of the traffic stop:
Rather than do anything related to the license, Richards then recounted to Wells his suspicions based what he thinks Said told him during his questioning:
“_He told me they are going to Denver for vacation . . . first it was to work . . . then it was to vacation, visit a friend. And then it was . . . be there a week, then when you coming home? Monday._“
Of course, Said did not tell Richards he was going to Denver for vacation, or for regular work. He told Richards he was going to Denver to help a friend patch a house so the friend could paint it and prepare it to sell. And he didn’t tell Richards he would be in Denver for a week. He told him he would be there the weekend and had to be at work (at an unidentified time) on Monday in Las Vegas.
The recordings show Wells had pretty much completely abandoned the stop 23 minutes into it, ignoring everything about it while chatting to yet another officer who had arrived on the scene. No citation or warning had been issued, but it was pretty clear the brothers in the truck weren’t free to go.
And that’s where even more slow-walking of the stop occurs, solely to buy time to allow the K-9 unit to arrive.
During this time, Richards can be seen on his body camera video slowly entering the truck’s license plate information into his computer. He does this despite having obtained and reviewed the paper registration document from Said, comparing it to the truck’s VIN, and knowing dispatch already provided the return on the ‘28’ on the same license plate, and Wells told him it had come back registered to Said.
That’s just one of many ways officers try to work around the Rodriguez decision. If it looks like it’s a crucial part of a stop, hopefully it won’t be seen as unlawfully extending a stop. So, cops just do the normal traffic stop stuff slower and repeat steps as needed to drag out stops until their “probable cause on four legs” arrives on scene.
Because these officers combined ignorance (Wells and his stated inexperience) and a whole bunch of bullshit (the slow-walking and senseless redundant verification of information that had already been verified by other officers) to arrive at the conclusion they wanted (a warrantless search of the truck), the court is unwilling to allow the government to hold onto its ill-gotten evidence:
Based on the foregoing, the stop was prolonged due to unreasonable delinquency. The resulting delays caused the stop—over twenty-nine minutes from initiation to when the K-9 sniffed and alerted—to last much longer than needed to complete the traffic-based mission of issuing a citation for window tint and/or unlicensed driver and complete any needed safety checks. This violated the Fourth Amendment, and now warrants suppression of evidence and statements resulting from the stop.
The court says this whole thing could have been resolved in under 15 minutes, even if it gives credence to Officer Wells’ claims he had no idea what to do with the IDs he had received from Said and his brother. The second officer was able to verify the documents “within seconds” — something he did moments after the drug dog arrived and more than 15 minutes after his own arrival at the scene.
As for the suspicion multiple testifying officers called “reasonable,” the court says what’s captured on camera does not match the assertions of the officers. Instead, the officers (deliberately or otherwise) misrepresented statements made by Said and used these misrepresentations to justify their extension of the stop and the eventual search of the vehicle.
It’s good to see a court call out cops for attempting to route around Rodriguez with a whole bunch of bullshit. But this is just the time the cops got caught. This sort of thing happens all the time. The only reason we don’t see this handled in court more often is because most people who get fucked with by cops before being allowed to go generally don’t head right out and hire a lawyer. It’s people facing criminal charges that have the most to lose. But they’re still entitled to the same rights as the hundreds (or thousands) of drivers who have their rights violated daily by opportunistic cops.
Filed Under: 4th amendment, asset forfeiture, bodee wells, civil asset forfeiture, evidence, pretextual stops, said alan angulo-gaxiola, utah
Court To Cops: If We Can’t See The Drug Dog Do The Thing, We’re Gonna Be Suppressing Some Evidence
from the Hans-slightly-less-clever-than-expected dept
Every cop with a dog swears it can detect all sorts of contraband. Literally swears. In court. On the stand.
But are drug dogs miraculous wonders of law enforcement due to their training? Or is it due to the domesticated dog’s innate desire to please, especially when it knows it will be rewarded for doing the thing? Or is it simply responding to cues delivered by its handler, some of which may be subconscious?
Well, it’s probably a combination of all these things. Training does get dogs to respond to certain scents. But the training also turns them into an extension of their handler. And then the dog wants what the cop wants: a reason to perform a warrantless search. Both handler and dog are rewarded in their own way. The dog gets a treat. And the cop gets to perform a trick that allows the officer to bypass the Fourth Amendment. (There’s a reason cops hate actually scientific testing of officers and drug dogs, because once the pair is separated, tons of false positives and negatives tend to be generated.)
For a long time, courts were mostly receptive to the assertions made by officers handling drug dogs. If they said in court that the dog “alerted,” the court generally couldn’t find a good reason to consider this testimony flawed.
But now there are cameras in cop cars and cameras on cops’ chests and cameras in the phones pretty much every driver and passenger possesses. Consequently, these assertions about “alerting” are receiving more scrutiny, as are the dogs themselves, who have shown their ability to reliably detect contraband isn’t all that different than allowing cops to flip a coin to determine whether or not they can pursue a warrantless search.
This case, brought to us by FourthAmendment.com, has a court calling bullshit on a supposed “alert.” A pretextual traffic stop that resulted in the discovery of an illegally possessed weapon relied on a search of a car — a search supposedly prompted by the cop dog on the scene.
The defendant, David Edmonds, was hit with a felony in possession charge following this search. He moved to suppress the evidence, claiming the search of his car wasn’t supported by probable cause or reasonable suspicion, the latter of which is the minimum that officers need to search a vehicle on public roads.
On the way to this warrantless search, the dashcam video submitted as evidence by the government appears to show a bunch of cops breaking traffic laws en route to violating the Fourth Amendment. From the decision [PDF]:
It was daylight. A white sedan traveling on Fifth Street crossed Broadway in front of Trooper Gabriel, proceeding from the trooper’s right to his left. The first unobstructed view of the sedan appears about six seconds into the video. The sedan’s windows are tinted. On the dashcam footage, nothing is visible inside the car. The car is in view for about four seconds before it travels out of the camera’s range.
A pickup truck followed behind the sedan on Fifth Street also traveling in front of Trooper Gabriel. Trooper Gabriel testified at the hearing that the truck was driven by a law enforcement officer. After the truck passed, Trooper Gabriel ran the red light on Broadway and turned left on Fifth Street following the path of the truck and the sedan, cutting off another car going through the intersection. Trooper Gabriel testified on cross-examination that the car he cut off was driven by another law enforcement officer who he had warned by radio.
_The area of Fifth Street is a residential area. Trooper Gabriel picked up speed on Fifth Street. He passed a sign stating that the speed limit is 25. He appeared to be traveling well above that. He testified at the hearing that he was traveling about 40-45 miles per hou_r.
At this point, there were at least three state troopers, driving three different vehicles in pursuit of a white sedan that had not been observed breaking any traffic laws. Trooper Gabriel, however, had not only run a red light, but was driving 20 mph over the posted speed limit.
If this was a pursuit, there was no indication of that. There is nothing on the record that indicates sirens or lights had been activated, which meant all the officers involved were endangering other drivers for the sole purpose of catching up to a car whose driver hadn’t actually broken any laws himself.
The mayhem continued:
The pickup truck traveling behind the sedan pulled over to the side of the road, and Trooper Gabriel passed it. Trooper Gabriel testified on cross examination that the truck was also a law enforcement officer who he had radioed ahead to pull over. At that point, nothing was between the sedan and Trooper Gabriel, who was still speeding down the residential road. As Trooper Gabriel’s vehicle approached closer, the sedan veered slightly to the right toward the curb and stopped on Fifth Street at an intersection with another street. Trooper Gabriel stopped behind the sedan.
Somehow, every car on the road other than the one this trooper was pursuing was another cop. What a coincidence! I’m surprised the court didn’t demand testimony from all the other alleged “officers” Trooper Gabriel endangered while focused on this white sedan.
Trooper Gabriel followed up his lawbreaking and endangerment of other drivers (some who might have been cops!) by doing whatever the fuck this is:
Trooper Gabriel yelled to the sedan driver to turn the car off. The driver, who was defendant Edmonds, stuck his head slightly out of the driver’s side window, looked back at Trooper Gabriel and apparently asked why he was being asked to turn the car off. Trooper Gabriel stated, “because you just whipped over like crazy.” He again instructed Edmonds to turn the car off. Edmonds apparently again asked why, and Trooper Gabriel responded, “Because I said so.”
About 13 seconds after Trooper Gabriel first instructed Edmonds to turn the car off, Edmonds’ brake lights went off. Trooper Gabriel instructed Edmonds multiple times to get out of the car. About eight seconds after Trooper Gabriel first instructed him to, Edmonds got out of the car. Trooper Gabriel instructed Edmonds to walk toward him. Edmonds complied. Another trooper appears on camera at this point walking toward Edmonds’ car.
Those quoted paragraphs immediately follow the previous quoted paragraphs. All of this was captured by the trooper’s dashcam. The court: “the sedan veered slightly to the right.” Trooper Gabriel: “You whipped like crazy.” Hmm.
Already off to a bad start, but apparently surrounded by other troopers with nothing better to do but violate traffic laws en route to performing a traffic stop, Trooper Gabriel then proceeded to claim he “caught” Edmonds “with no seat belt” and again reiterated his claim (one not supported by his dashcam footage) that Edmonds has “freakin’ just like dipped over.” Let’s go back to the court’s earlier depiction of the dashcam recording to see what it has to say about Trooper Gabriel’s assertion that he saw the man driving without a seat belt.
The first unobstructed view of the sedan appears about six seconds into the video. The sedan’s windows are tinted. On the dashcam footage, nothing is visible inside the car.
Folks, this man is a liar. He lied about seeing the seat belt (or lack thereof) and he lied about the whipping/dipping he claimed to have witnessed.
Having apparently traveled as far he could on this particular line of bullshit, the trooper began insinuating that the thing HE DEFINITELY HAD NOT WITNESSED were indicative of a nervous driver seeking to avoid a traffic stop and/or cover up their possession of contraband.
Since the trooper really had nothing to work with here, he decided to bring in a dog to give him the probable cause he couldn’t possibly hope to obtain on his own. Trooper Gabriel took the dog from his vehicle and walked it around Edmond’s car.
This is what happened:
The dog, whose name is Dragon, appears to follow Trooper Gabriel’s hand. When Trooper Gabriel places his hand in the open driver’s side window, the dog jumps onto the driver’s side door and sticks his head in the window.
Trooper Gabriel then led Dragon all the way around the vehicle until the trooper and the dog returned to the driver’s side door again. At the driver’s side door, Trooper Gabriel told Dragon, “I’m not going to give you your ball . . . You’re going to have to . . . .” Trooper Gabriel then walked back to the state police vehicle, with Dragon leading the way. Trooper Gabriel returned to Edmonds and explained that Dragon does “a passive alert on a vehicle.” Trooper Gabriel stated, “That means he will either sit, or stare, or freeze if he has an indication that there is an odor of narcotics in the vehicle.” Trooper Gabriel stated that Dragon is “right on your driver’s side door handle.”
Edmonds stated, “I didn’t see him do nothing. . . what do they do?” Trooper Gabriel responded, “I just told you.”
Oh, so it’s a new type of alert: the one where the dog doesn’t do much, even when encouraged to do something, anything by its handler. My dog smelled drugs, said the lying state trooper.
Here’s what actually happened:
The officers then searched Edmonds’ car. They found no narcotics…
But they found a gun! And Edmonds was not allowed to have one. The trooper lucked into this discovery by lying about what he had observed prior to the stop, and what the dog had actually done when it performed its sniff.
As for all the whipping and dipping, this is what the court observed thanks to the dashcam footage supplied by the government:
_As to his driving, Edmonds’ pulling off to the side of the road seemed a rational response for a driver when a marked law enforcement vehicle is approaching the driver’s vehicle from the rear at a high rate of speed in a residential area, and the vehicle behind the driver has already pulled to the side of the road so that the law enforcement officer could pass him. And, on the dashcam footage, Edmonds appeared to pull over to the side of the road in a reasonable manner_…
The government’s response to the suppression motion claimed Trooper Gabriel was “concerned” about Edmonds’ “driving pattern.” Then it claimed the stop was supported by Gabriel’s claim he witnessed Edmonds driving without a seat belt.
Fine, says the court. Have it your way. If the driving wasn’t unlawful, let’s make this all about a seat belt violation. The court goes on to criticize everything about the government’s arguments, as well as everything about the trooper’s actions. And that includes the dog that supposedly gave him permission for a warrantless search of the car.
It first notes that no real traffic stop was performed. Edmonds was not pulled over. Trooper Gabriel never activated his lights or siren. Instead, he just started yelling at Edmonds after he had voluntarily stopped and then began the string of rights violations by ordering him to turn off his car and exit his vehicle.
Even then, it was all bullshit. The court notes that Trooper Gabriel maintained the seal belt violation pretense until redirect under cross examination by Edmonds’ lawyer. At that point, he admitted he had seen the car pass through a “high narcotics” area he was surveilling. Everything was pretext and the trooper obviously hoped to net a drug bust.
Which would explain why he brought out the dog and pretended it had alerted to the scent of narcotics. The court has some things to say about the performance of “Dragon” and the even less-believable performance of Trooper Gabriel.
Going back to what Trooper Gabriel told Edmonds about the supposed alert before he began his constitutional search:
Trooper Gabriel returned to Edmonds and explained that Dragon does “a passive alert on a vehicle.” Trooper Gabriel stated, “That means he will either sit, or stare, or freeze if he has an indication that there is an odor of narcotics in the vehicle.”
The trooper either lied to Edmonds or lied to the court. Actually, it’s not an “either” situation. He lied to both parties. Here’s what happened when the trooper was subjected to cross-examination while testifying:
At the hearing, Trooper Gabriel conceded that Dragon did not sit, stare, or freeze while sniffing Edmonds’ car. He testified, however, that is not actually how Dragon alerts. Instead, Trooper Gabriel testified, the dog alerts by changing his posture and increasing his respiration. He testified the dog’s actions of sitting, staring, or freezing are not an “alert” but rather a “final indication.”
lolwut
The dog alerts by breathing or moving, if it isn’t alerting by sitting, staring, or [re-reads testimony] not moving.
The court isn’t having this. If the court gave this testimony credence, the fact that the dog was present on the scene of any traffic stop and did literally anything (including sitting passively in the trooper’s cruiser), it would be “alerting,” thus “justifying” a warrantless search.
Rather than give this ridiculous cop more leash than he gives his dog, the court shuts this all down, referring to nothing more than the evidence submitted by the government in support (lol!) of this search and arrest.
The Court has viewed the dashcam and bodycam footage numerous times. The Court can discern no difference in the dog’s posture or respiration when he arrives at the driver’s side of the car for the second time, which is when he allegedly alerted. There is no visible change in his rate of respiration. Throughout the sniff of the car, Dragon followed Trooper Gabriel’s hand. He does not ever attempt to walk past Trooper Gabriel. When Trooper Gabriel moves, Dragon follows. When Trooper Gabriel stops, Dragon stops. This is Dragon’s conduct throughout the dog sniff. The only time Dragon walked ahead of Trooper Gabriel was when Dragon walked to the curb after first being released from his crate and then after Dragon completed the drug sniff and headed back to the state trooper vehicle.
The evidence is suppressed. The search was unjustified. Trooper Gabriel is a liar.
The strange thing is the government felt this was worth pursuing in court. Its actions exposed the trooper’s unconstitutional behavior, which began before the traffic stop (that wasn’t even a real traffic stop) was initiated (by the sedan’s driver, rather than the officer). The government had access to the dashcam footage and somehow decided it could get this suppression motion rejected.
That’s the saddest thing of all. When Trooper Gabriel’s employers should have been putting together paperwork to get him drummed out the law enforcement business, it was instead putting its efforts behind an effort that embarrassed everyone involved, including the dog that wanted nothing more than make sure Trooper Gabriel approved of its performance.
Filed Under: 4th amendment, david edmonds, drug dogs, pretextual stops
California Supreme Court Makes It A Bit More Difficult For Cops To Engage In Unconstitutional Stops
from the time-to-start-being-real-cops-I-guess dept
Well, things certainly suck for cops looking to hassle minorities and/or engage in roadside fishing expeditions in California. And the cops have no one to blame but themselves.
Five hundred thirty-five agencies conducted a total of 4,575,725 stops from January 1, 2022 to December 31, 2022.
Black individuals were stopped 131.5 percent more frequently than expected, given their relative proportion of the California population, using a comparison of stop data and residential population data.
A Los Angeles Times investigation found deputies search 85% of bike riders they stop even though they often have no reason to suspect they’ll find something illegal. Most bicyclists were held in the backseat of patrol cars while deputies rummaged through their belongings or checked for arrest warrants.
The Times’ analysis of more than 44,000 bike stops logged by the Sheriff’s Department since 2017 found that 7 of every 10 stops involve Latino cyclists, and bike riders in poorer communities with large nonwhite populations are stopped and searched far more often than those in more affluent, whiter parts of the county.
Redefining “California stop,” millions of stops per year at a time. Cops stop more minorities, find less contraband, continue to harm their relationship with the communities they serve… and then do the same thing again and again, year after year.
Up until recently, anyway. A law that went into effect at the beginning of this year changed some of that bad math. The new law requires officers performing traffic stops to lead with the pretext. In other words, rather than ask the stupid question pretty much every driver has heard at some point in their life (“Do you know why I pulled you over?”), California law enforcement officers must inform drivers why they’ve been pulled over before they get back on their pretext/fishing expedition bullshit.
We’ll see how that has worked out next year when all the traffic stop stats are in. In the meantime, things are getting even better for California residents. The new law says the pretext must, at the very least, be presented to drivers right up front.
This recent California Supreme Court ruling adds even more limits to stops, traffic or otherwise.
On Thursday, the court ruled to restrict the grounds under which police can stop and hold people for questioning. It stems from the case The People vs. Marlon Flores.
“The only thing he did was, he was standing by a car at night in an area that the police deemed to be a high-crime area. And his so-called odd behavior was that he, the police say, he ducked down, trying to tie his shoes. And was seeming to avoid police interaction,” Kim said.
The court ruled that police can’t detain someone on the street just because that person tries to avoid contact with them.
The Cliff Notes version is this: it’s no longer reasonable for officers to portray someone merely avoiding contact with them as “reasonably suspicious” enough to detain them and pester them with further questions.
It’s the right call to make. You know who wants to talk to cops voluntarily? A very small percentage of the population: namely, people reporting crimes and… other cops. That’s about it. I don’t want to talk to cops and I haven’t committed any crimes for pretty much the entirety of my life. Most people don’t want to get hassled either, especially since every stop is just an opportunity for bored/opportunistic officers to find something that might lead to an arrest or, preferably, a sizable seizure of some citizen’s cash.
This decision [PDF] flips the script on pretextual stops, forcing the state’s cops to allow citizens to engage in their own pretexts to avoid having to converse with cops.
In this case, the person subjected to an unlawful stop did nothing more than bend down to tie their shoelaces, which the officers took to mean they were deliberately avoiding a conversation — something they considered to be inherently suspicious behavior.
Officer Guy testified that he detained Flores because he believed Flores acted “suspicious[ly]” by “attempting to conceal himself from the police” and then “pretend[ing] to tie his shoe.” The officer suspected Flores was “loitering for the use or sales of narcotics.” Guy gave no reason why he thought so, other than the area and Flores’s behavior upon seeing the police.
Wrong, says the court, even if Flores ducking down to tie his shoes was nothing more than a ruse meant to avoid having to converse with the officers. (The court also notes that this ducking was momentary and Flores remained in sight for far longer than he remained hidden… so, pretext or not, it wasn’t much of a ruse, ultimately.)
We need not determine the precise moment this detention took place. There is no dispute that Flores was detained before any incriminating evidence was recovered. One fair interpretation of the facts is that Flores initially tried to avoid being seen by the officers. Thereafter, and somewhat inconsistently, he stood and was in view for several seconds. He then failed to acknowledge the officers’ approach, and sought to avoid interacting with them. But as we explain, this behavior, along with Flores’s presence in a high crime area at night, did not provide a particularized and objective basis for suspecting that Flores was doing something illegal.
It is settled that a person may decline to engage in a consensual encounter with police.
The court then goes into more detail as it completely dismantled the bullshit “suspicion” assertions of the involved officers.
The fact that Flores was present in a “known narcotic[s] area[],” where the officer had arrested someone for drug-related crimes the night before, does not tip the scales in favor of detention. Notably, Officer Guy did not see Flores engage in any conduct suggesting he was there to buy or sell drugs or was otherwise involved in illegal conduct. He did not see Flores interact with anyone, or retrieve or hide anything. […] He did not see anyone in the immediate vicinity. No one had called for help or to report a crime in progress. The hour was not particularly late. Although the officer testified that he suspected Flores of “loitering,” he did not see Flores standing in that location for more than a few moments before the officers pulled up in their patrol car.
When Guy approached on foot, he saw Flores moving his hands near his feet. But the officer did not say Flores appeared to hide or discard anything. Rather, he opined that Flores was “pretend[ing] to tie his shoe.” Guy testified that the Nissan was parked at a red curb. But he did not explain how Flores’s presence next to an illegally parked car justified a detention under the totality of the circumstances.
And here’s where the judicial hammer comes down:
Police officers and private individuals may well occupy the same public space and have no particular interaction. They may also engage in consensual encounters. But before an officer can compel compliance with a show of authority, articulable facts must support a reasonable suspicion of criminal activity. In the absence of such facts, the person is constitutionally protected and empowered to go on his or her way.
It’s nothing more than an affirmation of Fourth Amendment rights (as well as similar rights enshrined by the California Constitution), but it still needed to be said out loud by a court capable of generating precedent. And it had to be reiterated because police officers simply choose to ignore these long-held rights if they think they can get away with it.
So, what happened here isn’t necessarily on par with the law passed by the California legislature but it still sets limits on police stops: namely, that reasonable suspicion actually has to be reasonable (rather than just vague statements about “it was night” or “I once saw a crime here”) to justify detaining someone, no matter how momentarily.
And even though it’s just an affirmation of earlier rulings and long-held rights, cops are still getting angry about this ruling:
In an email to ABC7 News, Tracy McCray, president of the San Francisco Police Officers Association calls this another example of California’s criminal justice system working to protect criminals.
She writes: California’s politicians and courts are making it harder and harder for police officers to do their job to protect the communities we serve. The California Supreme Court just opened a giant loophole that will be used by thousands of drug dealers, gang members, sex traffickers, and burglars who will attempt to use this very subjective standard to get back on the street as soon as possible to victimize the people who live, work and travel here. Observing the actions of those we encounter is a critical part of police work and has never been grounds alone for an arrest. Unfortunately, that will not matter when every public defender and criminal defense attorney in the State rushes to file appeals to get their clients freed because they were ‘just nervous.'”
lol cry more, copper. This isn’t a “loophole.” This just clamps down a bit on law enforcement’s abuse of constitutional rights. But go on with your bad self. If these are the sort of stupid statements you’re willing to send out following a pretty innocuous ruling, I cannot wait to see what you’ll actually try to claim in court.
Filed Under: 4th amendment, california, pretextual stops, racism
Court Calls Out BS ‘Driving While Black’ Traffic Stops While Tossing Felony Possession Conviction
from the another-pretext-vanishes-under-scrutiny dept
While it’s not ultimately a factor in the court’s decision, it’s nice to see a court call out biased policing while discussing the merits of the case. This decision [PDF], handed down by an Illinois state appellate court, makes it pretty clear the court believes this stop would never had happened if the driver happened to be white. (via FourthAmendment.com)
It’s futile to believe biased policing isn’t the norm in the United States. There’s simply too much data to dispute. In this decision, even more data is presented that makes it clear “driving while black” (DWB) is considered reasonable suspicion for a traffic stop and, often, a vehicle search by far too many US law enforcement officers.
This one starts with a pretext: a minor traffic violation three officers hoped to convert into a search of the vehicle the black man was driving.
Deshaun Carpenter was driving an “older model” Dodge Nitro with one broken taillight and a small object suspended from the rearview mirror when three officers curbed the car, ordered Carpenter out, and asked whether “narcotics” or “weapons” were in the vehicle.
As courts have often noted in cases like these, any pretext will do as long as the pretext holds up. In this case, it didn’t. As soon as the officers were questioned in court during the trial, the pretext fell apart.
An officer admitted on cross-examination that a single broken taillight was not a lawful basis for a stop.
There goes that pretext. The officers had a backup plan, though. It was the “small object suspended from the rearview mirror.” And that form of obstructed driving might have held up under cross-examination… if the officers had bothered to mention this alleged moving violation once during 20 minute traffic stop and vehicle search.
And in the body-camera footage, officers never mention the obstruction hanging from the rearview mirror.
Both pretexts were invalidated by an officer’s admission and the officers’ complete disinterest in this supposed issue during the traffic stop.
After taking Carpenter out of the car, officers peppered him with questions about drugs and weapons. Carpenter insisted he had borrowed the car from a friend of his girlfriend. Unhappy with the lack of immediate findings, officers spent the next thirteen minutes searching the car. A gun was found embedded between the metal frame and the cushioning of the drivers seat, which led to felony possession charges for Carpenter, as he was forbidden to possess a handgun due to a previous felony conviction.
Here’s where officers found the weapon they insisted Carpenter must have known about:
Carpenter first moved to have the evidence suppressed as the fruits of an unconstitutional search. That seemed to be the smart way to go but, for some reason, his lawyer decided it wasn’t and withdrew the motion. A bench trial ended with a conviction, leaving Carpenter with the sole option of arguing the state did not provide enough evidence to support his unlawful possession charge.
One of the two officers involved in the stop and search (Lt. Piechocki) claimed reasonable suspicion to further the search was due to the fact that Carpenter “kept looking” at the cops (Officer Pizzo and Officer Brienzo) as they searched the car. He also claimed the fact that Carpenter “kept looking through the back window” suggested Carpenter knew there was something illegal in the car.
The court says these assertions are, at best, laughable. First, Lt. Piechocki had ordered Carpenter to turn around and face the back of the car, making it inevitable that he would “[look] through the back window.” Second, the court notes it’s perfectly natural for drivers to watch officers search their cars. That’s just a thing people do.
In reaching this conclusion, we reject the State’s contention that “ample grounds” permitted the trier of fact to infer that Carpenter knew about the embedded handgun. The State speaks of Carpenter’s “nervous conduct in three times looking through the rear window as the officers searched the front seat[ ] and the fact that the seat [Carpenter] was sitting on contained an abnormal rip and a hard object which was later revealed to be a firearm.” But we review all the evidence, not some. Common sense informs us that anyone stopped by three officers might appear nervous to an officer. Moreover, who would not look through the rear window to see what the officers were doing?
Indeed, the officers had ordered Carpenter to stand facing the rear window while they searched the car and him. Contrary to the dissent’s incorrect claim, we do not assert the officers ordered Carpenter to look through the window—the officers ordered Carpenter to face the rear window. Thus, Carpenter’s looking complied with the officer’s orders. To equate cooperation with consciousness of guilt assumes wrongdoing regardless of what happened. Moreover, compliance meant nothing to Piechocki, who had fixed in his mind the conclusion the dissent reaches: Carpenter must know a handgun is in the car, which is a preconceived notion and not a reason, a pernicious presumption and not a rational inference.
The fact that a gun was (very eventually) discovered under the driver’s seat does not mean Carpenter knew it was there or that it was his. Nothing in the case tied him to possession of the vehicle, one he steadily maintained he had borrowed. Even the cops who spent thirteen minutes in the front of the car failed to detect it while sitting in the driver’s seat.
And that’s where the court drops a pretty fucking great cite, mocking the officers for their testimony that Carpenter must have been able to detect the hidden object even when it took them nearly 15 minutes to discover the gun themselves.
Finally, although the State describes a driver’s seat with a slight rip as “abnormal,” nothing in the record supports that assessment. On the contrary, Piechocki agreed that the car appeared to be “an older model,” and Pizzo and Brienzo sat on the rip and never noticed it. As for Carpenter sitting on a “hard object,” two trained officers did too and never reported feeling a “hard object.” Nor does the record support that, unlike Pizzo and Brienzo, Carpenter would more likely feel the presence of a hard object. Cf. Hans Christian Andersen, The Princess on the Pea, in Fairy Tales and Stories 24, 24-25 (Signe Toksvig ed., 1921) […] That evidence relates to an inference about Carpenter’s knowledge. But, as two trained officers did not feel the presence of the handgun under the seat, nothing in the record supports a reasonable inference that Carpenter would have sensed it.
I love it! One can only imagine the reactions of the officers when this decision hit their desks.
Having dispensed with this so-called evidence of a crime, the court says the conviction cannot stand. Nothing connects Carpenter to the gun it took officers 13 minutes to discover in a car Carpenter had borrowed from a friend of a friend.
But before it arrives at this conclusion, it does the equally important work of pointing out this stop likely never would have happened if the driver had been white. And the court has receipts. (All emphasis mine.)
What is known as “driving while Black” (DWB) is a pernicious reality that corrodes trust in law enforcement and the legal system. DWB involves police using “stereotypical thinking and hunches” and “dubious investigative techniques” in traffic stops. Commonwealth v. Feyenord, 833 N.E.2d 590, 604 (Mass. 2005) (Greany, J., concurring). Numerous studies have extensively documented the unsettling reality of DWB. See Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 Nature Hum. Behav. 736 (2020), https://5harad.com/papers/100M-stops.pdf [https://perma.cc/2Y9S-VLFA] (analyzing nearly 100 million stops across nation between 2011 and 2018 and finding Black drivers were less likely to be stopped after sunset when “veil of darkness” masked race); Ill. Dep’t of Transp., Illinois Traffic and Pedestrian Stop Study 2022 Annual Report: Pedestrian Stop Analysis 18-19 (2023), https://idot.illinois.gov/content/dam/soi/en/web/idot/documents/transportation-system/reports/safety/traffic-stop-studies/final–part-i-executive-summary-pedestrian-6-30-23.pdf [https://perma.cc/ZUE8-2TFR] (racial profiling possible factor in traffic stops); see also Pascal Sabino, Cops Rarely Pull Over Drivers In Their Own Neighborhoods, Data Shows. Motorists In Black Neighborhoods Aren’t So Lucky, Block Club Chi. (Oct. 27, 2021), https://blockclubchicago.org [https://perma.cc/PHC2-JEMD] (mapping all 327,224 traffic stops by Chicago police in 2020 and finding “tremendous bulk of drivers” stopped in neighborhoods on the South and West sides and “few drivers” stopped in mostly white neighborhoods on North Side).
[…]
Addressing the specter of DWB is crucial to the dismantling of this systemic injustice. Several essential indicators of DWB are laid bare by the evidence, including (i) minor infractions as a pretext for investigating unrelated suspicions; (ii) stereotypes or assumptions about race based on police conduct or statements during the stop; (iii) prolonged detention inconsistent with the nature of the stop; (iv) a search without proper justification, usually based on stereotypes rather than reasonable suspicion, (v) unequal enforcement, such as pulling over a person of color, for a violation seldom of consequence in a white neighborhood; (vi) targeting neighborhoods or areas predominately populated by people of color; and (vii) use of disrespectful behavior, aggression, or excessive force by police. Individually or together, the elements do not indicate or imply racial bias, and most police officers strive to act properly and respectfully. Nevertheless, the more indicators, the more likely the stop was for DWB.
Judges ensure that the law is fairly and consistently applied to all. The dissent’s critique that “this issue [(DWB)] was never raised by Carpenter” repudiates the long-standing appellate court commitment to upholding the rule of law by exercising its authority. Relatedly, despite our discussing DWB generally and not on the merits, the dissent curiously treats our observations as an adjudication. […] In our view, abstaining from saying anything about DWB, which our dissenting colleague urges us to do, condones the officer’s actions here and continues to normalize a practice that exposure, not silence, will eliminate.
The dissent is disingenuous. As noted here, the dissent treats the majority’s raising of biased policing as a basis for its finding the state did not have enough evidence to prosecute the unlawful possession charge. But the majority simply points out this stop would likely never have happened if the driver were white, given that neither pretext for the stop justified the stop.
Second, the dissent surely knows raising claims about racial bias are far more likely to occur during civil litigation. During criminal trials, it’s extremely rare for a defendant to raise the issue of biased policing because it’s usually not germane to discussions about probable cause (for suppression requests) or other challenges of evidence. This is simply a judge pretending they don’t know how the system works so they can side with officers who used two deficient pretexts to engage in the warrantless search of a car — a fishing expedition that managed to result in a “catch” after 13 minutes of rooting around in the vehicle.
It’s a minor decision that sets no precedent. But it’s an important one that shows this appellate court is unwilling to give cops a pass just because they can find a pretext for a stop. Pretexts have to hold up under scrutiny and these didn’t. And the officers’ own recordings undermined their desperate attempts to turn normal driver behavior into something suspicious enough to justify everything they did after pulling over someone for failing to be white while operating a vehicle.
Filed Under: 4th amendment, biased policing, driving while black, pretextual stops
Data From 4.6 Million Stops Show California Law Enforcement Routinely Engages In Biased Policing
from the no-surprises-here dept
Lots of tech is being thrown at cops with the intent of helping them work smarter. While this might sound like the early waves of a sea change, the end result — at least so far — is just more of the same stuff we’ve seen for decades.
Crime rates may be at historic lows and multiple law enforcement agencies under consent decrees enforced by the DOJ, but nothing much has changed over the years. Adding tech to the mix has only made biased policing more efficient by using garbage data generated by decades of biased police work to determine where cops patrol and who they stop.
Cops aren’t data scientists. Nor are they expected to engage in macro-level policing. But the facts speak for themselves. A study performed by the California Racial and Identity Profiling Advisory (RIPA) Board examined a ton of data. And it arrived at completely expected conclusions. (h/t ABC7 News, which actually posted a link to the original report!)
A year’s worth of stops (traffic and pedestrian) were examined by RIPA. The report [PDF] opens with a brief paragraph summarizing just how many stops that was.
Five hundred thirty-five agencies conducted a total of 4,575,725 stops from January 1, 2022 to December 31, 2022.
The findings of the Board were, sadly, unsurprising.
Black individuals were stopped 131.5 percent more frequently than expected, given their relative proportion of the California population, using a comparison of stop data and residential population data.
Not that other races fared much better. The state’s Hispanic population sits at 32.4%. But Hispanic persons made up nearly 43% of all stops.
So, what are Californians spending billions of law enforcement tax dollars on? Mainly just traffic enforcement. 82% of stops were for alleged traffic violations. Only 9% of stops were the result of calls for service.
Traffic stops are almost never about moving violations. Most traffic stops are exploratory. It’s way easier to engage in a pretextual stop of a driver than a pedestrian. There are a million traffic laws. Very few pertain to pedestrians. Pretextual stops can often lead to warrantless searches of people and cars. Perform enough stops and engage in enough warrantless searches and you’re bound to strike criminal activity gold eventually.
The RIPA report notes that changing policies can actually alter police tactics. The Los Angeles Police Department is no longer able to perform most pretextual stops. The LAPD is limited to stopping drivers for violations that “significantly interfere with public safety” or if they have verifiable information that the person they stopped has committed a serious crime. These restrictions — which have only been in place since March 2022 — resulted in 60% decrease in traffic stops for “equipment violations.”
Not only that, but it appears to have increased the quality of traffic stops by LAPD officers.
LAPD discovered contraband during a higher percentage of RIPA reported stops with searches after the pretext policy was in place (37.9% discovery rate) compared to the same time period in 2021, before the pretext policy was in place (36.0% discovery rate).
Now, this variance may prove to be an anomaly. But for the moment, it appears that limiting pretextual stops may result in more stops that actually result in evidence of criminal activity. But no matter how you look at it, nearly two-thirds of pretextual stops end without the discovery of contraband, which suggests nearly 100% of pretextual stops are fishing expeditions.
And they’re all fishing expeditions, really. That’s what the data says.
Overall, officers searched 13.8 percent of individuals they stopped. Officers discovered contraband or evidence from 27.3 percent of individuals they searched.
That means less than 4% of stops resulted in the discovery of contraband or other evidence of criminal activity. As terrible as that “success” rate is, it’s even worse when put in the context of race.
Black individuals had a higher probability of being searched (+0.6 percentage points) despite being less likely to be found in possession of contraband or evidence (-2.0 percentage points).
Not great. And that’s with incomplete data. This data is supposed to go to RIPA and this collection is enforced by the California Department of Justice. Unfortunately, what’s observed in this report might get even worse when the rest of data is finally handed over to the DOJ and RIPA. Nearly 100 California law enforcement agencies provided the Board with suspect data — something that probably won’t get ironed out until next year’s report.
The California DOJ reported to the Board regarding observed data anomalies in the data reported by 92 law enforcement agencies. These anomalies were identified where the agency reported months with large fluctuations in reported stops and where the agency reported some months with no stops at all.
There’s a lot more to this report. At 220 pages, it’s a comprehensive take on California law enforcement. While there are a few highlights, most of what’s detailed here is the sort of policing that should have gone out of style years ago. Instead of steady improvement, we’re just seeing the same thing over and over again. Throwing money and tech at cops hasn’t changed their innate impulses. And until that can be rectified, we’re just going to see the same biased policing for years to come.
Filed Under: biased policing, california, pretextual stops, traffic stops
California Cops Now Have To Lead With The Pretext When Making Pretextual Stops
from the do-YOU-know-why-you-pulled-me-over? dept
A law passed last year has now taken effect in California. This attempt to limit pretextual stops and biased policing means California law enforcement officers will no longer be able to start every traffic stop with an impromptu Q&A session. They’ll have to get right to the point.
Here’s what the law says:
(a) A peace officer making a traffic or pedestrian stop, before engaging in questioning related to a criminal investigation or traffic violation, shall state the reason for the stop. The officer shall document the reason for the stop on any citation or police report resulting from the stop.
And this is what it would look like in practice, as stated late last year by a California law enforcement official:
“This is instead of the officer asking a driver, ‘Do you know why I pulled you over?’” LAPD Captain Steven Ramos told the commission. “Now, the onus is on the officer to tell the individual why they pulled them over.”
Which is the way it should always be everywhere. That question has always been stupid. You pulled me over. You tell me. It’s not a serious question.
If the LAPD official seems receptive to this change, it’s probably because the LAPD has already made steps to limit pretextual stops by requiring something more than “let’s go on a fishing expedition!”
Under a policy approved in March, officers must have a reason to suspect a more serious crime is afoot before initiating a pretext stop, and they are required to record their reasoning on body camera before the stop.
[…]
The change appears to be having the intended effect. A Times analysis of LAPD records has found that in the months since the new policy went into effect, officers are stopping far fewer people for the minor violations that can mark the start of pretext stops and are conducting fewer searches during those stops.
Go figure. Requiring cops to actually suspect something before engaging in a stop results in fewer stops, fewer searches and… more contraband. According to the data, LAPD officers have seen a slight uptick in discovered contraband since the policy change, which suggests the quality of stops may be increasing despite the number of stops over small violations dropping from 21% to 12% of all stops.
The LAPD’s policy requires officers to tell people why they’ve pulled them over and document that on their body-worn cameras. This new law basically codifies that policy and expands it statewide.
Of course, there’s an exception.
Subdivision (a) does not apply when the officer reasonably believes that withholding the reason for the stop is necessary to protect life or property from imminent threat, including, but not limited to, cases of terrorism or kidnapping.
That loophole will need to be monitored closely. It can’t possibly be closed, given the reality of law enforcement. Suggestions abound — some tied to other traffic/pedestrian stop reporting mandated by the same law. But the way forward is still unclear.
It’s not clear who would decide whether an officer’s refusal to disclose the basis for a stop was reasonable; a state board has been considering regulations to require officers to tell their superiors, and the state, why they believed full disclosure would endanger them.
They’d better come up with some good excuses. It’s no longer a matter of breaking policy. This sort of thing is now literally breaking the law.
And, of course, law enforcement unions are against this, even if they can’t seem to muster coherent counterarguments.
In opposition, the California State Sheriffs’ Association argued that “traffic stops can be among the most dangerous types of interactions that peace officers encounter” and they should remain free to take immediate action without first explaining their reasons.
So… the union thinks cops can’t state the reason for the stop into their recording devices during the time it takes to exit the car and walk up to the stopped car? There’s absolutely no logic to this statement. If it’s a guns-out stop, it isn’t pretextual. This law is intended to limit pretextual stops and that’s what it will do. The CSSA’s argument is one of pure desperation — the kind made by people who firmly believe law enforcement should be treated as a law unto itself, answerable to no one.
This is a good thing and should be copied by more states. It will increase the quality of stops, deter exploratory stops and searches, and force officers to focus on serious crime, rather than poorly lit plates or dangling air fresheners. If traffic stops are truly “among the most dangerous types of interactions,” anything that reduces the number of stops is bound to increase officer safety, right? I mean, that’s what the union rep said. Better stops, more production, and a whole lot less hassle is going to work out better for everyone.
Filed Under: 4th amendment, biased policing, california, fishing expeditions, lapd, police, pretextual stops
Ohio Court Tells Cops They Need To Know The Law If They’re Going To Engage In Pretextual Stops
from the you-call-yourself-'law-enforcement,'-right? dept
Pretextual stops are law enforcement’s favorite way to fish for larger catches. Any minor moving violation can predicate a stop. That leads to conversations — often non-consensual — with drivers and passengers. Any number of factors can be opportunistically read by officers to add up to “reasonable suspicion.”
Once that “develops,” the party begins. Cars, drivers, and passengers can be searched. Drug dogs can be brought in. Cash can be lifted by so-called “drug interdiction” officers. And so on.
And cops, for the most part, don’t even actually have to witness an actual moving violation. In many cases, they just need to think they have. As long as they subjectively believe they’ve witnessed even the most minor of crimes, they can get started with the informal process of turning a minor traffic stop into a full-blown, cops-all-over-the-fucking-place “investigation.”
Every so often, courts keep cops honest. They call them out for their bad (read: opportune) judgment calls. They make them realize that if they expect to be called “law enforcement officers,” they’d better have a bit more knowledge about the law.
That’s the case here, in a court decision brought to us by FourthAmendment.com. An Ohio appeals court has ruled against the presumption of “good faith” to remind the state’s police officers that if they expect to use the law to engage in roadside fishing expeditions, they damn sure better know the laws they’re using to kickstart warrantless searches.
This one has a bit of a twist: a global pandemic!
Interested? Read on!
“Reasonably ignorant” is one thing. Maintaining your “reasonable ignorance” under extremely unique circumstances? Far less forgivable.
Here’s how things developed only months after COVID-19 started wreaking havoc all over the nation, according to the appellate court ruling’s [PDF] recounting of the traffic stop that led to this motion to suppress.
On August 11, 2020, Officer Jacobs was driving his patrol route, in a marked Whitehall police cruiser, when he first observed a vehicle near the intersection of Yearling and Main Street. According to Officer Jacobs, he randomly runs vehicle tags when “there is not much going on.” Officer Jacobs described the process of running tags as follows: “I have a computer in the cruiser with me and I just type in the plate number. It goes to the LEADS terminal which pops up with everybody’s information and will show basically all of the vitals for the BMV and any other information that people put in.” Officer Jacobs testified that when he ran the tag on appellant’s vehicle, he concluded that appellant’s vehicle registration was expired. When asked if LEADS provided the exact date of expiration or generally that the vehicle registration was expired, Officer Jacobs responded, “[i]t will show the exact date of vehicle expiration.”
Believing that appellant’s vehicle registration had expired, Officer Jacobs initiated a traffic stop. According to Officer Jacobs, when he approached the window, he “saw the [appellant] reach over the passenger seat, like extensively reach over,” and he could smell the odor of raw marijuana coming from the vehicle. After smelling the odor of marijuana, Officer Jacobs asked appellant to exit the vehicle. Officer Jacobs searched the vehicle and discovered rounds of ammunition, marijuana, and a handgun.
Add one bored cop to the “odor of marijuana,” add a dose of ignorance, and let the rights violations commence!
But while LEADS may have indicated the plate was expired, amendments to state law indicated otherwise. Due to mass closures of government offices, businesses, schools, etc. due to the pandemic, all plates expiring between March 9, 2020 and December 1, 2020 remained valid due to lack of options for plate renewal during the COVID crisis.
The amendment to the law went into effect on March 27, 2020. By August 11, 2020, Officer Jacobs would have no credible excuse for not being aware of this alteration. And, as he demonstrated during his testimony, he did not have a credible excuse for his ignorance.
Officer Jacobs testified that he is familiar with H.B. 197 and that it concerns registration and licensing requirements. Officer Jacobs denied that, on or before August 11, 2020, he knew the implications of H.B. 197. Officer Jacobs stated that he was only given “limited” direction on H.B. 197 and, to his knowledge, he was not given any information regarding the change in protocol concerning licenses or vehicle registrations. The only information he was provided was a document from the BMV [Bureau of Motor Vehicles], marked as Exhibit A. According to Officer Jacobs, he was provided the BMV memorandum around March 19, 2020. When asked if the document distinguishes “between license and vehicle registration?,” he responded, “No – – yes – – I think? I believe it would distinguish – – I don’t know.” Officer Jacobs, “interpreted [the BMV memorandum] as the Highway Patrol will not issue tickets to drivers, and then furthermore it says, ‘recommended that other law enforcement agencies in Ohio do the same thing.’” Officer Jacobs believed, based on the information provided, he was “still able to essentially stop for expired vehicle registration.”
Those sound like the hesitant words of someone who knew what the law alterations meant during the ongoing pandemic but chose to ignore them anyway. And, I mean, it’s not like there’s no judicial support for being willfully ignorant of the law… at least if you’re a cop.
But the trial court didn’t care more for Officer Jacobs’ non-committal answers. And it hammered that point home by allowing Jacobs to hoist himself on his own shrug of a petard.
On cross-examination, Officer Jacobs acknowledged an important part of his job is knowing the laws of the State of Ohio and that, pursuant to H.B. 197, there were no expired registrations.
That being said (tacitly by the court and directly by the officer), the trial court still managed to deny the evidence suppression request despite this officer’s clear violation of Ohio state law.
The appeals court doesn’t like it at all. It cites the Supreme Court’s permission slip for unforced officer-of-the-law legal errors (Heien), but refuses to extend this comfortably-sized blanket exception to this officer’s actions. Underlying all of this is one thing the Supreme Court justices did manage to clarify in a decision that granted presumptive forgiveness to officers who did nothing but swear they thought the law had been violated: the law cited in the officer’s defense of his alleged rights violations must be “ambiguous.”
This one isn’t.
Upon review, H.B. 197 is unambiguous in its terms. The uncodified provision makes clear that an individual does not need to take any action to renew their registration if it expired between March 9, 2020 to December 1, 2020, and any registrations that were set to expire during that period remained valid under the law. […]
The state argues that H.B. 197 is ambiguous because the words “driver’s” and “vehicle” were not included in Section 11 of H.B. 197. We find this argument without merit. H.B. 197 defines “[l]icense” as “any * * * registration * * * that is issued or conferred by a state agency, a political subdivision of this state, or an official of a political subdivision of this state.” (Emphasis added.) Based on the plain, everyday meaning of the word “any,” it is apparent that the General Assembly intended to provide a broad protection for citizens with various licenses or registrations that were set to expire during the period of emergency. […] A vehicle registration issued by the Ohio Bureau of Motor Vehicles, a division of the Ohio Department of Public Safety, would fall squarely within the language of H.B. 197. This case is distinct from Heien on this point as there is no other provision in H.B. 197 that would create an alternative interpretation of “registration” in this context.
That shuts down the state’s attempt to salvage this unconstitutional stop. A couple of paragraphs later, the appeals court goes after the officer himself, using his own sworn affirmations of ignorance against him.
Arguendo, even if there was some ambiguity in the uncodified provision, Officer Jacobs’ stop was objectively unreasonable as he had no knowledge of H.B. 197 or the change in law concerning vehicle registrations.
Hahahahahaaaaaaa! Imagine trying the “but I didn’t know (or even attempt to inform myself)” excuse in court just to be told that this isn’t an acceptable excuse. The law is not something that only applies when it works out for cops. You can’t have “reasonable” suspicion for a traffic stop IF YOU DON’T EVEN KNOW THE DETAILS OF THE LAW YOU’RE APPLYING. In other words, ignorance of the law is no excuse… something cops and prosecutors are fond of telling us regular folks who accidentally break laws while harboring zero desire or intent to commit a criminal act.
The court also rejects the “good faith” defense. As the court notes, no court in the state has forgiven a rights violation an officer committed based on their own mistake of law. In this case, Officer Jacobs wasn’t relying on the instructions of supervisors, assertions from officers, or a judge’s approval of a warrant request. He did this on his own and openly admitted he didn’t know much about the law he cited to justify the traffic stop.
Away goes the evidence. And, although this error of law may seem minor (to some people), there’s a greater point to be made.
It is our hope that the suppression of evidence in this case will result in appreciable deterrence of Fourth Amendment violations going forward. There will come a time sometime in the future when the General Assembly will have to enact an uncodified law to provide emergency relief to Ohioans. It is incumbent upon law enforcement, in turn, to make reasonable efforts to stay informed of changes in the law. Here, suppression of the evidence derived from the initial traffic stop would “pay its way” by requiring law enforcement to make reasonable efforts to know the law they are duty bound to enforce.
That’s how it should be. The courts need to keep the government in line just as much as criminal courts are instrumental to deterring criminal acts by citizens. Deterrence shouldn’t be a one-way street.
Filed Under: 4th amendment, hb 197, ohio, police, pretextual stops, whitehall
Federal Judge Says State Troopers’ ‘Kansas Two Step’ Bullshit Violates The Rights Of Drivers
from the going-to-have-to-find-another-way-to-be-bad-cops dept
For years, Kansas Highway Patrol troopers have stopped motorists on interstate highways. That’s the job. But the job became much more interesting when neighboring states legalized marijuana. Colorado led the way, with others following, but Colorado’s actions have had the most impact on the KHP. Missouri’s more recent legalization has only compounded the problem facing drivers on Kansas highways.
Thanks to the fact that there’s legal weed right over the border, KHP troopers are assuming anyone with out of state plates is headed to enjoy legal activities (in Colorado and Missouri) that are still illegal in Kansas. Opportunism is the name of the game. And that game means KHP troopers routinely violate rights, not to mention ignore Supreme Court precedent.
The most relevant case is the Rodriguez decision. That decision said that once the objective of the traffic stop has been completed (warning or citation issued), any law enforcement effort to extend the stop violates the Fourth Amendment.
Well, the KHP simply does not care. Troopers never inform drivers they’re free to go once they’ve been cited. Instead, every traffic stop is pretextual, especially when it involves someone with out of state plates. The “two step” is this: the citation is delivered, the trooper makes a vague statement like “have a good day,” and then the second step kicks in. This step involves the officer peppering drivers with a bunch of questions, even though the objective of the stop has been completed.
It’s the old “oh, more thing” popularized by a TV detective Lt. Columbo, a (fictional) homicide investigator working for the Los Angeles Police Department. Instead of allowing the no-longer-detained person to move on, the questioning starts in earnest, with KHP troopers hoping to find any excuse to search the vehicle and (perhaps) walk off with any cash these out-of-state drivers might have on them.
A law enforcement activity doesn’t get a catchy nickname unless it’s pervasive. And the “Kansas two-step” is not only pervasive, it’s becoming known nationwide despite being a local phenomenon.
Multiple lawsuits have been filed against the KHP for rights violations stemming from “Kansas two-step” pretextual stops. One of these has finally resulted in a federal judge calling out the KHP for its continual violation of drivers’ rights with this obviously illegal tactic.
A tactic known as the “Kansas Two-Step” that’s been used by the state Highway Patrol for years to detain out-of-state motorists long enough to find a reason to search their vehicles for illegal drugs violates motorists’ constitutional right against unreasonable searches, a federal judge declared Friday.
Senior U.S. District Judge Kathryn Vratil also notified the patrol that she is ready to impose changes in its policing practices and appoint a special master to audit its work for at least four years.
The changes would include a requirement that troopers specifically inform motorists they stop that they have the right to reject a search or to revoke consent for one at any time — when under the “Two-Step,” patrol officers avoid telling motorists they are free to go.
Unfortunately, ABC affiliate KAKE couldn’t be bothered to actually post the decision, which won’t dissuade anyone that it’s not a lie. But little ol’ Techdirt will hook you up with the ruling [PDF], so you can read the absolutely scathing decision handed down by this federal judge.
You know things aren’t going to go well for the government when a decision opens like this:
To date, 23 states and the District of Columbia have legalized recreational marijuana.To the west, Colorado legalized recreational marijuana in 2014. To the east, Missouri legalized recreational marijuana in 2022. Meanwhile, in the name of drug interdiction, the Kansas Highway Patrol (“KHP”) has waged war on motorists—especially out-of-state residents traveling between Colorado and Missouri on federal highway I-70 in Kansas. As wars go, this one is relatively easy; it’s simple and cheap, and for motorists, it’s not a fair fight. The war is basically a question of numbers: stop enough cars and you’re bound to discover drugs. And what’s the harm if a few constitutional rights are trampled along the way?
So, at this point, I’ll be quoting heavily from the decision because it is just that good. What the KHP has done for years isn’t acceptable, and Judge Vratil isn’t shy about pointing this out. The first thing the judge deals with is the tricky concept of “consent.” Is consent obtained by leveraging drivers’ ignorance actually consent? That seems unlikely, but that’s exactly what the KHP does.
So how do troopers elicit consent? Sometimes—actually, in a surprising number of cases—the troopers need only ask. Most drivers do not know that they have a right to deny consent, and troopers are more than happy to exploit their lack of knowledge of their legal rights. Even though the law requires that consent be knowing, intelligent and voluntary, troopers don’t generally let such niceties stand in their way. For drivers who are not initially forthcoming with consent, troopers are trained to conclude the traffic stop, somehow signal that the driver is free to go, then immediately re-engage the driver in friendly, casual conversation to keep the driver at the scene and enable the trooper to develop reasonable suspicion or take another stab at getting consent—a maneuver colloquially known as the “Kansas Two-Step.” If the driver persists in refusing to consent, the trooper has a fallback position: search the vehicle anyway and claim that he had reasonable suspicion all along.
And how “reasonable” is this “suspicion?” Not very. KHP troopers are trained to treat anyone travelling on interstate highways as “suspicious” because these highways are supposedly “drug corridors.” The fact that a driver is travelling to states on either side of Kansas is all the “suspicion” troopers feel they need because both bordering states have legalized marijuana while Kansas has not.
That’s not “reasonable suspicion,” says the judge. And the KHP’s own stats bear that out. If it’s “reasonable” to assume drivers travelling east-to-west or west-to-east are just drug traffickers traversing a “drug corridor,” you’d think the KHP would find way more drugs than it actually does.
The KHP has presented no evidence that its war on motorists is necessary for effective enforcement of drug laws, or even that such law enforcement tactics are effective: the record evidence is scarce, but it indicates that from 2016 to 2021, the KHP conducted between 124,387 and 211,531 traffic stops per year, and only recovered contraband in 0.16 per cent to 0.28 per cent of them. Further, the KHP presented no evidence on the volume of innocent people who have been subjected to pretextual traffic stops or unlawful searches, or the percentage of traffic stops that were too pretextual to warrant a traffic warning, let alone a traffic citation.
And it’s not just the “drug corridor” where drugs are in apparent short supply. The KHP also makes this assertion in support of its rights violations:
[A]ccording to KHP troopers, all major cities are also drug sources
While it’s true people can buy drugs in major cities, most people do not travel to major cities for the sole reason of purchasing illegal (or, in the case of Colorado and Missouri, legal) drugs.
All of this leads to the judge imposing restrictions on KHP traffic stops, beginning with this paragraph:
[T]he KHP has not satisfied its burden of proving that its policies and practices satisfy the Fourth Amendment; troopers unlawfully detain motorists based on factors which do not satisfy the low bar of reasonable suspicion, and the KHP has not shown that such motorists give constitutionally valid consent to the prolonged periods of detention which they confront. Such policies and practices must be condemned as unlawful. Furthermore, because traditional legal remedies are inadequate to ensure the KHP’s compliance with its constitutional obligations, declaratory and injunctive relief must be awarded to plaintiffs.
Before getting to the sanctions, the judge also says other interesting things, like questioning the supposed talent of the KHP’s drug dogs, which troopers appear to believe are “probable cause on four legs.“
The record contains no evidence about the training, accuracy or track record of any canine involved in this case, or whether that training complied with established industry standards of dog training and utilization. Only two canine handlers testified, and their testimony on this issue was cursory. Trooper Justin Rohr, who handled the Erich/Maloney sniff, testified generically that the KHP has weekly training and certification requirements for canines, and conducts “several tests … to ensure that the dog is indicating or alerting to only drug odor … within the search area.” He added that his dog (Nico) was certified and had passed that sort of testing.
Trooper Chandler Rule, who handled the Dunn sniff, testified that the KHP has a ten-week dog training program, and that canine handlers train every week for at least eight hours. He had no estimate of how often his dog (Cain) had alerted to a drug odor but the ensuing search revealed no contraband. The record contains no further evidence on how any of the KHP canines were trained or certified, or on their actual performance records. A dog’s “alert” or “indication” only establishes probable cause if the dog is reliable, and since troopers discovered no contraband in any canine sniff in this case, the reliability of these particular canines is open to question.
Another problem: Rule testified that an “alert” is untrained behavior that a dog elicits when he is smelling a trained odor, but the “handler is typically the only one who would notice the alerting behavior.” In other words, an alert may not be apparent from objectively observable facts. The KHP asks the Court to rely on the ipse dixit of the handler, whose credentials and expertise are themselves unaddressed by the evidence, and cross its fingers that the handler did not cue the allegedly alerting behavior.
What’s more, the record contains little information about whether and to what extent canines alert or indicate to drug odors which are remote in time. Such information is critical in this case because all plaintiffs were driving rental cars, cars which belonged to other people or second-hand vehicles which they recently purchased. Rohr explained that canines are trained to alert on drug odors, not drugs, and according to Rohr, a dog can alert to a “very minimal” residual odor of marijuana; even where no drugs are present, the odor “could have been there at one time” (for example, “somebody could have drug odor on their hands and touch a door handle”). Therefore, when Nico reacted as he did in the Erich/Maloney sniff, it only meant that “there was drug odor present at one time.” On these facts, canine behavior contributes little to nothing in the reasonable suspicion calculus.
Given the inadequate state of the record, this opinion should not be read to suggest that canine deployment is reliable or probative under Daubert. In fact, this Court joins District Judge Clark Waddoups in suggesting that the Tenth Circuit Court of Appeals revisit its “broad proclamations and comfort in canine sniffs and their certifiers.”
Woof. I mean, yikes. This suggests this court doesn’t consider drug dogs to be capable of reliably detecting contraband. The testimony of the troopers doesn’t help, especially when they assert the drug dogs detect drugs reliably, even though traffic stop data shows dogs “alerted” to contraband that somehow wasn’t present when troopers searched vehicles. (“Under _Daubert_” means the judge doesn’t believe these dogs’ magical powers to detect contraband is supported by any actual science.)
More on this is in another footnote, which again references the Daubert standard, suggesting this court is going to consider drug dogs junk science in future cases.
The dashcam video from Rohr’s patrol vehicle does not show a visible alert, but Rohr testified that the canine started sniffing more intensely and “bracketing,” i.e., changing the location of his head or nose from wider to narrower. Rohr also testified that after alerting, the canine “indicated” by freezing at the back of the vehicle. The dashcam video does not show visible alerting or freezing. Where videotapes do not objectively and visibly confirm their testimony, the Court generally declines to afford meaningful weight to KHP trooper testimony about canine “bracketing,” “freezing,” “indicating” or “alerting” as reasonable grounds to detain a vehicle. Neither side produced evidence that these behaviors are reliable indicia of contraband under Daubert.
There’s a lot to this ruling, which runs 79 extremely good pages. I encourage all of you to read through it yourself. What I’ve heavily sampled shows a judge unwilling to let cops say cop stuff to excuse blatant rights violations. In addition to calling the troopers out for sidestepping Supreme Court precedent and the Fourth Amendment, the judge makes it clear the usual “training and expertise” along with “dog alerted” horseshit carries no weight in their court.
Not only is there harsh responses to the usual law enforcement “might makes right” hubris, there are details from the traffic stops endured by those suing the KHP — pretextual stops that not only resulted in violated rights but the internal destruction of an RV driven by one of those targeted by opportunistic troopers who still failed to find the contraband they swore that they were “reasonably suspicious” existed.
And this is how these stops began. One was initiated after an unmarked car driven by a trooper who basically ran the driver onto the shoulder and then pulled him over for crossing the fog line:
Here, Erich did not commit a traffic violation, and [Trooper] Rohr did not have an objectively reasonable belief that he had done so. First, Kansas law requires a driver to stay “as nearly as practicable within a single lane.” K.S.A. § 8-1522(a) (emphasis added). Under these circumstances, with Rohr driving so closely behind and to the left of the RV, it was not practicable or reasonable for Erich to stay in the right lane. By moving to the side of the road, Erich attempted to put a safe distance between himself and Rohr’s vehicle, which he did not know was a KHP patrol vehicle, and which was dangerously close to him. […]
The stop was pretextual from its inception: [Trooper] Rohr followed an RV with Colorado tags in hopes of provoking a traffic violation, and his conduct caused the very traffic violation that he was hoping for.
The dry recounting of another bullshit stop:
One of the first questions [Trooper] McMillan asked Bosire was whether he was traveling from Colorado. McMillan clearly believed that Bosire was trafficking drugs from Colorado.
Based on an absurd and tenuous combination of various factors—namely, the odor of marijuana inside the gas station, the presence of another rental vehicle at the gas station and Bosire’s interactions with a third party at the gas pump—McMillan concluded that Bosire was a drug trafficker. These factors, taken in context, did not give McMillan reasonable suspicion to extend Bosire’s traffic stop for a canine sniff.
And the third stop:
[Trooper] McCord lacked reasonable suspicion to detain Kelly for a canine sniff. Like McMillan’s detention of Bosire, McCord based his reasonable suspicion that Kelly had contraband in his vehicle on an absurd and tenuous combination of factors. The majority of these factors having California license plates, driving on I-70, driving a rental vehicle, seeming nervous while interacting with law enforcement, going on a trip with one’s nephew, having fingerprints on the trunk lid, having a bag in the passenger seat and driving instead of flying—are so ordinary and benign that thousands of innocent drivers on Kansas highways every day likely share many or all of these factors.
The fourth:
[Trooper] Rule lacked reasonable suspicion to detain Dunn for a canine sniff. This thought process was based on an absurd and tenuous combination of innocent factors that were not objectively suspicious. These factors—traveling a long distance to pick up a new vehicle, traveling to and from “narcotics hubs” (i.e., any large metropolitan areas), nervousness when interacting with law enforcement, driving instead of flying during a pandemic, traveling a long distance even with possible inclement weather and taking “copious snacks” on a road trip—are so ordinary and benign that singly and in combination, they contribute only minimally, if at all, to the reasonable suspicion calculus. Even if Dunn’s travel plans were unusual, they were not unusual in a way which gave rise to a reasonable suspicion of criminal activity.
And that’s just the people who bothered to sue. No doubt hundreds of other drivers have been subjected to the same rights violations while driving through Kansas. The stats quoted above show troopers rarely, if ever, find contraband. But they keep doing this sort of thing. And that’s why the court says this “two-step” practice has to end. We’ll go back to KAKE for the summary of the court-ordered fixes:
Vratil listed nearly four pages of restrictions on the patrol’s policing that she plans to impose, giving the parties in the lawsuits until Aug. 7 to tell her in writing why she shouldn’t. Troopers would be required to get a supervisor’s approval to conduct a vehicle search, and the patrol would have to keep a log of all such requests and who approved them.
The judge, an appointee of Republican President George H.W. Bush, said she would require troopers to “affirmatively inform” motorists of their right to refuse to allow searches of their vehicles. She concluded that that troopers “are more than happy to exploit (motorists’) lack of knowledge of their legal rights” and “pressure drivers to submit to extended detentions,” so that they “do not feel free to leave.”
No doubt the KHP will appeal this decision. And even if that appeal sides with the constitution, there’s a good chance the KHP will find a way to continue violating rights, even if it means falsifying paperwork. I mean, perjury and forgery have never bothered cops before. Bad habits are the toughest thing to kill. It will actually take KHP officials being directly involved in internal reform to turn this around. For now, though, if you’ve been stopped driving in Kansas, perhaps gently suggest the troopers beat a hasty retreat if they decide ending the stop means the beginning of extended questioning.
Filed Under: 4th amendment, civil asset forfeiture, kansas, kansas highway patrol, kansas two-step, pretextual stops