traffic stop – Techdirt (original) (raw)
Let’s Take A Moment To Appreciate The Shittiness Of This Police Union Statement On The Tyreek Hill Traffic Stop
from the cop-words-cop-words-cop-words dept
Some of you may have heard about this. It made all the papers (at least in the United States). Tyreek Hill, wide receiver for the Miami Dolphins, was pulled over about a block away from the stadium by Miami-Dade police officers. What started as a simple situation involving a speeding/seat belt ticket escalated quickly when Hill was dragged out of his car and thrown on the ground by officer Danny Torres.
Now, everyone is going to have an opinion about how Hill handled this traffic stop. What’s tough to explain is why Officer Torres decided it was necessary to drag Hill from his car and throw him on the ground. Even the Miami-Dade government can’t explain it, which is probably why Officer Torres is now on “administrative duty” and has been publicly reprimanded for this needless escalation.
Miami-Dade County Chief of Public Safety James Reyes said the actions in the body camera footage released by the department were “deeply concerning” and “clearly do not meet the standard we expect from law enforcement.”
The whole thing was captured on body cam. The footage can be seen multiple places, but if you want to see the entire recording free of commentary, your best best is the version uploaded by PoliceActivity.
Feel free to watch the whole thing and draw your own conclusions about Tyreek Hill’s behavior. (Also, keep an eye out for the invocation of Florida’s 25-foot cop halo law, which happens about 13 minutes into the recording.)
So, the cop has been taken off the streets and pretty much everyone has offered up their opinion on the stop and the officers’ behavior. What can’t be argued are the facts: Hill was dragged from his car and pinned down on the ground by an officer who couldn’t handle being momentarily (and directly) ignored by the Dolphins wide receiver.
But the most ridiculous response comes from the most ridiculous of quasi-public institutions: the local police union. Despite no one asking the South Florida Police Benevolent Association (SFPBA) to weigh in on the incident, it has chosen to do so anyway, resulting in this exonerative-tense word salad that highlights everything that’s ridiculous about police unions and copspeak. Here’s SFPBA president Steadman Stahl, coming to us via Courthouse News Service.
“Before the Dolphins game yesterday, an incident occurred where Tyreek Hill was placed in handcuffs before being released,” Stahl said in a statement. “First, to be clear, at no time was he ever under arrest. He was briefly detained for officer safety, after driving in a manner in which he was putting himself and others in great risk of danger.
“Upon being stopped, Mr. Hill was not immediately cooperative with the officers on the scene who, pursuant to policy and for their immediate safety, placed Mr. Hill in handcuffs. Mr. Hill, still uncooperative, refused to sit on the ground and was therefore redirected to the ground. Once the situation was sorted out within a few minutes, Mr. Hill was issued two traffic citations and was free to leave.”
Glorious. Just truly a masterpiece of quasi-English. Stahl pins down the time (“before the Dolphins game yesterday”) before distancing cops from their actions and his words from reality.
“An incident occurred,” an occurrence that apparently involved no one or any actions, but one “where Tyreek Hill was placed in handcuffs” by some unknown handcuff wielder.
“Mr. Hill was not immediately cooperative.” “Immediately cooperative” means nothing more than a cop used force and needed to justify it after the fact. In many cases, people who are not “immediately cooperative” are trying to be the adults in the “occurring incident.” They’re trying to de-escalate and calm down the cops (and there’s always more than one — there were at least 10 officers “involved” in this “occurrence”) who are shouting or pointing guns at them or both. People trying to do nothing more than talk to cops who want them to shut up are considered “not immediately cooperative.”
The thing is, Hill was immediately cooperative. After being told why he was pulled over (speeding, no seat belt), his first response was “Write the ticket. Do what you got to do.” That’s “immediately cooperative.” What the officers didn’t like was that this was followed by Hill rolling up his window while putting his seat belt on. That’s when things escalated because Hill did not “immediately cooperate” with demands he roll his window back down, despite the officers having his license and Hill’s verbally expressed preference that they get busy with the ticket writing.
When he was finally ordered to exit the car, he was never given a chance to “immediately cooperate.” In fact, there wasn’t really even an order. The officer simply said “We’re not doing this” (referring to Hill being argumentative) and dragging him from his car.
Finally, there’s this bit of copspeak shittery: “redirected to the ground.” That’s what cops (and cop reps) use when they’re talking about someone being dragged out of their car and thrown to the ground, before being pinned down while being handcuffed, despite cooperating fully with the handcuffing process. Calling this “redirection” is like defending tripping someone by claiming you did nothing more than move them more in a groundwards direction, possibly without any malice aforethought.
Whether or not you think Tyreek Hill handled this stop well, you can’t deny this is any extremely stupid and self-serving statement that pretends things just happen on their own and if any bad things happened, it was because someone other than a cop caused it to happen.
But this statement is even more meaningless in context: the officer who dragged Hill from the car has been publicly admonished and taken off active duty. He also has a long history of misconduct that might have gone unnoticed if he hadn’t chosen to do his usual thing during a traffic stop involving an NFL star.
The Miami-Dade Police Department released the employee profile of officer Danny Torres showing he was suspended for as many as 50 days between 2014 and 2019.
The first suspension was for five days in February 2014, the records show. He received three more five-day suspensions in 2016; one in February and two in September. In October 2018, he received a 20-day suspension and 10 days in June of the following year.
Records also show that Torres, a 27-year veteran, received four written reprimands between March 1999 and September 2020.
Now, if you’re thinking this doesn’t seem like much for a 27-year veteran, that only means you’ve set your standards lower than the Miami-Dade PD. I don’t expect every officer to have a clean record for the entirety of their career, but I’d prefer that an officer who was suspended 50 days over a five-year period was no longer a police officer. The goal should be the perfect record. Anyone who violates the rules annually (as Torres did from 2014 to 2019) shouldn’t still be collecting a paycheck from the public. If he wants to try violating company policies in the private sector, he should definitely be given that option.
And the next time a police union rep calls up reporters to offer a statement, they should be given a firm “no, thanks.” It doesn’t even need to be a polite “no.” They have nothing to offer but excuses, mangled English, and hasty white-washings of the truth. They have nothing to add to the conversation and we all get just a little bit dumber every time they open their mouths.
Filed Under: copspeak, danny torres, miami dade PD, miami dolphins, police misconduct, south florida police benevolent association, steadman stahl, traffic stop, tyreek hill
Court To Cops: There’s No ‘Instinct Exception’ For Drug Dogs Handlers Refuse To Handle
from the if-this-were-a-citizen's-dog,-a-cop-would-have-shot-it dept
Officers who handle drug dogs like to claim they’re so highly skilled at animal handling they can recognize otherwise imperceptible moves by their animals as the dog “alerting,” giving them (and, more literally) their animals free rein to perform warrantless searches of vehicles.
But when these arguments fail, and it’s apparent a K-9 cop just let their animal roam free, these same officers who pride themselves (at least when sworn in as witnesses) in controlling their animals claim these same animals can’t possibly be controlled. After all, the dogs operate on instinct, and who among us is capable of preventing an animal from acting on its urges?
Well, to be honest, all of us are expected to do that. That’s why we can be fined or arrested if our animal runs loose and/or injures someone else. Somehow, cops don’t expect the same standard to be applied to them and their supposedly highly trained dogs.
Fortunately, at least in this case, a court isn’t having it. In this case, an illegal search performed by “probable cause on four legs” gets tossed by a state appeals court because an officer failed to control his animal. (via FourthAmendment.com)
Here’s a very dry recounting [PDF] of the facts by the Wisconsin Court of Appeals.
Law enforcement stopped a vehicle driven by Ashley Campbell. While an officer drafted citations for traffic infractions, another officer arrived with a police canine and ordered Campbell and her passenger out of the vehicle. As Campbell exited the vehicle, she left open her driver’s side door.
The officer twice led the canine on a leash around the vehicle’s exterior and, on each occasion, the canine entered through the open door and “alerted” to the presence of narcotics in a purse located on the vehicle’s floor. A subsequent search of the purse revealed suspected marijuana.
Campbell challenged the search, arguing the dog’s decision to enter her vehicle violated her Fourth Amendment rights. The lower court, however, agreed with the government’s arguments that nothing happened here that wasn’t allowed by the Constitution, even if the officers failed to show they had the reasonable suspicion needed to allow a dog to intrude into the personal space that was the interior of Campbell’s vehicle.
Now, it’s very difficult to challenge dog searches like these. If you can’t prove the traffic stop has been unlawfully extended (as the Supreme Court ruled in the Rodriguez case), you’re left with the unpalatable option of basically arguing the dog didn’t alert. And that’s a tough thing to prove, since courts often give cops and their dogs the benefit of a doubt because (as the assertions go) cops and their dogs are law enforcement professionals and anyone subjected to a specious “alert” is just a criminal that happened to get caught.
In this case, the cops lose, along with their interloping dog.
We conclude that both of the canine’s entries into Campbell’s vehicle constituted searches under the Fourth Amendment.
The state offered a rather novel argument in favor of its intruding dog: the so-called “instinct exception.” This theory states a cop can’t help if a dog smells something illegal and decides to invade private property usually considered to be protected by the Fourth Amendment.
As this court notes, a few other courts have chosen to recognize this exception. This court, however, refuses to consider it a viable warrant exception. It says this particular issue will remain unsettled. But it goes further, informing Wisconsin law enforcement that even if it were willing to consider this exception binding law, it wouldn’t change anything here.
We therefore conclude that even if the instinct exception were to be recognized in Wisconsin, the exception would not apply to the canine’s searches in this case. We therefore reverse the judgment of conviction and remand with directions for the circuit court to grant Campbell’s motion to suppress.
And why is that? Because a cop just allowed a dog to roam freely inside the car, not once, but twice. And this was captured by the officer’s dash cam.
The dashboard camera video shows that [Wisconsin State Police Sergeant] Al-Moghrabi walked from the hood of Campbell’s vehicle, around the open driver’s side door, up to the door’s entrance, and then stopped and allowed the canine to enter the vehicle. Notably, Al-Moghrabi’s body was blocking the canine from continuing its “scan” of the vehicle’s exterior. Furthermore, Al-Moghrabi was standing by the vehicle observing the canine—he was not pulling the leash or attempting to get the canine to exit the vehicle in any fashion.
During this time, the canine’s front two paws appeared to be on the driver’s seat and its rear paws were on the pavement outside of the vehicle. After roughly ten seconds of the canine sniffing inside Campbell’s vehicle, Al-Moghrabi stepped toward the road, but he still did not pull on the leash. Roughly five seconds later, the canine’s front two paws voluntarily exited the vehicle so that all of its paws were on the pavement, but its head was still inside the vehicle, and Al-Moghrabi moved back to standing next to the vehicle with his body again blocking the canine from moving toward the rear of the vehicle.
For roughly six seconds, Al-Moghrabi appeared to watch the canine while he and the canine were both in this position. Then, the canine’s front two paws moved back onto what appeared to be the driver’s seat. Again, Al-Moghrabi did not pull on the leash. The canine remained in this position for several seconds before exiting the vehicle completely, and Al-Moghrabi then led it around the rear of the vehicle. In total, the canine appeared to have its head in the vehicle for roughly thirty-eight seconds during this first entry into the vehicle’s interior. Al-Moghrabi testified that while inside the vehicle, the canine started “sniffing intently at” a purse that was on the floor. According to Al-Moghrabi, that “behavior … is indicative” of an alert.
As if that wasn’t enough violating of the Constitution, Al-Moghrabi did it again.
After the first entry, Al-Moghrabi directed the canine around the vehicle counterclockwise and back to the driver’s side door. Upon walking around the driver’s side door with the canine, Al-Moghrabi’s actions mirrored his conduct during the first entry. That is, he walked the canine up to the door’s opening, stopped and allowed the canine to enter the vehicle, and kept his bodybetween the canine and the rear of the vehicle. During the second entry, the canine had its head inside the vehicle for roughly fifteen seconds. Al-Moghrabi did not pull on the leash at any point. He testified that upon the canine’s second entry, the canine again began “sniffing intently” at the purse.
The only “instinct” in play here was the officer’s belief that he could do this and get away with it. But he probably never expected someone charged with minor drug possession to take this case to trial and force he and his fellow officers to explain their actions and, in hopes of keeping their evidence, blame it all on the dog.
The court says, fine. You want to use the “instinct exception?” Well, let’s talk about your “training and expertise.”
Specifically, Al-Moghrabi had the canine on a six-foot leash with a pinch collar and therefore was able to exercise full control over the canine’s actions. Of significance, Al-Moghrabi and the canine were trained in 2013 to conduct “drug detection” and they had participated in monthly training since that time. This training included canine “obedience” training.
So, with nearly a decade’s-worth of training, Al-Moghrabi still couldn’t control his dog. That sounds like a failure in training, which isn’t a viable exception to the Fourth Amendment.
No evidence for you, says the court.
The searches in this case are far from the type of situation that occurs when a canine freely breaks away from human control and investigates without assistance.
This is the sort of thing that can get civilian dog owners cited for negligence or failure to control their animals. But when a cop does it, they expect the court to allow them to benefit directly from their failures. Fortunately, it didn’t happen here. The evidence is tossed, along with a citation for $673.50. And that dollar amount was apparently enough to encourage the state to spend thousands of dollars to secure an adverse ruling that pretty much eliminates the option of claiming “but the dog did it!” the next time this happens.
Filed Under: 4th amendment, drug dogs, nick al-moghrabi, searches, traffic stop, wisconsin state police
10th Circuit Reminds Cop That A Driver Doing Nothing Suspicious Is Not Reasonable Suspicion To Extend A Stop
from the reasonable-is-the-baseline dept
Law enforcement officers rarely care about enforcing traffic laws. Moving violations may produce a little extra revenue for the city or state, but it doesn’t do much for the officers performing the stops.
Pretextual stops? The leveraging of any perceived moving violation in hopes of performing a vehicle search? That’s where the money is, thanks to lax civil asset forfeiture laws and cop-friendly judges. And that’s where the action is. Any stop contains the possibility of a big bust or, at the very least, an opportunity to walk off with someone else’s cash or vehicle.
The courts don’t mind pretextual stops, so long as officers maintain the pretext for as long as possible. But if the pretext doesn’t hold, the officers must end the stop. That’s the law of the land, thanks to the Supreme Court’s Rodriguez decision. If the officer doesn’t have probable cause to extend a traffic stop, the stop ends when the stated objective (citation, warning, etc.) has been achieved.
Reasonable suspicion is an extremely low bar. And, for years, cops have been building case law with dubious testimony that suggests almost anything a driver does (or has in their car) is reasonably suspicious. This list of “reasonably suspicious” things now encompasses 99.99% of all drivers have or do, from having discarded food containers in their car to “acting nervous” to “acting not nervous enough” to having a car that’s too clean.
In other words, it’s all suspicious when a cop is involved. Fortunately, courts are sometimes willing to push back against this ever-expanding list of “suspicious” behavior.
This recent Tenth Circuit Court of Appeals decision [PDF] is one of those pushing back. An obviously pretextual stop ended with the discovery of contraband. But, as the decision points out repeatedly, the ends don’t justify the means.
Here’s how this all started:
Mr. Luis Alfonso Leon was stopped by law enforcement after he was observed illegally driving in a passing lane. During the traffic stop, the officer began to suspect Mr. Leon was trafficking drugs. A search of his vehicle uncovered seventy-six pounds of methamphetamine, and Mr. Leon was charged with one count of possessing methamphetamine with intent to distribute.
The illegal action triggering this stop? Driving in the left lane without passing anyone. Not really the sort of thing cops are really interested in. However, it was just enough to justify the stop of Leon by Colorado State Trooper Shane Gosnell, who was likely far more interested in the out-of-state plates than the fact Leon was treating the fast lane like the slow lane.
(And, of course, the cop apologists will light up the comment thread with comments suggesting the discovery of drugs justified everything that happened prior to that discovery. To those commenters, I suggest you pore over the Constitution again and find the part where it says the ends justify the means. People challenging evidence used against them are the ones fighting for constitutional rights. People hassled for no reason and, after having their car tossed, decide it’s a sacrifice they must make to fight the Drug War rarely file lawsuits. Bootlicking robs all of us of our rights. And that includes the rights of those who think the government should have more rights than citizens.)
Following the stop for the alleged moving violation, Trooper Gosnell approached the vehicle (completely normal behavior) and saw stuff with his eyes (completely normal behavior).
As he approached the truck, Trooper Gosnell made several observations. First, he noticed disorganized boxes and clothing in the backseat. Second, he observed food wrappers, a soda bottle, an energy drink can, and religious pamphlets in the front. Based on these conditions, he believed the vehicle had “a lived-in or hard-traveled look.” Supp. Rec., vol. IV at 14. Finally, he saw a single key in the ignition.
The trooper “observed” things he might have observed in any vehicle at any time. However, he decided the things he “observed” were indicative of criminal activity (abnormal behavior! except not for cops!).
The trooper asked for the normal stuff (license, registration). He received it. The registration was expired but Leon explained he had just purchased the truck from a friend in Minnesota. He also explained he had lived in Arizona for most of his life but was now looking to live in Minnesota. He also offered that he was planning to stop in Denver to see if there was a religious convention occurring that he could attend and possibly might stay the night there.
All of this would have added up if Trooper Gosnell hadn’t been so sure it didn’t.
During this interaction, Trooper Gosnell believed Mr. Leon was “overly cooperative” and “super nervous.” Supp. Rec., vol. IV at 23. He found Mr. Leon’s answers to his questions to be indirect and felt Mr. Leon was attempting to control the conversation.
A combination of these circumstances led Trooper Gosnell to suspect Mr. Leon was involved in drug trafficking and to ask for the mileage on the truck. After running some checks and returning Mr. Leon’s documents, Trooper Gosnell asked for Mr. Leon’s consent to search the vehicle. Mr. Leon refused consent, but Trooper Gosnell decided to conduct a dog sniff of the vehicle’s exterior. The K-9 alerted to the odor of narcotics, and Trooper Gosnell and another officer searched the vehicle. The officers found seventy-six pounds of methamphetamine and placed Mr. Leon under arrest.
Bullshit, says the Tenth Circuit. Trooper Gosnell did not have what he needed to extend the stop (which occurred when Gosnell asked for the truck’s mileage). Nor did he have the suspicion needed to hold Leon until a drug dog could perform a sniff of the vehicle.
The trial court said Trooper Gosnell’s actions were supported by reasonable suspicion, reciting (almost word-for-word) Gosnell’s assertions about his reasonable suspicion.
The potential origin of the trip from Arizona, which is known to be a drug hub; traveling from that destination to Minnesota; vague travel plans; unsure how long he was going to be in Denver; vague reasons for even being in Denver; attempting to control the conversation; inconsistent statements regarding where he was currently living; the Arizona driver’s license; the Minnesota registered vehicle; the condition of the interior of the vehicle; and Mr. Leon’s nervousness . . . .
This is all wrong, says the Appeals Court, starting with the stupidity that is “drug hubs,” an assertion that pretty much declares all of America to be either a drug source or a drug destination.
First, the characterization of Arizona and Minnesota as drug hubs or destinations adds nothing to the reasonable suspicion calculus. […] Moreover, it is not clear that Trooper Gosnell knew or believed Mr. Leon was traveling to Minnesota. In fact, the government argues Mr. Leon did not disclose his final destination and that his failure to do so was suspicious.
Nor were the travel plans Leon discussed with the trooper in any way “suspicious.”
Mr. Leon’s plans were at most unusual, not logistically unrealistic. Although we have found travel plans suspicious when “it begged credulity to think that the purported purpose of the trip could justify the travel plans,” United States v. Lopez, 849 F.3d 921, 927 (10th Cir. 2017), there is nothing in the record to suggest Mr. Leon was on a restricted timeline and Trooper Gosnell did not inquire into Mr. Leon’s plans after stopping at ISKCON [the religious convention]. Nor do we find it suspicious that Mr. Leon planned to play his trip in Denver by ear. Assuming Mr. Leon was traveling all the way to Minnesota from Arizona, stopping in Denver where there was a personal point of interest would not be all that unusual.
And there was no inconsistency in Leon’s statements about his travel plans and residency, despite the lower court (mistakenly) assuming otherwise.
The district court relied on Mr. Leon’s inconsistent statements about where he lived. But Mr. Leon did not actually make an inconsistent statement. Early in the traffic stop, Trooper Gosnell asked him if he was from Arizona. Mr. Leon answered affirmatively but clarified that he was transitioning to Minnesota. In response, Trooper Gosnell noted the Minnesota plates. After Mr. Leon confirmed he was traveling from Phoenix that day, Trooper Gosnell asked him how long he had been living “out there.” Dashboard Camera Footage at 4:50–4:51. Mr. Leon explained that he received permanent residency in 2014 but lived in Arizona as a child. When Trooper Gosnell then inquired into Mr. Leon’s connection to Minnesota and how he came into possession of the truck, Mr. Leon explained his transition, noting that he originally went to Minnesota because of a woman and was now living with his friend Marco who helped him get the truck. At the time of the Rodriguez moment, Mr. Leon had not made any inconsistent statement about where he was living.To the extent the district court found otherwise, it was clearly erroneous.
As for the other additives to Trooper Gosnell’s “reasonable suspicion” equation, the Appeals Court is even less impressed by these factors.
Moreover, we afford no weight to the condition of the vehicle’s interior, which
had food wrappers, soda and energy drink containers, miscellaneous boxes, and clothes.
First, food wrappers and drink containers are items you would find in any vehicle on a road trip. […] The lived-in or hard-travelled appearance Trooper Gosnell noted may be consistent with drug trafficking trips but it is also characteristic of most road trips. The fact that Mr. Leon had purchased the car just a few weeks prior does not change our analysis; a car being used for a road trip is likely to accumulate some degree of mess regardless of how long it has been owned.
Second, although Trooper Gosnell explained that some traffickers use a “cover load” to make a trip seem legitimate, he failed to explain why he believed the contents of Mr. Leon’s vehicle were part of a cover load rather than indicative of legitimate travel or even how such a distinction could be made. We are not persuaded that the presence of boxes or clothing, whether neatly arranged or disorganized, raises an inference of reasonable suspicion.
“Nervous” driver? This means nothing, says the Tenth Circuit.
[W]e have consistently held that ordinary nervousness bears little weight in the reasonable suspicion calculus. This is because most motorists experience some degree of nervousness when stopped by police and “**unless the police officer has had significant knowledge of a person, it is difficult, even for a skilled police officer, to evaluate whether a person is acting normally for them or nervously.**”
The same goes for the officer’s assertions that Leon might have been driving the truck as a mule, unaware of its contents, but somehow still responsible for the contraband inside the vehicle. But that assertion goes against all the evidence the trooper already possessed when he suddenly decided he had the reasonable suspicion needed to extend the stop and search the truck.
To the extent Trooper Gosnell found these factors suspicious because they suggested Mr. Leon was traveling in a third-party vehicle, we afford them no weight. Prior to the Rodriguez moment, Mr. Leon told Trooper Gosnell the truck belonged to him, which Trooper Gosnell confirmed by looking at the title transfer. At that point, it would have been clear to a reasonable officer that Mr. Leon was not traveling in a third-party vehicle and could not distance himself from the vehicle as a defense.
Having perhaps recognized all this “reasonable suspicion” might not be all that “reasonable,” the government also added this to its arguments.
On appeal, the government urges us to consider an additional factor: Mr. Leon purchased the vehicle for a suspiciously low price of $500, which was listed on the title. We decline to consider this factor in our de novo review of reasonable suspicion for two related reasons. First, the government did not raise this factor below, and the district court did not appear to consider it.
The Appeals Court isn’t obligated to consider this last-minute addition to the government’s arguments. But even so, it takes time to explain why it wouldn’t consider this evidence of anything, much less supportive of its reasonable suspicion assertions.
We conclude that the record on this point is inadequately developed because it is devoid of details concerning the condition of the vehicle and market rates at the time of purchase, which is context needed to measure the probativeness of the price Mr. Leon paid.
While things might have seemed sketchy, they weren’t constitutionally sketchy.
The factors cited by the district court and the government are not inconsistent with drug trafficking, but they are also not meaningfully indicative of drug trafficking.
And away goes the 76 pounds of meth discovered, along with the conviction this evidence secured. Hopefully, the lessons learned (and made precedent through publication) discourage officers from pretending normal driver behavior is somehow suspicious. But, given the odds, it seems safe to say this will do nothing to prevent cops from converting minor moving violations into fishing expeditions.
Filed Under: 10th circuit, colorado, colorado state police, reasonable suspicion, shane gosnell, traffic stop
Kansas State Police Tell Court It’s Too Much To Ask For Troopers To Respect The Constitution
from the hey-you-can't-demand-we-comply-with-the-law dept
Given enough time and attention, informal parlance just becomes… parlance. And so it is for the Kansas State Police. For years, troopers have evaded the Constitution and applicable Supreme Court decisions to make the Fourth Amendment irrelevant.
There’s a term for this: “Kansas two step.” Enough drivers have encountered it that it is no longer deniable. Enough courts have dealt with the resulting lawsuits to make this informal term part of the national parlance. And, most recently, a federal court judge blew past all the “reasonable” explanations for the unlawful extension of pretextual traffic stops (ones that inordinately targeted drivers with out of state plates) to call bullshit on the KSP’s reliance on ignorance of law (by those they stopped) to perform unlawful searches.
Here’s how the “Kansas two step” works: following a traffic stop (often for pretextual reasons), the trooper will hand a citation/warning to the driver and say something noncommittal like “We’re good here.” A noncommittal phrase is essential. It does not affirmatively state the driver is free to go.
The driver, hearing this statement, may assume they’re free to go. That’s when the second step kicks in. Troopers will then say something like, “Oh, hey, one more thing…” and move on towards more questioning of the driver. The driver at this point isn’t sure what their legal rights are. They have never been advised of them by the troopers. And despite being told something that somewhat equates to “you’re free to go,” they’ve never been told in plain English they’re free to go.
So, they re-engage (despite having no desire to) with the trooper. The questions become more direct. The push towards obtaining consent for a search escalates from conversational to the law enforcement equivalent of a hard sell.
As they say, that’s where they get you.
But this is no longer acceptable. A lawsuit brought against the state police resulted in a judge calling out every bit of this unconstitutional two step.
[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.
Not only does this tactic thumb its nose at the restrictions placed on law enforcement by the Supreme Court’s 2015 Rodriguez decision, it thumbs its nose at long-held Fourth Amendment standards. As a result, the court ordered the Kansas State Police to engage in thorough documentation of traffic stops in hopes of deterring troopers from abusing citizens and their rights when traveling in or through a state (conveniently) surrounded by states that have legalized marijuana possession.
The changes ordered did not prevent KSP from performing stops or even engaging in prolonged questioning of drivers. All it did was ask the State Police to document the interactions and provide a narrative that articulated the reasonable suspicion or probable cause used to extend stops and engage in searches.
The KSP has not implemented any of this yet. Instead, it has ushered its resources (read: tax dollars) to argue it should not have to justify anything about these stops, much less generate a paper trail that might be used against it in court when it decides to go back to doing the unconstitutional thing.
[I]n the court filing, Assistant Attorney General Stanley Parker argued that Vratil’s proposed requirements were much too onerous.
Requiring troopers seek supervisory approval for a consensual stop, he argued, was “impractical” as it would “unduly lengthen the amount of time a driver is detained while waiting for supervisory approval.”
Other requirements, such as informing motorists that they can revoke consent for a search at any time, “impairs troopers ability to do their job.”
And Parker wrote that a special master would be a step too far. The court’s finding that four vehicle stops were unconstitutional, as well as data on a disproportionate number of out-of-state vehicle stops, were not sufficient to establish that the agency systematically violated the constitutional rights of drivers.
What’s the phrase the kids are using on the internet these days? Oh, yeah. Rights don’t care about your feelings. That the KSP feels complying with the Constitution might be a burden sucks for the KSP only. Compliance is the minimum the law requires. Crying about the costs or “burdens” rings pretty hollow when it’s coming from an agency that placed the burden on drivers to show their rights had been violated repeatedly by opportunistic two-steppers.
What’s the other phrase used so often these days? Oh. Right. Go fuck yourselves.
As the report from the Topeka Capital-Journal notes, this is far from unsettled law. KSP troopers have already been found to be on the wrong side of the law twice.
Earlier this year, two separate federal juries found that individual troopers violated constitutional rights during traffic stops.
The court system has already (twice!) found troopers’ actions to be unconstitutional. That it’s going to be a pain in the ass for the KSP to police itself is a direct result of its own actions. That it might be difficult to achieve this doesn’t matter. If the KSP doesn’t like the situation it’s in now, it maybe should have tried to deter unlawful behavior by troopers using all the time and resources it had in apparent excess years before it started getting sued on the regular.
The court has yet to respond to the KSP’s desire to separate itself from any form of accountability. But if you’d like to read its whining in its unabridged form, here’s the filing [PDF]. Suffice it to say, this is something the Kansas State Police could have prevented. That it never cared to do so doesn’t mean it should be able to dodge the (minimal) obligations placed on it by a federal court.
Filed Under: 4th amendment, detention, kansas, kansas state police, khp, ksp, search, traffic stop
Texas Deputy Sued For Privacy Violations After Live Streaming A Traffic Stop On TikTok
from the awful-and-probably-not-lawful dept
I don’t know, maybe don’t do this?
A Tarrant County man is suing Dallas County and a sheriff’s deputy after he says his personal information was revealed to more than 100 people after the deputy livestreamed a traffic stop through TikTok.
So, there’s a lot going on here, most of it in favor of the Tarrant County man. That man would be Torry Osby, who recently sued Dallas County deputy Francisco Castillo for livestreaming a whole bunch of his personal information during a routine stop.
One of deputy Francisco Castillo’s (d/b/a “cycosisco” on TikTok) followers saw the livestream and reached out to Torry Osby — something they were able to accomplish because Deputy Castillo basically broadcasted all of Osby’s personal information by putting Osby’s driver’s license in front of his camera.
This is a screenshot of the TikTok broadcast, as included in Osby’s lawsuit [PDF]:
Here’s a small part of the allegations, as stated by Osby’s lawyers:
Osby said he was driving to his job at a Walmart distribution center March 2, 2021, when he was pulled over by Castillo for speeding — even though Osby said he had his cruise control set to drive below the speed limit. Castillo let Osby go with a warning.
Osby never consented to being livestreamed, his lawyers wrote, and did not know he was being recorded until a viewer of the livestream reached out to him. His lawyers said Castillo only pulled Osby over and filmed the stop to get likes and views on TikTok, and not for any legitimate government purpose.
It’s true Osby never consented to being livestreamed. But he had to assume he was being recorded in one way or another. Dashcams have been around forever. Body cams are swiftly becoming omnipresent.
On top of that, Texas is a one-party consent state, which means Osby’s permission to be recorded wasn’t necessary. The law only prevents recordings in which neither party knows they’re being recorded.
But consent to a recording, whether consensual or not, is not the same thing as consenting to a broadcast of the conversation. That the deputy decided to broadcast a ton of personal information about a person stopped and let go with a warning is something else entirely. Law enforcement agencies regularly release a lot of personal information about people arrested, booked, and charged with criminal offenses. Law enforcement agencies do not regularly release information about people who have only interacted with law enforcement officers.
The lawsuit gets it tort on. There are plenty of claims under state law about privacy violations. As should be expected in any lawsuit (and, indeed, any prosecution), the opening tactic is to note any and all possible legal violations in hopes that some of them will stick.
But beyond the lawyering that’s expected in the opening rounds of litigation, Osby’s lawyers do make good points. The lawsuit opens with a physical world analogy:
Imagine an officer pulling over driver on traffic stop, and then loudly proclaiming to people walking down the sidewalk who the driver is, when he was born, where he lives, and his driver license number. This shocking invasion of privacy is essentially what occurred in this case, only to over hundred people on the internet.
And that’s the crux of the issue here. It’s not shocking that an officer would record a traffic stop. It’s shocking that an officer would broadcast a bunch of personal information over social media, effectively doxing the person being stopped. If someone posted a bunch of personal info about a cop on social media, police officials, union leaders, and probably even some local legislators would be publicly incensed. But when a cop does it to a regular person, no one has much to say about but the person who got fucked.
And nothing much is done about this obvious breach of policy, privacy protections, and general “don’t do stupid shit” expectations of public officials. Deputy Castillo received all of a two-day suspension for this act, despite there being evidence on record that the deputy regularly uses his law enforcement work as entertainment for nearly 18,000 followers on TikTok.
At best, this was an egregious breach of trust by the deputy. It violated the assumptions of interactions with cops — one of those being that officers aren’t detaining people for internet points. At worst, this was a careless, dangerous, incredibly stupid, and illegal use of Deputy Castillo’s law enforcement powers.
Whatever this ends up being under Texas law should be decided by a jury. There’s probably no precedent that says officers shouldn’t broadcast people’s personal information on social media, but it’s such an obvious indiscretion, no officer should expect a court to look the other way in order to grant immunity. Deputy Castillo fucked up. And, given his alleged social media history, this very likely isn’t the first time. He deserves to be held civilly accountable for what he’s done. No matter the outcome of the lawsuit, his employer should sever ties with someone who thinks his taxpayer-funded job is just fodder for 17.5 thousand TikTok followers.
Filed Under: dallas, francisco castillo, live streaming, social media, tarrant county, texas, torry osby, traffic stop
Companies: tiktok
Fourth Circuit Latest To Say Filming Cops Is Protected By The First Amendment
from the fuck-yeah-precedent dept
The Supreme Court — years after the ubiquity of cell phones and their cameras — has yet to provide nationwide guidance on a topic that should be considered settled: the right to record public officials while they engage in their public duties.
If cops can assert anything happening on a public street has no reasonable expectation of privacy, the stakeholder that actually has rights (i.e., the general public) should be able to assert the same thing. But courts have sided with cops and against the public for years, granting credence to inapplicable wiretap and two-party consent laws to pretend the government has more of a right to record public activities than the actual public.
The Supreme Court won’t be able to keep ignoring this issue for long, even if its handling may result in a declaration that opposes the findings of several appellate courts. While we wait for the inevitable (and perhaps inevitably terrible) decision from the nation’s top court, we’ll have to satisfy ourselves with lower precedent that, at the very least, clearly establishes a First Amendment right to record in that jurisdiction.
The Fourth Circuit has added to the body of legal precedent establishing a right to record cops. At the center of the case is North Carolina resident Dijon Sharpe, who was confronted by a police officer who attempted to take his phone away while he live-streamed his own traffic stop.
Officers Myer Helms and William Ellis were involved in the traffic stop. Officer Helms was named directly in the lawsuit. Both made an insanely ridiculous assertion while trying to prevent Sharpe from recording the stop. This is from the Fourth Circuit decision [PDF]:
Officer Helms noticed this activity and attempted to take Sharpe’s phone, reaching through Sharpe’s open car window. [J.A. 9, 55, 75.] Officer Helms and his partner Officer William Ellis then told Sharpe he could record the stop but could not stream it to Facebook Live because that threatened officer safety.
Neither officer bothered to explain how a livestream threatened officer safety while an immediate release of the same recording directly following the stop would not. That’s probably because there’s no difference between the two, unless you have an overactive imagination and/or a desire to intimidate someone out of their First Amendment rights. The officers added stupid insult to stupid constitutional injury by claiming Sharpe’s phone would be arrested and/or have his phone seized if he tried to livestream any traffic stops in the future.
The officers were sued directly, along with their employer, the Winterville Police Department. The Appeals Court reverses the lower court’s dismissal of Sharpe’s lawsuit, stating there is definitely (and precedentially) a right to record (or, in this case, livestream) police officers engaged in their public duties.
At the center of this case is Sharpe’s allegation that the officers’ actions were prompted by PD policy:
(1) Officer Helms tried to seize his phone upon learning Sharpe was streaming to Facebook Live; (2) Officer Ellis said that in the future if Sharpe broadcasts on Facebook Live his phone will be taken from him and, if Sharpe refuses to give up his phone, he will go to jail; and (3) both officers justified their efforts to prevent livestreaming using the same officer-safety rationale. It is a reasonable inference that absent a policy the two officers would not have taken the same course, for the same reason, nor would those officers have known in advance that Sharpe would face the same treatment if he tried to livestream another officer in the future.
This is a plausible allegation, says the Fourth Circuit. Sharpe’s suit remains alive to pursue this allegation. This reversal ensues even though the officers raised (ridiculous) claims livestreaming allowed people to track cops and presumably threaten their safety while performing stops. This claim was buttressed by none other than a police union, the sort of entity willing to sign off on any argument, no matter how ridiculous, that might allow officers to walk away from lawsuits and back to their day-to-day constitutional violations.
According to Defendants, livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter. They support this claim by arguing, with help from amici, that violence against police officers has been increasing—including planned violence that uses new technologies. [See, e.g., Amicus Brief of the Southern States Police Benevolent Association at 9.] On Defendants’ view, banning livestreaming prevents attacks or related disruptions that threaten officer safety.
All well and good, I guess. But if the officers (and their union) really want to develop this line of thinking, they should stay engaged with the lawsuit, rather than seek an early exit.
But an early exit was sought. And, unfortunately, this limited reversal allows Officer Helms to escape the lawsuit.
Qualified immunity protects Officer Helms unless it was clearly established at the time of the traffic stop that forbidding a passenger from livestreaming their own traffic stop violated the First Amendment. Here, no precedent in this Circuit nor consensus of authority from the other Circuits established that Officer Helms’s actions were unconstitutional. The district court was thus correct to dismiss the § 1983 claim against him in his individual capacity.
All applicable precedent dealt with someone other than a car’s driver or passenger filming a traffic stop, rather than the subject of the traffic stop themselves. Given the lack of controlling precedent specific to this case, the officer is immune from this suit.
But the suit is still alive, allowed to go forward to determine whether or not the PD has implemented policies that violate the First Amendment when it comes to recording police officers.
But this mixed bag of an opinion does deliver one solid good: the First Amendment right to record cops is now firmly established in this circuit:
Recording police encounters creates information that contributes to discussion about governmental affairs. So too does livestreaming disseminate that information, often creating its own record. We thus hold that livestreaming a police traffic stop is speech protected by the First Amendment.
Dijon Sharpe may ultimately lose this lawsuit. But he has obtained a win for everyone else located in this jurisdiction. It may not be the redress he’s seeking, but he has made things better for millions of people by obtaining precedent that firmly establishes a right to record.
Filed Under: 1st amendment, 4th circuit, dijon sharpe, live streaming, myer helms, qualified immunity, recording police, supreme court, traffic stop, william ellis, winterville pd
Court Says Google Translate Isn't Reliable Enough To Determine Consent For A Search
from the almost-habla-espanol dept
The quickest way to a warrantless search is obtaining consent. But consent obtained by officers isn’t always consent, no matter how it’s portrayed in police reports and court testimony. Courts have sometimes pointed this out, stripping away ill-gotten search gains when consent turned out to be [extremely air quotation marks] “consent.”
Such is the case in this court decision, brought to our attention by FourthAmendment.com. Language barriers are a thing, and it falls on officers of the law to ensure that those they’re speaking with understand clearly what they’re saying, especially when it comes to actions directly involving their rights.
It all starts with a stop. A pretextual one at that, as you can see by the narrative recounted by the court.
On February 11, 2020, Corporal Mark Conrad of the Pennsylvania State Police initiated a traffic stop of a vehicle driven by Ramirez-Mendoza on Interstate 80 (“I-80”) in Union County, Pennsylvania. Conrad chose to conduct a stop because Ramirez-Mendoza was driving above the speed limit and he suspected that her vehicle’s window tints were illegal. While standing by Mendoza-Lopez’s car, Conrad observed that there were two cell phones in the car’s center console area and a single key in the ignition. Conrad also detected a strong odor of air freshener emanating from the vehicle.
“Suspected tint was illegal.” Check. “Multiple cell phones.” Check. “Air freshener.” Check. All the things needed to cause a state trooper to be somewhat reasonably suspicious. The language barrier only heightened the suspicion, apparently. Corporal Conrad tried to get details on Mendoza’s travel plans, but was unable to because, while he asked questions in English, he was only able to get Spanish in return.
The trooper decided tech could get the job done. He retrieved his phone and turned on Google’s translation app. Using this, he asked questions and received answers, all filtered through Google’s translation service. This process introduced the possibility of erroneous translations, something the trooper was incapable of recognizing.
Because Conrad does not speak or understand Spanish, he did not and could not confirm whether Google Translate accurately interpreted and articulated what he was saying.
A mistranslation wasn’t just a probability. It was an actuality, something that was captured by the trooper’s body camera. There was a mistranslation at a very crucial juncture of this traffic stop.
Later in the stop, Conrad asked Ramirez-Mendoza if she had anything illegal in the car. She responded no. Conrad then said: “would like to search the car to make sure, okay?” Google Translate converted this into Spanish, and from the video recording, it appears that the word “registrar” was used in place of the phrase “to search.” The FBI linguist translated the app’s Spanish translation into the statement: “I like to search the car to make sure that it is all right.” Again, however, the Government did not offer any testimony to verify the accuracy of this translation.
Ramirez-Mendoza then responded “uh-huh” and nodded her head. Conrad subsequently directed her to the shoulder of the highway and proceeded to search the vehicle. In the car, he found a large package of fentanyl. Ramirez-Mendoza testified that she believed that Conrad had meant “I like check the cars, revise the cars” and that she did not understand this to mean that he intended to search her vehicle. She acknowledged that she had responded that it was “fine” because he had not indicated to her that he was asking to look inside the car or through her belongings. In any event, at no point did Ramirez-Mendoza protest the search or ask for clarification.
The court says this effort — as well-intentioned as it might have been — is not enough. Google Translate is simply not reliable enough to be used in a situation where rights are on the line. While some courts have said the service performs well enough, the translation errors observed in the recording suggest it didn’t in this case.
The Court is not convinced that Google Translate accurately translated Conrad’s request for consent into Spanish. The Government bears the burden of proof, but failed to introduce any evidence showing that the word “registrar” actually means “to search.” Unlike in cases such as Salas-Antuna or United States v. Leiva which found the word “buscar” sufficient to communicate to a suspect that an officer would like to search her property, the Court has no legal or factual basis for interpreting the term “registrar” in a similar manner. Precision is important, particularly in this context, and the Court believes that more was needed to establish the accuracy of Google Translate.
Moreover, even if the Court credited the transcript’s translation, it would not be enough to bear the Government’s burden. While the transcript tends to prove that Ramirez-Mendoza knew that Conrad intended to search her car, the translation would still undercut the Government’s case as the transcript shows that Google Translate revised Conrad’s question into a statement. As a statement that one “like[s] to search” is significantly more coercive than a request, this alone would not be enough to establish voluntary consent. The transcript thus presents strong evidence of coercion which would suggest that Ramirez-Mendoza felt unable to refuse given Conrad’s declaration.
The court isn’t going to give the trooper a pass by giving Google Translate a pass. It declines the state’s invitation to give the app a five-star rating.
The Court declines to infer that Google Translate accurately translated and communicated Conrad’s request to search Ramirez-Mendoza’s vehicle solely because it may work well generally. A review of the record shows that Google Translate is a useful tool with an alarming capacity for miscommunication and error. That the app can facilitate basic communication does not make it an adequate method for soliciting consent. It need only fail once to obviate a suspect’s consent.
The court points out Trooper Conrad had a whole bunch of better options, but used none of them. He could have located someone to translate. He could have used pre-printed consent forms that include a Spanish version. He could have run his drug dog around the car and looked for an alert, which would have made consent a non-issue. And he could not explain why he failed to use any of these options, but continued to utilize Google’s app, even after it became apparent it was generating un-useful junk.
Courts may not expect officers to be legal experts, but this substantial footnote suggests they should at least be aware that there’s one truly acceptable way to obtain consent from someone who doesn’t speak the same language as the officer.
The Court finds Conrad’s failure to use a consent form odd. When communication issues are present and a translator is not available, the gold standard appears to be an accurately translated foreign-language consent form which the defendant reads and signs. See Cedano-Medina, 366 F.3d at 687; United States v. Gaviria, 775 F.Supp. 495, 500 (D.R.I. 1991); e.g., United States v. Palomino, 100 F.3d 446, 450-51 (6th Cir. 1996); United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir. 1987); United States v. Marin, 761 F.2d 426, 433-34 (7th Cir. 1985); United States v. Guevara-Miranda, 640 Fed. Appx. 319, 321 (5th Cir. 2016); United States v. Gonzalez-Ramirez, 317 Fed. Appx. 790, 796 (10th Cir. 2009); United States v. Camilo, 287 F.Supp.2d 446, 454 (S.D.N.Y. 2003); United States v. Soto-Teran, 44 F.Supp.2d 185, 194 (E.D.N.Y. 1996); United States v. Hernandez, 872 F.Supp. 1288, 1296 (D. Del. 1994); United States v. Tavarez, 834 F.Supp. 55, 56 (D.P.R. 1993); United States v. Garcia-Restrepo, 648 F.Supp. 1188, 1194 (S.D. Fla. 1986); see also United States v. Hernandez, 224 F.Supp.2d 1156, 1160-61 (W.D. Tenn. 2002) (finding no consent where the consent form “contained numerous linguistic mistakes which distorted its content to the point of rendering it nonsensical”); United States v. Suarez, 694 F.Supp. 926, 939 n.10 (S.D. Ga. 1988) (holding it inappropriate to use an English consent form as evidence of consent where the defendant spoke Spanish and the form was not translated). Conrad has provided no valid explanation for his failure to use such a form and, had he simply employed a consent form, there would be no dispute regarding Ramirez-Mendoza’s consent, or lack thereof.
Pre-printed consent forms have been vetted and edited. Google Translate, as powerful as it is, generates what it thinks is the best translation of what it’s hearing, and its best is years away from being at the level of someone truly bilingual. Thus, it’s fallible enough it shouldn’t be used to ask people who speak other languages to waive their rights.
Unfortunately, that only invalidates the consent. The court says there was enough reasonable suspicion present to support the search, even without consent. While tech tools can make some things easier, there’s a lot more involved in actually making things better. Google fell down here. As did a trooper who should have known better than to rely on a service that was generating nonsense to talk someone into letting their rights be violated.
Filed Under: 4th amendment, consent, google translate, search, traffic stop
Court Calls Bullshit On Cop Who Claimed He Could Smell Weed In Sealed Bags In A Moving Car From His Own Moving Cruiser
from the STEAMED-HAMS-but-it's-this-cop's-story dept
It doesn’t happen nearly often enough, but it’s always enjoyable to watch a court lay the smackdown on a law enforcement officer’s literally unbelievable assertions. And this case [PDF] — via FourthAmendment.com — contains a claim from a supposedly trained and experienced officer that’s so ridiculous, the court has no choice but to discredit his testimony completely.
Indianapolis police officer Daniel Hiser performed a traffic stop that resulted in the discovery of marijuana and a handgun in Davon Gray’s possession. But it’s the events leading up to the stop that triggered the court’s BS detector — events that include Officer Hiser’s apparently miraculous olfactory sense.
Officer Hiser is surprisingly humble about his superhuman gift, something that has served him well during his years as a law enforcement officer.
Though Officer Hiser has never had his sense of smell tested and does not generally consider his sense of smell extraordinary, he estimates that he smells raw marijuana at some point during approximately a quarter of the traffic stops he conducts.
But any officer with similar training (“_Officer Hiser received a ‘couple of hours’ training on the appearance and odor of multiple [drugs]…_“) could be expected to smell marijuana in a stopped car with its windows down. Officer Hiser, however, can smell it in moving vehicles with their windows up located a few car lengths away from his impressive nose.
At about 3:30 p.m. on January 11, 2018, Officer Hiser was patrolling in his police cruiser in the East District when he turned south onto Arlington Avenue from 31st Street. As he moved into the left lane of Arlington Avenue behind a Dodge Stratus driven by Gray, Officer Hiser testified that he could smell the strong odor of raw marijuana. Officer Hiser believed the scent to be coming from the Stratus, so he continued southbound to try to verify that this vehicle was the source of the aroma. (Filing No. 72-1 at 5.) While cars were not “bumper to bumper,” there was still some traffic present. Several blocks later, around 23rd Street, the Stratus moved into the right lane, and Officer Hiser could no longer smell the marijuana odor. Officer Hiser then switched lanes and the fragrance returned. Id. The Stratus then slowed, turning into an Express Mart at the corner of 21st Street and Arlington Avenue. Again, as the Stratus departed the lane, Officer Hiser testified that the scent vanished. At this point, Officer Hiser decided to stop the vehicle and pulled behind the parked Stratus, initiating his emergency lights and siren.
Hiser could not state with any certainty whether he had ever performed this superhuman feat of olfactory awareness prior to this stop. He also could not state with any certainty whether his cruiser’s windows were down or whether Gray’s windows were down. The 3.59 ounces of marijuana found in the car Hiser claimed smelled like weed was located under the front seat inside resealable plastic bags.
Yes, courts are supposed to defer a bit to “trained” and “experienced” officers and their assertions about their ability to determine whether something is reasonably suspicious or objectively innocuous. And courts far too often reward unreasonable assertions made by cops with good faith passes or denials of motions to suppress.
But the court isn’t impressed by Hiser or his freak-of-olfactory-nature superpowers. You have got to be fucking kidding me, says the court.
_The Court agrees with Gray that it is incredible that Officer Hiser—who self-admittedly does not have a heightened olfactory system—could smell the scent of two resealable sandwich sized plastic baggies of unburnt marijuana coming from a moving vehicle when patrolling in his cruiser. This occurrence is not only contrary to any common experiences, but is “implausible” and seemingly “contrary to the laws of nature._”
Unsurprisingly, there is exactly zero precedent that supports Hiser’s “if I smelt it they probably were in the process of, um, dealting it” theory of reasonable suspicion. (Emphasis in the original.)
The dearth of appellate caselaw considering—let alone upholding—Terry stops solely based on an officer smelling three ounces of raw marijuana emanating from two small ziplocked sandwich baggies located under the front seat a moving car, while he drives his own vehicle, supports a finding of incredibility of Officer Hiser’s testimony as a matter of law.
In fact, it can only find precedent that quotes an officer just as full of shit as Hiser.
“The arresting officer’s testimony that he observed defendant exchanging a 2-inch glass vial with a dark top, from a distance of approximately 74 feet, from a moving patrol car, after dark, is, in our view, contrary to common experience and, as such, was incredible as a matter of law and did not support the verdict.”
Away goes the stop, which means away goes the evidence. And without the evidence, the government has nothing, which it has acknowledged by dismissing Gray’s indictment.
It’s already impossible to believe cops smell as much marijuana as they do — something that handily allows them to start tossing vehicles and patting down vehicle occupants without troubling themselves with a warrant. This cop just took the lie too far.
Filed Under: 4th amendment, daniel hiser, davon gray, smell, traffic stop, warrantless search
I Guess They're Not All On The Same Side: Cops Brutalize Soldier For [Checks Notes] Leading Them To A Well-Lit Area
from the whatever-doesn't-kill-you-makes-you-more-of-an-asshole dept
The twist? This time the cops brought their own damnation to the party.
Cops like to pretend they and the boys in actual camouflage uniforms are BFFs, united against the constant threat of evil. Cops think they’re soldiers. It’s unclear whether soldiers think they’re cops, but the people sending them orders certainly think they are. I mean, we don’t go from zero to “Team USA America: World Police” without some nudges from those on and off the battlefield.
Here’s where this all intersects: two Windsor (VA) officers decided the best response to what appears to be a routine traffic stop was a whole lot of violence, both physical and mental. The body cam video shows just how much at least one officer overreacted to a man who just wanted to survive the unexpected interaction with law enforcement.
This is what happened to Caron Nazario — an Army medic. He bought a new car. And, as everyone knows (including the cops who pulled him over) new cars don’t have rear plates. They have temporary paper tags located inside the rear window where they won’t be destroyed by, say, any weather whatsoever.
Despite this being common knowledge, these officers (Joe Gutierrez, Daniel Crocker) effected a traffic stop. Things were unnecessarily escalated because Nazario chose to do something everyone — even cops — say is a good idea. From the lawsuit [PDF]:
On or around December 5, 2020, at approximately 18:34, Defendant Crocker initiated a traffic stop of Lt. Nazario on US 460 westbound in the Town of Windsor, near the Food Lion, where the speed limit is 35 miles per hour, by activating his emergency lights. The traffic stop was ostensibly for the lack of a rear license plate4 , though the temporary tags were affixed to the back of the vehicle and visible to Crocker during the pursuit. Defendant Gutierrez then joined in the pursuit.
Within seconds, Lt. Nazario submitted to Defendant Crocker’s display of authority and began to slow down. Lt. Nazario also activated his turn signal, to signal his compliance with Crocker’s implied directive to pull over. Crocker admits in real time that Lt. Nazario was complying, by relaying to dispatch that Lt. Nazario was slowing down. Gutierrez, who was listening to Crocker over the radio, was aware of both the reasons for the stop as well as Lt. Nazario’s compliance with Crocker’s signal to slow down and pull over.
It was dark, however, and it appeared to Lt. Nazario that there was no good location in the immediate vicinity to stop safely. So, for the benefit of the officer’s safety and his own, Lt. Nazario continued slowly down US 460, below the posted speed limit, for less than under a mile, until he spotted a well-lighted BP gas station. He pulled over in the parking lot. From the time that Defendant Crocker initiated the traffic stop until the time Lt. Nazario pulled over into the BP parking lot, approximately 1 minute and 40 seconds elapsed and Lt. Nazario had traveled less than a mile.
That’s how long it takes for cops to take things to the next level. No one wants to stop on a dark street. Cops who are concerned about their safety don’t want to perform traffic stops on dark streets. And cops who are concerned about their safety make the rules. (See also: a shitload of qualified immunity decisions.) So, to make sure everyone was safe, Lt. Nazario found the nearest well-lit area and stopped.
I guess that was the wrong decision. According to police spokespeople, Nazario’s careful move towards a lighted area turned this into a felony stop: one that justified whatever paranoia the officers engaged in. There was no pursuit. There was less than two minutes of activated lights before Nazario pulled over and attempted to comply with the officers’ shouted commands.
If you paid attention to the videos, you may have noticed (several) concerning details. First, the cops rolled up like they were dealing with a dangerous criminal — one who led them at low speed to a well-lit, heavily-trafficked area. Then they told him to do things that would endanger his life.
They told him to exit the vehicle. They also told him to keep his hands outside of his vehicle. Lt. Nazario’s seatbelt was still fastened. His door was locked. Complying with one order (exit the vehicle) would result in a violation of other orders (keep your hands outside of the vehicle).
You can’t win, as Lt. Nazario suspected. He pointed this out.
One officer said non-compliance of the conflicting orders would result in Nazario “riding the lightning,” presumably referring to the officer’s Taser. (But it also could refer to an instant death sentence, as being strapped into the electric chair is also referred to as “riding the lightning.” But we’ll stick with the “less lethal” option because we’re being overly charitable here.)
Then there’s the other comment made by the same officer. Nazario — recognizing the situation he’d been forced into by an officer who saw fit to escalate before having any facts in hand — said: “I’m honestly afraid to get out.”
He received this response:
“You should be.”
So, faced with these limited facts, he stayed in his car. For that, he was pepper sprayed and tased. And for that, these officers were sued.
“Command control,” will say any officer worth their suddenly-jeopardized pension. That’s why cops charge into scenes with guns drawn and repeated shouts of contradictory commands. What options did Lt. Nazario have? Lower his hands to unlock the door? Move his hands out of the officers’ sight to undo his seatbelt? He did all he could to avoid being shot. And, saints be praised, he wasn’t. But he was brutalized because Lt. Nazario failed to handcuff himself and teleport into the backseat of the nearest cruiser.
This is American policing. It happens every day. Sometimes, it gets captured on camera. And it shows the cops treat everyone — even those they consider to be comrades in arms in the fight against universal evil — to be nothing more than criminals who haven’t been convicted yet.
A citizen concerned about their own well-being will make officers safer. Instead of recognizing how everyone benefited from moving the stop to well-lit area, the officers chose to view it as a “felony stop” and reacted as though someone was leading them into danger. But the only person they put in peril was a guy just trying to drive his new car home. Hopefully, the court will see through any assertions about “training and experience” or “officer safety” and send these cops back to face a jury.
Filed Under: caron nazario, daniel crocker, joe guitierrez, police, police brutality, traffic stop, virginia, windsor
Court Tells Cop That A Person Invoking Their Rights Isn't Suspicious Behavior
from the your-rights-will-be-respected-at-the-discretion-of-the-government-apparently dept
To some cops, there’s nothing more inherently-suspicious than the invocation of rights. It appears they believe only guilty people do this. The innocent have no need for rights because if they have nothing to hide then they have nothing to fear.
It takes a court to remind officers that rights are rights everyone has, whether or not they’re guilty of anything. This case deals with an officer who treated someone’s invocation of his rights as the Constitutional approval he needed to search him. He was wrong. (via FourthAmendment.com)
It all started with a traffic stop that really wasn’t a traffic stop. Two officers staking out a “high-crime area” decided to follow a van that drove by them. After discovering the plate on the van actually belonged to a Chevy Silverado, the officers decided to initiate a stop. But it was too late. The van had already reached its destination and was parked in a driveway. The officers pulled up behind it and parked, exiting their car to speak to the driver. By the time they did this, the passenger, Antonio Arrington, had already exited the vehicle and headed towards the house.
While passengers can be questioned and searched in vehicles during traffic stops, Arrington was no longer in the van when the cops pulled up behind the vehicle to perform their “stop.” Arrington argued the officers had no reasonable suspicion to detain him and question him — acts that led to the discovery of drugs and a weapon.
Arrington is right, the court says [PDF]:
The Court agrees and makes two critical findings: (1) by the time Fryt initiated the traffic stop, Arrington was no longer a passenger in the van, was on private property doing nothing suspicious, and should never have been subject to an investigation in connection with the traffic stop; and (2) even if Arrington was still a passenger when the traffic stop was initiated, Norris admitted the only focus of his investigation was to investigate Arrington for other criminal activity. For this, he did not have the reasonable, articulable suspicion necessary for a continued investigatory detention.
The court says the traffic stop (such as it were) was justified. And that could have encompassed Arrington if he had still been in the vehicle. But the Supreme Court’s Rodriguez decision doesn’t just affect drivers. It also affects passengers. The speedy, but unrelated, criminal investigation is still a violation of rights, even if did not “unreasonably” prolong the stop. It’s the expansion that’s the problem.
In sharp contrast to Stepp, this Court knows exactly what Norris – the backup officer – was doing: he admittedly did not ask any questions about the traffic investigation. While not prolonged by the addition of time, the original traffic investigation was certainly unreasonably expanded. Rodriguez cautions that the reasonableness of the stop depends on what the police officer in fact does. Rodriguez, 575 U.S. at 357 (citing Knowles, 525 U.S. at 115-17). Norris – in fact – engaged in an investigation unrelated to the traffic stop.
Officer Norris tried to argue he did have reasonable suspicion to detain Arrington.
In concluding that Arrington was engaged in criminal activity, Norris testified that he relied upon only three things: (1) Arrington attempted to divert attention from himself by speaking loudly; (2) Arrington would not tell Norris what was in his pockets; and (3) Norris noticed an “irregular bulge” in Arrington’s pocket.
But the first of those three things was Arrington loudly telling the officer to leave him alone because he (correctly) knew his rights.
Officer Norris did not testify that Arrington became noticeably more nervous as time progressed. In fact, Arrington’s agitation with officers seemed to result from his repeated requests that they terminate his encounter when he informed them that he understood his legal rights.
That’s not acceptable, says the court.
Just as numerous courts have stated nervousness cannot be a reliable indicator of criminal activity, loudly asserting one’s right to terminate an encounter with officers does not provide reasonable suspicion for continued investigation of suspected criminal activity.
And, in a but-for-video twist, Norris’ own body camera made it clear the officer’s sworn assertions about Arrington’s behavior during the stop were untrue.
While Officer Norris testified that Arrington failed to comply with his commands, body camera video indicates otherwise. Arrington adhered to officers’ requests: (1) for his name; (2) for his relation to the property owner; (3) to see items in his pocket; and (4) to lift up his sweatshirt so officers could see that he did not have a weapon concealed in his waistband. This sequence of events substantially discounts the assertion that Arrington failed to follow basic commands or attempted to divert Norris’ attention from his pockets. Accordingly, the Court gives little weight to this in the reasonable suspicion calculus.
Everything seized during this stop is now gone, as if it had never been discovered. Considering this end result, the officer would have been better off listening to Arrington and deciding not to violate the rights he correctly invoked. Reasonable suspicion only exists when it’s reasonable, and here it was anything but.
Filed Under: 4th amendment, antonio arrington, law enforcement, police, rights, suspicious behavior, traffic stop