DUI _ Mississippi Finds Driving Too Slow Stop Illegal

In Trejo v. State of Mississippi, --- So.3d ----, 2011 WL 6224477 (Miss.) Officer Chris Picou was traveling North on I–55 at approximately 1:17 a.m. when he came upon a red Chevrolet SUV with a Texas license plate traveling in the left-hand or inside lane. The SUV was traveling approximately 58–60 miles per hour in an area where the minimum posted speed limit is 45 miles per hour and the maximum is 70 miles per hour. Picou was traveling 70 miles per hour in the left-hand lane behind Trejo when he flashed his bright lights for the SUV to move over so that he could pass. When the driver failed to change lanes, Picou flashed his brights two more times, with ten seconds passing between each flash. After the third flash, Picou initiated his blue lights, and the driver immediately pulled onto the interstate shoulder.

The trial court denied the defendant's motion to suppress. The Court of Appeals held that the arresting officer lacked probable cause or reasonable suspicion to make the traffic stop that led to the discovery of cocaine; thus, the trial court should have suppressed the cocaine as fruit of the poisonous tree. The Mississippi Supreme Court then reviewed the case to determine if the stop was proper under the community caretaking doctrine. 

The Supreme Court found that there was not a sufficient basis to stop the car under the community caretaking doctrine:

"Because of the risk of danger to a driver as well as the traveling public, we agree that it would be reasonable for a police officer to stop an individual who appears to be falling asleep while driving. However, the facts presented here simply do not support such an inference. There was no evidence of erratic driving. Trejo was traveling approximately 10–12 miles per hour below the maximum speed limit of 70 miles per hour and well above the minimum speed limit of 45 miles per hour in the left-hand lane around 1:00 a .m. We do not think his speed was so slow that a reasonable person would believe it indicative of distress. We also do not find that Trejo's failure to change lanes after Picou flashed his bright lights was necessarily indicative of distress, nor was it so when considered with the other facts. Picou flashed his bright lights in quick succession on a deserted stretch of interstate. And no traffic prevented Picou from passing Trejo in the right lane. We find the following analysis by the Court of Appeals especially relevant:


Trejo was not weaving or driving erratically, and there is no indication that Trejo was even aware that he was being followed by law enforcement.... This lack of awareness is supported by the fact that when Officer Picou turned on his flashing blue lights, Trejo promptly pulled over to the side of the road.

Therefore, we find that the facts presented at the suppression hearing do not justify a reasonable belief that Trejo needed help or that the public was endangered, and as such, the trial court should have granted Trejo's motion to suppress."


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DUI Law - Anonymous Call Insufficient Under Community Caretaking

In State v. Deccio, 136 Idaho 442, 34 P.3d 1125 the court had an opportunity to determine what affect an anonymous call would have on the validity of a seizure under the community caretaking doctrine. While the majority of courts have found an anonymous call of drunk driving, standing alone, to lack reasonable suspicion of a crime for purposes of stopping a vehicle, very few have addressed the community caretaking doctrine in this context.

In Deccio, a woman claiming to be the defendant's wife's best friend, called the police and claimed that the defendant was drunk, suicidal and driving. After attempts to locate Deccio at his home and on the roadways in Moscow proved unsuccessful, the Moscow police dispatcher notified the Latah County sheriff's office that Moscow police had received an anonymous call that Deccio was suicidal and intoxicated. A Latah County sheriff's officer spotted a vehicle matching the description of Deccio's vehicle driving southbound on Highway 95 toward Lewiston and began following the vehicle. The officer continued to follow the vehicle after it left Highway 95 and drove into the town of Genesee. The officer followed the vehicle for over a mile as it made several turns in Genesee but the officer did not observe any law violations or erratic driving. The officer eventually stopped the vehicle, believing that he needed to check the driver's welfare due to the report he received from the Moscow police dispatch. When the officer contacted the driver, Deccio, the officer smelled an odor of alcohol. Deccio was subsequently arrested for driving under the influence (DUI) after failing field sobriety tests. A bottle of vodka was found under the seat of Deccio's vehicle but no weapon was found.

The Idaho court stated that the same test used to deal with anonymous tips in the criminal context should be used in the community caretaking field:

"The present case involves the community caretaking function based on an anonymous tip. Although most cases involving anonymous tips center on the issue of reasonable, articulable suspicion rather than the community caretaking function, in each instance the reasonableness of a stop is analyzed under a totality of the circumstances. In analyzing the totality of the circumstances here, the threshold question is the weight, if any, the anonymous information concerning Deccio's condition should be given by the trier of fact. In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the United States Supreme Court held that a dispatcher's report may be based upon a variety of sources, including a completely anonymous tip. However, an anonymous tip standing alone is generally not enough to justify a stop because an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity. State v. Larson, 135 Idaho 99, 101, 15 P.3d 334, 336 (Ct.App.2000). The information from an anonymous tip may provide justification for a stop when the information it contains bears sufficient indicia of reliability or when significant aspects of the tip are sufficiently corroborated by independent police observations. State v. Hankey, 134 Idaho 844, 847–48, 11 P.3d 40, 43–44 (2000); Larson, 135 Idaho at 101, 15 P.3d at 336. See also State v. Wilson, 136 Idaho 270, 32 P.3d 164 (Ct.App.2001)."

Holding that the stop here was illegal, the court stated:

"Here, the magistrate held that the anonymous tip, standing alone, did not bear sufficient indicia of reliability justifying the stop of Deccio's vehicle. We have been shown no error in the magistrate's determination. The female caller refused to identify herself or give her address. She merely stated that she was the best friend of Deccio's wife. The female did not call from home but from a phone at a local bar and indicated that she did not intend to stay there, thus avoiding the possibility of being identified or questioned. There was no indication that the female personally observed or had any first-hand knowledge of Deccio's suicidal or intoxicated condition. The female stated only that she had been speaking with Deccio and his wife and that he had been drinking all day. Moreover, the caller did not distinguish what information she obtained directly from Deccio and what hearsay information she obtained from Deccio's wife concerning Deccio. The magistrate found that, although the caller knew where Deccio lived and the type of vehicle he drove, such information was easily obtainable. The female's prediction that Deccio would not be home if officers were to check did not in itself make the tip more reliable.

"The magistrate also found that, aside from the officer's observations, there was no significant confirmation of the anonymous female's information. The only information that was corroborated was that a white Subaru was registered to Deccio, that Deccio lived on Concord Street in Moscow, and that Deccio was not at home at the time officers went there. We conclude, as did the magistrate, that the anonymous tip in this case did not bear sufficient indicia of reliability justifying **1129 *446 the stop of Deccio's vehicle on the belief that Deccio was in need of immediate assistance. Thus, we uphold the magistrate's determination that the anonymous tip was unreliable and that it did not provide a reasonable basis for the officer to stop Deccio's vehicle under the community caretaking function."

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DWI Law - Texas Declares Stop of Car Illegal Under Caretaking Exception

Texas gets a second one right in less than one month! In Alford v. State of Texas, --- S.W.3d ----, 2011 WL 3505698 (Tex.App.-Dallas) Wylie police officer Jeff Callan was on bicycle patrol with another officer at approximately 12:45 a.m. when they pulled into a church parking lot to rest. About 100 yards away, Callan saw a vehicle pull up and stop at a dead end street through a very wide alleyway behind a Jack in the Box restaurant, which was open at the time. Callan saw the passenger door open, and the passenger “kind of turned sideways half of their body was out and was leaning over saying something to the driver.” Callan observed the vehicle for “between five to seven minutes.” Callan could hear the passenger and the driver talking but could not hear what they were saying, and “it appeared that they were talking very loudly for us to hear it that far away.” Callan said he was going to “ride over there and see what's going on.” As the officers approached, the passenger got out of the vehicle and changed places with the driver. When Callan reached the vehicle, he saw through the passenger window that the gear shift was in drive and made eye contact with the driver, appellant, who started to drive away. Callan asked appellant if she would “mind putting it in park” and said he wanted to talk to her for a second. Callan asked if everybody was okay and said he noticed they were sitting there for a while. Appellant said they “were just changing positions” and had come from a place where they had watched a friend play in a band. At that point, Callan noticed a strong odor of an alcoholic beverage coming from inside the vehicle and asked appellant how much she had to drink. Appellant said she had “four big beers.” Callan then began a DWI investigation and administered field sobriety tests, which indicated to Callan that appellant was intoxicated. Callan arrested appellant for DWI.

On appeal from the denial of a motion to suppress, the appellate court was asked to review the determination that the stop was proper under the community caretaking doctrine. Discussing Texas' version of the doctrine, the court stated as follows:

"As part of an officer's duty to “serve and protect,” an officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help. The community caretaking function, however, is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.. As a result, a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non-community caretaking purpose. Here, the record reflects that Callen was concerned that “there was a disturbance going on or possibly a sick person in the vehicle.” The trial court, as the exclusive judge of credibility and finder of fact, could have concluded that Callan was primarily motivated by community caretaking concerns." (citations omitted)

The court then turned to whether, even if the officer was motivated primarily by caretaking concerns, whether such motivation was reasonable. Describing the factors to be employed and applying them to the facts, the court found in favor of the defendant:

"Here, the first factor, the nature and level of the distress exhibited, is almost non-existent. Appellant “kind of turned sideways half of their body was out and was leaning over saying something to the driver,” according to Callan. Callan “didn't know” if there was “a disturbance going on or possibly a sick person in the vehicle.” Callan heard appellant and her sister talking, but he did not testify he heard a dispute or a call for help or any other indication of distress. Appellant got out of the car, walked around it, and got in the driver's seat, but Callan did not testify appellant or her sister exhibited any distress as they changed positions in the car. This factor weighs against the stop. Concerning the second factor, the location of appellant was on a dead-end street where “you don't see a lot of traffic” outside an open Jack in the Box restaurant. In fact, the location was being patrolled by Callan and his fellow officer. This factor weighs against the stop. The third factor also weighs against the stop. Appellant was with her sister and had access to an open restaurant if she had needed assistance. The fourth factor, the extent to which appellant presented a danger to herself or others if not assisted, weighs against the stop. Appellant merely sat in a car talking and walked around the car and took the driver's seat. There is no evidence that appellant exhibited any behavior that would show her to be a danger to herself or others in getting out of her car and walking around it. Applying the Wright factors, we conclude Callan's exercise of his community caretaking function was not reasonable. Accordingly, appellant's interest in being free from arbitrary government interference outweighed Callan's exercise of his community caretaking function. Under these circumstances, the trial court erred in denying appellant's motion to suppress on the basis Callan was acting within his community caretaking function." (citations omitted)

Editor's note: The appellate court got it write (at least the second part about reasonableness of concern).

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DUI Appeal - Illinois Says All Cars That Stop On Shoulder (Even Temporarily) Are Legally Subject to Police Seizures

In People of Illinois v. Dittmar, Nos. 2–09–1112, 2–09–1304, June 15, 2011, Appeal from the Circuit Court of Stephenson County, the parties presnted the following evidence in the police report by stipulation:



[I]f called as a witness, Stephenson County sheriff's deputy Shan MacAdam, the arresting officer, would testify as follows:

“While on routine patrol[,] I was traveling north bound on Route 26 north of McConnell Road when I observed an oncoming south bound vehicle. The vehicle was traveling at a slow speed, [and] the right turn signal was activated a very short distance before the vehicles met. The vehicle, a white Chevrolet Cavalier convertible[,] had slowed greatly and was pulling to the shoulder of the roadway as I passed. The squad [car] was also traveling slowly[,] and I observed a white hat on the head of the driver.



After passing the vehicle[,] I turned the squad [car] around to check if the vehicle was having mechanical problems, or if there were problems with the occupants. As I approached the rear of the car[,] I observed the subject with the white hat walking from the driver door around the rear of the car and to the right passenger door. Another subject from the right side of the car was walking around the rear of the car to the driver door. Both doors were open as they changed sides of the car.



The subject wearing the white hat got into the passenger seat, while a female stood next to the open driver door as she watched the squad [car] stop behind her. She got into the driver seat as I stopped directly behind the white Chevrolet, bearing TX08/777CCJ.



I approached the driver door, which was still open, and immediately noted the strong odor of an alcoholic beverage flowing from the interior.”

The video displayed that, as he pulled onto the shoulder behind defendant's car, the officer activated his overhead emergency lights and gave the dispatcher the make, model, and license plate number of the car.



Reviewing Illinois law, the court stated as follows:



In People v. McDonough, 239 Ill.2d 260, 272 (2010), the supreme court identified a two-prong test for judging whether an encounter qualifies as a community-caretaking endeavor:

“First, law enforcement officers must be performing some function other than the investigation of a crime. [Citations.] In making this determination, a court views the officer's actions objectively. [Citation.] Second, the search or seizure must be reasonable because it was undertaken to protect the safety of the general public. [Citation.] ‘Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.’ [Citation.] The court must balance a citizen's interest in going about his or her business free from police interference against the public's interest in having police officers perform services in addition to strictly law enforcement.”

The appeals court further explained that a community caretaking function simply because there is a seizure:



As the supreme court in Luedemann clarified, the community-caretaking doctrine justifies not consensual encounters—which need no justification under the constitution—but seizures. See Luedemann, 222 Ill.2d at 548 (“It is clear, then, that the ‘community caretaking’ doctrine is analytically distinct from consensual encounters and is invoked to validate a search or seizure as reasonable under the fourth amendment.”). The error that Luedemann corrected was at one time prevalent in the appellate court, including this district. For instance, our decision in Lee, which defendant cited below and continues to cite on appeal, committed the error. See Lee, 291 Ill.App.3d at 54 (“Once a seizure has occurred, an officer is not acting in his community caretak[ing] function, even if his original intention had nothing to do with detection or investigation of a crime.).” Lee's conception of community-caretaking encounters was abandoned by this district even before Luedemann was decided in 2006. See People v. Mitchell, 355 Ill.App.3d 1030, 1033 (2nd Dist.2005) (noting that the community-caretaking doctrine “has nothing to do with consensual encounters; for, by their very nature, consensual encounters need no justification. Treating it as synonymous with consensual encounters deprives the doctrine of any analytical content.”).



The court stated the following test: The question * * * is not how regularly the police conduct in question occurs as part of crime detection, investigation, or prevention, but whether the conduct is, in the context at issue, so lacking an objectively grounded public-safety purpose that the officer could not be “performing some function other than the investigation of a crime” ( McDonough, 239 Ill.2d at 272).



Concluding that this case was a proper community caretaking seizure, the court stated:



"We recognize that, unlike in the cases cited by the State, MacAdam did not come upon a vehicle already at rest, without knowledge of how long it had been there ( McDonough, Laake ), or have specific information that the driver might be impaired or in distress ( Robinson ). The vehicle came to a stop while MacAdam observed it, and he had no specific information about the travelers aside from what he saw. Nonetheless, MacAdam had reason to believe that the occupants might need assistance. Even if MacAdam could not be certain that there was an emergency, his lack of certainty had to be weighed against the likelihood that, if he did not stop to inquire, the travelers would not receive assistance for some time, given the rural location. MacAdam had also to consider the potential hazards to the travelers from passing traffic, given that no lights were activated on their car despite the dim ambient light.



"The public interest served by MacAdam's actions more than outweighed the intrusion. See McDonough, 239 Ill.2d at 272 (court must balance a citizen's interest in being free from police intrusion against the public interest in having police perform services in addition to crime detection and prevention); State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003) (“[T]he court must balance the public need and interest against the degree and nature of the intrusion upon the citizen's privacy.”). The video of the stop shows that approximately 36 seconds elapsed between MacAdam's activating his emergency lights and reaching the driver's door of the car—at which point, defendant does not contest, MacAdam made observations that justified further detention of defendant, resulting ultimately in his arrest. There was an ample public-safety justification for those 36 seconds."


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