In State of Minnesota v. Nelson, Not Reported in N.W.2d, 2011 WL 6015167 (Minn.App.) a police officer ran the plates of a vehicle and the computer reported the plates expired, even though the plates appeared to have valid and current tags. The cop stopped the car, and determined that the tags were valid, but that the records of the Department of Public safety were not current (by several days). During the stop Deputy Silgjord noticed indicia of intoxication and arrested appellant for driving while impaired. Appellant was charged with first-degree driving while impaired and first-degree driving while impaired (over .08). Appellant moved to suppress the evidence from the stop, arguing that the stop was unconstitutional. The district court upheld the stop and denied appellant's motion and this appeal followed.
In denying the appeal, the majority wrote:
"We recently held that a discrepancy between displayed license-plate tabs and information derived from an officer's onboard computer system constitutes an objectively reasonable basis to initiate an investigatory stop. State v. Cox, ––– N.W.2d ––––, ––––, 2011 WL 5903399, at *1(Minn.App. Nov. 28, 2011). Our holding in Cox compels a similar result here. Upon observing a discrepancy between the displayed license-plate tabs on appellant's vehicle and the information contained in the state's computer database, the officer had an objectively reasonable basis for the stop. The district court therefore did not err by denying appellant's suppression motion."
The dissent wrote:
"[T]he United States Supreme Court has held:
[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.
Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401 (1979). Investigatory stops to check a vehicle's registration are therefore unconstitutional, unless supported by reasonable, articulable suspicion. By allowing an officer to stop a vehicle that is displaying current, legally purchased, properly affixed registration tabs, the majority has upheld a stop based upon the state's failure to keep its records current. I am aware of no published caselaw—save for this court's recently released opinion in Cox—allowing the police to conduct a seizure based solely on a delayed updating of the state computer system.FN2 Yet that is precisely what the majority has done, first in Cox and again here. I wish to take no part in the upholding of this stop."
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Showing posts with label Traffic Stop. Show all posts
Showing posts with label Traffic Stop. Show all posts
Wednesday, December 28, 2011
DWI Law - Stop for Touching Fog Line Criticized
Metcalf v. Commissioner of Public Safety, Not Reported in N.W.2d, 2011 WL 6015361 (Minn.App.) upheld a stop of a vehicle for touching the centerline and fogline twice. Of course, other jurisdictions allow for such a stop, but the dissent brings out why this one is so ridiculous. I repeat the dissent in its majority:
"I respectfully dissent. On appeal, we must determine whether Officer Barrett's investigatory stop, based on the totality of the circumstances, was lawful, or whether it was “the product of mere whim, caprice, or idle curiosity.” In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn.App.2005) (quotation omitted), review denied (Minn. June 28, 2005). The district court here considered the totality of the circumstances, and determined that appellant's driving conduct, though not illegal, was “maybe barely enough” to sustain the stop. But allowing officers to initiate investigatory stops on what can best be articulated as “maybe barely enough” invites even more questionably motivated police conduct.
In Warrick v. Comm'r of Pub. Safety, this court concluded that a vehicle's “subtle” weaving within its lane, without crossing over either the center line or the fog line, did not constitute “sufficient articulable facts” that “warrant[ed] the intrusion of a brief investigatory stop.” 374 N.W.2d 585, 586 (Minn.App.1985). I conclude that the factual circumstances in this case present no greater basis for allowing an officer to conduct an investigatory stop.
The record reflects that Officer Barrett spotted the tail lights of appellant's vehicle about three miles ahead of him on Highway 1. The officer did not observe any traffic violations or suspicious activity prior to simply spotting the tail lights. Officer Barrett's only reason for giving chase was that “bars close at 1:00 a.m.” But he admitted that he had not seen appellant come from the only bar in Cook open until 1:00 a.m.
Officer Barrett took chase in the whimsical hope that appellant might provide cause for a stop. He accelerated his squad car to 70 miles per hour (mph), 15 mph faster than appellant who, the officer noted, was properly traveling within the designated 55 mph speed limit. Using simple mathematics, traveling at 15 mph over the speed limit, it would have taken Officer Barrett 12 minutes, and 14 miles, to close the three-mile gap and catch up to appellant. He observed no traffic violations during his chase. Once he caught up to appellant, Officer Barrett tailed appellant at a distance of 120 feet for two more miles.
At no time did Officer Barrett notice any driving violations. Appellant drove the speed limit and did not drive carelessly. However, the officer claimed that while following appellant for two miles, he noticed appellant's left tire touch—but not cross—the center line twice; and similarly, claimed that appellant's right tire twice touched—but did not cross—the fog line on the right side of the highway. In each instance, this touch lasted for only a few feet. At 55 mph, this insignificant encroachment onto the lane markers would have lasted for only a fraction of a second. Other than that, Officer Barrett testified that appellant's driving behavior was not objectionable. Officer Barrett, by now many miles outside of Cook, stopped appellant and determined that he was driving while intoxicated. But like Warrick, the subtle weaving does not constitute sufficient articulable facts that warranted an investigatory stop. See 374 N.W.3d at 586. Therefore, because the record reflects that the investigatory stop was the product of mere whim, caprice, or idle curiosity, I would reverse."
"I respectfully dissent. On appeal, we must determine whether Officer Barrett's investigatory stop, based on the totality of the circumstances, was lawful, or whether it was “the product of mere whim, caprice, or idle curiosity.” In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn.App.2005) (quotation omitted), review denied (Minn. June 28, 2005). The district court here considered the totality of the circumstances, and determined that appellant's driving conduct, though not illegal, was “maybe barely enough” to sustain the stop. But allowing officers to initiate investigatory stops on what can best be articulated as “maybe barely enough” invites even more questionably motivated police conduct.
In Warrick v. Comm'r of Pub. Safety, this court concluded that a vehicle's “subtle” weaving within its lane, without crossing over either the center line or the fog line, did not constitute “sufficient articulable facts” that “warrant[ed] the intrusion of a brief investigatory stop.” 374 N.W.2d 585, 586 (Minn.App.1985). I conclude that the factual circumstances in this case present no greater basis for allowing an officer to conduct an investigatory stop.
The record reflects that Officer Barrett spotted the tail lights of appellant's vehicle about three miles ahead of him on Highway 1. The officer did not observe any traffic violations or suspicious activity prior to simply spotting the tail lights. Officer Barrett's only reason for giving chase was that “bars close at 1:00 a.m.” But he admitted that he had not seen appellant come from the only bar in Cook open until 1:00 a.m.
Officer Barrett took chase in the whimsical hope that appellant might provide cause for a stop. He accelerated his squad car to 70 miles per hour (mph), 15 mph faster than appellant who, the officer noted, was properly traveling within the designated 55 mph speed limit. Using simple mathematics, traveling at 15 mph over the speed limit, it would have taken Officer Barrett 12 minutes, and 14 miles, to close the three-mile gap and catch up to appellant. He observed no traffic violations during his chase. Once he caught up to appellant, Officer Barrett tailed appellant at a distance of 120 feet for two more miles.
At no time did Officer Barrett notice any driving violations. Appellant drove the speed limit and did not drive carelessly. However, the officer claimed that while following appellant for two miles, he noticed appellant's left tire touch—but not cross—the center line twice; and similarly, claimed that appellant's right tire twice touched—but did not cross—the fog line on the right side of the highway. In each instance, this touch lasted for only a few feet. At 55 mph, this insignificant encroachment onto the lane markers would have lasted for only a fraction of a second. Other than that, Officer Barrett testified that appellant's driving behavior was not objectionable. Officer Barrett, by now many miles outside of Cook, stopped appellant and determined that he was driving while intoxicated. But like Warrick, the subtle weaving does not constitute sufficient articulable facts that warranted an investigatory stop. See 374 N.W.3d at 586. Therefore, because the record reflects that the investigatory stop was the product of mere whim, caprice, or idle curiosity, I would reverse."
Tuesday, May 03, 2011
OWI Appeal - Wisconsin Says Misreading License Plates OK for Stop
In State of Wisconsin v. Reierson, Slip Copy, 2011 WL 1587124 (Wis.App.), the police officer ran the license plates of a vehicle it was following. The vehicle's registration came back as expired, and the officer activated his emergency lights and made a traffic stop, pulling his squad car up behind the parked vehicle.
The officer got out of his car to make contact with the driver. Approaching the parked vehicle, the officer discovered that he had misread the last numeral on the license plate. The officer testified a small screw or bolt going through the plate had obscured his view of the last numeral. Nonetheless, he officer continued toward to the vehicle to explain his reasons for making the stop. When the officer reached the driver's side window, a man later identified as Andrew Reierson opened his car door to communicate with the officer because his window was stuck. The officer detected the odor of intoxicants on Reierson's breath and noticed that his eyes were red. Reierson performed field sobriety tests at the officer's request, and submitted to a preliminary breath test, which showed Reierson had a blood alcohol content (BAC) of .16. Reierson was subsequently charged with OWI, third offense.
The court stated as follows:
The appellate court concluded that the stop of the defendant was lawful because the officer had probable cause to stop Reierson for operating with an expired registration, contrary to Wis. Stat. § 341.04(1), based on the officer's good-faith mistake of fact in misreading Reierson's license plate number.
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The officer got out of his car to make contact with the driver. Approaching the parked vehicle, the officer discovered that he had misread the last numeral on the license plate. The officer testified a small screw or bolt going through the plate had obscured his view of the last numeral. Nonetheless, he officer continued toward to the vehicle to explain his reasons for making the stop. When the officer reached the driver's side window, a man later identified as Andrew Reierson opened his car door to communicate with the officer because his window was stuck. The officer detected the odor of intoxicants on Reierson's breath and noticed that his eyes were red. Reierson performed field sobriety tests at the officer's request, and submitted to a preliminary breath test, which showed Reierson had a blood alcohol content (BAC) of .16. Reierson was subsequently charged with OWI, third offense.
The court stated as follows:
"[W]e conclude the (trial) court properly denied the motion to suppress because the traffic stop was the product of the officer's reasonable belief, which was based on a good-faith mistake of fact, that Reierson was operating a vehicle with an expired registration..."
"We have found no published Wisconsin case addressing the present situation, where the lawfulness of an investigatory traffic stop turns on an officer's good-faith mistake of fact. However, as a general rule, courts decline to apply the exclusionary rule where an officer makes a reasonable, good-faith factual mistake. See United States v. Cashman, 216 F.3d 582, 587 (7th Cir.2000) (where officer reasonably believed crack in windshield was long enough to violate statute, but it was not in fact, officer had probable cause to stop for traffic violation); see United States v. Miguel, 368 F.3d 1150, 1153–54 (9th Cir.2004) (citing United States v. King, 244 F.3d 736, 739 (9th Cir.2001) (“An officer's correct understanding of the law, together with a good-faith error regarding the facts, can establish reasonable suspicion.”)); see also John Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L.Rev.. 1027, 1044 (1974); Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43 U. Pitt. L.Rev.. 307, 348 (1982).
"By contrast, “[s]tops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.” United States v. Coplin, 463 F.3d 96, 101 (1st Cir.2006) (surveying federal circuit decisions), cert. denied, 549 U.S. 1237 (2007); State v. Longcore, 226 Wis.2d 1, 8–9, 594 N.W.2d 412 (Ct.App.1999), aff'd by equally divided court, 2000 WI 23, 233 Wis.2d 278, 607 N.W.2d 620 (officer's erroneous application of law to the facts does not give probable cause for a traffic stop); United States v. McDonald, 453 F.3d 958, 961 (7th Cir.2006) (stop held to be invalid where officer mistakenly believed that Illinois statutes prohibited defendant's use of a turn signal while rounding a bend); but see United States v. Martin, 411 F.3d 998, 1001 (8th Cir.2005) (objectively reasonable mistakes of either fact or law can support probable cause).
The appellate court concluded that the stop of the defendant was lawful because the officer had probable cause to stop Reierson for operating with an expired registration, contrary to Wis. Stat. § 341.04(1), based on the officer's good-faith mistake of fact in misreading Reierson's license plate number.
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Tuesday, April 19, 2011
DUI Appeal - Pennsylvania - Dice, Fresheners and Reasonable Suspicion
In Commonwealth v. Shabazz, --- A.3d ----, 2011 WL 1459160 (Pa.Super.), 2011 PA Super 81, the defendant appealed the denial of his motion to suppress based upon an illegal stop. The driver claimed that the stop of his vehicle for having foam dice and pine tree air fresheners was illegal. The appeals court first noted that in Pennsylvania, it is only illegal to have items hanging from the rearview mirror when they materially obstruct the driver's view. The defendant in fact cited to a prior Pennsylvania decision where it was held that the stop of a driver who had pine tree air fresheners was illegal, as there was no reasonalbe suspicion of a violation of the statute.
Distinguishing that prior ruling, the appeals court here held that the reason that the prior decision was in favor of the defendant was not based upon the item that was hanging from the mirror - rather the previous case was held in favor of an illegal stop based "on the officer's lack of an articulable and particularized description of the objects he observed hanging from the rearview mirror, and the impact of those objects on the visibility through the windshield." When addressing items hung from a rearview mirror, the court held that “the arresting officer's observations must establish not merely the presence of an object hanging from the rearview mirror, but must raise reasonable suspicion that the object materially obscured, obstructed or impaired the driver's vision through the front windshield.”
The appeals court then enunciated some important principles of law regarding the determination of reasonable suspicion at a hearing on a motion to suppress:
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Distinguishing that prior ruling, the appeals court here held that the reason that the prior decision was in favor of the defendant was not based upon the item that was hanging from the mirror - rather the previous case was held in favor of an illegal stop based "on the officer's lack of an articulable and particularized description of the objects he observed hanging from the rearview mirror, and the impact of those objects on the visibility through the windshield." When addressing items hung from a rearview mirror, the court held that “the arresting officer's observations must establish not merely the presence of an object hanging from the rearview mirror, but must raise reasonable suspicion that the object materially obscured, obstructed or impaired the driver's vision through the front windshield.”
The appeals court then enunciated some important principles of law regarding the determination of reasonable suspicion at a hearing on a motion to suppress:
"The determination of whether an officer had reasonable suspicion that criminality was afoot so as to justify an investigatory detention is an objective one, which must be considered in light of the totality of the circumstances. It is the duty of the suppression court to independently evaluate whether, under the particular facts of a case, an objectively reasonable police officer would have reasonably suspected criminal activity was afoot. * * * “[I]n order to establish reasonable suspicion, an officer must articulate specific facts in addition to inferences based on those facts, to support his belief that criminal activity was afoot.” (emphasis in original). Thus, the facts must be testified to in support of the reasonableness of the officer's suspicion occasioned by his or her pre-stop observations."In regard to forcing an officer to actually articulate a basis for reasonable suspicion, the Court made significant observation:
"Were this Court to conclude that an officer's bare testimony that he saw an object hanging from a rearview mirror which obstructed the driver's view, without any additional testimony or other evidence supporting the officer's conclusion that the object materially obstructed the driver's view, was sufficient to demonstrate reasonable suspicion to constitutionally support the intrusion of a vehicle stop, we would obviate the suppression court's role in ensuring there is an objectively reasonable basis for the vehicle stop, and expose every law-abiding motorist who hangs an object from his or her rearview mirror to a potentially unwarranted intrusion."In the case sub judice, the appeals court found that the officer had sufficiently articulated the size of the objects and their location on the mirror in order to justify the stop of this vehicle. Thus the denial of the motion to suppress was affirmed.
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Tuesday, March 29, 2011
OWI Appeal - Wisconsin OWI Stop Based On Weaving OK
In State of Wisconsin v. Pence, No. 2010AP1944-CR.March 24, 2011, the defendant was stopped after weaving within his lane 5 times within 1 1/2 to 2 miles of driving. During the motion to suppress, Deputy Miller stated that in his experience, when he makes stops after midnight, there is a high probability that the driver is intoxicated. He also testified that it is not normal for a driver to weave within his or her lane and, based on his experience, someone weaving in his or her lane is possibly intoxicated or unable to safely operate a vehicle. After observing the vehicle weave at least five times, Deputy Miller conducted an investigative stop of the vehicle. Deputy Miller also testified that he has worked in law enforcement for five years. He is trained in OWI enforcement and field sobriety testing, and has made close to 100 stops for OWI.
On appeal, the court held that, while simple weaving within the lane (without more elaboration) would not justify a stop, Deputy Miller's explanation about the time of day, and his experience with drunk drivers, was enough to transform the facts into reasonable suspicion. Therefore, the denial of the motion by the trial court was affirmed.
AUTHORS COMMENTS: Essentially, the opinion allows the police to 'create' a basis to stop of vehicle for conduct which, if performed during daylight, would be completely legal. According to this case, Wisconsin has just created its own 'sunset' provision to the Fourth Amendment of the Constitution.
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On appeal, the court held that, while simple weaving within the lane (without more elaboration) would not justify a stop, Deputy Miller's explanation about the time of day, and his experience with drunk drivers, was enough to transform the facts into reasonable suspicion. Therefore, the denial of the motion by the trial court was affirmed.
AUTHORS COMMENTS: Essentially, the opinion allows the police to 'create' a basis to stop of vehicle for conduct which, if performed during daylight, would be completely legal. According to this case, Wisconsin has just created its own 'sunset' provision to the Fourth Amendment of the Constitution.
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Sunday, March 13, 2011
DUI Appeal of the Day (DAD) - Estimation of Speed for Traffic Stop
In Deramus v. State of Texas --- S.W.3d ----, 2011 WL 582667 (Tex.App.-Waco), the defendant challenged his traffic stop, arguing that the officer's visual estimation of the speed of his vehicle was insufficient as a matter of law. Officer Clark testified that “the vehicle was traveling at a speed greater than the posted speed limit,” and that he was “familiar with what a car traveling in that block looks like at 40 miles an hour, and this vehicle was traveling at lot faster than that.” Officer Clark further testified that he estimated Deramus's speed to be fifty miles an hour.
The appeals court overruled the defendant's objection:
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The appeals court overruled the defendant's objection:
"There is no statutory requirement that an officer always use radar to confirm a vehicle's speed, nor is it always possible for an officer to do so. Further, it is not necessary to show that Deramus actually violated a traffic regulation. “It is sufficient to show that the officer reasonably believed that a violation was in progress.” Powell v. State, 5 S.W.3d 369, 376-77 (Tex.App.-Texarkana 1999, pet. ref'd). We therefore hold that Officer Clark had a reasonable suspicion that Deramus was committing a traffic offense based solely on his visual observation of Deramus's speed and his determination that Deramus's speed was not reasonable and prudent."
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