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U.S. Constitution
See other U.S. Constitution Articles

Title: Court Shoots Down Cop's Assertion That Driving Without Breaking Any Laws Is 'Suspicious'
Source: TechDirt
URL Source: https://www.techdirt.com/articles/2 ... g-any-laws-is-suspicious.shtml
Published: Sep 19, 2019
Author: Tim Cushing
Post Date: 2019-09-20 09:43:05 by Deckard
Keywords: None
Views: 240
Comments: 9

from the scofflaws-not-even-bothering-to-break-the-law-anymore dept

Must be tough out there for cops. Literally everything is suspicious. And there are only so many hours in the day. Since no court is willing to end the tradition of pretextual stops, anything that can be described as suspicious has been used to initiate fishing expeditions.

A few courts have called out this tendency to view almost everything humans do as indicative of criminal behavior. This is one of the better call-outs, as it gives some indication of just how many "training and experience" assertions the court has had to wade through while dealing with law enforcement assertions about reasonable suspicion.

A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, or looking at a peace officer, or looking away from a peace officer, or a young person driving a newer vehicle, or someone driving in a car with meal wrappers, or someone driving carefully, or driving on an interstate, most anything can be considered as indicia of drug trafficking to law enforcement personnel.

Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W.3d at 896 (observing that “[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. Some have nice cars, some do not. Some eat spaghetti, some do not. And, sometimes, some even engage in innocent activity.”)

This is in addition to these data points, all presumed to be "suspicious" behavior by law enforcement officers:

That's the standard law enforcement holds itself to. Fortunately, some courts refuse to accept this lower standard of suspicion. The Arizona Court of Appeals is one of those courts. This recent decision [PDF] overturns a lower court's inexplicable support of a cop's extremely dubious "reasonable suspicion" claims. (via The Newspaper)

The defendant was pulled over by a police officer shortly after leaving a bar. According to the unnamed officer, the defendant's driving was suspicious. Here's what the officer observed:

At the June 2018 evidentiary hearing, the officer testified that, while on patrol for a DUI task force on December 7, 2017 around 9:30 p.m., he first observed Flynn when he was exiting a strip mall parking lot near Dobson and Guadalupe Roads in Mesa. The strip mall contained several restaurants that were open at the time but, because the officer knew there was a hole in a fence on the opposite side of the complex that separated the strip mall parking lot from an adjacent bar, he followed Flynn for approximately two miles. During this time, the officer estimated Flynn’s speed at between twenty-eight and thirty-five miles per hour, never reaching the posted limit of forty-five miles per hour. In the course of following Flynn, the officer observed no traffic violations or other clues of impairment.

This was the entirety of the officer's assertion: that he had observed literally nothing else than a person leaving a strip mall and driving home while obeying all traffic laws and otherwise appearing to be sober.

The officer tried to claim that the driver's inability to hit the posted speed limit was itself suspicious. This ignores that fact that a speed limit limits top speed. It does not make driving at a lower speed illegal, nor necessarily indicate the driver is impaired.

On top of that, the officer could not deliver any reliable testimony about his speed limit-related observations.

The officer testified he initiated the stop solely because Flynn left the vicinity of a bar and then traveled at a speed that varied but remained below the posted limit. However, the officer did not remember how many times Flynn’s speed varied. He did not have any clear recollection of where the fluctuations occurred or whether Flynn had been required to stop or slow down for any of the seven light-controlled intersections the pair encountered. Nor was he able to testify as to how frequent or great a speed variance would need to be to qualify as a clue of impairment.

With that, the suppression order is reinstated and the prosecution loses all the evidence the cop obtained during his suspicionless stop. The problem, of course, is that a ruling like this won't deter officers from performing suspicionless stops. It will just make them work a bit harder when crafting their assertions. People are still going to get stopped for completely bullshit reasons and allow taxpayers to fund the redress of grievances.

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#1. To: Deckard (#0) (Edited)

Must be tough out there for cops.
Yes, it is – It most Definitely is …

Please Join in Honoring Officers Killed in 2019 -

Master Police Officer Joseph William Shinners

Provo Police Department, UT

EOW: Saturday, January 5, 2019

Cause: Gunfire

Police Officer Dale James Woods

Colerain Township Police Department, OH

EOW: Monday, January 7, 2019

Cause: Struck by vehicle

Police Officer Clayton Joel Townsend

Salt River Police Department, TR

EOW: Tuesday, January 8, 2019

Cause: Struck by vehicle

Police Officer Natalie Becky Corona

Davis Police Department, CA

EOW: Thursday, January 10, 2019

Cause: Gunfire

Trooper Christopher Lambert

Illinois State Police, IL

EOW: Saturday, January 12, 2019

Cause: Vehicular assault

Sergeant WyTasha Lamar Carter

Birmingham Police Department, AL

EOW: Sunday, January 13, 2019

Cause: Gunfire

Supervisory Deputy US Marshal Norman D. Merkel

United States Department of Justice - United States Marshals Service, US

EOW: Wednesday, January 16, 2019

Cause: Heart attack

Deputy Sheriff Ray Elwin Horn, III

Comal County Sheriff's Office, TX

EOW: Thursday, January 17, 2019

Cause: Heart attack

Police Officer Sean Paul Tuder

Mobile Police Department, AL

EOW: Sunday, January 20, 2019

Cause: Gunfire

Lieutenant Robert "Bo" McCallister

Susquehanna Township Police Department, PA

EOW: Sunday, January 20, 2019

Cause: Gunfire

Deputy Sheriff Joshua Bryan "LJ" Ryer, Jr.

Glascock County Sheriff's Office, GA

EOW: Tuesday, January 29, 2019

Cause: Automobile crash

Corporal Shane Michael Totty

Baton Rouge Police Department, LA

EOW: Friday, February 1, 2019

Cause: Motorcycle crash

Detective William Lee Brewer

Clermont County Sheriff's Office, OH

EOW: Saturday, February 2, 2019

Cause: Gunfire

Border Patrol Agent Donna Doss

United States Department of Homeland Security - Customs and Border Protection - United States Border Patrol, US

EOW: Saturday, February 2, 2019

Cause: Struck by vehicle

Trooper Lucas Bartley Dowell

Virginia State Police, VA

EOW: Monday, February 4, 2019

Cause: Gunfire

Police Officer Matthew J. Rittner

Milwaukee Police Department, WI

EOW: Wednesday, February 6, 2019

Cause: Gunfire

Detective Brian P. Simonsen

New York City Police Department, NY

EOW: Tuesday, February 12, 2019

Cause: Gunfire (Inadvertent)

Chief of Police David P. Hewitt

Rising Sun Police Department, IN

EOW: Wednesday, February 13, 2019

Cause: Automobile crash

Agent Alfred Zanyet-Pérez

Puerto Rico Police Department, PR

EOW: Friday, February 15, 2019

Cause: Gunfire

Lieutenant Daniel Duane Hinton

Florida Highway Patrol, FL

EOW: Tuesday, February 19, 2019

Cause: Heart attack

Undersheriff Monty Thomas Johnson

Pawnee County Sheriff's Office, OK

EOW: Thursday, February 21, 2019

Cause: Automobile crash

Police Officer Nicholas Scott Galinger

Chattanooga Police Department, TN

EOW: Sunday, February 24, 2019

Cause: Vehicular assault

Sergeant Steve Hinkle

Sullivan County Sheriff's Office, TN

EOW: Tuesday, February 26, 2019

Cause: Gunfire

Police Officer Nathan Hayden Heidelberg

Midland Police Department, TX

EOW: Tuesday, March 5, 2019

Cause: Gunfire

Deputy Sheriff Jacob Howard Keltner

McHenry County Sheriff's Office, IL

EOW: Thursday, March 7, 2019

Cause: Gunfire

Corporal Daniel H. Groves

Colorado State Patrol, CO

EOW: Wednesday, March 13, 2019

Cause: Struck by vehicle

Deputy Sheriff Ryan Shane Thompson

Kittitas County Sheriff's Office, WA

EOW: Tuesday, March 19, 2019

Cause: Gunfire

Police Officer Paul Thomas Rutherford

Phoenix Police Department, AZ

EOW: Thursday, March 21, 2019

Cause: Struck by vehicle

Deputy Sheriff Peter Herrera

El Paso County Sheriff's Office, TX

EOW: Sunday, March 24, 2019

Cause: Gunfire

Trooper Brooke Jones-Story

Illinois State Police, IL

EOW: Thursday, March 28, 2019

Cause: Struck by vehicle

Trooper Gerald Wayne Ellis

Illinois State Police, IL

EOW: Saturday, March 30, 2019

Cause: Automobile crash

Detective Benjamin J. Campbell

Maine State Police, ME

EOW: Wednesday, April 3, 2019

Cause: Accidental

Deputy Sheriff II Spencer Allen Englett

Forsyth County Sheriff's Office, GA

EOW: Thursday, April 4, 2019

Cause: Duty related illness

Sergeant Steven Lawrence Licon

California Highway Patrol, CA

EOW: Saturday, April 6, 2019

Cause: Struck by vehicle

Deputy Sheriff Justin Richard DeRosier

Cowlitz County Sheriff's Office, WA

EOW: Sunday, April 14, 2019

Cause: Gunfire

Police Officer Kyle David Olinger

Montgomery County Police Department, MD

EOW: Thursday, April 18, 2019

Cause: Gunfire

Conservation Officer Eugene Wynn, Jr.

Minnesota Department of Natural Resources - Enforcement Division, MN

EOW: Friday, April 19, 2019

Cause: Drowned

Special Agent in Charge Liquat A. "Leo" Khan

United States Army Criminal Investigation Division, US

EOW: Tuesday, April 30, 2019

Cause: Heart attack

K9 Officer Jordan Harris Sheldon

Mooresville Police Department, NC

EOW: Saturday, May 4, 2019

Cause: Gunfire

Police Officer Robert McKeithen

Biloxi Police Department, MS

EOW: Sunday, May 5, 2019

Cause: Gunfire

Police Officer Anthony Neri

Sanibel Police Department, FL

EOW: Monday, May 6, 2019

Cause: Heart attack

Trooper Matthew Elias Gatti

Tennessee Highway Patrol, TN

EOW: Monday, May 6, 2019

Cause: Automobile crash

Constable Willie Houston "Hoot" West

Lowndes County Constable's Office, MS

EOW: Thursday, May 9, 2019

Cause: Automobile crash

Sergeant Kelvin Ansari

Savannah Police Department, GA

EOW: Saturday, May 11, 2019

Cause: Gunfire

Police Officer William Ray Buechner, Jr.

Auburn Police Division, AL

EOW: Sunday, May 19, 2019

Cause: Gunfire

Police Officer Jesus Marrero-Martínez

Manatí Municipal Police Department, PR

EOW: Saturday, May 25, 2019

Cause: Gunfire

Lieutenant Joseph P. Johnson

Seminole Police Department, TR

EOW: Thursday, May 30, 2019

Cause: Automobile crash

Lieutenant Steven Dewayne Whitstine

East Baton Rouge Parish Sheriff's Office, LA

EOW: Thursday, May 30, 2019

Cause: Automobile crash

Police Officer William James Leahy

Port Authority of New York and New Jersey Police Department, NY

EOW: Thursday, June 6, 2019

Cause: 9/11 related illness

Police Officer Albert Ramirez Castaneda, Jr.

Grand Prairie Police Department, TX

EOW: Friday, June 7, 2019

Cause: Struck by vehicle

Police Officer Esmeralda Ponce Ramirez

Los Angeles Police Department, CA

EOW: Sunday, June 9, 2019

Cause: Automobile crash

Sergeant David Jones Fitzpatrick

The Colony Police Department, TX

EOW: Monday, June 10, 2019

Cause: Heart attack

Deputy Sheriff Julius Jamal "Jay" Dailey

Monroe County Sheriff's Office, AL

EOW: Tuesday, June 11, 2019

Cause: Automobile crash

Police Officer Steven James Brown

Port St. Lucie Police Department, FL

EOW: Wednesday, June 12, 2019

Cause: Heart attack

Trooper William Moden

Colorado State Patrol, CO

EOW: Friday, June 14, 2019

Cause: Struck by vehicle

Lieutenant Robert Jones

Port Authority of New York and New Jersey Police Department, NY

EOW: Saturday, June 15, 2019

Cause: Duty related illness

Patrol Officer John David Hetland

Racine Police Department, WI

EOW: Monday, June 17, 2019

Cause: Gunfire

Police Officer Tara Christina O'Sullivan

Sacramento Police Department, CA

EOW: Wednesday, June 19, 2019

Cause: Gunfire

Trooper Jerry Louis Smith, Jr.

Nebraska State Patrol, NE

EOW: Thursday, June 20, 2019

Cause: Automobile crash

Corporal Jose Luis "Speedy" Espericueta, Jr.

Mission Police Department, TX

EOW: Thursday, June 20, 2019

Cause: Gunfire

Police Officer Michael Vincent Langsdorf

North County Police Cooperative, MO

EOW: Sunday, June 23, 2019

Cause: Gunfire

Deputy Sheriff Troy P. Chisum

Fulton County Sheriff's Office, IL

EOW: Tuesday, June 25, 2019

Cause: Gunfire

Detective Luis Alvarez

New York City Police Department, NY

EOW: Saturday, June 29, 2019

Cause: 9/11 related illness

Deputy Sheriff Carlos A. Ramirez

Kendall County Sheriff's Office, TX

EOW: Tuesday, July 2, 2019

Cause: Struck by vehicle

Police Officer John Ralph Anderson, IV

Metro Nashville Police Department, TN

EOW: Thursday, July 4, 2019

Cause: Vehicular assault

Deputy Sheriff Omar Diaz

Harris County Sheriff's Office, TX

EOW: Saturday, July 6, 2019

Cause: Duty related illness

Deputy Sheriff Nicholas Blane Dixon

Hall County Sheriff's Office, GA

EOW: Sunday, July 7, 2019

Cause: Gunfire

Conservation Officer Shannon Lee "Opie" Barron

Red Lake Nation Conservation Department, TR

EOW: Sunday, July 7, 2019

Cause: Heart attack

Sergeant Michael Stephen

Stone County Sheriff's Office, AR

EOW: Thursday, July 18, 2019

Cause: Gunfire

Detective Christopher Cranston

New York City Police Department, NY

EOW: Saturday, July 20, 2019

Cause: 9/11 related illness

Deputy Sheriff Benjamin Nimtz

Broward County Sheriff's Office, FL

EOW: Sunday, July 21, 2019

Cause: Automobile crash

Police Officer Juan Jose Diaz

Los Angeles Police Department, CA

EOW: Saturday, July 27, 2019

Cause: Gunfire

Detective James J. Biello

Atlanta Police Department, GA

EOW: Sunday, July 28, 2019

Cause: Gunfire

Correctional Officer Pedro J. Rodríguez-Mateo

Puerto Rico Department of Corrections and Rehabilitation, PR

EOW: Thursday, August 1, 2019

Cause: Assault

Police Officer Raymond Harris

New York City Police Department, NY

EOW: Sunday, August 4, 2019

Cause: 9/11 related illness

Correctional Administrator Debra Johnson

Tennessee Department of Correction, TN

EOW: Wednesday, August 7, 2019

Cause: Assault

Sergeant Jeffrey Cicora

New York State Police, NY

EOW: Saturday, August 10, 2019

Cause: 9/11 related illness

Officer Andre Maurice Moye, Jr.

California Highway Patrol, CA

EOW: Monday, August 12, 2019

Cause: Gunfire

Deputy Sheriff Stephanie Schreurs

Lyon County Sheriff's Office, IA

EOW: Tuesday, August 13, 2019

Cause: Automobile crash

Deputy Sheriff Carlos Cammon

Orange County Sheriff's Department, CA

EOW: Friday, August 23, 2019

Cause: Duty related illness

Trooper Nicholas J. Hopkins

Illinois State Police, IL

EOW: Friday, August 23, 2019

Cause: Gunfire

Deputy Sheriff Jose Luis Blancarte

Kinney County Sheriff's Office, TX

EOW: Friday, August 23, 2019

Cause: Heart attack

Trooper Moises Sanchez

Texas Department of Public Safety - Texas Highway Patrol, TX

EOW: Saturday, August 24, 2019

Cause: Gunfire

Deputy Sheriff Jeremy Voyles

Chickasaw County Sheriff's Department, MS

EOW: Wednesday, August 28, 2019

Cause: Automobile crash

Undersheriff Stephen B. McLoud

Cayuga County Sheriff's Office, NY

EOW: Thursday, August 29, 2019

Cause: 9/11 related illness

Detective Joseph Paolillo

New York City Police Department, NY

EOW: Monday, September 9, 2019

Cause: 9/11 related illness

Investigator Dornell Cousette

Tuscaloosa Police Department, AL

EOW: Monday, September 16, 2019

Cause: Gunfire

Gatlin

Gatlin  posted on  2019-09-20   17:53:33 ET  (171 images) Reply   Trace   Private Reply  


#2. To: Deckard (#0)

Thank You ...

Gatlin  posted on  2019-09-20   17:55:00 ET  Reply   Trace   Private Reply  


#3. To: Gatlin (#2) (Edited)

Gatlin the spam-bot troll strikes again derailing yet another thread.

Any comments on this?

This was the entirety of the officer's assertion: that he had observed literally nothing else than a person leaving a strip mall and driving home while obeying all traffic laws and otherwise appearing to be sober.

The officer tried to claim that the driver's inability to hit the posted speed limit was itself suspicious. This ignores that fact that a speed limit limits top speed. It does not make driving at a lower speed illegal, nor necessarily indicate the driver is impaired.

On top of that, the officer could not deliver any reliable testimony about his speed limit-related observations.

Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen.
The essential feature of government is the enforcement of its decrees by beating, killing, and imprisoning.
Those who are asking for more government interference are asking ultimately for more compulsion and less freedom.

Deckard  posted on  2019-09-20   19:36:17 ET  Reply   Trace   Private Reply  


#4. To: Gatlin (#1)

Please Join in Honoring Officers Killed in 2019 -

RIP my brothers & sisters.

Thanks for posting this, Gatlin

GrandIsland  posted on  2019-09-20   21:57:44 ET  Reply   Trace   Private Reply  


#5. To: Deckard (#3)

Gatlin the spam-bot troll strikes again derailing yet another thread.

Any comments on this?

Yeah,MY thoughts are this is a public message board,where anyone who wants to comment is free to do so,and also free to express any lawful opinions he or she may have,regardless of who,if anyone,agrees with them or not.

You have a problem with that?

In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.

sneakypete  posted on  2019-09-20   23:31:31 ET  Reply   Trace   Private Reply  


#6. To: Deckard (#3)

Gatlin … strikes again …

Any comments on this?

Yes, I have another comment.

Please allow me to call to your attention that today 23 law enforcement officers from the total of 850,000 sworn law enforcement officers in America will be investigated or disciplined for misconduct.

While today, the remaining 849.977 dedicated law enforcement officers with begin investigating what will become a total of 8,969,768 crimes for the year.

Look at the numbers:

Homicide - 17,316
Rape - 135,242
Robbery - 320,185
Aggravated assault - 813,204
Burglary - 1,406,199
Larceny-theft - 5,535,930
Motor vehicle theft - 774,631
https://ucr.fbi.gov/crime-in-the-u.s/2017/crime- in-the-u.s.-2017/tables/table-1
I stand to honor those other 849.977 brave and dedicated law enforcement officers.

Please join with President Trump to honor fallen police officers:

Salute,
Gatlin

Gatlin  posted on  2019-09-21   1:51:29 ET  Reply   Trace   Private Reply  


#7. To: GrandIsland (#4) (Edited)

Thanks for posting this, Gatlin

… de nada …

Respect goes both ways:

Thank you ...

Salute,
Gatlin

Gatlin  posted on  2019-09-21   2:20:45 ET  Reply   Trace   Private Reply  


#8. To: sneakypete (#5)

Yeah,MY thoughts are this is a public message board,where anyone who wants to comment is free to do so,and also free to express any lawful opinions he or she may have,regardless of who,if anyone,agrees with them or not.

You have a problem with that?

Not at all. I have a problem when someone deliberately spams the thread and does so only to derail any discussion about the actual article.

Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen.
The essential feature of government is the enforcement of its decrees by beating, killing, and imprisoning.
Those who are asking for more government interference are asking ultimately for more compulsion and less freedom.

Deckard  posted on  2019-09-21   8:45:04 ET  Reply   Trace   Private Reply  


#9. To: Deckard (#8)

Not at all. I have a problem when someone deliberately spams the thread and does so only to derail any discussion about the actual article.

Ok. I didn't personally see that,but I still have chemo-brain,so I suppose it is possible.

Could you point it out to me/explain it?

In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.

sneakypete  posted on  2019-09-21   13:00:07 ET  Reply   Trace   Private Reply  


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