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.This is in addition to these data points, all presumed to be "suspicious" behavior by law enforcement officers:
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.")
- Refusing to consent to a search
- Driving on a public road at night
- Driving attentively while black
- Driving a registered vehicle
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.
View the court documents here.
Reader Comments
We would get pulled over for having surfboards, surfboard racks, and/or long-hair.
I asked "How many times have we been pulled over in the same car together?" We started counting, and we got to 20 different times and I said, "OK, that's depressing enough." If we'd continued calculating, it probably would have totaled around 23 times, and that was only when he and I were in the same car. (I'm sure that by the time I was 20, I'd been pulled over >60 times, (including those 20-23) and only got one ticket out of the bunch.
I have a HILARIOUS TECHNIQUE we used a few times that hope to detail in the auto bio.
Once, I was 17, driving SB on A1A and for some reason, the left lane at a lightt had one car that took a left turn at the light (on a two lane, one way road). This left the entire left lane free and I timed it so I could coast through the intersectiion at 30 mph (speed limit was 35).
Well, In the stack of 8 cars in the right lane, was a cop who pullled me/us over. We had surfboards, my hair was longer than it is now (and that's really long) etc. This big crew cut red haired Straight out of Alabama / Dellverance redneck cop came up. May I ask why you pulled me over?
Why you darn near ran over that long haired hippy faggot mother fucker who was crossing the crosswalk. (There'd been no such thing.) No ticket, I don't believe even a search, as we were ALWAYS ready to be pulled over.
The only thing worse that DWSLR (Driving with surfboards and long hair) is the even now still common 'DWB'. (Driving While Black.)
R.C.
Well, In the stack of 8 cars in the right lane, was a cop car then who pullled me/us over.
We had surfboards, my hair was longer than it is now (and that's really long) etc.
So up walks thiss big crew cut red haired Straight out of Alabama / Dellverance redneck cop,
I asked (with my DL, Insurance and registration out the window before he got there -we were ALWAYS ready to be pulled over.) "May I ask why you pulled me over?"
He repled, " Why you darn near ran over that long haired hippy faggot mother fucker who was crossing the crosswalk." (That insult was directed at me as there'd been no such person.) No ticket, I don't believe even a search.
The only thing worse that DWSLR (Driving with surfboards and long hair) is the even now still common 'DWB'. (Driving While Black.)
R.C.
.
I remember as a young child, in the mid 70's, I didn't fear the police. I looked at them as people who helped others. By the 80's that all changed big time! When I was 11 staying at a friends house one night, we walked about a block to visit two friends who were "camping out" in one of their backyards. It was maybe 11-11:30 at night. We talked with them a few mins, then were walking back to my friends house along the side of the road. This cop pulls up and starts hassling us. He says we are out past curfew. I ask "what's a curfew?" Because I didn't know what that meant. His reply was "ignorance of the law is no exception!" And took us to the police station, called out parents and we both got in trouble. To this day I've always disagreed with that whole ignorance of the law bullshit. If they are going to play that dirty game, they should give every resident a book with all their idiotic laws listed out.