from the being-a-human-being-isn’t-evidence-of-wrongdoing dept
Since cops are trained to view everything as suspicious, they tend to believe everything is suspicious. The list of things considered to be suspicious often contradicts other things on the list of things considered suspicious. That should be considered suspicious, but somehow cops never think it is.
Even if they don’t believe everything is suspicious, they swear that pretty much everything is while testifying in court. Because if you don’t claim normal human activity is “reasonably suspicious,” it makes it very difficult to salvage unconstitutional stops and searches.
The cop involved in this gun possession case hoped to convince a court a driver’s very normal reaction was inherently suspicious, but the Fourth Circuit Court of Appeals is far from convinced. Overturning the lower court’s dismissal of the arrestee’s motion to suppress, the Appeals Court says it doesn’t see the things the cop saw that he felt justified (illegally) extending the stop and performing a search of the car. (via Short Circuit)
Here’s how the Appeals Court describes [PDF] what it saw, which is not what Officer Helms claimed.
When Officer Helms turned on his lights, Phillips’s vehicle was essentially parallel with a turn lane that led to a well-lit parking lot. Phillips hit her brakes just four seconds after Officer Helms’s lights came on and activated her blinker three seconds after hitting her brakes. Phillips came to a complete stop seventeen seconds after Officer Helms turned his lights on.
After Phillips came to a stop, Officer Helms approached the driver’s side of the vehicle. His body camera captured his exchange with Phillips. Shortly after Officer Helms approached Phillips’s vehicle, she began searching for her license. While Officer Helms testified that Phillips’s hands were shaking during the encounter, her hands did not appear to be shaking while she was handing Officer Helms her license or her insurance information. The next time that Phillips’s hands were in view, it still was not evident that she was shaking.
The first part — the time it took for Phillips to stop — is noted because it contradicts the lower court’s findings. The second part is essential because the officer’s own body cam contradicts what he claimed he observed.
Officer Helms continued to insist Phillips was shaking, an observation (one not based on actual observation, mind you) he made to the other officer arriving on the scene. And then, with the ticket already printed, he decided to extend the stop.
When a backup officer arrived, Officer Helms told him that he was suspicious of the vehicle’s occupants because Phillips was shaking and tapping on the car door. At approximately the same time, Officer Helms printed Phillips’s warning ticket. Soon thereafter, Officer Helms approached Phillips’s vehicle, asked Phillips to exit the vehicle, and told her he would be leading his canine around the vehicle to sniff for illegal drugs. After the canine indicated that there were drugs in the vehicle, officers performed a full search. During the search, they located two handguns in Miller’s backpack.
Teresa Miller was only a passenger in the car. She was riding in the backseat. Her backpack was searched because… well, apparently the officer felt this search was justified because of the dog’s alert on the car. But there’s nothing on the record that says the officer asked the dog to sniff the backpack on its own. Either way, the search was performed, contraband was found, and Miller was charged.
The lower court rejected her suppression attempt. It said it couldn’t tell from the footage whether or not the driver was shaking. It also said Phillips was “slow to pull over” and passed a couple of well-lit streets before pulling over on a “dimly-lit section of Route 7.” For some reason, the district court also added that Route 7 was a “known drug corridor,” something that’s completely irrelevant because the car wasn’t travelling on the drug corridor and there were no drugs discovered in the car.
The Appeals Court says the lower court is wrong.
Here, the video evidence from Officer Helms’s dashboard camera shows that Phillips stopped within a reasonable amount of time. Phillips could not have pulled into the well-lit parking lot that Officer Helms intended her to because she was parallel with the entrance when Officer Helms activated his lights. And contrary to the district court’s findings, the video shows Phillips did not pass any other area, well-lit or otherwise, where she could have safely stopped. There were no earlier exits, and the road did not have a shoulder. Next, Phillips began braking just four seconds after Officer Helms turned his lights on, indicating that she was in the process of stopping. Four seconds is a reasonable time for a person to react and determine that an officer intends to pull her over. While it ultimately took Phillips thirteen seconds to come to a complete stop after first engaging her brakes, she stopped at the first available place on the road where she could safely do so. Under these facts, she came to a stop in a reasonable amount of time.
It’s also wrong about the supposed “shaking” Officer Helms claimed to observe.
While the district court is correct that the video does not show Phillips’s hands the entire time, the video clarity is quite good, and shows that her hands were not shaking. Moreover, her hands can be seen both at the beginning of the encounter and at the end, and the video footage shows that her demeanor did not change throughout the conversation. Thus, the district court clearly erred by finding that Phillips was shaking during the traffic stop.
Then there’s the “tapping” Officer Helms told another officer he believed was indicative of the driver’s nervousness while weaving together his reasonable suspicion tapestry. It’s indicative of nothing, says the Fourth Circuit.
The only (arguably) nervous behavior the Government can point to after Officer Helms’s statement is Phillips tapping her fingers on the car door. But tapping is not an indicator of excessive or sustained nervousness because it is completely consistent with law abiding behavior. Although fidgeting may certainly be a sign of nervousness, tapping one’s fingers may just as likely be a sign of annoyance, impatience, or even boredom—any of which may be expected when a person is stopped by a police officer and is awaiting the results of a license check. By itself, tapping one’s fingers is a very weak indicator of nervousness.
Away goes the evidence. The conviction and sentence are vacated. At long last, Miller is actually free to go. Pretending something is happening when it actually isn’t turns out to be a great way to violate rights. And when rights are violated, every so often the victim of the violations scores a win in court.
Filed Under: 4th amendment, 4th circuit, police stops, probable cause, search, suspicion
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