We all know the story. Either we haven’t done what the officer claims as the reason for stopping us or we know they are using whatever small infraction we commit as a reason to look for something bigger. I get a lot of questions on this topic so here’s some helpful info to share. If there is no legal basis to stop you – you didn’t fail to stop at that stop sign or fail to signal, as the officer claims – then the stop is illegal. An officer must have observations that rise to a level we like to call “reasonable suspicion” to believe you are committing or have committed an illegal act before he can (legally) stop you. If the officer is lacking sufficient observations, we can bring a motion called a motion to suppress, which would exclude or keep out of court all the evidence that the officer gathered as a result of his contact with you, including observations, any statements you may have made, and physical evidence.
In the case of DUI stops, these officer observations are often a driving pattern, such as weaving or driving very slowly, that suggests to the officer that you might be intoxicated. In the alternative, an officer can observe you commit a traffic infraction, such as the aforementioned transgressions, which gives him the legal basis to stop you. Sometimes an officer might engage in what is known as a “pretextual stop”. In a pretextual stop, the stated reason for that stop, for example your failure to signal, is not the real reason for the stop. “A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop.” United States v. Cannon, 29 F.3d 472, 474 (9th Cir.1994) (quoting United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988)). Any evidence that is “serendipitously” discovered as a fortunate accident through a legitimate traffic stop will not be excluded. United States v. Millan, 36 F.3d 886, 888 (9th Cir.1994). A pretextual stop is legal, provided that the stated reason for the stop (such as your speeding, failure to signal, or failure to come to a full stop at that stop sign) actually occurred or the officer had an adequate legal basis for the stop (observations to support a reasonable suspicion that you were doing something illegal).
A pretextual stop will be considered legal if a reasonable officer would have made that stop anyway, regardless of his subjective intent or true, underlying motivation. Cannon, 29 F.3d at 475-476. The subjective intent of the officer is not the issue.Hernandez, 55 F.3d at 445 n. 2 (9th Cir.1995); Millan, 36 F.3d at 890-891 (Hall, J., concurring). A review of the case law in this area reveals that, as long as the pretext given actually occurred, the stop will be found legal. See e.g., Hernandez, 55 F.3d at 446-47 (9th Cir.1995) (“no reasonable officer would stop” motorist whose car was legally parked under Montana law); Cannon, 29 F.3d at 476 (“any reasonable officer would stop” a motorist driving with a suspended license in violation of California law); United States v. Lillard, 929 F.2d 500, 502 (9th Cir.1991) (reasonable officer would stop a motorist speeding “carelessly in violation of Oregon law”).
For a traffic stop to be considered legal, the trial court need only find that (1) under the circumstances a reasonable officer would stop the suspect for violation of a specified law, and (2) it was within the detaining officer’s scope of responsibility to enforce that law. The court relied on Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), which held that law enforcement agents conducting pretextual traffic stops must have probable cause to believe that a traffic violation occurred in order to detain a vehicle. The issue is not the subsjective intent or motivated of the officers. Id. at 813. The issue is whether the officer had “probable cause to believe that a traffic violation [had] occurred.” Whren v. United States, 517 U.S. 806, 810. Probable cause exists “when police officers have facts and circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime.” United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir.1985). The concept of probable cause is a “fluid” one-it depends on an “assessment of probabilities in particular factual contexts.” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
In some cases, through an investigation or analysis of the case, the defense can cast doubt on whether the alleged traffic infraction actually occurred or on whether the stop was actually justified by observations rising to that required level of “reasonable suspicion”. For example, in a very dubious stop scenario where the basis given is something such as failing to yield to a pedestrian, there may be visibility issues when it comes to where the pedestrian allegedly was located when a client turned and whether the officer could actually make that observation from his known vantage point. Similarly, if the adequacy of observations can be effectively attacked, that stop will be considered illegal. In both cases, the evidence will be excluded to protect your 4th Amendment Constitutional right to be free from unreasonable or unjustified seizures.
If you have a question about the legality of your stop, call us today. We are happy to discuss your options and remedies.
Law Office of Jennifer Zide www.Zidelaw.com
