Cop To Court: This Normal Behavior I Literally Observe All The Time Is Suspicious Behavior Justifying A Traffic Stop

from the this-is-a-routine-occurrence...-possibly-TOO-routine dept

Fri, Sep 23rd 2016 2:45pm — Tim Cushing

In which the government argues that avowedly suspicionless behavior is reasonable suspicion.

Carlos Velazquez was pulled over by Officer Ken Scott, a "traffic investigator" patrolling the Ft. Bragg military base in North Carolina. Scott observed Velasquez make a right-hand turn at a stop sign, then reverse course when he encountered a gate preventing traffic from entering the Ft. Bragg Special Operations Compound. The stop resulted in the search of the vehicle and, eventually, the discovery of illegal drugs.

Velazquez moved to suppress the evidence, arguing that the stop was suspicionless. The government disagreed, but Scott's own testimony indicates it was a suspicionless stop. Scott claimed the stop was justified because he believed Velazquez was "intoxicated or lost." That last part Scott himself ignored, even during his testimony as the government's sole witness. The actions Scott viewed as "suspicious" during his justification of the traffic stop were also actions Scott had witnessed numerous times while patrolling the area around the military base.

Lamont Road ends at an intersection with Manchester Road. At the time of this incident, if a driver turned right from Lamont onto Manchester, he would encounter a closed gate with a "Do Not Enter" sign. Id. at 1:09:20-1:09:30. If a driver turned left from Lamont onto Manchester, the road would take him towards various training areas and, ultimately, the town of Southern Pines. Id. at 1:10:20-1:10:29.

Officer Scott described this area as wooded with no lighting with minimal, if any, phone and radio signals. Id. at 1:10:39-1:10:49. Officer Scott also stated that there are no individuals in that area at night. Id. at 1:11:16-1:11:22. Officer Scott also testified that he has often assisted individuals who were lost in the area, including those following GPS. Id. at 1:12:17-1:12:36. Officer Scott stated that he had often received calls of lost individuals utilizing GPS where the GPS would take them off the main road. Id.; id. at 1:17:01-1:17:15. He also stated that there are no phone signals and radios often do not operate in this remote area. Id. at 1:10:50-1:10:55.

Officer Scott did not provide any details on how many suspicionless stops he has performed after viewing behavior he admittedly finds unsuspicious. There's also nothing in the decision that indicates Scott observed anything about Velazquez's behavior during the stop that would have added to his suspicions. Instead, as the court points out, everything Velazquez did was entirely normal, given what Officer Scott had observed during previous patrols.

Here, the evidence demonstrates that Velasquez was driving on a public road shortly after midnight on a Saturday morning. When he reached an intersection, he stopped completely and proceeded to make a right turn. After encountering a fence informing him he was not allowed to proceed further, Velasquez turned his vehicle around and proceeded down a public, albeit remote, road. At no time did Officer Scott observe any erratic driving, traffic violations, or other conduct that indicated Velasquez was intoxicated. There is no indication that there were concerns that Velasquez posed a threat to the physical security of the base or personnel or that he was seeking unauthorized access to the Special Operations Compound. Officer Scott's decision to pull Velasquez over appears to have been based entirely on his presence on a public road at night and his right turn at the intersection of Lamont and Manchester Roads. Given that Officer Scott was aware that individuals frequently became lost in this area and that GPS systems would often cause individuals to make wrong turns, these facts are insufficient to establish that Officer Scott's stop of Velazquez's vehicle was supported by reasonable suspicion of criminal conduct.

No one likes to lose a drug bust, but offering up an argument that basically amounts to "the lack of suspicious behavior made me suspicious" is even worse than the government's routine insistence that driving from state to state on paved highways is suspicious because criminals often travel from state to state on paved highways.

While officers are generally free to make up their own traffic laws to initiate suspicionless stops, the officer here apparently failed to come up with anything better than "possibly [and suspiciously] lost" after interacting with Velazquez. The officer lucked into a drug bust, but "fortuitous discovery" isn't a recognized Fourth Amendment exception (or, at least, it shouldn't be one -- see also: "good faith").

There are few activities that separate citizens from their Fourth Amendment rights faster than driving but, at least in this decision, the rights didn't evaporate quite as quickly as Officer Scott may have hoped. Away goes the evidence. With that dismissed during oral arguments, the government decided there was nothing left to prosecute, so the charges have been dropped as well.

When Dirty Harry acolytes bitch about "technicalities" putting drug dealers back on the streets, these are the sorts of things they're often unknowingly referring to: law enforcement's inability to stay within the confines of the law and the Constitution.

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Filed Under: 4th amendment, carlos velazquez, ft. bragg, ken scott, search, traffic stop

40 Comments

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Anonymous Coward, 23 Sep 2016 @ 4:03pm

So this is the new way for the Law Enforcement to justify pulling you over by alleging they saw suspicious behaviour. Just like how police beating on a suspect like to yell stop resisting as they are pummeling someone.

Seems more and more that the Police are told by Law Enforcement Lawyers use this saying or method as justification to do this or that.

I would say this is a shock but it isn't because this is being abused by Law Enforcement for stops, seizures and god knows what else.
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- Padpaw (profile), 24 Sep 2016 @ 3:56am
  
  Re:
  Eventually they will learn to stop as otherwise they will be dead, from some nutjob that snapped and made it his goal to kill off dirty cops.
  [ link to this | view in chronology ]
Groaker (profile), 23 Sep 2016 @ 4:11pm

Some cop in that department or DA's office will have have enough smarts to teach these guys about testilying. This cop already has the basics down, he just has to hone them a little to sever the Fourth amendment.
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- Anonymous Coward, 24 Sep 2016 @ 3:15pm
  
  Re:
  "...he just has to hone them a little to sever the Fourth amendment."
  
  And I'm sure the POS will
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Skeeter, 23 Sep 2016 @ 4:15pm

Letter of the Law
Of course, the other end of this complaining article would have a robot who holds to every dot-and-tittle of the law ONLY. In which case, the most heinous offenders would drive 10x more carefully than your average commuter. What does this actually look like in application?

Well, you end up with granny, uncle bob and your daughter Suzy being given $120 tickets for driving one-mile-per-hour over the speed limit a couple of times a week, and Jorge-the-Colombian-Drug-Trafficker not getting so much as a parking violation for 20-years. You increase drugs, increase government coffers and bust your household budget - all because you whined about officers using 'reasonable suspicion'. Way to Go. Here's your sign.
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- Quiet Lurcker, 23 Sep 2016 @ 4:59pm
  
  Re: Letter of the Law
  Actually, you'd end up with something akin to Robocop, but that's neither here nor there for this conversation.
  [ link to this | view in chronology ]
- Anonymous Coward, 24 Sep 2016 @ 12:18am
  
  Re: Letter of the Law
  You mean police would ACTUALLY have to apply investigative techniques rather than hassle random people and hope they did something wrong?
  
  Blasphemy.
  [ link to this | view in chronology ]
- Anonymous Coward, 24 Sep 2016 @ 6:07am
  
  Re: Letter of the Law
  So the end justifies the means ... what an old and tired cliche.
  
  We must endure the abuse because the alternative is worse - some how this rationalization falls short of its goal.
  [ link to this | view in chronology ]
- Anonymous Coward, 24 Sep 2016 @ 10:37pm
  
  Re: Letter of the Law
  You imply its bad when granny, uncle Bob and Susie are punished for breaking the law but good when drug dealers are punished for breaking the law.
  
  Guess you don't like LIBERTY and JUSTICE for ALL.
  [ link to this | view in chronology ]
Peter John, 23 Sep 2016 @ 4:16pm

The law
If a police attempts to strike you and you make any attempt to protect yourself it is consider resisting arrest.
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- Anonymous Coward, 24 Sep 2016 @ 11:27am
  
  Re: The law
  Stop slamming your face into my boot ...
  
  Gun! gun! ... quick - put this piece in his waist band and get rid of that camera, dumbass rookies.
  
  Confiscate all cellphones in the area, can't have this on youtube.
  [ link to this | view in chronology ]
Whatever, 23 Sep 2016 @ 8:41pm

Tim, once again, you swing and you miss. If the law cannot be adjusted to account for the adaptations of criminal elements by not displaying suspicious behavior then we are all done for. Is that what you want? For police to be accompanied by a lawyer every time they do something in order to determine whether or not something can be consider suspicious by your ridiculous standards?

Now, because you're all criminals, you're going to censor this comment because you're all scared of the truth, I'll bet.
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- Anonymous Coward, 24 Sep 2016 @ 12:24am
  
  Re:
  Honestly, I don't see why we haven't just increased the police force to a position where they can sufficiently monitor and interview every citizen in the city at any given time. Why bother with just cause or good faith when you can simply accuse everyone all the time and constantly demand they prove their innocence.
  
  I'd like to see these criminals work around that!
  /sarcasm
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  - art guerrilla (profile), 24 Sep 2016 @ 2:34am
    
    Re: Re:
    its called the stasi in old east germany; i think we call it 'community policing', here...
    i'm having difficulty seeing where we 'won' the war against fascism, seems like fascism 'won' from all available evidence...
    [ link to this | view in chronology ]
    - Anonymous Coward, 24 Sep 2016 @ 3:56am
      
      Re: Re: Re:
      With the clear and hopefully unneccessary disclaimer that I don't CONDONE that style of policing...
      
      I can't help but be curious how effective it was. Did they manage to largely eliminate crime?
      ...
      Well, crime they didn't approve of anyway.
      [ link to this | view in chronology ]
      - Anonymous Coward, 24 Sep 2016 @ 11:28am
        
        Re: Re: Re: Re:
        It was so effective that they are not needed anymore.
        [ link to this | view in chronology ]
- sorrykb (profile), 24 Sep 2016 @ 5:52am
  
  Re:
  Is that what you want? For police to be accompanied by a lawyer every time they do something in order to determine whether or not something can be consider suspicious by your ridiculous standards?
  
  This might be your best idea ever, Whatevs.
  
  (Although I'd prefer it be a lawyer assigned to be an advocate for the public.)
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  - Anonymous Coward, 24 Sep 2016 @ 6:16am
    
    Re: Re:
    If your job is law enforcement, it may be handy to have an understanding of how the law works before you try to enforce it.
    
    Just sayin'
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    - Padpaw (profile), 24 Sep 2016 @ 1:01pm
      
      Re: Re: Re:
      courts have ruled the police do not have to know the laws, they can do whatever the hell they want usually.
      [ link to this | view in chronology ]
      - That One Guy (profile), 24 Sep 2016 @ 1:28pm
        
        Re: Re: Re: Re:
        It's worse than that actually, with the 'good faith exception' idea courts have basically made it clear that the less police know of the law the better off they are, as they can get away with more.
        
        Members of the public are required to follow all the laws, even the ones that they aren't aware of, as 'ignorance of the law is no excuse', yet for police, the group (theoretically) tasked with upholding and enforcing the law ignorance of the law not only is an acceptable excuse, it's a greatly desired state.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 24 Sep 2016 @ 10:49pm
        
        Re: Re: Re: Re: Re:
        ignorance of the law is no excuse
        
        Um no, the director of the FBI just recently explained to Congress that if a person did not intend to commit a crime they should not be prosecuted.
        
        You can't intentionally break a law you are unaware of so ignorance of the law does make you free from prosecution.
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        That One Guy (profile), 25 Sep 2016 @ 9:03am
        
        Re: Re: Re: Re: Re: Re:
        'Should not be' is notably different than 'won't be', and if they felt the need to say it I'd say that's a good indicator that that's not currently the case.
        
        Whether someone intentionally breaks a law or not matters only so far as the judge and/or prosecutor want it to. If they're bound and determined to add another notch to their 'successful prosecutions/plea deals' tally then clearly the person 'should have known'.
        [ link to this | view in chronology ]
      - Groaker (profile), 24 Sep 2016 @ 6:28pm
        
        Re: Re: Re: Re:
        SCOTUS has in effect ruled that the police can pretend to not know the laws. And that pretense can be legally relied upon.
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  - Anonymous Coward, 24 Sep 2016 @ 2:16pm
    
    Re: Re:
    I'd prefer it if they were a shield between myself and the leo.
    [ link to this | view in chronology ]
- Anonymous Coward, 24 Sep 2016 @ 6:10am
  
  Re:
  Bravo - excellent parody, and very close to a Poe.
  [ link to this | view in chronology ]
  - Anonymous Coward, 25 Sep 2016 @ 5:51pm
    
    Re: Re:
    If not for the fact that Whatever has, repeatedly, insinuated that Techdirt wants cops to be accompanied by lawyers in order for them to know the law they're enforcing, I would have considered this a parody statement.
    
    It's all in his post history.
    [ link to this | view in chronology ]
Anonymous Coward, 24 Sep 2016 @ 12:10am

The moral of the story is that if you want to stop someone for making a wrong turn and turning around when they encounter a gate they're not allowed to pass through, you have to stop everyone who approaches that gate.
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Padpaw (profile), 24 Sep 2016 @ 3:51am

Maybe the cop in question is so out of his mind on god knows what type of drugs he views everyone as suspicious.

Otherwise this would be endorsing tyranny once again solely because they have a badge and a gun they are allowed to stamp or harass anyone they fell like bullying.
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- That One Guy (profile), 24 Sep 2016 @ 4:00am
  
  Re:
  Given the stop happened at night I'm guessing the cop was just bored and figured he's spice up his night with a search of someone's car. That he actually found something was completely unexpected, as evidenced by the fact that the excuse presented was so pathetic.
  [ link to this | view in chronology ]
seedeevee (profile), 24 Sep 2016 @ 9:43am

"No one likes to lose a drug bust"?
"No one likes to lose a drug bust" -- I, for one, would like to see almost every drug bust lost. Not sure what the authoritarian streak here is all about.
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McFortner (profile), 24 Sep 2016 @ 10:29am

You would think that the officer would know that you can't break the law in order to enforce the law.
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Groaker (profile), 24 Sep 2016 @ 10:32am

re #McFortner
Too many LEOs think that they are the law.
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- Anonymous Coward, 24 Sep 2016 @ 11:30am
  
  Re: re #McFortner
  Some have Judge Dredd syndrome.
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  - That One Guy (profile), 24 Sep 2016 @ 1:19pm
    
    Re: Re: re #McFortner
    I'm not sure if that would be the right name, given unlike modern police Judge Dredd actually does respect and follow the law.
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    - Anonymous Coward, 24 Sep 2016 @ 1:31pm
      
      Re: Re: Re: re #McFortner
      Only problem is, Judge Dredd is prosecutor, defender, judge, jury and executioner. Something wrong with that picture.
      [ link to this | view in chronology ]
DB (profile), 24 Sep 2016 @ 10:51am

Don't lose sight of the problem
The problem wasn't simply that the police pulled the car over for a common occurrence. It was that the non-infraction was then used as a pretext for a search.

As for one of the resident troll's comments: if the law is so complicated that a trained law enforcement officer needs a lawyer to ride along, that's an indictment of the law, LEO training, or police intellect.
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peter, 24 Sep 2016 @ 12:53pm

LEO needs more training
What? You mean he did not use the following:

"Subject observed driving suspiciously slowly near a high security target. It could have been a terrorist doing a target recce."

I mean, I know there are plenty of other reasons he could have pulled out of his ass, (and lets be honest, none of need to be true for the court to allow them) but in this case TERRORISM. That has godda work every time. Right?

He really needs better training on 'excuses for a stop the court will allow'.
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Anonymous Coward, 24 Sep 2016 @ 1:11pm

But your honor, this guy ain't white, therefore he's obviously a criminal.

He should be kissing my boots that I didn't just shoot him in the back, like all [Ethnic group members] deserve.....
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bshock, 24 Sep 2016 @ 11:31pm

anyone remember that old cartoon about police suspects?
I haven't been able to find the cartoon I'm talking about yet, but it involves several panels where police officers talk about what made them suspicious of a particular individual. The panels are paired so that it's clear a cause for suspicion in one is the exact opposite of the cause for suspicion in the next, something like being angry was considered suspicious and then not being angry was considered suspicious.

In other words, police officers first develop suspicions and then try to use any available fact to justify them.
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Anonymous Coward, 26 Sep 2016 @ 10:51am

Makes you wonder if the officer would have considered it less suspicious if he just drove through the gate...
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