Judge Tears Apart Law Enforcement's Ridiculous Assertions About 'Suspicious' Behavior
from the now-we-just-need-a-few-hundred-more-judges-like-him dept
This opinion -- written by Texas appeals court judge Brian Quinn -- is a breath of fresh air for those of us who have watched as courts have continually deferred to law enforcement officers and their declarations that nearly everything drivers do -- or DON'T do -- is "suspicious."
It's also a slap in the face of those same law enforcement officers -- the ones who use their "experience and training" to find nearly any action, or lack thereof, to be supportive of a warrantless search.
As Scott Greenfield points out, Judge Quinn does something few judges are willing to do: be honest.
In a remarkable decision, Chief Justice Brian Quinn of the Texas Court of Appeals, Seventh District at Amarillo, does something that could destroy the very foundation of the criminal justice system. He’s intellectually honest.
The opinion deserves to be quoted from at length, which is exactly what I'm going to do. Judge Quinn skewers both the supposed indicia of "suspicious" behavior as well as officers' routinely unchallenged assertions that such stretches of the imagination are based on years of "training and experience."
The opening of the opinion [PDF] is fantastic, a wonderful taste of the more thorough examination (and debunking) of the officer's claims that follows. (Internal citations omitted and linebreaks added for readability.)
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.”).
The defendant was pulled over for driving three miles above the speed limit. When approached on the passenger side of the vehicle by the deputy, the defendant opted to open the door. Starting with nothing, the officer quickly built a case for drug trafficking in his mind.
He approached the passenger side of the stopped vehicle. Instead of lowering the car window, though, appellant opened the passenger door. That was suspicious to the officer because in his “training and experience” drug smugglers have lined car doors with drugs which act impedes a window’s operation. Once the door was open, the deputy smelled cigarette smoke and a strong scent of cologne; so too did he see the car’s ashtray full of cigarette butts. Those circumstances added to his suspicion because from his “training and experience” he knew that drug smugglers have used odors to mask the scent of drugs. Soon he discovered that the vehicle happened to be a rental with “no smoking” decals affixed to it, and appellant apparently was returning from some unknown casino to Miami, Florida. The deputy recalled from his “training and experience” that drug smugglers rent vehicles to transport their contraband. So, the presence of a rented vehicle heightened his suspicion that his detainee may be engaging in criminal activity. Also noted by the deputy was appellant’s “severe” nervousness and failure to calm down after being told that he would only be receiving a warning ticket.
A drug dog on the scene was deployed and several pounds of marijuana were uncovered in the resulting search. But that doesn't matter now because Judge Quinn isn't buying the excuses that elevated a traffic stop into a warrantless vehicle search. As Quinn sees it, simply relying on (unproven) "experience" isn't enough to justify a search simply because some indicators might fit profiles of those arrested in the past.
In other words, unusual behavior may fit the profile of someone who engages in a particular kind of crime. But what elevates it to the level of reasonable suspicion is not that it fits a profile but that it is unusual and the officer can explain why it is suspicious in the particular scenario before him. Id. That is, the officer must explain why the activities are unusual and, therefore, meaningful in the specific case under assessment. To reiterate what we said in Gonzalez-Gilando, just because that bald guy committed a crime while wearing a suit and after eating spaghetti does not mean that other bald guys who wear suits while eating spaghetti are about to engage in crime too.
Certainly, the deputy must be given some credit for his asserted "training and experience," Quinn acknowledges:
Smoking in a car while driving despite the presence of “no smoking” stickers, wearing cologne, driving a rental car, driving with windows rolled up, opening a car door, not rolling down a car window, travelling to casinos, and driving to Miami, Florida are activities committed by people who have no relationship to criminal activity. Alone, none of them implicitly or explicitly connote criminal activity. Nor to the reasonable, common man would they connote such activity if they occurred all together. Yet, the test is not what the common man thinks but what the reasonably prudent officer would perceive under the same circumstances. And, that requires us to view the situation through the prism of the detaining officer’s knowledge and experience.
But how much credit, especially if the only thing backing up claims of "experience" is the deputy's assertion itself?
[A]side from the deputy simply invoking his “knowledge, training and expertise,” the State did little to illustrate of what it consisted or how it was garnered.
Quinn examines the state's sole witness and his claims of "experience."
To one trained and experienced in the fields of law enforcement, smuggling, human behavior, and drug interdiction, each of the aforementioned indicia have special significance, opined by the deputy here. Yet, what of the deputy’s training and experience and knowledge — what does the record say about it. Our answer is, not much.
The state apparently wants circular reasoning to do its job for it.
We were left to accept as suspicious what the deputy said was suspicious merely because he said it was suspicious given his unexplained level of “knowledge, training, and experience.”
Every one of the supposed indicators of "suspicion" are probed by the court and discarded. First, Quinn notes that people are more likely to be nervous when speaking to law enforcement officers than not, especially if the questions turn to suggestions of criminal behavior. As to the cigarettes and cologne being nothing more than masking agents to conceal drug odors?
People smoke cigarettes in cars while driving. Indeed, that act is so common manufacturers designed cigarette ashtrays into their vehicles. So too is wearing fragrances a commonplace event. If this were not so then seldom would we be accosted by the myriad aromas wafting through the air at the entrances of many department stores. And, if both the overpowering scent of cologne and the presence of cigarette smoke could mysteriously dissipate upon entry into a car, many of us would not have been bothered as a child by that parent who happened to strike up his Pall Mall after dousing himself with Aqua Velva in the morning. Yet, those common activities became unusual and indicative of drug smuggling when performed on an Interstate highway, according to the deputy.
The same goes for the "suspicious" behavior that is renting a vehicle.
We accept the likelihood that people who have rented cars have also possessed drugs within them at one time or another. But, so too do we accept the likelihood that people have rented cars without engaging in such criminal conduct. The deputy was not asked to explain whether, from his “knowledge, training or experience,” he could opine if one scenario happened more than the other or if the former occurred to such an extent so as to provide rational basis from which to infer some significant nexus between rental cars and drugs.
The court notes that there was one suspicion the deputy could have cleared up immediately but, for some reason, chose not to: that the driver did not roll down the window because the door panels were filled with drugs. But rather than check the window himself or ask the driver to do it for him, the deputy opted to leave this mystery unsolved and engage in some logical gymnastics.
What we have here is a mere leap from the fact that appellant opened the car door to the assumption that the car windows do not work because the doors are stuffed with drugs. There may be other reasons why someone opens a door rather than a window. One of those reasons may well be a circumstance also mentioned by the deputy. To him, appellant seemed “confused” when the deputy opted to approach the passenger-side door as opposed to the driver-side door. Nor can we ignore the deputy’s own testimony regarding the number of times he had encountered drugs being hidden within the doors of a car driven on the Interstate. Again, that number was just “a few.” Such limited experience makes a leap from 1) opens door to 2) drugs in door little more than a hunch.
The caveat, of course, is that this opinion means little more than Judge Quinn won't be as easily swayed by assertions of "expertise." Many, many other courts will continue to treat such law enforcement proclamations as unimpeachable. The other problem is that Quinn's opinion simply demands law enforcement officers do a bit more CV-buffing before testifying in court, as Scott Greenfield points out.
Chief Justice Brian Quinn’s opinion reflects intellectual honesty. The upshot is that the legal system will still believe any nonsensical lie told by a cop on the stand if the prosecution fleshes it out with enough background fluff to satisfy the demand of creating the appearance of expertise.
More courts need to be willing to challenge such questionable connective tissue between observed (but often normal) behavior and suspicionless stops and searches. Most won't. And haven't. And that's why we're in the situation Judge Quinn describes in the opening paragraph of his opinion: where breathing and having two hands are next on the list of criminal activity indicia.
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Filed Under: 4th amendment, brian quinn, police, search, suspicious behavior, texas
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Yep...
yep... intellectual honest would damn sure destroy the criminal justice system, unfortunately... honesty is simply just not an objective in Law-enforcement, Court, or the DOJ. Just look at the scum in the executive office and the scum seeking to replace him.
America has made it DAMN CLEAR! We could give a flying fuck about honesty! Let's keep voting in the biggest and baddest fucking liars around so they can install more corrupt lying assholes and then let it trickle down as far as it can go. We can call it trickle-down-corrupto-nomics!
Every Nation gets the Government it deserves!
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Intellectual (dis)honesty
Various US government officials and presidents have commissioned reports on the harmfulness of marijuana, only to have the report show that the drug is relatively safe.
The reports and the people who wrote them have then been trashed to justify making the drug illegal and empire building amongst the agencies responsible for enforcement of drug laws.
Before the DEA was created, marijuana was used as a recognized medicine, so the current position of the DEA that it has no medicinal uses is completely dishonest.
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Please close the door and roll down your window, sir
Rental cars are generally new and the windows work. If the guy didn't/wouldn't/couldn't roll down the window, I'd say the cop had reasonable suspicion at that point.
Short of that, he's got nothing.
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Re: Yep...
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Re: Please close the door and roll down your window, sir
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Re: Intellectual (dis)honesty
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Re:
XKCD: Free Speech
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Re: Trashing the cops
The appeals judge told the cop there's a book, and you have to follow it, you can't just say "I don't like that guy!"(he hardly speaks english) and arrest him. By the way, I might also get in a rental car, especially on a hot summer's day in Texas, and not know how to operate the windows! That's what the air conditioner is for!
Now, I can tell you that if Hillary Clinton or especially Donald Trump ever comes to my property, I'm going to need a cop to prevent trespassing by either of those two highly entitled people.
****
Now a big part of the problem is that violent crime is down, but because of the war on drugs, we need more cops!
****
Now, time for the tinfoil hat -- there was a warrantless NSA search/tipoff not disclosed by the state. Too bad there's no chance of forcing the cop to confess that.
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Re:Judge Tears Apart Law Enforcement's Ridiculous Assertions About 'Suspicious' Behavior
In computer science terms:
When training a bayesian filter for spam identification a sufficient number of items identified as 'not spam' (ham) needs to be included, along with items accurately identified as spam, or results will not be valid. If it isn't, all tested input will be identified as spam, whether it is or isn't.
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This will not matter
Protest and civil action will only delay the inevitable, the weight of history will catch up and it will not be just the united states, it is being everywhere, where the US foot print has been is just the beginning, congratulations Kissinger you have brought about the end of the world just in time for you to not care, success!
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Re: This will not matter
That damn, lying video again. We've just got to do something to protect cops from that.
/s
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Re: Please close the door and roll down your window, sir
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Re: Re: Trashing the cops
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Re: Re: Trashing the cops
It is true when you look at overall numbers, but it does not perhaps reflect what people experience in their day to day lives.
Part of the problem is that high levels of gang activities in major cities, especially peaking a few years back, was such that many cities saw record numbers of murders and other violent crime. More recently (outside of say Chicago) there seems to have been a calming of the gang activity. Well, at least they are learning to be more discrete!
But in our day to day lives, what do we really experience? The US has a specific problem with disrespectful acts which lead to making public places less inviting. You have all of the things that make cities depressing (dirty, noisy, rude people, and so on), added to the fact that most cities now turn into war zones after dark, with metal roll downs covering the stores turning blocks at a time into poorly lit spaces. There is the question not of the crime that happens, but the crime we perceive.
Add the internet and especially things like Facebook. When someone is a victim of crime, they tend to go social and share it with their friends. We all know people who have had their car, their bike, or their tech gear stolen at some point in the last 12 months. We know friends of friends who have died tragically, perhaps violently, or have been injured. We pretty much know people who have been mugged, have been in car accidents, have been verbally or physically assaulted - or we are friends with someone who knows someone who did... it's the echo chamber effect of the internet that perhaps makes us feel crime is closer to us.
The proof is in the amount of gun ownership. Those numbers continue to surge, as people feel the need to "protect themselves" or "protect my family" by having a piece under the bed, in the car, or tucked under your jacket if you can get a carry permit.
Just like terrorism, violent crime isn't just about what happens to you personally, but about the perception built up by those around us. The old six degrees of separation means we are never that far removed from bad things.
We live in the world we create.
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Re: Re: Re: Trashing the cops
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Re: Re: Re: Re: Trashing the cops
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WS Gilbert said it well over 100 years ago
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Re: WS Gilbert said it well over 100 years ago
and again
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Re: Re: Re: Re: Trashing the cops
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Re: Re: Re: Trashing the cops
As to the poorly lit spaces when the sidewalks are rolled up...my lighting cost has just dropped significantly, due to LEDs (innovation), maybe it's time to require motion-activated lights under the rollup doors!
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Re: Re: Please close the door and roll down your window, sir
was told they were less threatened with us NOT being behinfd the wheel of a couple ton killing machine...
i guess that thinking is no longer operative...
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Re: This will not matter
W S Gilbert has a quote for you too:
The idiot who praises, with enthusiastic tone,
All centuries but this and every country but his own.
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The officer here is not in the exact same position, but he is in a very similar one--if he thinks the window won't go down because there are drugs in the door, the simplest next step is to check to see if the window goes down. The court notes that he did not, but it does not take the obvious leap that the officer did not because this was a ruse rather than a reason. He did not, at that time, believe that there were drugs in the door.
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Re: Re: Yep...
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Re: Re: Re: Please close the door and roll down your window, sir
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Re: Re: Re: Re: Re: Trashing the cops
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Re: Re: Re: Trashing the cops
LOL!!!!
Tell your doctor to up the dosage. It's still not right.
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Re: Re: Re: Re: Re: Re: Trashing the cops
Wilbur... is what I like to call Whatever... he's like a debate team tasked with taking on an issue... That issue is opposite of whatever TD posts on that particular day.
"Troll fails!"
Takes one to know one Wilbur.
In-laws watching the baby today wiLLie? It's like 6 months now huh?
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Re:
I am curious about this. Did the original officer have the dog already? If not, what was the timing? Was a K9 called?
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Re: CV-buffing == buffing/polishing up the Curriculum Vitae to make it look good
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3 MPH over the limit
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Re: Please close the door and roll down your window, sir
My driver side window's motor failed a while back. The poor design/arrangement of the door's internal mechanisms would require a crazy amount of dough to replace the motor due to the number of unrelated items that must be dismounted and remounted. The motor would be cheap - the labor charges would be wacky high...cheaper to replace the entire door.
There's no requirement to roll down a window - or open a door. I'll stick with doing neither. I am not required to surrender my license, registration, of proof of insurance - I need only display them; I can do that through a closed window. No "reasonable suspicion" obtains.
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Re: Re: Re: Re: Re: Re: Re: Trashing the cops
Sorry, but you fail worse that snappy one liner troll above.
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Re: Re: Re: Re: Trashing the cops
Lighting won't help. The problem isn't the rolled up sidewalks as much as what is left as they are rolled up. All the good tends to go away and what is left isn't particularly nice or safe. That is the perception, and that's what it's all about.
Overall the question is simple: Is there more crime (or more police shootings, or whatever else) or is there just more reporting, more amplification, and more exposure?
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Re: Re: Re: Re: Re: Re: Re: Re: Trashing the cops
So... every post you make about Cushing or PaulT or random anonymous posters you assume to be PaulT or Techdirt staff magically making your posts disappear.
For someone who complains about people judging you for your post history you seem to have no qualms doing that constantly.
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Re: Re: Intellectual (dis)honesty
It's "parallel construction" when the police and prosecutors do it.
When ordinary people do it, it's called "perjury."
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Re: Re: Re: Re: Re: Re: Re: Re: Trashing the cops
He responded to your one liner "troll fails". What substance do you hallucinate being present there?
"Sorry, but you fail worse that snappy one liner troll above."
The "one liner troll" asked a reasonable question about what you said. You responded with a meaningless comment calling him a name... but this is somehow unacceptable when someone does the same to you, even though all they're doing is noting your own recorded actions?
All makes sense in that strange little head of yours, I suppose.
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Re: Re: Please close the door and roll down your window, sir
On an older car, I agree that inability to roll down the window shouldn't constitute reasonable suspicion.
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Re: Re: Please close the door and roll down your window, sir
Depends on what state you are in.
California, for example, explicitly requires you to possess and furnish a drivers license, registration, etc. to any police officer at their request when driving a motor vehicle on a public street.
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