Tuesday, April 9, 2013

Sizing Up the Situation

State v. Dunham / State v. Tatham, 2013 VT 15

Last week, we opined about the nature of DUI law and the reasons why so many DUI cases are vigorously challenged despite the relatively simple and straightforward nature that such crimes are detected.  This week brings an exception that almost seems to prove the rule (until it doesn’t).

Defendants in each of the consolidated cases were driving late at night.  The first was driving on U.S. Route 5 near the intersection with Lake Morey Road (Trivia Note: this close to where a pivotal scene from the 1983 Robin Williams/Walter Matthau vehicle, The Survivors, was filmed).  The second was in Bradford.

In both cases, the Defendants drove past state troopers who because of circumstances could not get a clear target with their radar but who observed the Defendants driving at speeds that the troopers assessed to be well above the speed limit.  In both cases, the troopers gave pursuit, stopped the vehicles to warn them about speeding, detected alcohol emanating from the vehicle and eventually processed them for DUI.

The sole reason the Defendants are before the SCOV stems from the traffic stop.  Defendants contest the troopers’ initial stop.  The Defendants argued that such observations could not give rise to reasonable suspicion justifying the pursuit and stop.  In other words, the troopers needed more proof that Defendants were in fact breaking the law and a quick glance and an informal sizing up the situation cannot suffice as a matter of law.

This is familiar territory for anyone dealing with DUI law.  The question is not whether the troopers’ observations were sufficient to arrest the Defendants for DUI but whether they were enough to justify the pursuit and initial stop.

The SCOV, as you might expect given its previous pronouncements in this area, finds the basis sufficient to create probable cause for the initial stops.  The opinion goes on at some length about the reasons why, but they boil down to the following two factors:

  • The troopers testified that they had trained and were fairly proficient at estimating the speed of a vehicle to within 5 miles of its actual speed; and

  • The observed speeds were well in excess of this margin of error and would have been obvious to even a lay-observer.

This is enough to justify the trial court’s denial of Defendants’ motions to suppress the initial stops, which means that the trial court properly allowed the evidence and the DUI charges.  The convictions stand. 

This is not a surprising outcome.  The SCOV, in conjunction with the SCOTUS and other jurisdictions, has set the bar low for what constitutes a reasonable and articulable suspicion to conduct a traffic stop.  Whether it is driving with a light out or weaving within a lane, the bar for such stops is low.  Now you can add guestimates of speed to that list.

Such observations, however, will get the police only so far in a warrantless search.  These initial suspicions will justify a stop and nothing more. 

It will take additional evidence from the driver or circumstances after the stop to support an additional set of reasonable suspicions entitling the police go further than simply warning the driver about her speed, but of course when the inside of the car smells like a distillery, they don’t need much more.


  1. Horrible decision. Cops have already started turning off their radar. Word is out that you can pull someone over for "speeding" even if you don't have any objective indication of the actual speed whatsoever. All that it takes to detain someone now is "...I thought they were speeding" preceded by those magical, insincere and perfunctory words: "based on my training and experience..." that have that surreal hypnotic effect on the Court. To be sure, there's nothing "articulable" about the legal bases for either of the stops in these cases.

    I would very much like to see any one of the SCOV justices get pulled over and have the officer explain: "Do you have any idea how fast you were going? Well, neither do I. It just seemed like speeding to me."

    The unfortunate reality, however, is that this "speeding exception" to search and seizure law will be disproportionately applied to the marginalized, minorities, and "persons of interest" that the cops otherwise can't get probable cause to detain.

    I'm disappointed with this decision. Not much effort here, SCOV.

  2. I agree that this isn't a great decision. I think that any number of things recognized in case law as contributing to reasonable suspicion (smells, furtive gestures, high crime neighborhood) have been used by officers as pretext for discriminatory policing. This is just one more arrow to the quiver.

    I'd just note that, on the basis of the decision, the police can't "detain" people stopped, as you suggest. They are merely entitled to engage that person in an ordinary "limited seizure" for the purposes of a traffic stop. If, as Dan says, during the stop they become aware of facts giving rise to reasonable suspicion to prolong the detention, they may do so. But the "eye test" that this case establishes permits only more speeding tickets, nothing more.

    1. Pulling a car over is a seizure within the meaning of the Fourth Amendment and Article 11. State v. Phillips, 140 Vt. 210, 215 (1981)

  3. I am not even sure that it would generate a ticket. Note in the facts of this case that the troopers testified only that they intended to give the defendants a warning. If the troopers were trying to establish speeding as a separate criminal offense, then I think they would have to put forward more proof.

    I may be wrong, but I read this case as another installment in a series of SCOV decisions that have, over the past ten years, lowered the threshold needed to establish a reasonable suspicion to begin a stop.

    If you want to trace this back a little further, read State v. Pratt, 2007 VT 68. In that decision, the SCOV ruled that intra-lane weaving justified an initial stop that eventually led to a DUI arrest. The SCOV majority tried to temper its finding by stating that its conclusion went to the totality of the circumstances. Nevertheless, it explicitly affirmed the stop based only on observed intra-lane weaving coupled with a the observing officer's "training and experience."

    Now here is where I diverge from other commentators. I don't necessarily see this as a bad thing. The SCOV is slowly but surely lowering the bar for reasonable suspicion for an initial stop. We are all on notice that it does not take much to justify the police pulling us over. This is not entirely bad. We want police to pull over suspicious cars or to make sure they have the ability to act on a subtle signal that indicates the driver is impaired or violating the law.

    1. Correction - You do NOT want police to pull over "suspicious" or "speeding" cars if you're black, or from out of state, or Hispanic, or poor, or have a criminal history, or if you're young, or if you look like someone with a criminal record, or if you are friends with someone with a criminal record, or if anyone in your family has a criminal record, or if the cop doesn't like how you look, or...(fill in the blank)..

    2. Anonymous, you raise a really good point about this lowered bar becoming a pretext for racial profiling or for pulling over someone who "looks wrong." I think that is a danger and potential side-effect of this lowered standard. I wonder if any of the parties challenging these cases raised this point in their briefing. I gathered that the SCOV was really focused on legitimate incidents, where the officer observed enough wrong-doing to trigger a stop but perhaps not enough to make a separate formal arrest or citation.

      Nevertheless, there is enough room in this case and the State v. Pratt where the SCOV could effectively raise the bar if presented with evidence of profiling or abuse in the future. Sounds like a good reason to bring a Brandeis brief to the next challenge of this nature.

  4. So this gives another excuse for cops to pull someone over for something that the cops can't even enforce in the judicial bureau. Police state = 1, Liberty = 0.