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Friday, April 25, 2014
Federal Court Finds Upright Driving, Acne Suspicious
Judge Scott M. Matheson JrDriving with good posture, with hands at the classic ten and two position on the wheel, is sufficient reason to pull over a driver with a bad complexion, according to a ruling handed down Thursday by the Tenth Circuit US Court of Appeals. A unanimous three-judge panel approved the Border Patrol's April 18, 2012 stop and search of a motorist who happened to be nervous when pulled over.
   Border Patrol Agent Joshua Semmerling saw the white Ford F-150 pickup truck being driven in the opposite direction on Highway 80 in New Mexico, about 40 miles from the border with Mexico. It was 7:45pm, a time the Border Patrol agent found suspicious. The truck had an Arizona plate on the back and tinted windows, but its driver, Cindy Lee Westhoven, violated no traffic laws. Instead, Agent Semmerling noted she had "stiff posture" and hands "at a ten-and-two position on the steering wheel" so he decided to do a U-turn and pursue.
   A registration check showed the truck was registered to a Lawrence Westhoven in Tucson, which suggested to the officer that Westhoven was either smuggling illegal aliens or drugs. He hit his emergency lights and forced her to pull over. Agent Semmerling testified that he believed Westhoven must have been a methamphetamine addict after he noticed she had acne. Agent Semmerling ran Westhoven's license, and it came back with no warrants, but he continued the stop.
   "I thought you were going to let me go," Westhoven told the Border Patrol agent. "Do you think I'm hauling illegal aliens?"
   The agent asked to search the vehicle, but she refused to give him permission. Westhoven was ordered out of the truck so a drug dog could sniff it. She was told she was not under arrest but that she was being detained. Twenty minutes into the stop the drug dog arrived and alerted, revealing marijuana. Westoven's lawyer pointed out that the federal agent's story sounded fishy.
   "Agent Semmerling contends that he noticed in passing the vehicle that it had an Arizona license plate," attorney Bernadette Sedillo told the district court. "The F-150 does not have a front license plate so Agent Semmerling would have had to observe the rear license plate in the rear view mirror traveling the speed limit of 60 miles per hour."
   Sedillo added that there was no reason to continue the stop after Westhoven provided her license, which proved she was a US citizen. The appellate panel was not convinced, finding the totality of circumstances suggested that Westhoven was transporting illegal aliens over the border.
   "Driving stiffly, having tinted windows, slowing down when seeing law enforcement, and driving in an out-of-the-way area may be innocent conduct by themselves," Judge Scott M. Matheson, Jr wrote for the appellate panel. "But when taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity."
   The appellate court rejected Westhoven's motion to suppress the evidence. A copy of the decision is available in a 150k PDF file at the source link below.

Source: PDF File US v. Westhoven (US Court of Appeals, Tenth Circuit, 4/24/2014)

Thursday, April 24, 2014
Florida Appellate Court Backs Red Ligh Cameras
Eric AremAfter facing legal defeats, legislative setbacks and declining revenue, the providers of red light camera services were cheered Wednesday by the support of a divided Florida Court of Appeal panel. The judges considered the question of whether a private, for profit company is the one that really issues the red light camera ticket when the only thing a police officer does in the process is, at most, hit an "accept" button.
   Motorist Eric Arem argued that the city of Hollywood did not have the authority to deputize its vendor, American Traffic Solutions (ATS), to send uniform traffic citation information to the local court clerk, a job that state law says the officer must perform. Broward County Judge Terri-Ann Miller agreed with Arem and dismissed his ticket. Fearing the loss of revenue, Hollywood appealed.
   In Florida, vendors like ATS mail $158 tickets to vehicle owners via first class mail. If the ticket is not paid within thirty days, a uniform traffic citation may be issued via certified mail. Under the law, it is the police officer who must provide "by electronic transmission a replica of the traffic citation data to the court having jurisdiction over the alleged offense." The Court of Appeal agreed with Hollywood that this provision must not be taken literally.
   "We are satisfied that a fair reading of sections 316.650 and 316.0083, Florida Statutes supports the conclusion that the legislature intended to create a streamlined process through which red light traffic infractions may be resolved," Judge Burton C. Conner wrote for the majority. "The county court's interpretation of the relevant statutory provisions appears to defeat the legislature's intent for a streamlined process."
   Arem argued that the police officer in Hollywood had no involvement with providing the information to the court beyond hitting a button and that there is no way the officer would know what information is transmitted or even whether the information was ever sent at all. The appellate majority found this level of involvement sufficient.
   "We do not construe 'provide' to mean that the traffic enforcement officer must be the last person to press the computer keys that transmit the traffic citation data directly to the clerk of court," Judge Conner wrote. "The manner in which the original citation reaches the registered owner and the manner in which the digital version of the charging document reaches the county court does not deprive the county court of jurisdiction to entertain the enforcement proceeding."
   The majority vacated the lower court's order of dismissal and ordered Arem's ticket reinstated. In a dissenting opinion, Judge Mark W. Klingensmith said his colleagues were legislating from the bench.
   "In my view, the majority's opinion rewrites the statute to permit such a delegation of duty where the legislature declined to do so," Judge Klingensmith wrote. "It is the vendor that decides which cases the traffic infraction enforcement officer gets to review; it is the vendor that obtains the information necessary for the completion of the citation; it is the vendor that creates the actual citation; it is the vendor that issues the citation to the registered owner of the vehicle; and, it is the vendor that eventually transmits the traffic citation data to the court. For all practical purposes, the traffic infraction enforcement officer merely acquiesces to the vendor's decision to issue the citation."
   A copy of the ruling is available in a 200k PDF file at the source link below.

Source: PDF File Hollywood v. Arem (Court of Appeal, State of Florida, 4/23/2014)

Wednesday, April 23, 2014
US Supreme Court Backs Anonymous Tip Traffic Stops
Justices Thomas and ScaliaA quick call to 911 can lead to any car on the freeway being pulled over and searched. Thanks to a ruling handed down Tuesday by the US Supreme Court, police officers no longer need to corroborate an anonymous claim that someone is reckless or drunk behind the wheel before hitting the emergency lights and conducting a traffic stop.
   This is what happened on August 23, 2008, when an anonymous tipster claimed a silver Ford F150 pickup had run her off the road on Highway 1 in Mendocino County. That was enough for California Highway Patrol Officer Thaddeus Williams to pull over the pickup truck driver, Lorenzo Prado Navarette, who was later charged with marijuana possession.
   The only thing known about the 911 caller in the case was that the voice sounded like a woman's. Dispatchers had no way to verify that the person was even calling from the area. The question before the high court was whether tips of this nature are reliable enough for law enforcement agents to take action, or do they need first to see some evidence of wrong-doing on their own.
   Writing for the majority, Justice Clarence Thomas found the tip reliable because the caller proved to be correct about the truck's license plate and its approximate location when police caught up to it about 18 minutes after the call. The claim of recklessness proved sufficient to establish the likelihood that the driver was drunk (though in this case, Navarette was sober).
   "Unconfirmed reports of driving without a seatbelt or slightly over the speed limit, for example, are so tenuously connected to drunk driving that a stop on those grounds alone would be constitutionally suspect," Justice Thomas wrote. "But a reliable tip alleging the dangerous behaviors discussed above generally would justify a traffic stop on suspicion of drunk driving."
   Although the arresting officer in this case saw no indication of impaired driving after following the truck for five minutes, the majority found that this did not dispel the suspicion that the driver was intoxicated.
   "It is hardly surprising that the appearance of a marked police car would inspire more careful driving for a time," Justice Thomas wrote. "Of course, an officer who already has such a reasonable suspicion need not surveil a vehicle at length in order to personally observe suspicious driving."
   In an unusual split, Justice Antonin Scalia joined the court's liberal wing -- Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan -- in warning of the ruling's negative consequences.
   "So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop," Justice Scalia wrote. "This is not my concept, and I am sure would not be the Framers', of a people secure from unreasonable searches and seizures."
   The dissenters pointed out that the tipster was annoyed at being run off the road, but that does not necessarily mean that the truck driver was drunk.
   "Who really knows what (if anything) happened?" Justice Scalia asked. "The truck might have swerved to avoid an animal, a pothole, or a jaywalking pedestrian… Or, indeed, he might have intentionally forced the tipster off the road because of some personal animus, or hostility to her 'Make Love, Not War' bumper sticker."
   The police officer could not have stopped the truck for the discrete act of running the woman off the road because he did not witness what happened. He could only have conducted a stop based on an ongoing violation, such as drunk driving. After following the truck for five minutes, the officers saw no signs of recklessness or drunkenness.
   "After today's opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving."
   A copy of the decision is available in a 150k PDF file at the source link below.

Source: PDF File Navarette v. California (US Supreme Court, 4/22/2014)

Tuesday, April 22, 2014
DC To Raise $1 Billion From Virginia And Maryland Motorists
DC Tolling MapWashington, DC has long sought to impose a commuter tax, a levy designed to raise money from residents of neighboring Virginia and Maryland who take the train or drive in to the District of Columbia to work. The US Court of Appeals for the DC Circuit ruled in 2005 that the city could not impose such a tax without congressional approval, something it was not going to receive. Now city leaders have found a way to harness the latest transportation fad to achieve the same result as the tax.
   Both Maryland and Virginia have expanded the use of tolling in the past few years. Virginia's latest project takes existing lanes on Interstate 95 and imposes tolls on the high occupancy vehicle lanes without adding any physical lane capacity. The DC government proposes to do the same by tolling Interstates 295, 395 and 695, which are heavily used commuter routes. The National Capital Region Transportation Planning Board discussed the project at a meeting last week.
   "The proposed managed lanes project brings the District in line with its neighboring states," the DC Department of Transportation's feasibility report states. "The proposed network provides access into and through the District for resident of the District, Virginia and Maryland."
   The project would require no new construction beyond the installation of tolling gantries. Because of the low cost to get up and running, the first phase of the project would be run by the District to get tolls collected as early as possible on I-395. Later stages would likely follow the example used in Virginia where the roads were turned over to a foreign corporation.
   According to the District, the annual operation and maintenance costs range from $262,899 for the I-395 toll lane to $544,981 for I-295. Citing Metropolitan Washington Council of Governments traffic projections, the proposal expects total capital costs of $14.5 million would be paid off by the first full year's take of $20.5 million in tolls. By 2050, the annual revenue balloons to $97.4 million and the project will have raised more than $1.2 billion in profit.
   "The revenue will be used to offset the capital costs incurred for the project as well as for the maintenance and operations of the facility," the proposal explains. "A secondary benefit of this for DDOT and the residents of the District is that federal obligations that would normally be allocated for improvement projects on the corridor would not be required and DDOT gains flexibility on funding other projects within its program."
   DC says the Federal Highway Administration has already promised approval for the high occupancy toll lanes as part of its Value Pricing Pilot program and no further approval is needed beyond environmental studies. The city hopes construction for the E-ZPass toll readers will begin in April 2015.

Monday, April 21, 2014
Nevada: Cars Stopped For a Pebble In the Windshield
Nevada Supreme CourtNevada's Supreme Court earlier this month decided that motorists can be stopped and searched if a tiny rock scratches a vehicle's windshield. The court took up a case where a police officer stopped a motorist but was wrong about the statute governing windshields. The high court decided to find a way to make the initial stop stick.
   The case revolved around whether Deputy Wendy Jason was right to pull over Jarvis Deer Cantsee when she saw he had a crack across his windshield in what she thought was a violation of a statute banning driving "with any sign poster or other nontransparent material upon the front windshield." A lower court ruled that the traffic stop was inappropriate because the deputy got the law wrong, but the state appealed all the way to the high court. A divided majority sided with the prosecution.
   "We conclude that a police officer's citation to an incorrect statute is not a mistake of law that invalidates an investigatory traffic stop under the Fourth Amendment if another statute nonetheless prohibits the suspected conduct," Justice James W. Hardesty wrote for the court. "Therefore, we reverse the district court's order."
   Justice Michael A. Cherry, in the minority, warned of the consequence of his colleagues' finding.
   "Of course, this argument is troubling; its adoption would make any citizen who was the victim of a pebble lodged in a windshield, a frequent occurrence on those long drives across our vast state, susceptible to a traffic stop," the dissenting opinion explained.
   In the course of the lower court battle, state prosecutors decided that Cantsee must have violated a different statute, NRS 484B.163, which states: "A vehicle must not be operated upon any highway unless the driver's vision through any required glass equipment is normal." Washoe County Judge David A. Hardy found the switch of statute in the middle of the case unfairly surprised the defense, and he ordered the evidence obtained from the stop suppressed. This is the first time the issue has come before the state Supreme Court.
   "There is a difference between a mistake of law and a mistake as to which law applies," Justice Hardesty wrote for the majority. "Deputy Jason initiated the traffic stop because of the cracked windshield. She cited Cantsee for violating NRS 484D.435, believing that it was the applicable statute. She was mistaken. Although this statute does not prohibit Cantsee's conduct, a crack that obstructs the driver's vision through the windshield could be an infraction under NRS 484B.163. We conclude that this statute provides a lawful ground to justify the stop because the crack in the windshield might have obstructed Cantsee's view."
   Justice Cherry, in his dissent, points out that the trial judge had already rejected the possibility that there was a violation of the 484B.163 statute. The majority insisted on sending the case back to the lower court for adjudication on this question.
   A copy of the ruling is available in a PDF file at the source link below.

Source: PDF File Nevada v. Cantsee (Nevada Supreme Court, 4/3/2014)

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