Skip to comments.Federal court rules that stiff driving posture is suspicious behavior
Posted on 05/03/2014 11:24:54 AM PDT by granite
NEW MEXICO A federal appeals court has ruled that driving with ones hands at the ten-and-two position is reason enough to pull someone over for further investigation. No traffic laws have to actually be broken. Additionally, the court ruled that facial acne is reason enough to suspect a driver is a drug smuggler.
The ruling stems from an incident that took place on April 18, 2012, at roughly 7:45 p.m. A border patrol agent driving down Highway 80 saw a white Ford F-150 heading the opposite direction. This took place roughly 40 miles north of the U.S./Mexico border well inside the United States.
Although the truck was witnessed breaking no traffic laws, Border Patrol Agent Joshua Semmerling claimed he noticed several things that drew his suspicions, while passing the truck at 60 miles per hour.
First, was the drivers upright posture. The female driver was sitting up straight with her hands located on the upper part of the steering wheel. This was viewed as suspicious activity.
Secondly, the agent claimed that the trucks tinted windows were suspicious. It remains unclear how the agent saw drivers posture through the suspicious tint.
Lastly was the trucks rear license plate which the agent claims to have observed in his rear-view mirror while traveling at a high rate of speed in the opposite direction. He claimed that he noticed it was from out-of-state; another suspicious characteristic.
The agent decided to make a U-turn and stop the truck.
The driver identified herself as Cindy Lee Westhoven of Tucson, Arizona. Agent Semmerling then used his keen crime-detecting skills to justify a search of her truck. He saw that Mrs. Westhoven had acne on her face and claimed that it was grounds for suspecting her to be a methamphetamine user.
Mrs. Westhoven had already proven she was a U.S. citizen. She had no warrants and had broken no laws, yet Agent Semmerling claimed that he believed she might be smuggling illegal aliens and/or drugs. When she refused to consent to a search, the agent used a drug K9 to sniff her truck. The dog turned up a small amount of cannabis. Westhoven was arrested.
Later in court, Westhovens defense tried to overturn the arrest due to the shaky ground upon which the stop was performed. Her attorney argued that the evidence was obtained illegally. The effort was unsuccessful; the court accepted all of the agents dubious tactics.
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 3-judge panel on the Tenth Circuit U.S. Court of Appeals unanimously upheld the search, and rejected Westhovens motion to suppress the evidence.
The acceptance of such flimsy suspicions in court is the practical acceptance of zero need for any real indication of a crime occurring before any American can be stopped and searched by federal agents.
Source: PDF File US v. Westhoven (US Court of Appeals, Tenth Circuit, 4/24/2014)
land of the free bump
Next you’ll be profiled for keeping your eyes on the road.
Uh, cops are taught to drive with the hands at 10 and 2. It facilitates manuvering.
I basically have to drive this way because my lower back bothers me.
Living in a police state. Ain’t it grand?
Actually under this administration, merely existing is enough reason to screw someone over. If you do not buy Obamacommiecare the government reasons that it has a right to steal your money. In other words, we have now reached a point where merely existing is classified as a crime. Everybody is a criminal under the Kenyan Marxist administration and the punishment is you buy into the Obamacare scam or they steal your money - either way they are getting your money. This is different from taxes. With taxes you get something in return such as roads, bridges, military etc. With Obamacommiecare you get squat.
I guess I’ll have to start holding my phone in one hand again ....
So, any doctrines which relaxes the strict requirements of the 4th amendment has turned out to be nothing more than a slippery slope.
Next we’ll be getting pulled over for driving while not texting.
Lib mom’s driving their Volvo’s are up the creek.
“But, but officer...I voted for Obama.”
Your back bothers you? That's grounds for suspecting you of abusing pain meds! Come along quietly, citizen....
“Additionally, the court ruled that facial acne is reason enough to suspect a driver is a drug smuggler.”
Teenagers are gonna get it!
Yes Sir.....*hangs head*
The district court concluded Agent Semmerling had objectively reasonable suspicion to justify stopping Ms. Westhoven. Based on the totality of the circumstances, we agree.
The reasonable suspicion factors here included: (1) the stop location's characteristics, including proximity to the border; (2) traffic patterns on the road; (3) Ms. Westhoven's travelling during the border patrol shift change; and (4) Ms. Westhoven's driving behavior and vehicle characteristics.
First, Ms. Westhoven was driving in a relatively mountainous area 40-45 miles away from the U.S./Mexico border. Agent Semmerling, from his three years on the job, knew this stretch of road, because of its terrain, proximity to the border, and lack of border checkpoints, had high activity for drug and undocumented immigrant smuggling. Agent Semmerling testified this road is one of the only ones leading from Douglas, Arizona, a border town known for smuggling, that does not have a border checkpoint. Thus, smugglers attempting to avoid the Border Patrol's detection frequent this road.
Second, Agent Semmerling knew out-of-state drivers rarely used the road. Ms. Westhoven's license plates indicated her truck was registered in Tucson, Arizona. The agent also knew that travelling on this road was particularly unusual for a Tucson driver because it added approximately 100 miles to the drive. The more direct routes had border checkpoints. These facts indicated smuggling activity.
Third, Border Patrol agents changed shifts between 6:00 p.m. and 8:00 p.m., and Agent Semmerling stopped Ms. Westhoven at 7:45 p.m. Smugglers frequently exploited that two-hour window. See Arvizu, 534 U.S. at 277.
Fourth, Agent Semmerling noticed as Ms. Westhoven was driving past him that she appeared stiff with elbows locked and hands in the ten-and-two position on the steering wheel. After he turned around, he had to drive significantly faster to catch up, indicating she increased her speed by an estimated 10 or more miles per hour after passing him. As he approached her vehicle from behind but before he turned on his lights, she abruptly hit her brakes. These circumstances can contribute to reasonable suspicion depending on context. See Arvizu, 534 U.S. at 275-76 ("We think it quite reasonable that a driver's slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona)."). The dark tinted windows on Ms. Westhoven's truck raised Agent Semmerling's suspicion that she might be concealing something or someone in the back of her truck.