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Federal court rules that stiff driving posture is suspicious behavior
Police State USA ^ | Posted on May 1, 2014 | Site Staff

Posted on 05/03/2014 11:24:54 AM PDT by granite

NEW MEXICO — A federal appeals court has ruled that driving with one’s 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 driver’s 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 truck’s tinted windows were suspicious. It remains unclear how the agent saw driver’s posture through the “suspicious” tint.

Lastly was the truck’s 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, Westhoven’s 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 agent’s 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 Westhoven’s 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)


TOPICS: Crime/Corruption; Extended News; Government; News/Current Events
KEYWORDS: cops; donutwatch; dopeaddicts; joshuasemmerling; libertarians; medicalmarijuana; policestate
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A panel of judges unanimously ruled that having hands at "ten-and-two" is suspicious enough to stop drivers inside the USA.
1 posted on 05/03/2014 11:24:54 AM PDT by granite
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To: granite

Source PDF

http://www.thenewspaper.com/rlc/docs/2014/us-goodposture.pdf


2 posted on 05/03/2014 11:27:37 AM PDT by granite (The heart of the wise inclines to the right, but the heart of the fool to the left - Ecclest 10:2)
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To: granite

land of the free bump


3 posted on 05/03/2014 11:29:11 AM PDT by morphing libertarian
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To: granite

Next you’ll be profiled for keeping your eyes on the road.


4 posted on 05/03/2014 11:29:34 AM PDT by mylife
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To: granite

Uh, cops are taught to drive with the hands at 10 and 2. It facilitates manuvering.


5 posted on 05/03/2014 11:30:46 AM PDT by QBFimi (/...o.o/.o...ooo/...o.o...o/ooo/...o.o/.o/ooo.//o..o./. o.)
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To: granite

I basically have to drive this way because my lower back bothers me.


6 posted on 05/03/2014 11:30:59 AM PDT by mylife
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To: null and void

Ping!


7 posted on 05/03/2014 11:34:08 AM PDT by Slings and Arrows (Richard Warman censors free speech.)
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To: granite

Living in a police state. Ain’t it grand?


8 posted on 05/03/2014 11:34:45 AM PDT by andyk (I have sworn...eternal hostility against every form of tyranny over the mind of man.)
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To: granite

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.


9 posted on 05/03/2014 11:36:03 AM PDT by GrandJediMasterYoda (Hitlery: Incarnation of evil.)
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To: granite

I guess I’ll have to start holding my phone in one hand again ....


10 posted on 05/03/2014 11:39:54 AM PDT by relictele (Principiis obsta & Finem respice - Resist The Beginnings & Consider The End)
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To: granite
Slippery slope.

So, any doctrines which relaxes the strict requirements of the 4th amendment has turned out to be nothing more than a slippery slope.

11 posted on 05/03/2014 11:43:41 AM PDT by nonsporting
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To: granite

Next we’ll be getting pulled over for driving while not texting.


12 posted on 05/03/2014 11:48:05 AM PDT by freedomfiter2 (Brutal acts of commission and yawning acts of omission both strengthen the hand of the devil.)
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To: granite

Lib mom’s driving their Volvo’s are up the creek.

“But, but officer...I voted for Obama.”


13 posted on 05/03/2014 11:52:18 AM PDT by moovova
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To: mylife
I basically have to drive this way because my lower back bothers me.

Your back bothers you? That's grounds for suspecting you of abusing pain meds! Come along quietly, citizen....

14 posted on 05/03/2014 11:59:50 AM PDT by Flame Retardant (Ronald Reagan: If you analyze it I believe the very heart and soul of conservatism is libertarianism)
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To: granite

             

15 posted on 05/03/2014 12:05:24 PM PDT by tomkat
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To: tomkat

“Additionally, the court ruled that facial acne is reason enough to suspect a driver is a drug smuggler.”

Teenagers are gonna get it!


16 posted on 05/03/2014 12:14:26 PM PDT by GladesGuru (Islam Delenda Est - because of what Islam is and because of what Muslims do.)
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To: Flame Retardant

Yes Sir.....*hangs head*


17 posted on 05/03/2014 12:17:58 PM PDT by mylife
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Comment #18 Removed by Moderator

To: granite
Interesting fact pattern:

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.[1] 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.


19 posted on 05/03/2014 12:32:10 PM PDT by 1rudeboy
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To: granite
Federal court rules that stiff driving posture is suspicious behavior

Is driving with a stiffie suspicious driving too?
(My bad) lol
20 posted on 05/03/2014 12:34:27 PM PDT by stirrinthepuddin
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To: granite

“ten-and-two position”

That is considered the safest position.

Reminds me of the time a police officer pulled a guy over because he was steering with only his left hand and had his right arm around his girlfriend who was sitting in the middle of the front seat of his pickup. The officer told the guy he needed to use both hands, upon which the guy informed the officer that he could not use both hands safely because he needed one hand to steer.


21 posted on 05/03/2014 12:37:57 PM PDT by unlearner (You will never come to know that which you do not know until you first know that you do not know it.)
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To: granite
A panel of judges unanimously ruled that having hands at "ten-and-two" is suspicious enough to stop drivers inside the USA.

That's not what they ruled. Did you read the article that you posted?

22 posted on 05/03/2014 12:39:31 PM PDT by Moonman62 (The US has become a government with a country, rather than a country with a government.)
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To: granite
Just being in the United States, and not being a part of the ruling class, is now deemed to be suspicious behavior.

But only to those in power who suspect that the ordinary people are fed up and are ready to throw out the ruling cartel.

-PJ

23 posted on 05/03/2014 12:41:05 PM PDT by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: 1rudeboy

Your extract reminds me of Monk. Taken together, I’d say the guy was very tuned in and doing his job. The reasoning for the ruling seems flimsy when parsed like it is prior to your post but he correctly exercised reasonable deduction several times over. Thanks for the whole story.


24 posted on 05/03/2014 12:51:42 PM PDT by PeteePie (Righteousness exalts a nation, but sin is a reproach to any people - Proverbs 14:34)
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To: CedarDave; leapfrog0202; Santa Fe_Conservative; DesertDreamer; OneWingedShark; CougarGA7; ...

NM ping.

Hey you kids... Start Slouching.


25 posted on 05/03/2014 12:56:45 PM PDT by LegendHasIt
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To: unlearner
"...he needed one hand to steer."

LMAO!

26 posted on 05/03/2014 1:03:12 PM PDT by LegendHasIt
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To: granite

For the most part, the cops and judges/courts are all on the same team and have their wages and lottery style retirement pensions padded and funded by all the fines and taxes they can squeeze out of the peons...


27 posted on 05/03/2014 1:18:39 PM PDT by dragnet2 (Diversion and evasion are tools of deceit)
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To: granite

Since having read that 10 and 2 is the safest driving posture, I’ve driven that way. The reason is that if the airbag is deployed, that you run the least chance of bodily damage.


28 posted on 05/03/2014 1:21:28 PM PDT by roadcat
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To: Moonman62

A while ago someone compiled all the driving characteristics that judges have ruled are “suspicious” and could be used to justify pulling over the vehicle. They included driving faster than the speed limit, driving slower than the speed limit, and driving exactly at the speed limit.


29 posted on 05/03/2014 1:47:11 PM PDT by BigBobber
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To: Moonman62

Yea, I read it, it’s the second paragraph, highlighted in red.


30 posted on 05/03/2014 1:50:55 PM PDT by granite (The heart of the wise inclines to the right, but the heart of the fool to the left - Ecclest 10:2)
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To: granite

bfl


31 posted on 05/03/2014 1:53:53 PM PDT by snooter55 (People may doubt what you say, but they will always believe what you do)
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To: granite

I saw an episode of “Cops” where they pulled over a car for putting the turn signal on more than 7 flashes before the turn.

Just sayin’ ...


32 posted on 05/03/2014 2:49:16 PM PDT by Lmo56 (If ya wanna run with the big dawgs - ya gotta learn to piss in the tall grass ...)
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To: granite

Federal officers need their powers trimmed back. Just about any federal officer can stop any civilian for doing anything in any jurisdiction. It’s been like that since Reagan. States need to take back their power, and feds need to be neutered. Red states need to stop tolerating despotism, and maybe the other states will follow.


33 posted on 05/03/2014 2:51:28 PM PDT by pallis
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To: granite
I'll help you out. Here is what they ruled.
“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.”

34 posted on 05/03/2014 3:24:48 PM PDT by Moonman62 (The US has become a government with a country, rather than a country with a government.)
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To: granite

facecrime - Orwell’s definition : “It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. A nervous tic, an unconscious look of anxiety, a habit of muttering to yourself — anything that carried with it the suggestion of abnormality, of having something to hide. In any case, to wear an improper expression on your face (to look incredulous when a victory was announced, for example) was itself a punishable offence. There was even a word for it in Newspeak: facecrime, it was called.”


35 posted on 05/03/2014 4:39:30 PM PDT by tumblindice (America's founding fathers: all armed conservatives)
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To: LegendHasIt
If they had stopped her in Deming, they would have given her an anal exam.

If she had CO plates, the BP would have added that to the reason for stopping her. In Idaho, the state police used CO plates as an excuse to pull someone over. In that case a man slowed down when a cop pulled up behind him and exited the interstate at a rest stop. The cop followed him and while watching him he hit the curb with his car. That was enough for the cop to start interrogation and initiate a search of his car. He had no drugs but his arrest and impoundment of the car has led to a large lawsuit.

Lawsuit: Man Arrested, Searched For Marijuana Solely For Having Colorado License Plate

36 posted on 05/03/2014 4:59:49 PM PDT by CedarDave (CNN: The "Crisis News Channel" - all Flight 370 hysteria and global warming blather, all the time.)
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To: CedarDave

Correction, he was not arrested but “detained.”


37 posted on 05/03/2014 5:01:28 PM PDT by CedarDave (CNN: The "Crisis News Channel" - all Flight 370 hysteria and global warming blather, all the time.)
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To: granite
Federal court rules that stiff driving posture is suspicious behavior.

Congratulations, Drug War fascists! You've gotten the America you deserve...

38 posted on 05/03/2014 5:07:21 PM PDT by sargon
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To: granite

I was so oppositional in my teen years....I remember insisting I would agree to placing my hands at 9:45 and 2:15. so...I’m safe. :P


39 posted on 05/03/2014 5:07:56 PM PDT by ZinGirl (kids in college....can't afford a tagline right now)
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To: andyk
>>Living in a police state. Ain’t it grand?<<

Yea, in Texas if the Po-Po wanna search your vehicle, they just claim the odor of marijuana. Bada bing, bada boom.

Not a damn thing you can do. If you even give a hint of refusal, you'll end up with your cheek being ground into the concrete.

Protect and serve? Yea, right.

40 posted on 05/03/2014 5:20:07 PM PDT by servantboy777
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To: granite

“I pulled you over today because your were paying attention to the road and driving responsibly.”


41 posted on 05/03/2014 5:59:36 PM PDT by Army Air Corps (Four Fried Chickens and a Coke)
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To: granite
The more laws the more offenders. ~Thomas Fuller, Gnomologia, 1732
42 posted on 05/03/2014 7:39:21 PM PDT by stirrinthepuddin
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To: 1rudeboy
The fact pattern is that a border agent who had zero legitimate jurisdiction to enforce New Mexico state laws stopped and searched a legal U.S. citizen with no warrant and no probable cause. And then, some phony "judges" came and rubber stamped it as all cool, because now obeying New Mexico traffic laws is grounds for suspicion.

For all of that, we know the names of a handful of taxpayer supported nazi goons who have broken their oaths and are therefore no longer qualified to be employees of the people of the united States, and should be forcibly removed from their positions post haste.

This really chaps my hide as a four year resident of New Mexico who still travels on out of state credentials because for some reason I can not prove legal residency after living and working and paying taxes here all of that time, because extra proof is required of me as a native born and life long American citizen than would be required if I had a certain other national heritage (yes, I go in to DMV with exactly what is required of illegal aliens and I am denied every time). It makes me feel even better that I drive a white F150 with dark tinted back windows (because that is how they make them) and now that is good cause to be stopped anytime and anyplace.

It seems to me that a certain demographic is targeted for discrimination in some parts of this state (and by the state and federal governments and in all parts of it). I'm glad I don't live in those parts but still it would be nice to be free to travel in all of them unmolested (on all of the different levels in which it occurs).

I guess I need to work on my tan and my posture, and maybe get me some anti American bumper stickers or something, so I won't stand out as a law abiding American.

</rant>

43 posted on 05/03/2014 7:57:10 PM PDT by Clinging Bitterly (I will not comply.)
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To: PeteePie
No, it remains pure bullcrap no matter how you arrange the words. There is no legitimate authority to seize people based on hunches, period. And that is all there was here. Could be right as rain every time but still hunches, and NOT probable cause to top and seize a person, except in a police state.
44 posted on 05/03/2014 8:18:56 PM PDT by Clinging Bitterly (I will not comply.)
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To: granite

Interesting thread.
= = = = = = = = = = = = = = =
It only seems like yesterday that a MD State Trooper appeared on TV and said their ‘brilliant’ rate of capturing drug smugglers was they had a set ‘profile’ to follow.
They had claimed that the majority of smugglers (at that time) were young, black and usually driving expensive, fast cars.
They would attract the attention of Police because they were usually speeding and would normally have a ‘couple’ of vehicles seemingly with them, also citing lack of luggage and 2 young males in a $100,000 car was a ‘tip off’.

THAT WAS RULED UNCONSTITUTIONAL and I think MD had to throw out a lot of cases.


45 posted on 05/03/2014 8:30:51 PM PDT by xrmusn ((6/98) --"On occasion, nothing said says a lot more than saying something".)
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To: granite

Unbelievable. Absolutely ridiculous!


46 posted on 05/03/2014 10:00:00 PM PDT by leapfrog0202 ("the American presidency is not supposed to be a journey of personal discovery" Sarah Palin)
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To: QBFimi

Having gone through such training, we were taught to have hands on 4 & 8 when making response and/or defensive maneuvers. Better control for the steering wheel.


47 posted on 05/04/2014 6:24:03 AM PDT by Cletus.D.Yokel (Catastrophic Anthropogenic Climate Alterations - The Acronym explains the science.)
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To: granite; COUNTrecount; Nowhere Man; FightThePower!; C. Edmund Wright; jacob allen; Travis McGee; ...

Nut-job Conspiracy Theory Ping!

To get onto The Nut-job Conspiracy Theory Ping List you must threaten to report me to the Mods if I don't add you to the list...

48 posted on 05/04/2014 8:04:28 AM PDT by null and void ( They don't think think they are above the law. They think they are the law.)
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To: granite

Isn’t New Mexico the state where if the cop believes your butt is clenched it justifies forcible sodomy in search of drugs?


49 posted on 05/04/2014 8:40:46 AM PDT by Darksheare (Try my coffee, first one's free..... Even robots will kill for it!)
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To: stirrinthepuddin

I believe that is only applicable to Drivers Ed.


50 posted on 05/04/2014 8:47:55 AM PDT by Delta Dawn (Fluent in two languages: English and cursive.)
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