Good Posture + Bad Complexion = Probable Cause to Stop for DUI

Friday, May 9th, 2014

We have this document called a "Constitution".  At least I think we still do.  And one of the things in that document is protection against police officers stopping us for no good reason.  To be stopped for investigation, the officer must have a "reasonable suspicion" that the driver is committing a crime.  In the past, this has commonly taken the form of observations like pronounced weaving, running stop lights, erratic driving, etc.

But that apparently was the past.  As for today, the following article shows the recent view of a federal circuit court of appeals:


Federal Court Finds Upright Driving, Acne Suspicious

Driving 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."


Why do the courts continue this charade of grasping at ridiculous reasoning in their pretense of honoring our Constitution?  Why don't they just come out and say it: the Bill of Rights is dead.  It's open season for law enforcement.
 

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Deputy Crashes into Car, Breaking Driver’s Neck…then Arrests Her for DUI

Tuesday, May 6th, 2014

As I've repeatedly written on this blog, DUI can be an extremely subjective offense.  Although there may be a breathalyzer or blood alcohol test involved — and these are inherently unreliable — much if not most of the "evidence" depends upon the arresting officer's testimony: driving symptoms, physical appearance, slurred speech, red eyes, impaired coordination and judgment, poor performance on "field sobriety tests", incriminating statements, etc.  All of these depend upon the cop's perceptions, expertise…and honesty.   

So what happens when a cop smashes into another car, causing an accident so violent that the other driver's neck is broken?  Simple:  arrest her for drunk driving.


Sober Driver Arrested for OWI When Deputy Crashes Into Her Car

Milwaukee, WI.  May 3 – A Milwaukee County Sheriff’s Deputy rolls through a stop sign and causes a violent crash. So why was the victim placed under arrest?

A FOX6 Investigation finds that a deputy’s changing story may have changed one woman’s life forever.

Tanya Weyker was hurt so badly, she couldn’t blow into a breath-testing device or perform field sobriety tests.  But a Sheriff’s deputy arrested her for drunk driving anyway.  And the County hung those charges over her head for nearly a year, even long after blood tests proved she was perfectly sober.

Tanya Weyker remembers it clearly. Not just the crash that broke her neck in four places, but the false accusations that followed.

“My reputation is everything to me,” she said.

At the age of 25, Weyker’s criminal history is as flawless as her posture. She was diagnosed with cancer at age three, and the prolonged radiation treatments literally curved her spine. So doctors inserted metal rods to keep her back straight.  The lifelong medical complications have not stopped her from pursuing a college degree. Or from driving a car. In fact, Weyker had never gotten so much as a speeding ticket until the night she crossed paths with Milwaukee County Deputy Sheriff Joseph Quiles.

It was February 20th, 2013, and Deputy Quiles was working the night shift on patrol at General Mitchell International Airport.

As he pulled out onto Howell Avenue to make his rounds, he T-boned a passing car and sent it spinning into a tree.

“Very scary,” Weyker recalls.

Her spine was already fused with steel. Now, she had a fractured neck to go with it.

“It was a miracle I wasn’t paralyzed,” she said.

As rescue workers tended to Weyker, police and Sheriff’s deputies started asking questions.

“One asked if I had anything to drink that night,” she said. “And I told them a few sips from a friend’s drink.”

A deputy noted a light odor of alcohol on her breath. He said her speech was slurred. And her eyes looked red and glassy.

“I explained to him my eyes were red and glassy because I was crying,” she said….

In his official report, Deputy Quiles wrote that he stopped at the stop sign and looked both ways before pulling out.  He told a Milwaukee police officer that he never saw any headlights, even though Weyker’s Camry had lights that come on automatically.

“I knew I was innocent this whole time,” Weyker declared.

The truth might never have surfaced were it not for video from a nearby airport surveillance camera. It shows what investigators say is Deputy Quiles’ squad car traveling west on Hutsteiner Avenue, then continuing onto Howell without making a complete stop, as Quiles claimed in his report. The Sheriff’s Office knew about the video just two days after the crash.  But no one told Weyker.

Instead, the County sent letters blaming her for the crash and threatening legal action if she didn’t pay for the damage.

Of course, if Weyker was drunk, it would have been easy to pin the blame on her. But less than a month after the crash, test results showed she had no alcohol in her system. And by July, her drug test came back negative too. Five months after the crash, it was clear Weyker had been stone cold sober.

But still the case didn’t go away.

“I don’t think it is fair at all,” Weyker said.

Five more months passed before a prosecutor finally looked at the case and declined to file charges. But even then, Weyker says, she was left in the dark.

“No one called me.”…


So…an isolated incident, right?  Think again.  The only thing that distinguishes this case from thousands like it across the country is the fact that Deputy Qiles caught two bad breaks:


1.  His "drunk driving investigation" was recorded by a nearby surveillance camera.  What are the odds of this happening in any other DUI case?

2.  In most cases where a cop doesn't want a breath test contradicting his "evidence", he simply writes in his arrest report the magic words:  "Suspect was asked to submit to a breath test but refused."  It's that simple.  In this case that wasn't necessary: the suspect was physically unable to give a breath sample.  What Deputy Qiles didn't realize, however, was that the hospital treating Ms. Weyker would in the normal course of treatment take a blood test — and that the hospital lab would find that there was no trace of alcohol.


Absent these very fortuitous events, Ms. Weyker would have been prosecuted for DUI.  And who do you think a jury would believe?  The sworn testimony of an experienced and impartial police officer?  Or that of an accused drunk driver?  

If it were not for these two lucky breaks, Ms. Weyker would have been convicted, punished and branded with "drunk driver" for the rest of her life.  

And it happens all the time…
 

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Sheriff: “We Have Complete Power Over You”

Monday, April 28th, 2014

I've commented repeatedly in the past about the growing power of law enforcement in this country — the ability and willingness of police to abuse their authority, ignore contutitional protections and use excessive force.  This, of course, has not been limited to the DUI field, but has been a widespread phenomenon.  The rate of shooting deaths by police has skyrocketed, for example, and the spread of SWAT teams and the adoption of military and paramilitary equipment and tactics has spread across the country.  Due to the prevalence of cell phone cameras, more and more of these senseless killings by police have been clearly documented.

Is this due to an increasingly lawless citizenry — or to an increasingly authoritarian mentality among police agencies?

The following is a highlighted quote from a full-page Jacksonville, North Carolina, newspaper ad from a sheriff seeking re-election for a fourth term:
 

Those in the law enforcement profession have complete power and authority over you, your life, you family, your loved ones, your rights, your freedom, your future, and everything precious to life.


The following is a letter to the editor in reply:
 

I read Sheriff Ed Brown's full-page ad in the paper Feb. 2 edition of The Daily News. All freedom-loving Americans should be scared of what it says.

In the ad, Brown states, “Those in the law enforcement profession have complete power and authority over you, your life, your family, your loved ones, your rights, your freedom, your future and everything precious to life.”

Ed Brown must want us to live in a total-domination police state.

It is our Constitution and Bill of Rights that guarantee our freedoms. Any politician who believes in Ed Brown’s statement is not worthy of any public office.

I totally reject Ed Brown’s claim that law enforcement has complete power and authority over me. As an American, I trust in the guarantees of our Constitution and believe in our democratic way of life; and I will fight against those who would want to impose their tyranny over us


Well said.  But let's hope the writer of this letter is never stopped by a local deputy sheriff…
 

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Anonymous “Tips” Now Enough to Stop Drivers for DUI

Wednesday, April 23rd, 2014

The U.S. Supreme Court has done it again.

Yesterday, in a typical 5-4 decision, the Court held that an anonymous tip — an unidentified call with absolutely no indication of truth or reliability — was sufficient to justify police stopping a driver on the road and detaining him on suspicion of drunk driving.  Navarette v. California

Amazing.

The Fourth Amendment of our Constitution clearly states that "The right of the people to be secure in their persons…against unreasonable searches and seizures, shall not be violated…but upon probable cause".   In other words, a cop can't just stop a driver on suspicion of drunk driving unless he has "probable cause" — a reasonable belief — that he is intoxicated. 

So, the issue is:  Does a telephone tip from an unidentified source constitute a reasonable suspicion of guilt — even where the responding cop sees no indication of drunk driving?  Or, for example, can an anonymous phone call from a spiteful former wife or a disgruntled neighbor be enough to get you pulled over by the police and subjected to a DUI investigation?

As I've said so many times on this blog, there exists a DUI Exception to the Constitution — and there is no better example of this than the Supreme Court holding in Navarette.  But it's easy for some to ignore these destructions of our constitutional rights, since they only apply to those "drunk drivers", right?  The problem is, as I've also repeatedly written, we are a nation of legal precedent : a loss of constitutional protections in a DUI case will be used as a precedent in any other criminal case.  See my post, Who Cares About the Rights of Those Accused of DUI?.  


Clarence Thomas vs. Antonin Scalia on 4th Amendment and 'Reasonable Suspicion'

Washington, DC.  April 22 - The U.S. Supreme Court handed down a major ruling today with profound implications for the Fourth Amendment rights of all persons who drive or ride in automobiles on public roads. At issue in Navarette v. California was a traffic stop prompted by an anonymous call to 911 claiming that a truck had driven the caller off the road. Going by the information supplied in that call alone, the police located a matching truck in the vicinity of the alleged incident and pulled it over on suspicion of drunk driving. That stop led to the discovery of 30 pounds of marijuana stashed in the truck.

The question before the Supreme Court was whether that single anonymous tip to 911 provided the police with reasonable suspicion to stop the truck. Writing for the majority, Justice Clarence Thomas ruled that the "the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated." While this is a "close case," Thomas acknowledged, it still passes constitutional muster. Joining Thomas in that judgment was Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito.

Writing in dissent, Justice Antonin Scalia came out swinging against Thomas. "The Court's opinion serves up a freedom-destroying cocktail," Scalia declared, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. It elevates an anonymous and uncorroborated tip above the bedrock guarantee of the Fourth Amendment. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That state of affairs, Scalia declared, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures."

So even if such a telephone call were reliable — and there is now no longer requirement that it has to be — you can be stopped for suspicion of drunk driving if the caller says that you were…speeding.  Even if  the responding cop sees no evidence that you are intoxicated.

In his dissent, Justice Antonio Scalia wrote further:

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. 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. I respectfully dissent.

…and they continue to chip away at our Constitutional freedoms.
 

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Give a Breath Sample — or Be Strapped Down and Jabbed With Needles

Sunday, January 19th, 2014

I’ve written in the past about the growing practice of forcibly taking blood from a drunk driving suspect, sometimes done by a cop in the field.  See, for example, Taking Blood by ForceForced Blood Draws by Cops: Constitutional?Forced Blood Draws by Cops SpreadingBlood Draws in the Back Seat by the Dashboard Light and Forced Blood Draws: Citizen Backlash?.   

Here’s a new tactic: threaten the suspect with strapping him down and painfully jabbing a needle into him (however many times it takes to get a blood sample)…unless he agrees to "voluntarily" take a breath test.



Texas Blood Test Aims at Drunk Drivers

Wall Street Journal, Dec. 11 —  Texans arrested for drunken driving should be prepared to give blood this holiday season.

Cities and counties across the state are increasingly demanding that drunken-driving suspects who refuse to take breathalyzer tests submit to blood tests that measure the amount of alcohol in their systems.

The blood-test policy—dubbed "no refusal" by law-enforcement officials, because it prevents drivers from refusing to provide evidence of intoxication—has grown from a novel procedure used in a few Texas jurisdictions to an initiative used by police statewide, particularly during weekends and holidays when drunken driving is most common. The no-refusal initiative has also caught on in other states, including Florida, Illinois, Louisiana and Missouri…

Texas courts have uniformly upheld the constitutionality of mandatory blood testing, attorneys said. But criminal-defense lawyers say such mandatory tests trample suspects’ rights to be free from unreasonable searches and seizures. "It’s an erosion of civil liberties," said Austin defense lawyer Samuel Bassett. "If we can poke people involuntarily for evidence, where do we draw the line?"…

Police are empowered to strap a suspect to a chair, if necessary, to obtain a blood sample. That allows blood to be drawn quickly—a key benefit to prosecutors because blood-alcohol concentrations dissipate over time…

In El Paso, police find that the policy actually encourages people to submit to breath tests. "We give people the option of blowing into a tube or getting poked with a needle," said Lt. Rod Liston. "People increasingly are going with the less painful option."…



Hmmm…Threatening to strap a suspect down and "poke" him with a needle actually "encourages" him to submit to a breath test?  Welcome to MADD's "War on Drunk Driving".   
 

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