Reasonable Suspicion for a Traffic Stop?

 

united states currency eye- IMG_7364_web

Image by kevindean via Flickr

STATE OF FLORIDA, Appellant, vs. ANGELINE L. BARATTA,  19 Fla. L. Weekly Supp. 13a (9th Jud. Cir., Oct 17, 2011): The State appeals from an order granting Baratta’s pretrial motion to suppress – Reversed.

The issue in this case involved whether or not the defendant’s headlights were off when the law required that they be on and if that was a valid basis for the stop. It was a 2-3 AM stop so the issue seems pretty clear, however that is not the reason why this case is highlighted here. I agree with the Circuit Court’s reversal in this case. I disagree with the reasoning.  The Court found that the LEO’s unimpeached testimony was enough to confirm that the law was indeed broken and the stop was valid. In doing so the court wrote this:

It is well settled that an officer’s observation of a traffic violation establishes the necessary reasonable suspicion for the stop of a vehicle. See Whren v. U.S., 517 U.S. 806 (1996); Hilton v. State, 901 So.2d 155 (Fla. 2d DCA 2005) [29 Fla. L. Weekly D1475b], decision quashed on other grounds, 961 So.2d 284 (Fla. 2007) [32 Fla. L. Weekly S401a]; Holland v. State, 696 So.2d 757 (Fla. 1997) [22 Fla. L. Weekly S387a], State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D1006c].

I have noticed this in several cases recently – the watering down of the Whren/Holland standard from “probable cause” to this imaginary “reasonable suspicion” standard (BTW, none of the cases cited above support a “reasonable suspicion” standard). The fact is there is no “reasonable suspicion” standard for traffic infractions. Despite the very well settled law (i.e., Whren and/or Holland), this reasonableness “test” has popped up in other traffic stop cases, noteably in State v. Wimberly, 988 So.2d 116 (Fla. 5th DCA 2008).
In Wimberly, the Fifth District goes through fantastical* mental gymnastics to point out why law enforcement can pull a person over for a “suspected” window tint violation regardless of whether there truly was a violation of the law (and absent probable cause as required in Whren and Holland). “A traffic stop based on an officer’s incorrect but reasonable assessment of the facts does not violate the Fourth Amendment.” Wimberly, at 119. That statement is correct however in a window tint scenario the only “reasonable assessment of the facts” would be based on a guess (obvious to all but the court).  The court cites two cases for this quote. First there is Saucier v. Katz, 533 US 194 (2001) – please, if anyone can find anything to do with driving in this case that is not dicta please let us know. This is a civil rights case with no driving involved. Second is United States v. Chanthasouxat, 342 F.3d 1271 (11th Cir. 2003). This case involved a stop of a vehicle without a rear-view mirror. The vehicle did not have a rear-view mirror. This is why the police officer stopped the vehicle. The police definitely had probable cause based on what he saw (or didn’t see) however the lack of a rear-view mirror was not, in itself, a violation of the law (as the police officer thought). This court referred back to the Fourth Amendment’s wording and wrote this:

“The Fourth Amendment protects individuals from unreasonable search and seizure.” United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir.), cert. denied, 534 U.S. 830, 122 S.Ct. 73, 151 L.Ed.2d 38 (2001); U.S. Const. amend. IV. However, a traffic stop is a constitutional detention if it is justified by reasonable suspicion under Terry or probable cause to believe a traffic violation has occurred under Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). “The touchstone of the Fourth Amendment is reasonableness . . . .” United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 591, 151 L.Ed.2d 497 (2001). Thus, in order to determine whether or not a specific Fourth Amendment requirement such as probable cause or reasonable suspicion has been met, the court must determine if the officer’s actions were reasonable. See Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996).

How this Court (Baratta) or the Wimberly Court could come up with this idea of a “reasonable suspicion” standard for traffic stops is absurd. It does not exist in fact but in our “reality” it sure seems to be creeping upon us (regardless of the law).

*Yes, I made this word up.

Eric J Dirga, PA

About these ads

2 Comments

Filed under Orlando Criminal Defense Attorney

2 responses to “Reasonable Suspicion for a Traffic Stop?

  1. dave

    Greetings.

    Whren does not require the existence of probable cause to make a traffic stop. Reasonable suspicion that a crime (including a traffic violation) was, is, or is about to be committed has been the law since Terry, and Wren did not change that through silence. See U.S. v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2002) (“Given that probable cause was clearly satisfied on the facts before the Court in Whren and that the Court directed its focus elsewhere, we do not believe that the casual use of the phrase “probable cause” was intended to set a new standard. Moreover, none of our sister circuits, either before or after Whren, has concluded that a traffic stop must be justified by more than reasonable suspicion.”).

    One law review article chalks the misunderstanding up to “sloppy writing”:

    “Despite the correctness of its holding, the Whren opinion does have a few weaknesses. The first of these is that, in all its discussions of how an objective justification makes a traffic stop reasonable, the only justification mentioned is probable cause. Reasonable suspicion is not mentioned. This was perhaps just sloppy writing, because there can be no doubt under the whole line of vehicle stop cases that a stop is justified if the officer has a reasonable articulable suspicion short of probable cause. Any suggestion that the Court meant to overturn all these cases sub silentio is absurd.”

    http://mainelaw.maine.edu/academics/maine-law-review/pdf/vol49_1/vol49_me_l_rev_207.pdf

    So when an officer reasonably *suspects* (i.e., has reasonable suspicion) that a window is tinted illegally, the officer can make a traffic stop. Now I don’t exactly know how an officer would reasonably suspect an illegal tint (perhaps he has a trained eye?), but that is the correct legal framework, and Wimberly accurately stated it.

  2. Andy

    Good article. Very helpful. I am a Tennessee attorney and handle search and seizure issues.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s