Sunday, April 22, 2018

No traffic law prohibits driving while black

It’s after midnight. An officer spies a car traveling just under the speed limit near a construction zone. The driver is “sitting upright and rigidly in his seat, staring straight ahead.” His hands are on the steering wheel at “ten and two.” All signs of a careful driver, no? 

'Nu-huh' says the officer—that driver is being too careful.

Thus commences what becomes a lengthy pretextual stop for a non-existent traffic infraction followed by an exhaustive fishing-expedition-of-an-investigation—complete with FSTs (passed “with flying colors”), cumulative background checks (nothing), drug dogs (no alert), et al. The investigation eventually leads to a consensual search of the passenger compartment, which reveals numerous debit, credit, and gift cards. The driver is charged with possessing counterfeit or unauthorized access devices. The district court declines to grant defendant's motion to suppress. 

Letting a tire barely touch a lane line does not give rise to probable cause in Ohio. Likewise, mere weaving within a lane does not provide reasonable suspicion of intoxication. A different result in this case, the Court recognized, “would neglect our duty and would allow the police to stop you, demand your identification, check for outstanding warrants, and call for a drug dog—even if you are doing nothing wrong.

“A driver’s conduct need not be the Platonic ideal of good driving to avoid a stop by a police officer.” That rule transgresses all races, creeds, and nationalities. While the law may allow a pretextual stop based on a minor traffic violation, “no traffic law prohibits driving while black.

The Sixth Circuit remanded with directions to suppress the illegally-obtained evidence, holding that the protections of the Fourth Amendment do not afford officers the power to over-police people of color under a broad definition of suspicious behavior.”

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