Friday, May 13, 2016

The Long and Winding Road

Looking nervous and moving around during a traffic stop (for marginally touching a faded yellow line on a long and winding road) late at night is sufficient to give a police officer reasonable suspicion to detain you, search your person, and extend a traffic stop to investigate potential criminal conduct. In United States v.Coker, the Sixth Circuit decreased the threshold for prolonging a traffic stop and lowered the bar for reasonable suspicion. Perhaps much of Judge Sutton’s (writing for the majority) reasoning relied on the clearly erroneous standard applied to the magistrate judge’s factual findings. But as Judge Boggs noted in dissent, the “majority points to no Sixth Circuit case upholding a seizure on so little.”

The facts relied upon by the majority demonstrate the damage to the Circuit’s Fourth Amendment jurisprudence. For example, Judge Sutton indicates that Coker was more nervous than the average person during a traffic stop (though there is no record citation given for support). Perhaps this conclusion is meant to be bolstered by the earlier referenced statement that the officer thought Coker was “nervous as hell.” But there is no cited evidence that the officer deemed that vague colloquialism to mean more nervous than the average person. Moreover, as Judge Boggs points out, the Court has repeatedly given little weight to nervousness because “it is an unreliable indicator, especially in the context of a traffic stop.”

The central piece of the majority’s decision is Coker’s “‘leaning forward,’ ‘reaching into the backseat,’ and ‘digging around’ in the car, after being told to stop moving.” Judge Sutton cited numerous cases reflecting such movement—the problem with these cases (as Judge Boggs pointedly found) is that each case identifies such movement in combination with “far more compelling evidence of nefarious activity.” So while the majority clings to the rationale that it is the combination of factors that gives rise to reasonable suspicion, the Circuit’s previous cases require purportedly furtive movement plus something far more compelling than nervousness and the time of day.

While people undoubtedly enjoy less protection under Fourth Amendment jurisprudence in cars than in their homes, one wonders when this long and winding road will lead to your door.

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