U.S. v. Sowards – visual estimate of speed does not justify traffic stop

In U.S. v. Soward, decided yesterday, the Fourth Circuit Court of Appeals held that a deputy’s bullshit claims that he was able to determine a vehicle’s speed based on his “training and experience” were, well, bullshit, and not sufficient to justify the ensuing traffic stop and search of the defendant’s vehicle for drugs.

Deputy James Elliott was sitting on the side of the road, in a position where it was physically impossible to clock speeds with his radar, with a drug dog in the car ready to search stopped vehicles for contraband.  The deputy assumed, doubtless based on his “training and experience,” that if he estimated a car’s speed, stopped the car, and then used a drug dog to give him probable cause to search the car, the search would be valid and it would be upheld in court.

Sowards’ attorney did an excellent job at trial of calling out the deputy’s bullshit claim of determining speed visually and without the aid of a radar gun:  The deputy explained that he estimated a vehicle’s speed based on “tracking history” and “my training and experience.”  “Tracking history” means “[b]eing able to sufficiently see that vehicle, that vehicle coming towards me, that vehicle passing me, me being able to estimate that vehicle’s speed.”

So, “tracking history,” according to the deputy, consists of the deputy’s visual estimation of distance – in this case, he estimated the vehicle was about a football field’s length away when he began observing it, or 100 yards.  When asked how many feet were in a yard, the deputy responded “12.”  (There are 3 feet in a yard, if you did not know.)  The Court then took over questioning the deputy, and repeated the question – again, the deputy says there are 12 feet in a yard.  He then tells the Court that there are 12 inches in a yardstick, then he amends his earlier response to tell the Court that there are actually 4 feet in a yard.

After the deputy has established for counsel and the Court that he lacks even an elementary school education regarding the measuring of distances, he backtracks and testifies that his estimation of a vehicle’s speed does not depend on his estimation of distances, after all.  Final answer?  The deputy can estimate the speed because he knows that a vehicle traveling 75 mph will come at him faster than a vehicle traveling 70 mph.  This is based on his “training and experience.”

Q. [Defense counsel] So how can you estimate speed without knowing the distance?
A. [Deputy Elliott] Because of my visual observation.  I know that it takes a quicker time for vehicles to come at me at 75 miles per hour versus the 70 miles per hour zone in that area. The reason why I know that is because I’ve been working that area for approximately four and a half years. I’ve conducted radar enforcement. I’ve also conducted speed  estimations upon my estimation of vehicles that I see that I work that area on a daily basis. J.A. 80.
Q. Well, how can you be certain that [Sowards’s vehicle] was going 75 miles an hour?
A. My training and experience.
. . .
Q. Could you explain the specifics of your visual estimation training as far as how you arrive at a speed.
A. Because I know a vehicle traveling 75 miles per hour, it gets faster to me than a vehicle that’s traveling 70 miles per hour by my visual observation.

The District Court held that the deputy’s testimony was quite enough and that the deputy’s “training and experience” carried the day:

The district court found that “Officer Elliott had probable cause to believe a traffic violation had occurred” because Officer Elliott was “trained to estimate speeds” and because “the certification that he received . . . depended on accuracy in estimating speeds.” J.A. 121. The district court also found that Officer Elliott’s “difficulty with measurements is immaterial to his estimate of speed as that did not depend on time or distance.” Id. Based on these findings, the district court concluded that Officer Elliott “had a particularized and objective basis for suspecting that a traffic violation had occurred.” Id.

The Fourth Circuit on appeal called bullshit, continuing what I am hopeful is a new chapter in Fourth Amendment jurisprudence where the Court is trying to preserve the Fourth Amendment instead of destroy it, and where the Court does not accept every assertion by an officer at face value, no matter how absurd.

The officer’s “training and experience” sometimes boils down to an understanding that, if the officer testifies in court that his reasonable suspicion was based on his “training and experience,” no matter how ridiculous, the Court will uphold the search or detention.  Reasonable suspicion must be based on an “articulable suspicion,” which the officer is trained means you put words to it, any reason coupled with the magic words “training and experience,” and the Court will let it by.

This mentality, supported by the Courts over the decades, has resulted in officers being trained to testify that they smell the overwhelming odor of marijuana, even when the search results in no marijuana found.  It has resulted in officers testifying that their “reasonable, articulable suspicion” is based on the defendant’s nervousness, and then manufacturing off the wall ridiculous observations of nervousness – I watched an officer testify in court that he determined the defendant was nervous based on his observation of the defendant’s heartbeat through the defendant’s shirt.  The officer testified that he was trained to observe a suspect’s pulse rate and heartbeat to determine nervousness, and that this contributed to his reasonable suspicion that there were going to be drugs in the car (State v. Tindall).

It has resulted in officers testifying that they estimated the speed that a vehicle was traveling without radar, based on their training and experience, even though the officer lacks a basic knowledge of how to measure distances.  In short, one of the effects of the Courts’ repeated cosigning of this type of testimony has resulted in officers lying on the witness stand, and it has resulted in officers being trained to lie on the witness stand in order to create “reasonable, articulable suspicion.”

Any criminal defense lawyer knows that District Courts and trial courts in the state court system sign off on this type of testimony regularly.  The key to “reasonable, articulable suspicion” is that it not only has to be articulable, it also has to be reasonable.  The Fourth Circuit and to some degree our S.C. Supreme Court has, in recent opinions, stopped this ridiculous acceptance of anything an officer testifies to as reasonable, articulable suspicion – I hope that they continue, I hope that the trial courts will follow suit, and I hope that, in time, when the Courts no longer sign off on it, we can reverse the trend of officers lying to establish reasonable suspicion in traffic stops.

h/t Fourth Circuit Blog

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