The theory underlying the law enforcement panacea in Whren v. United States, approving of pretext automobile stops, is that no one can drive any distance without breaking a traffic law. Thus, if a cop follows a car long enough, he’ll have justification to stop it and, well, have his way. Since a cop’s claim that you swerved across a line, failed to signal or drove 3 miles over the speed limit is more than sufficient cause to stop, it’s really not necessary to follow for too long if a stop is in the offing.
The New York Court of Appeals, in a surprising reversal of the trend toward making the roads a Constitution-free zone, held in People v. Garcia that it is impermissible for a police officer who has made a routine car stop for a traffic infraction to play out the scenario to his routine advantage.
The prosecution argued that asking pointed questions is necessary for police safety, that a cop takes his life in his hands when he stops a car for speeding. Whether the driver is a nun or shooter is unknown, and it’s barely a burden to ask given that the car is already stopped. The argument is bolstered by the Supreme Court’s Pennsylvania v. Mimms decision, authorizing police to order people out of a stopped car for police safety. After all, stopping a car is a seizure, a far greater burden than merely ordering someone out or, as in Garcia, asking questions. There is nothing to stop the person from refusing to answer, the dissent notes.
The state judges ruled that without a “founded suspicion” of criminal behavior, officers cannot ask pointed questions that imply criminal activity, like “Where are the drugs?” or “Do you have a weapon?”
The automobile exception to, well, everything, has proven to be the slipperiest of slopes since bootlegger days, It’s not that the argument lacks logic, but that there hasn’t proven to be any conceptual edge to end the slide of intrusion. So anything goes.
Anything, you ask? Seriously? Well, consider two women in Irving, Texas, stopped by a state trooper for throwing cigarette butts out the window of their car.
The female trooper performed a cavity search at roadside to protect the public from the Dobbs gang.
38-year-old Angel Dobbs and her niece, 24-year-old Ashley Dobbs, were pulled over last July near the area of Highway 161 and Beltline Road for allegedly tossing cigarette butts out of the window of their vehicle while on a ‘road trip’ to Oklahoma.
The women’s attorney Scott Palmer says State Trooper David Farrell claimed he smelled marijuana coming from the vehicle and performed a search, which turned up nothing.
Trooper Farrell then called in a female trooper, who proceeded to do a very personal cavity search to see if they women were hiding any illegal items.
The women not only said so, but have the dash cam video to prove it.
The women said that the female trooper, Kelley Helleson, proceeded to use her fingers to search their anuses and vaginas, using the same latex glove on both women, on the side of the road in full view of other passing vehicles.
To put this in more concrete context, say Sonia Sotomayor and Elena Kagan were driving the circuit, two gals with some personal bonding time, smoking the occasional Virginia Slim in their rental car, which has no ash tray. So they toss the butt out the window, which naturally attracts the attention of an environmentally sensitive Texas state trooper. And cigarettes, naturally having a similar smokey odor to pot, alerts the trooper to the potential that these gals are drug mules, feels compelled to protect society from them. And a search ensures.
Will Justices Sotomayor and Kagan be understanding about the need for a trooper to insert her fingers in their anus and vagina just to be sure? Will Nino Scalia tell them in conference to take one for the team? Will Clarence Thomas sit there silently?
Judge Carmen Ciparick was likely unaware of what happened to the Dobbs gang in Irving, Texas, when she wrote the majority decision in Garcia, but she was well aware of the slope before her when she wrote that there is no justification for treating the occupants of a car any differently than a person on foot.
Indeed, Mimms and Robinson place automobile occupants in the same position as pedestrians vis-à-vis police officers; the People’s proposed rule, on the other hand, would create disparate degrees of constitutional protections based on an individual’s mode of transport. Finally, by sanctioning, in the interest of safety, a suspicionless inquiry into whether the occupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with potential to raise significant privacy concerns. We decline to introduce uncertainty into this area of the law when it is not necessary to do so. Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.
While this may not appear at first blush to be a resounding disapproval of the automobile as Constitution-free zone, it’s a critical break from the anything-goes jurisprudence surrounding cars and a return to New York’s once-proud historic protection of individual rights that deliberately exceeded that offered under federal law.
By this decision, the Court of Appeals refused to hold that anything goes as long as a car is stopped anyway, a significant return to the days when New York refused to tag along on the Supreme Court’s slide down the slippery slope.
On a side note to the Dobbs gang search, there has been much outrage about the fact that the female trooper didn’t change gloves as went from anus to vagina, person to person. This outrage reflects a grave misapprehension of the situation.
The gloves had nothing to do with the gross or hygiene factor for Angel or Ashley Dobbs; the gloves were for the trooper’s benefit, not to mention so she wouldn’t get any “evidence” under her fingernails. Who knows what creepy stuff might be found on a Texas gal in a roadside search of their private parts? Officer safety always comes first. If not for that, there might still be constitutional rights on the road.