Just Normal Apprehension

Having spent an unfortunate amount of time recently traveling on Interstate 40 in North Carolina, this story is very personal to me.  While my vehicle adhered strictly to the speed limit, as it always does, other cars whizzed by at a fairly high rate of speed, their drivers often waving at us in a holiday greeting preferred by locals using only one finger.  Driving the speed limit on I-40 is not really a good way to make friends.

But when Corporals Bass and Pope of the Sampson County sheriff’s office spied a green minivan traveling at the ridiculously high rate of speed of 73 in a 70 mile-per-hour zone, they took notice. Based upon my personal observation, it was likely because the van was the slowest vehicle on the highway by a wide margin. 

What they saw “concerned” them. From the Newspaper.com :

The second-highest court in North Carolina last week ruled police had no business stopping a car because its occupants appeared to be driving while nervous. On April 15, 2011, a pair of Sampson County sheriff’s deputies were running a speed trap on Interstate 40 when they noticed a green minivan. Corporal Bass and Pope each testified the vehicle slowed from 73 MPH to 65 MPH in the 70 MPH zone and that the driver and passenger stared straight ahead and “appeared nervous” as they passed.

The officers pulled out and caught up to the minivan. When the patrol car pulled along side, the minivan occupants did not make eye contact. The deputies claimed they saw the vehicle cross the fog line and was driving slowly, so they pulled it over for “unsafe movement.” A dashcam video of the incident shows no crossing of the fog line or other evidence of unsafe driving.

While it’s unclear to me what a “fog line” is, giving rise to some concern that I cross it as well because, well, I have no clue what they’re talking about (I don’t speak North Carolinian or Dutch), the driver’s slowing of the van to a near stand-still 59 as the police observed is as clear an indication of criminality as can be.  Same could be said of increasing speed or maintaining speed, but since those didn’t happen here, there is no reason to discuss such matters.

After stopping the car, the corporals did a consent search and found guns in suitcases belonging to the passenger of the van, who was subsequently convicted as a felon in possession. Doesn’t everybody carrying contraband in their vehicle consent to a search for no particular reason?

On appeal, Judge Cheri Beasley, writing for a  unanimous court of appeals, was dubious:

We find it hard to believe that these officers could tell Ms. Canty and defendant were ‘nervous’ as they passed by the officers on the highway and as the officers momentarily rode alongside them,” Judge Cheri Beasley wrote for the court.

The judges also dismissed the idea that the minivan’s slowing after seeing a patrol car running a speed trap [provided cause for the stop].

“The reduction in speed standing alone could be explained a number of different ways, including normal apprehension many people feel when approaching a law enforcement officer,” Judge Beasley wrote. “Nervousness, failure to make eye contact with law enforcement, and a relatively small reduction in speed is ‘conduct falling within the broad range of what can be described as normal driving behavior… Based on the totality of the circumstances, these officers lacked reasonable suspicion to initiate the traffic stop that resulted in the search and seizure of the weapons in this case.”
Remarkably, this incredibly sane decision comes from the same state that  just upheld a stop based on a mistake of law, under the newly formed legal doctrine of Quocunque. Vos es life.

Like submission to the shield, there’s this weird thing that happens to people who are around cops that the court properly describes as “apprehension.”  It’s normal. Indeed, it’s intentional. It’s one of the chief weapons of the Spanish Inquisition police to compel our acquiescence to their authority. Yet, when we do precisely as they intend us to do, it gives rise to a claim of nervousness, thereby justifying interference with our right to be left alone.

And, it’s worth noting in passing, that the court didn’t believe the cops could spy nervousness in the occupants of a green van driving 73 miles per hour anyway. 

But the story doesn’t end with a court that demonstrates a singularly clear understanding of reality. Not by a long shot, because this didn’t end up on appeal by mere kismet.

The judges declared the lawyer in this case should have filed a motion to suppress the evidence gathered during the traffic stop. Because the defense counsel was “ineffective,” the three-judge panel ordered a new trial in which the motion to suppress would likely succeed.

For all those nice folks inclined to blame the cops for doing what cops do, or hating judges for showing the police their appreciation for keeping our roads safe from green minivans, don’t forget to spread the love.  The court held:

We cannot discern a strategic advantage by not filing a motion to suppress the incriminating evidence. Defense counsel apparently realized that the search was illegal but chose not to file a motion to suppress…

In this respect, the court failed to show its deep appreciation of how things happen in the real world. Defense counsel, who was undeservedly unnamed in the opinion, was just too lazy to move to suppress, and from that the conviction flowed. This isn’t to say that a motion to suppress, even under the circumstances here, would have been successful, but that the utter failure to perform the basic function of a defense lawyer is inexcusable. 

And I didn’t get stopped once on I-40, but then, it’s my practice to never drive with a particularly nervous look on my face. Just normal apprehension.

H/T FritzMuffKnuckle

17 comments on “Just Normal Apprehension

  1. Ahcuah

    “And I didn’t get stopped once on I-40, but then, it’s my practice to never drive with a particularly nervous look on my face. Just normal apprehension.”

    It probably also helps that your skin color is several shades lighter than that of Nathaniel Ginty (whose mug shot you can find pretty easily with a Google search on his name).

  2. SHG

    Are you suggesting that the sheriff’s deputies in Sampson County, North Carolina, are less fond of well-tanned green minivan drivers than a pale Jewish lawyer in a Prius? That would be shocking.

  3. REvers

    The fog line is the white stripe along the right side of the roadway. Just FYI.

    PS: I got readable words after only two refreshes from Recaptcha. I think that’s a new record for me. Maybe they’ve improved it a bit.

  4. SHG

    And why do they call it the “fog line”? 

    P.S.  Merry Christmas. It was a gift. Don’t expect it to be so easy again.

  5. Erika

    Its because when it gets foggy in the Southern Applachians that is the about only way you can see where the road is. On the most frequently foggy stretches of road such as I-64 over Afton Mountain Virginia they have even installed fog lights in the road following multiple fatal multicar pile ups.

  6. SHG

    Everybody has lines on the side of the road. This isn’t exactly an Appalachian invention, so why do they get to give it their own name? What the heck is wrong with calling it the white line on the side of the road? #FrigginNorthCaccalacians.

  7. Victor Medina

    A Prius. Now I understand why you can only drive the speed limit.

    When you get going uphill, do you have to remove the floorboards and “Fred Flinstone” the car to reach the top?

  8. LTMC

    While the right decision was made here, this case also demonstrates why the Supreme Court’s “objective” approach to Fourth Amendment reasonableness makes no sense at all. Judge Beasley et al. were clearly making a credibility judgment about the stories of the officers (as judges must do in every case revolving around police testimony). That’s a subjective inquiry into the impressions of the officer. And yet we continue to get lectured by SCOTUS on how analyzing Fourth Amendment reasonableness is a purely objective inquiry. One wonders how long the Big Nine are going to try to fit a square peg into a round hole before they realize that 99% of suppression hearings are decided on judicial intuition and little else.

  9. Jo

    “The white line on the side of the road” already means something both different and horrible in the south, hence the idiosyncratic terminology. Anyway, y’all up north insist on saying “you” when you mean “y’all.” There’s already a perfectly good word for “y’all,” so why do you get to give it your own name, eh?

  10. Wrongway1965

    That sir depends on if you used cheese whiz or ‘uhh-murican’ cheese.. & how many ‘dawgs’ you hunt with.. & also.. nah I’ll let it go from there..

  11. SHG

    I never asked what it was made with. I might have, but I wasn’t able to move my jaw after the first spoonful. Like eating cheesy concrete.

  12. FritzMuffknuckle

    The court also ruled in favor of the defendant’s IAC claim. This seems to prove that an appeal would not have been necessary in the first place had the original attorney done his job. Does this ruling open a way for the defendant to recover the costs of his appeal from the bad lawyer?

    I am aware you can’t always convert logic to law, so I have to ask. Your help is always appreciated.

  13. SHG

    So you never made it to the end of the post where I discuss the IAC? Ouch.

    The answer is no, a reversal based on IAC does not give rise to an award of costs (or anything else) against the lawyer. For that, the defendant would have to sue the lawyer for malpractice.

  14. Chris

    the fog line is also known as an edge line in certain municipalities. As a single white line, it is merely meant to advise you to the the edge of the travel way. It is commonly called a fog line, because in high fog conditions, it is commonly the only continuous line on the roadway you are likely to see.

    Ironically, as a single line marking (as opposed to a double line marking), it is actually not illegal to cross this line. Police just use it as an excuse to proclaim erratic driving.

Comments are closed.