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.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.
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.”
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
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.