This would get filed in the “can’t win for trying” bin, but for the fact that St. Lawrence County Surrogate’s Court Judge Kathleen Martin Rogers saw through it and called it what it was. Garbage. Via TheNewspaper.com :
Agent Brandon Carrier spotted Deer and Morgan’s white SUV and became suspicious when he saw the driver had more than one hand on the wheel and did not appear to be relaxed. Agent Carrier began following closely enough to read the license plate and radio in to find the SUV was not stolen.
With the marked patrol car following for a total of six miles, the SUV maintained a speed of 50 to 60 MPH. The SUV did not take the opportunity to pass slower vehicles ahead, and when the road expanded into two lanes, the SUV pulled to the right to allow the patrol car to pass. Agent Carrier decided to conduct a traffic stop.
Drive safely and in accordance with both traffic regulations and best practices? Suspicious. Do anything else? Suspicious. Got that? The decisions runs through a litany of excuses, ranging from the driver having a common Mohawk name (as if that’s a reason to stop someone) to the sun being in the cop’s eyes, all of which the court disposes of deftly.
The point is that the rhetoric of arrest, reasonable suspicion, probable cause, is so utterly meaningless, so easily subject to facile manipulation by anyone capable of telling a half-decent story, as to justify the police in acting upon it.
While driving safely hasn’t made it to the pantheon of rationalizations, like furtive gestures or the dreaded “reaching,” the only reason it didn’t serve to validate Agent Carrier’s stop here is that one bold judge refused to be bamboozled. That’s a thin reed upon which to rest our constitutional right to be left alone.
With some regularity, I have tried to make the point that rhetorical arguments used to justify police conduct, particularly those for which courts rely entirely on the testimony of police officers, are too easily subject to manipulation to serve as a basis for the loss of freedom. What makes this case particularly interesting is that the agent likely told the truth to the extent that the driver, Deer, did nothing wrong. A more cynical cop might have testified that he pulled her over because she crossed a solid line, an easy enough claim that would have been more than sufficient to persuade a court to let the stop stand. Carrier was honest about it, at least to that extent.
From there, Carrier explained that her driving, safely and in accordance with all (actually most, as she did exceed the speed limit by a bit) traffic regulations was itself suspicious. Nobody drives that way. Everybody breaks the rules. Her fastidious observance of rules was characterized as being just as nefarious as if she took flight at 100 miles per hour. There’s no winning then, since either way she’s suspicious and the officer can justify his stop.
Carrier also explained that her driving with two hands on the wheel, arms stiff, made her appear nervous. Mind you, he followed her for six miles by his own testimony, failing to pass her when she was in the right lane of a two lane roadway. Only brain dead people aren’t nervous when they are followed by a cruiser for any period of time. Heck, most of us are nervous when a cruiser is behind us for a second. Nobody wants to be stopped.
Desperate defendants cling to the notion that there has to be something more, something real, before the cops can get away with it. They cling to the words “reasonable suspicion” and “probable cause,” looking at you with wide eyes as if it can’t be possible that they need only tell a story and get away with it. They are crestfallen when they realize that these words have no real meaning. They are heartbroken to learn that their rights are lost to empty words.
The flip side argument is that sometimes police do, in fact, observe things that justify their attention. Some drivers do cross solid lines. Some drivers behave in ways that reflect suspicious behaviors. Even if every police cruiser had a dash cam, police see things off to the side that don’t appear on the video and are provable only by their word. Are we to pretend this doesn’t happen?
The problem is that rhetorical characterizations that reduce suspicion to anything a cop says, regardless of whether it reflects wrongdoing or merely a cop’s claim that it struck him as peculiar, take an already problematic legal test to a different level. There isn’t much to be done about the cop who claims he saw a car swerve over the solid line, but there is plenty to be done about the suspiciousness of safe driving. And the same is true of that bulwark of suspicion, the furtive gesture.
I reach for my waist all the time. Sometimes, I like to stick my thumb into my waistband to give it some place to be. Other times, I hike up my trousers to compensate for gravity and my midlife stomach. Yet, this has long been viewed by police, and courts, as a clear indication that there must be a gun in the waistband. Is this innocent movement or am I reaching for a weapon? The answer is too often given only after a cop pumps a dozen bullets into a body because he was afraid for his safety.
There are no shortage of excuses or stories to explain why an otherwise ordinary act gives rise to a reasonable suspicion, thus leading to police engagement and arrest, if not violence. It’s not that anything unlawful has happened, or that the person has engaged in conduct that gives rise to a threat to a police officer. It’s just a story, a characterization that fits a legal narrative that a judge finds sufficient to validate the reasonableness of a cop’s decision to terminate the right to be left alone.
Kudos to Judge Rogers for not falling into the trap. But you can’t count on Judge Rogers being there for you every time. There is almost nothing a person can do that can’t be cast in some suspicious light, which means that it’s only a question of whether the cop can come up with a sufficiently decent story to make your rights disappear. That’s all it takes, and it’s not a good enough basis to form a sound legal system.