Federal appeals court rules driving with your hands at 10 and 2 is suspicious behavior and thus grounds for a stop.
Well, that’s pretty friggin’ awful, and the link was to Huff Post Crime, so I clicked. And what do you know, it was an article by Larry Bodine. Larry Bodine? Well, yeah, that Larry Bodine. Failed lawyer turned failed marketeer, turned editor of failed Lexis-Nexis’ Lawyers.com, who now describes himself as “journalist lawyer,” providing “legal news for regular people.”
And here he is, writing an article for Huff Post Crime, even though Larry never, in all the time I’ve known him, showed either interest, knowledge or experience with anything having to do with criminal law issues. Isn’t the internet remarkable?
But, that doesn’t make his article any the less interesting, since a “Federal appeals court rules driving with your hands at 10 and 2 is suspicious behavior and thus grounds for a stop” is still pretty darned horrible. Except the 10th Circuit opinion in United States v. Westhoven doesn’t bear out the phony twit, or even the headline: “Federal Court: The Police Can Stop and Search You for Behaving Innocently.”
First, it wasn’t the police, but United States Border Patrol. Big difference to lawyers. Not Larry. Second, it was a typical stop based on a dozen factors, one of which included driving with hands at 10 and 2 with stiff arms, but others included the defendant speeding and then “abruptly hitting the brakes” upon realizing she had the Border Patrol behind her.
This was the typical end-justifies-the-means totality of the circumstances test, comprised of smurfing insignificant details together to create an impression of a legitimate reason to stop. And she had two cellphones, which either indicates she is a member of the Supreme Court bar or a criminal, as has been the case since the beeper days. Weak sauce, but then, this was Border Patrol.
Like other law enforcement officers, a border patrol agent must possess reasonable suspicion a law was violated to stop a vehicle: “Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that the occupants have violated a law. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975); Cheromiah, 455 F.3d at 1220.
This is all rookie stuff for criminal lawyers, where the totality of the circumstances test has long been used to create a fabric of meaningless details that, when said in a nefarious tone, creates some vague sinister impression giving rise to rational inferences that a law may have been violated by someone somewhere. We’ve all been down this road. Many times.
The problem is that we’ve never seen Larry Bodine on this road. Or anywhere near this road. Except maybe to pitch marketeering services to the lawyers who might be foolish enough to need a life coach whose claim to fame was the inability to succeed at anything.
The Westhoven opinion isn’t a good one, but it surely was not a new rule that driving with your hands at 10 and 2 is now a lawful basis for a police stop. But how many people now think it is because they’ve been grossly misled by a Huff Post Crime article, because they didn’t read the underlying opinion itself and, even if they had, wouldn’t appreciate its content?
I can hear Radley chastising me for being critical when clueless articles are written about criminal issues. Instead of saying mean things, why don’t I help to clarify, to explain, to contribute to the big bully pulpit of Huff Post so that they aren’t monumentally stupid? Well, it’s not my job to help Larry reinvent himself into a criminal law pundit, something for which he is woefully unqualified. But more importantly, because accuracy matters, and not even Larry Bodine, or Huff Post Crime, is entitled to post something that makes people stupider.
But Wait!!! There’s More!!!
Larry plays the Founders game, because encouraging the nutjobs to be even nuttier is a never-ending battle:
Not what the Founders had in mind
This is not the result that the founders of our country had in mind when they added the Fourth Amendment to the Constitution. It forbids unreasonable searches and seizures, and requires the police to have “reasonable suspicion” that there is a crime underway, based on facts they can articulate.
How can one argue with this irrefutable logic? And if anybody knows what the founders had in mind, it’s Larry, even though there is nothing in the Constitution that mentions “reasonable suspicion” and his statement is a bit shy of an accurate reflection of the law. But let’s not quibble about details, because Larry shares our pain.
The federal court’s rubber-stamping of this over-the-top law enforcement aggression sets a bad precedent for law-abiding citizens. We no longer have a free country if the innocent behavior of ordinary people can be recolored with nefarious purposes and used to stop, search and arrest us.
See? But for this decision, we would have a free country again. And the comments prove it.
Lock and load, brother. Bodine says we’re in a police state, and Joeline is “right on point.”
I have no beef with Larry trying desperately to get a job, since it’s terribly unhealthy for a former marketeer to sit around the house in his skivvies with nothing to do, fighting off the Millennials for his share of a bag of Cheetos.
But not on my turf. Maybe he can reinvent himself as a pundit on Hail Storm Law, where there remains a dearth of thoughtful Huff Posts, but when it comes to criminal law, there is already far too much stupid being spread. Not even Larry Bodine has the right to pretend he’s got anything useful to say.