Indiana’s “100% Certain” Exception To The Fourth Amendment

The question isn’t whether Reserve Officer Sean Dolan was telling the truth or not, or even right or not, but whether his certainty that Zachariah Marshall was speeding is good enough. The appellate court held that this violated the Fourth Amendment.

Hebron police officer Sean Dolan was patrolling the area around State Road 8 and 500 West on October 19, 2016. He observed Defendant’s car speeding and stopped the [D]efendant. Officer Dolan was using a radar, but he could not testify at hearing or at deposition 1) what speed the [D]efendant was traveling and 2) what the radar showed as [D]efendant’s speed. He could only state the following:

Q: How certain were you that the defendant was speeding?

A: Very certain, a hundred percent.

Well, Dolan did testify he was certain. Not just certain, but 100% certain. You can’t be more certain than that, right? Not only didn’t Dolan know the speed at which Marshall was driving, but he had no clue what the speed limit was that he 100% for certain exceeded.

During a pre-trial deposition, Reserve Officer Dolan could not recall the posted speed limit at the location of the traffic stop, but he claimed he knew at the time of the stop what the speed limit was in the area. He testified he “thought maybe it was forty miles an hour[.]” (Tr. Vol. II at 22.) During the suppression hearing, Reserve Officer Dolan indicated he had visited the location of the stop prior to the hearing and that the speed limit was fifty miles per hour. Reserve Officer Dolan testified he did not pace Marshall’s vehicle, did not write down the speed at which he observed Marshall traveling prior to the traffic stop, and did not observe Marshall commit additional traffic infractions.

Marshall was arrested for drunk driving, but not given a ticket for speeding. Still, there had to be a basis upon which Dolan pulled him over or the seizure violated the Fourth Amendment, and it was the state’s duty to provide the proof of reasonable and articulable suspicion to justify the stop.

Or is it? By 5-0, the Indiana Supreme Court held the stop 100% legit.

While we abide by our prior statement, this case presents a variation on that jurisprudential
theme by addressing what details must survive that on-the-spot evaluation for the traffic stop to hold up under the Fourth Amendment’s weight. Marshall presents a more specific question: when an officer stops a driver for speeding, does the reasonable-suspicion standard demand
that the officer document the driver’s speed?

Curiously, the Supreme Court uses the word “details” where most would say “facts.” But the question framed as documenting the driver’s speed isn’t what Marshall is presenting at all, but rather the duty of the officer to present the reasonable and articulable facts upon which the stop was grounded. How he remembers it is his problem. That it’s remembered, such that it can be challenged by the defendant and subject to judicial scrutiny, is the question.

First, we disagree with Marshall’s premise that the Fourth Amendment requires that an officer provide a number for how fast a defendant was driving. The reasonable-suspicion standard does not demand such measures. Like probable cause, reasonable suspicion is not readily quantifiable and cannot be “reduced to a neat set of legal rules.” Sokolow, 490 U.S. at 7 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Rather, the reasonable-suspicion “standard takes into account ‘the totality of the circumstances—the whole picture.’”

Much as the concept of “reasonable suspicion” may not be reducible to a “neat set of legal rules,” speed is remarkably easy to reduce to a number because it’s a number. There’s a speed limit on the road. There’s a speed the driver is driving. Those “details” are extremely easy to reduce to a “neat set of legal rules” because they’re actual, hard, objective, discernible numbers. Two plus two doesn’t equal something four-ish, or certainly over three, 100%.

Second, we reject Marshall’s request for a bright-line rule for similar reasons and because we think such a rule unnecessary. As we just said, reasonable suspicion must be evaluated based on the totality of the circumstances of each particular case. And this individualized test does not lend itself to bright-line, widespread rules. What amounts to reasonable suspicion in one case may not be enough in a different case.

There may well be hard cases. This case, however, wasn’t hard. The bright line, speed limit v. speed driver was driving, could not have been simpler, anyplace but Indiana, apparently.

Looking at the totality of these facts—the whole picture—Officer Dolan had reasonable suspicion to stop Marshall for speeding that night, meaning Dolan possessed and provided sufficient articulable facts or particularized, objective facts that Marshall was speeding.

Whenever a court mentions “totality of the facts,” make sure they haven’t stolen your wallet. It’s shorthand for bootstrapping trivial and irrelevant “details” to compensate for the normal objective facts that would otherwise be used to establish the burden of proof. When the objective and significant facts are missing, the “totality” kicks in to fill in the gaps.

Officer Dolan testified he was one-hundred percent sure that Marshall was speeding when he stopped him. All told, Officer Dolan articulated enough facts that gave him a particularized and objective basis for believing Marshall was speeding when he initiated the traffic stop. We, therefore, hold that the traffic stop did not amount to an unconstitutional seizure under the Fourth Amendment.

You can tell that Dolan was merely a reserve cop, as a “new professional” cop would have just made up a number and there would be no issue. But Dolan forced the Indiana Supreme Court to concede that would be too much effort, since he was 100% certain. And if the cop is certain, isn’t that good enough for the Constitution?

33 thoughts on “Indiana’s “100% Certain” Exception To The Fourth Amendment

  1. WFG

    They reject the request for a bright-line rule? Like, say, speed limits?

    “Particularized and objective basis”? Without either particular facts or more than the officer’s subjective opinion that the defendant was speeding? Humpty-Dumpty gets around, doesn’t he?

  2. Guitardave

    Thank you. I now understand what “totality of the facts” means…totally, 100%.

    1. Jim Tyre

      “I know it when I see it.”

      Jacobellis v. Ohio, 378 U.S. 184 (1964) (Stewart, J., concurring).

  3. Thomas

    This is the state that tried to legislatively define pi as 3.2.
    That the court finds numbers too hard to deal with is a surprise to no one living here.

      1. Fubar

        I like pie, but prefer donuts.

        The totality of the facts proves that proper courtroom coiffure requires donuts.

        You can comb all the hair on a donut perfectly flat.

        You can’t do that with a pie.

        Ask any algebraic topologist.

      2. Chris Halkides

        In Lebanon IN Titus offers a Long John with maple frosting and bacon. Just don’t speed on your way there.

    1. ‘BentPalate

      Wait, what? I’m 100% certain that Pi is closer to 3.1 than 3.2. I should know, because I like donuts but I prefer pie.

      1. SHG Post author

        3.1415926535 8979323846 2643383279 5028841971 6939937510 5820974944 5923078164 0628620899 8628034825 3421170679 8214808651 3282306647 0938446095 5058223172 5359408128 4811174502 8410270193 8521105559 6446229489 5493038196 4428810975 6659334461 2847564823 3786783165 2712019091 4564856692 3460348610 4543266482 1339360726 0249141273 7245870066 0631558817 4881520920 9628292540 9171536436 7892590360 0113305305 4882046652 1384146951 9415116094 3305727036 5759591953 0921861173 8193261179 3105118548 0744623799 6274956735 1885752724 8912279381 8301194912 9833673362 4406566430 8602139494 6395224737 1907021798 6094370277 0539217176 2931767523 8467481846 7669405132 0005681271 4526356082 7785771342 7577896091 7363717872 1468440901 2249534301 4654958537 1050792279 6892589235 4201995611 2129021960 8640344181 5981362977 4771309960 5187072113 4999999837 2978049951 0597317328 1609631859 5024459455 3469083026 4252230825 3344685035 2619311881 7101000313 7838752886 5875332083 8142061717 7669147303 5982534904 2875546873 1159562863 8823537875 9375195778 1857780532 1712268066 1300192787 6611195909 2164201989

        Which would you prefer, this or a box of munchkins?

  4. PseudonymousKid

    Dear Papa,

    Indiana seems to understand maths aren’t real. From there it’s a hop, skip, and a jump to ignoring the words “particularized and objective.” Who cares if the basis of our world owes much to our understanding of math? Without pesky numbers, officers have even freer reign policing traffic. Yay.

    Too bad only a spoonful of witness coaching would make reasonable suspicion no bar at all. “Yes, judge, I visually calculated the speed of the vehicle to be seventy-five mph on the nose in a fifty-five mph zone using my extensive training and experience and superhuman eyes.” Good enough probably. At least in my jurisdiction it is.


  5. B. McLeod

    Hebron, I’m in Hebron,
    Where the prospects of the motorist are bleak,
    And I seem to get citations every week,
    But the court’s decisions leave us up the creek.

  6. Luke G

    So with the creation of a new set of magic words, what’s the over/under on how many times the phrase “100% Certain” comes up in police statements in the next 3 months?

    1. Elpey P.

      Only until the court holds that certainty beyond a reasonable doubt is an unnecessary standard.

      Q: How certain were you that the defendant was speeding?

      A: Fairly certain, fifty one percent.

  7. Reserve Officer Sean Dolan

    Wait . . . wait, it’s coming back to me now . . . OK, now I remember, the light over the motorist’s license plate had burned out. I’m one hundred percent certain of it. Yeah, that’s the ticket . . .

    1. Zachariah Marshall

      “I’m 100% certain that as I was passing Officer Dolan’s police vehicle he was snorting cocaine off his dash board, getting fellated by an under-aged male prostitute, and conspiring to transport and sell a trunkful of Cuban cigars across state lines in Illinois, Ohio, and Michigan. But not Kentucky.”

      1. ShootingHipster

        The under aged prostitute looked about 25, but who can be sure what the age of consent is these days?

        1. Reserve Officer Sean Dolan

          And when the suspect stumbled out of the vehicle–with bloodshot, glassy eyes, slurred speech, and the odor of an alcoholic beverage on his breath–he dropped a half-empty bottle of vodka on the ground as well as a crack pipe, which I retrieved as evidence.

          Fortunately the bottle didn’t break because it was inexpensive “squeeze” vodka in a plastic bottle, of the type copiously consumed by the less successful members of the Manhattan Criminal Defense Bar.

        2. albeed

          In Indiana, apparently all you have to say it that I am 51 percent pretty certain, that the prostitute was anywhere from 15.75 years to 50 years old.

  8. phv3773

    If the speed limit is 65, and the officer knows “from experience” that typical travel speeds are 65-75, and a car goes by at 100, he’s gonna be pretty damn sure it was speeding.

    1. SHG Post author

      Who needs facts when they have a brilliant rule like this? Unless he’s going 77 mph, in which case this doesn’t help at all.

  9. Rxc

    Now do you understand why engineers (and others) say mean things about lawyers and the legal system?

    1. Patrick Maupin

      Yeah! All those innumerate lawyers, judges, and cops think 100% is sufficient.

      Why can’t they give 110% like everybody else?

      1. neoteny

        Well, they used to throttle up the Space Shuttle’s main engine to 104% at launch & once they passed the region where pogo develops. But they were able to do that because the 100% was the rated performance of the engine.

  10. Ahaz

    Jezez! What the heck is going on with our courts. Lately, they seem to be bending over backwards with creative reasons to justify the unjustifiable.

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