Newark, NJ- Typically, a police officer must have probable cause to pull a driver over, meaning they are driving erratically or acting suspiciously or broke a traffic law. However that isn’t the case anymore. In a recent federal court decision, behaviors like sitting up straight, having acne or taking the scenic route is enough for an officer to pull over an innocent driver.
A recent decision from the Tenth Circuit Court of Appeals just threw out the standards for probable cause and made seemingly innocent behaviors into just cause to stop a driver. The case, U.S. vs. Westhoven, involved a Cindy Lee Westhoven who was pulled over in New Mexico just forty miles from the Mexico border.
In his report, the border patrol agent listed a number of reasons why he pulled Westhoven over.
Her offenses included sitting up straight with her arms locked in the 10 and 2 positions on the steering wheel. The officer said this made her look suspicious.
She was taking a route which the officer said is commonly used by illegal immigrants and locals; Westhoven had Arizona plates so again that was suspicious because no one ever drives out of their home state, right?
She also had heavily tinted windows which are illegal in some states, but in hot desert states tinted windows are pretty common necessary and definitely not illegal. She also had the audacity, like many drivers, to slow down when saw the patrol car.
After pulling Westhoven over, another thing screamed “red flag” to the officer, her acne scars. He explained that meth heads often have pock-marked skin so he thought she might have been on drugs.
Taken individually these “suspicious” behaviors would not be enough probable cause for an officer to pull a driver over, but in combination these behaviors were enough to warrant a traffic stop.
“Driving stiffly, having tinted windows, slowing down when seeing law enforcement, and driving in an out-of-the-way area may be innocent conduct by themselves,” Judge Scott M. Matheson, Jr. wrote in the court opinion. “But when taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity.”
Westhoven was ultimately charged with possession of marijuana with the intent to distribute. She tried to have the marijuana evidence suppressed on the grounds that the traffic stop was a violation of her Fourth Amendment rights which protects all citizens from unreasonable search and seizure. However the court allowed the evidence to stand, and in the process chipped away at every American’s Constitutional rights.
In the case of a DUI stop the driver must show signs of intoxication like erratic driving or failing to maintain their lane to justify a stop. But the appellate court decision in U.S. vs. Westhoven, and a recent Supreme Court decision regarding anonymous tips, mean more and more drivers could face unnecessary and unwarranted DUI charges.