Federal Court Rules Police Can Stop and Search You for Innocent Behavior

By Larry Bodine, Publisher, National Trial Lawyers

Under the U.S. Constitution, the police must have a “reasonable suspicion” of criminal activity before they can stop and search you. But a new ruling by a federal appellate court upended 225 years of legal protection for Americans, saying it is permissible for the cops to stop you for perfectly innocent behavior.

It happened to Cindy Lee Westhoven, who was returning from a shopping trip one evening and taking the scenic route home. She was driving under the speed limit with her hands at the “ten-and-two” position on the steering wheel when a cop started tailing her. He ran her plates and found no warrants for her.

Astonishingly, the court found that this scenario created a reasonable suspicion for an “investigative stop” – because the policeman injected an ominous context that would make anybody look guilty. “Although the factors, in isolation, may be consistent with innocent travel . . . taken together they [may] amount to reasonable suspicion,” the 10th U.S. Circuit Court of Appeals ruled. To view a copy of the ruling, please click here.

Not what the founding fathers had in mind

This result is not what the founding fathers intended when they adopted the Fourth Amendment to the Constitution, which protects citizens against “unreasonable searches and seizures.” Its purpose is to eliminate over-the-top, aggressive behavior by law enforcement by requiring the police to articulate reasonable suspicion in order to make investigatory stops and detentions.
Here are the bogus reasons that the court used to justify the stop, search, and eventual arrest of Cindy Westhoven:

• Her Ford F-150 four-door truck had out-of-state plates, and tinted windows (which are common and perfectly legal where she lives). To the cop, this indicated she might be smuggling illegal aliens.
• She was driving on the Route 66 National Scene Byway about 45 miles from the Mexican border, a road used mainly by locals.
• She slowed down when she noticed the cop following her.
• She had scarring and acne on her right cheek, indicating to the policeman that she might be a methamphetamine user.
• The officer was so frightening that when he stopped Westhoven, she became nervous, stuttered, and took long pauses.

She argued that there was no reasonable suspicion to stop her or search her truck – but the court disagreed, and endorsed this expansion of belligerent police action.

Adding context to make you look guilty

Westhoven was driving on scenic Route 80 through New Mexico on April 18, 2012, after shopping in Douglas, AZ, a town known for its handmade crafts and bargains. Border Patrol Agent Joshua Semmerling pulled her over and she presented her driver’s license.

The cop decided the description of her trip was suspicious because “Tucson had better shopping opportunities than Douglas” in his opinion.

“The dark tinted windows on Ms. Westhoven’s truck raised Agent Semmerling’s suspicion that she might be concealing something or someone in the back of her truck,” the court said.
She was driving at 7:45 p.m., which happened to be during a 6 to 8 p.m. patrol shift change. The cop surmised that Westhoven was a smuggler trying to exploit that two-hour window.
What doomed Westhoven in the policeman’s eyes is that she had two cell phones visible, even though many people have one for business and another for personal use. He viewed this as a common practice of drug smugglers.

What should you do if stopped for no reason

Follow the advice of the American Civil Liberties Union about what do to if a cop stops you:

• You have the right to remain silent. If you wish to exercise that right, say so out loud.
• You have the right to refuse consent to a search of yourself, your car, or your home.
• If you are not under arrest, you have the right to calmly leave.
• You have the right to a lawyer if you are arrested. Ask for one immediately.
• Regardless of your immigration or citizenship status, you have constitutional rights.

Larry Bodine of Tucson, Arizona, is a lawyer, journalist and marketer who speaks and writes frequently about law firm marketing. Currently he is the publisher of the National Trial Lawyers and is the former Editor in Chief of Lawyers.com. Readers can follow @Larrybodine on Twitter, on Google+ and on LinkedIn, where he moderates several marketing groups.