The Supreme Court has mandated that in order for a police officer to pull a motorist over for a suspected crime, the officer must have“articulable and reasonable suspicion” that the driver is engaging in illegal activity. However, there is a great deal of disagreement about what constitutes reasonable suspicion. It is important to challenge the officer's stop to make sure that the reasons listed within a police report were not just a pretext to perform an investigation.
In DUI stops, officers can not pull you over just because you were leaving the area of a bar or because it is late at night. This may be their true motivation for a stop but they must rely on some driving behavior. Weaving within the lane over a substantial distance or weaving across lanes are both grounds for reasonable suspicion of DUI. Other reasons include driving too slowly, speeding, failure to signal, car equipment violations, and squealing tires. It is important to note that any of these observed behaviors can be disputed in court.
Many times I have found that the reason for the stop is a loose excuse at best. Driving too slowly can be caused by weather or traffic, weaving within the lane can be explained by ice on the road, there are even times where the listed reason for the stop is flat out false.
What is a Pretextual Stop?
An investigation, such as a DUI investigation, may be performed for many reasons. For instance, during the traffic stop, if the officer sees an open container of alcohol or if the driver exhibits behavior that gives the officer probable cause that he or she has been drinking (slurred speech, glassy eyes, odor of alcohol on their breath, confusion, etc), then the officer may conduct a DUI investigation.
A pretextual stop is a stop that was made for the sole purpose of conducting an unrelated investigation. This is illegal because it circumvents the reasonable suspicion requirement; The officer does not care about the traffic violation, they are just searching for a reason to perform the stop. By following nearly anyone for a long enough period of time an officer is likely to find a driving violation of some sort. A pretextual stop can lead to many different types of investigations including Driving Without A License, DUI, Drug Offenses, etc.
For example (from a real case): Lets say a person calls the police because they saw another driver fiddling with a lighter while parked in a dark corner of a rest stop and they suspect the other driver is involved in drug use. If the police find a car that matches the description driving nearby, they can not pull the driver over. There is nothing illegal about stopping at a rest stop or fiddling with a lighter and this is not enough to support a reasonable suspicion that the driver is involved in an illegal activity. However, if the officer follows the driver for 20 minutes and eventually clocks the car at 5 MPH over the speed limit, he can pull the car over for speeding, NOT to investigate for drugs. In order to investigate the driver for a drug related offense the officer must have more information that indicates the driver is involved in a drug crime. Lets say the officer explains to the driver that he is being pulled over for speeding and then immediately begins asking if the driver has any drugs in the car, this is a pretextual stop! Even if the investigation leads to the officer finding drugs and paraphernalia in the vehicle, it can not be used against the driver in court. Because the stop was illegal, the seizure of this evidence was illegal and the evidence should be suppressed.
If you think you case involves a pretextual stop, call me to discuss the case. A simple conversation may end up being the difference between a dismissal and a conviction!