The Arizona Court of Appeals ruled last week that asserting one’s constitutional rights does not give police sufficient cause for detention and search. The ruling treated a January 8, 2008 incident in which Alvin J. Sweeney was pulled over for allegedly following a car too closely. Arizona state police Officer Mace Craft claimed that he had timed the gap between Sweeney’s car and the vehicle in front of him at 0.88 seconds. Sweeney had a Canadian driver’s license and was driving a rental car with the appropriate paperwork. This, and Sweeney’s nervousness, aroused Craft’s suspicion.
Craft directed Sweeney out of the car and began an interrogation about where the man was headed and what he was doing in Arizona. Sweeney said he drove from New York to find a vintage Camaro, but Craft did not believe anyone could drive so far just to buy a car. Craft wrote Sweeney a warning ticket, told him to have a safe trip, but then asked for permission to search the rental car.
“No, you can’t, ’cause I don’t think it’s in (the law), is it?” Sweeney responded.
Craft asked if he could have a drug dog sniff the car. Sweeney again said no and began walking away. Craft grabbed Sweeney and said he was being detained. Craft then proceeded to have the dog perform a search of the car, eventually finding a bag filled with cocaine in the trunk. The court considered whether the police officer was justified in initiating the search.
Although the court found little credibility in the precise 0.88 second timing for the following-too-closely allegation, the evidence appeared sufficient for the initial traffic stop. After Officer Craft presented the warning citation, however, the situation became less clear.
“Officer Craft used physical force to detain appellant when he grabbed his arm and ordered him to stand in front of the patrol car,” Presiding Judge Peter B. Swann wrote. “There was nothing consensual about the encounter at the time it occurred… the continued detention of appellant after he declined to allow the search was an additional seizure under the Fourth Amendment… The Fourth Amendment requires that an officer have some minimal, objective justification for the detention.”
The court found no evidence on the dashcam video of the incident of Sweeney’s hands shaking or the other signs of nervousness that Craft cited in his testimony. The court also considered much of the evidence provided to be irrelevant.
“Considered in the aggregate, these factors did not give rise to objective reasonable suspicion of anything,” Swann wrote. “A reasonably prudent person’s suspicions would not be raised after observing a foreign national driving a clean, deodorized rental car with an atlas on the passenger seat, who upon being stopped and questioned outside in the three-degree weather by the police, failed to articulate with specificity the places he had visited while staying in an unfamiliar city. A holding to the contrary would subject nearly everyone to a continued, intrusive detention following a routine traffic stop.”
The court emphasized the importance of the ruling police from making up after-the-fact reasons to find a criminal guilty. To do otherwise would endanger the entire public, the court explained.
“We might overlook the objective circumstances revealed by the recording and instead marvel at the acuity of Officer Craft’s instincts in identifying appellant as a likely drug courier on such innocuous facts,” Swann wrote. “But were we to engage in such tautological reasoning, we would render the Fourth Amendment a nullity — the objective (not instinctive) reasonable suspicion must exist before the detention, and the ultimate discovery of contraband cannot retroactively justify an otherwise unwarranted detention… the invocation of one’s constitutional rights cannot constitute a circumstance that gives rise to reasonable suspicion. If the mere refusal of consent itself constituted reasonable suspicion, nothing would prevent warrantless searches of random individuals, because either the grant or refusal of consent would eventually justify the searches.”
The court threw out the evidence against Sweeney as illegally obtained. A copy of the decision is available in a 90k PDF at the source link below.
Source: 
Arizona v. Sweeney (Court of Appeals, State of Arizona, 3/30/2010)
[Courtesy: Thenewspaper.com]
As a non-lawyer – and based upon this presentation – it seems like the appeals court made the right call.
“A reasonably prudent person’s suspicions would not be raised after observing a foreign national driving a clean, deodorized rental car with an atlas on the passenger seat, who upon being stopped and questioned outside in the three-degree weather by the police, failed to articulate with specificity the places he had visited while staying in an unfamiliar city. A holding to the contrary would subject nearly everyone to a continued, intrusive detention following a routine traffic stop.”
You rock Arizona Court of Appeals!
It’s about time the Fourth Amendment was (re)recognized. The “War on Drugs” has, like the “War on Terror”, been used to justify exactly the sort of action on the part of government which the framers saw as unacceptable. Meanwhile, all over the country, people meekly wait in line at “security checkpoints” for warrantless searches every time they want to simply travel by air, attend a sporting event or go into a public building. Good job, Court of Appeals!
The case as presented in the article seems like a good example of what the 4th amendment protects us from. A security checkpoint at a ball game or airport is different. You don’t have to go there. The sporting events are a really bad example as they are private enterprises, not the gov’t.
@Steven02
The Fourth Amendment as stated in the Constitution:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The argument that “you don’t have to go there”, or that something is a “private enterprise” and thus not subject to the “right of the people to be secure in their persons, houses, papers and effects” is nowhere mentioned in the Constitution. Why would anyone think it was ok for the government to search a citizen if traveling by air, but not if one is traveling by car? You don’t have to be in a car, and don’t have to use the highway. Most folks “have” to have a job, yet millions are subject to illegal and warrantless searches using the hysteria surrounding “drugs” as an excuse.
If the objective is to make us “safer”, we might start with warrantless and random blood tests to identify those who have the flu. More than twice as many persons are killed every year by the flu than by direct or indirect use of illicit drugs. How would you feel about random blood testing?
Chaulk one up for the Constitution!
Sadly, I doubt this will change any of the bad behaviors on the ground for quite awhile.
I didn’t realize they needed permission to have a dog sniff the outside of a car, is that an Arizona thing, or everywhere?
Having a dog sniff the outside of the car during a lawful stop is not illegal. The dog is just like having another cop walking around your car.
Once the dog ‘alerts’ then it’s game on with a search. (Of course, every dog handler trains in a stealth signal to ‘alert’ on command, regardless of the circumstances.)
I think the point about the potential at the time search by the drug sniffing dog was that the officer needed probable cause to detain the driver while they waited fro the dog to arrive.
I was pulled over in Oregon last year by a cop using the same kind of BS basis for the stop. He spent about 5 minutes running my license and questioning me then “let me go with a warning” (gee, thanks a whole lot). While this was going on and afterwards, I was trying to decide what I woudl do if he requested a search of my vehicle. I had nothing illegal; so, it would have been a question of principle. Do I take the easy road and let him search the vehicle or do i stand on principle and invoke my constitutional right against unreasonable search and seizure? This court decision may apply; however, I also doubt that it will change police behavior any time soon if ever.
@Lumbergh21,
The officer actually was a K9 officer, ergo, the dog was in the back seat. He didn’t actually have the dog out of the car until after the initial stop was concluded, and he started the second, illegal, ‘stop’ by restraining the appellant.
If you have the spare time (and the interest) the finding was an interesting read.
In a nutshell he acted on a hunch. Which panned out this time, but is exactly one of the scenarios that the Fourth is designed to combat. Far better that a dozen truly guilty go free, than one innocent is wrongly punished.
“But were we to engage in such tautological reasoning, we would render the Fourth Amendment a nullity — the objective (not instinctive) reasonable suspicion must exist before the detention, and the ultimate discovery of contraband cannot retroactively justify an otherwise unwarranted detention…” – Judge Swann
You can’t put toothpaste back in the tube, and you can’t do a search _then_ justify it. Good call by the court. No new law here, but it is a reaffirmation of the well established Fourth Amendment.
There was a recent Cato Institute podcast dealing with how to interact with police that is quite relevant:
http://ne.edgecastcdn.net/000873/dailypodcast/williambillymurphy_howtodealwithpolice_20100326.mp3
This is great news, but is the cop going to be punished, will this be any deterrent to the next law officer who decides to abuse his powers? The police have almost limitless powers and almost no oversight, for every story like this there are probably hundreds who were illegally detained or worse.
The cop’s mistake was asking to search the car AFTER giving the warning ticket. The cop made an unjustified second stop essentially.
If he asked to search BEFORE giving the ticket, the court would of likely upheld the search as not an additional seizure.
So, get your ticket before answering about searches unrelated to the initial stop.
One has got to love how the court reviewed the video of the stop and the officer’s testimony was clearly horseshit, as it nearly always is. Small little secret of the prosecutor’s office which naturally is NOT going to charge the officer with perjury.