By on April 4, 2013

In November 2010, the officer was tailing a truck around midnight. He ran a registration check on the vehicle, which listed the truck as red. But this truck was blue… The officer then realized his mistake, but continued with the stop to provide an explanation. He noticed an odor of alcohol, conducted a field sobriety test, and arrested the driver.

In the state of Wisconsin, that’s now good enough.

The State Bar Of Wisconsin website reports that the above traffic stop has been upheld. In other words, officer error is now a “primary offense”.

For those of you who don’t spend your lives on the run from the law, here’s a brief primer: “Primary Offenses” are traffic offenses for which you can be pulled over and interrogated/arrested by an officer. Speeding, obviously, is a primary offense. If you’re speeding, it doesn’t matter if you are sober, legally registered, and complying in all other aspects with the law. You can be pulled over. Once you are pulled over, if you’ve been drinking or if you have a sixteen-year-old cheerleader tied up in the back seat, the officer can take action and cite you for any or all of those offenses. Are you with me so far?

A “secondary offense” is one that does not justify pulling someone over but which is ticketable once it’s observed during a stop that was occasioned by a primary offense. Seatbelt laws were snuck through most states under the guise of being secondary. In other words, if you’re driving down the road with your seatbelt unbuckled but everything else is in order and legal, the cop shouldn’t be able to pull you over. If he does, and you have a cheerleader tied up in the back seat, that’s the fruit of an illegal search. Not that you’ll be let go, but there’s every chance you can get it disallowed in court.

Naturally, seatbelt violations have magically migrated from secondary to primary status in pretty much every state where the law applies, as has everything else from a missing front plate to an upside-down registration sticker to the smell of unburned hydrocarbons as you pass by a California Highway Patrol cop in your B18-swapped Civic. Rarely, if ever, does the State voluntarily return powers it has acquired through the acquiescence of a drowsy voter base that has become pitifully easy to distract with hot-button topics like equality signs on Facebook and the teaching of evolution in public schools. After all, in a country where the law truly protected the people from the State you couldn’t drive a guy like Aaron Swartz to suicide over the downloading of scholastic journals and whatnot, and we just cannot have a country like that lest people download scholastic journals willy-nilly.

Apologies for the previous rant. Let’s continue and refocus on the case in question. Some dumb cop misreads his computer system, which in and of itself is remarkable because most cop-friendly computers are designed to be operated by an 80-IQ individual who is also busy driving a Crown Victoria. He pulls over a man who is doing nothing wrong from exterior observation. Dude’s been getting his drank on. The court examines the case, considers the Fourth Amendment, has said amendment printed out on toilet paper, and proceeds to wipe its collective ass with the Fourth Amendment before pitching said Fourth Amendment into the trash can.

Don’t get me wrong here. Drunk driving is bad and the fact that most states have managed to turn drunk-driving enforcement into a zero-tolerance exercise in extremely profitable plea bargains and rehab programs shouldn’t blind us to the fact that people shouldn’t drink and drive. It’s a bad idea. I don’t want drunk drivers surrounding my child on the public roadway. But it bears repeating that this fellow was not in the middle of plowing through an elementary school with a bottle of Wild Turkey in each hand and two feet jammed on the accelerator pedal. He was behaving in a manner that didn’t attract the cop’s attention. Said cop was driving along behind him and didn’t believe that he was inebriated. It wasn’t until the cop decided to talk to the guy that he noticed a smell of liquor.

According to judge Lisa Neubaeuer,

[T]he objective facts related by the officer supported a reasonable, if mistaken, suspicion that Laufer was driving a vehicle displaying incorrect plates based on the registration check he ran on the misread plates… We therefore adopt the reasoning set forth in Reierson and uphold the stop based on a good-faith mistake of fact in this case… It turned out that the officer was mistaken in his observations as a matter of fact, but the facts related by the officer constituted a violation of the law.

The sound you hear is that of a monstrous can of worms being opened with a chainsaw. It takes a door which was already hanging pretty far open for harassment of motorists by police and kicks it the rest of the way off its hinges. It further enshrines police as supercitizens who are immune to the effects of their mistakes while members of the public are frequently sentenced to prison time for errors no less trivial. It erodes the already ephemeral protections of privacy and security afforded to the individual driver. In short, it’s a bad decision and it should be sent to the highest court in the land, as soon as said highest court in the land has time to look at it.

Don’t hold your breath.

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112 Comments on “Police Error Is A Primary Offense Now...”


  • avatar
    28-Cars-Later

    Just another step toward the tipping point where the American people will rise up.

    • 0 avatar
      Sundowner

      that’s funny.
      as if the average American didn’t have a 30 day long term memory limit before “that’s the way it’s always been” and cared about anything beyond reality TV and social media.

      forget the constitution. Take away Facebook. then you’ll get a reaction.

    • 0 avatar
      sportyaccordy

      In your dreams. Handguns and rifles vs tanks, GPS guided missiles and access to all our infrastructure controls. You modern American revolutionaries are delusional.

      • 0 avatar
        28-Cars-Later

        I certainly don’t dream about armed insurrection, but its inevitable, hell it might even already be planned.

        • 0 avatar
          Summicron

          I think the only armed uprising we’re going to see has already started…. white supremacists going around killing white people.

          Nobody else is stupid enough to think they can take on the US military/National Guard/ State Police… etc. with small arms and health profiles like Michael Moore’s.

          • 0 avatar
            28-Cars-Later

            I see something much more sinister in the works on the part of the so called “elites” and it ends with a UN/NATO “peacekeeping” occupation with European or Russian troops who won’t hesitate to fire on Americans as our own would.

          • 0 avatar
            Summicron

            @28-Cars

            You’re young. When I was your age we had vastly more imaginative fiction writers. Now you poor kids have to invent your own.

          • 0 avatar
            28-Cars-Later

            @Summicron

            I hope you’re right.

        • 0 avatar
          Brunsworks

          I don’t think this generation can maintain an insurrection.

      • 0 avatar
        Summicron

        @sportyaccordy

        Too true. Lots of them where I live, embarrassing to go the range anymore.

      • 0 avatar
        kipchak

        Somebody should let the Taliban know they haven’t been effective.

      • 0 avatar
        gslippy

        @sportyaccordy: No gun owner thinks they can outgun the government. All they have to do is stop the first one in the door, and which blue helmet will sign up for that job?

        When the US military has trouble subduing already-disarmed countries which have no 2nd Amendment, how will they ever subdue an America filled with people clinging to their guns and religion?

        • 0 avatar
          Summicron

          “already-disarmed countries”

          Well, I know you can’t be referring to Iraq or Afghanistan, or did they blow all their ammo on celebratory gunfire at weddings?

      • 0 avatar
        Geeky1

        “Handguns and rifles vs tanks, GPS guided missiles and access to all our infrastructure controls. You modern American revolutionaries are delusional.”

        I think it’s worth pointing out that just *one* pissed off nutjob had one of this country’s largest police forces chasing its tail for the better part of two weeks; in fact, he had them so wound up that they managed to put about 100 rounds into a blue Toyota Tacoma before they realized that “oh, wait, that’s not a silver Nissan Titan, is it? Oops.”

        You’ll also note the relative success of the rebels in Syria, and the difficulties the US has had in Iraq, Afghanistan and Vietnam. In fact, to some degree the American revolution was a guerrilla war-with the Americans doing to the British what the Viet Cong did to us a couple hundred years later.

        Superior firepower is all well and good, but it’s of no real help if you’ve got no clue how to fight your opponent. Historically, large, organized armed forces backed by large governments have typically fared very poorly against relatively small groups of relatively poorly armed-and often poorly organized-but extremely pissed off people.

        I have absolutely no interest in seeing an armed conflict in this country, but you should be aware that the balance of human history indicates that it is in fact you who is on the delusional side of this particular fence.

        • 0 avatar
          MeaCulpa

          That was a pretty inaccurate description of the revolutionary war. It neglects the heavy french involvement and support (that the US repaid by defaulting on its debt to france while claiming that the debt was owed to royal france and not the french republic), it also neglects the fact that the majority of the battles were highly conventional affairs and that the british were greatly outnumbered and (again thanks to france hating on the british) out gunned.

          Superpowers lose wars by holding back, not by the superiority of its enemies tactics. In that way your vietnam revolutionary war analogy makes sense.

      • 0 avatar
        George B

        The guns are not for shooting at law enforcement officers or soldiers. That would be both suicidal and unnecessary. Guns are for protecting your home, business, and neighborhood from rioters and criminals. In the following LA riot video, notice how much quieter the neighborhood is where Korean shop owners are armed.

        http://www.youtube.com/watch?v=tgCiC6qTtjs

        Remember the late 60s riots in Dallas that burned out the city or all the video of out of control looting in Texas after Hurricanes Rita and Ike? Didn’t happen because everyone knows you can shoot criminals here in Texas. Just a couple miles from my house a former Nigerian basketball star learned the hard way not to burglarize a house in Texas. Homeowner was prepared with a shotgun, shooting justified.

        http://dfw.cbslocal.com/2012/11/28/ex-nigerian-basketball-player-killed-in-home-invasion/

        • 0 avatar
          corntrollio

          “In the following LA riot video, notice how much quieter the neighborhood is where Korean shop owners are armed.”

          You must be on a propaganda mission. K-town got hit the hardest by the LA Riots (aka Sa-E-Gu), and many Korean shop-owners armed themselves specifically because LAPD turned a blind eye in K-town.

          If I remember correctly, almost half the monetary damage caused by the riots was to Korean-owned business. Screw you, Ice Cube.

          • 0 avatar
            George B

            The point is people don’t arm themselves to overthrow the government. They arm themselves to protect themselves and their family from criminals when law enforcement is either ineffective or withdrawn on purpose.

    • 0 avatar
      stryker1

      … you mean the Wisconsin people?

      • 0 avatar
        MeaCulpa

        Cheese eating Hoosiers are not to be messed with.

        • 0 avatar
          Summicron

          Hoosiers are from Indiana.

          “Cheeseheads” would suffice.

          Liked your first post, particularly the reference to King George having bigger fish to fry than pesky colonials.

          • 0 avatar
            MeaCulpa

            Damn! the only thing I actually know about hoosiers are from a movie, starring Gene Hackman(?), about a basketball team from some dreary place that I thought might have been Wisconsin, am I now saying that Wisconsin and Indiana seems dreary? Sh*t!

            Cheeseheads? Isn’t cheesehats mandatory attire, and a bare chest and a gut filled with knock off cheddar, for green bay packer fans?

          • 0 avatar
            Summicron

            @MeaCulpa

            No problem, ignorance fuels the internet. Like our old tourism slogan said; “You’re Among Friends”.

          • 0 avatar
            MeaCulpa

            @Summicron

            Well I accept my lack of knowledge and haven’t mentioned Hitler yet, so I am lacking some Internet cred.

          • 0 avatar
            Summicron

            @MeaCulpa

            Hitler stayed in the Wisconsin Dells once. Back in the 30′s.
            He didn’t have Eva with him then but he did take Geli.

            Not a lot of people know this.

  • avatar
    Type57SC

    It may be a legal pry, but I like the application of common sense over precedent and legal specificity. The judge called it a “good-faith mistake” and allowed it. I would hope that judges would disallow the bad-faith mistakes that you’re worried about.

    • 0 avatar
      MeaCulpa

      The problem with allowing mistakes is that the police, regardless of country, will adopt the “mistakes” as SOP.

      • 0 avatar
        Summicron

        What “mistake”?

        An on-duty police officer encountered an intoxicated driver and arrested him, preventing him from continuing to endanger others.

        • 0 avatar
          MeaCulpa

          I have no problem with the police stopping cars routinely for DUI checks, provided that it’s is done in accordance with the law of the land. By “mistake” I mean that the police will adopt, as a SOP, stopping cars claiming that they misread the plates.

        • 0 avatar

          It’s a disincentive for illegal searches and general oppression.

          They already have all the tools they need. If they overstep their bounds, they get their cases dropped. Otherwise, they would just do a lot more illegal searches and seizures, because it benefits them and lets them exert more power than otherwise granted.

          A common sense utopia is not possible. We can just craft the best incentive schemes, and there will always be drawbacks.

    • 0 avatar
      CV Neuves

      Civil liberties are to be curtailed to make life saver for all. The only civil liberties that are to be defended under all circumstances are the right to bear arms and freedom from health insurance.

  • avatar

    Sadly, it seems that most of the judiciary has entirely forgotten why the constitution was written, or why the founders insisted on amendments limiting the power of the government. We have now transcended the point where committing a crime is the issue to where the possibility that a crime is committed is an offense requiring action by the government. And while we have a dedicated group working to ensure that the Second Amendment is not violated, no such group is protecting the Fourth Amendment and most of us take it for granted that the government and anyone else is allowed warrantless searches to travel by air, attend a sporting event or enter a public building. Thanks for starting the rant, Jack – we need more discussion on the issue.

    • 0 avatar
      carrya1911

      The judiciary is an arm of the state…and when the chips are down will typically find reasons why the state’s interests should be preserved over those of the individual.

      The Constitution was an attempt to limit government power…and it was the judiciary that decided those attempts to limit government authority should be rendered meaningless in the name of progress.

  • avatar
    jfbramfeld

    Perhaps the quote was overedited, but why is it the officers mistake if he runs a registration check and comes up with a different color than the truck with the plate? That sounds like something that should be investigated. If the fact is that the officer ran the wrong number, perhaps the story should mention that.

    • 0 avatar
      Type57SC

      Did mention it at the bottom, but I stumbled on that first quote too.

      “based on the registration check he ran on the misread plates”

      • 0 avatar
        jfbramfeld

        Never mind. Though I’m still not crazy about the gratuitous insults directed at cops. Most of the horseshit they engage in can be laid directly at the feet of lawmakers.

        • 0 avatar
          carrya1911

          No, most of the horseshit they engage in is a result of poor supervision, poor standards of behavior, poor grasp of their job, and a heavy dose of nonsense perpetuated by their peers.

          Read:

          http://chrishernandezauthor.com/2013/01/15/my-life-as-a-tyrant/

  • avatar
    Junebug

    I was sorry to read in the local paper the other day of the passing of Judge Green, a man that served justice up with quick wit and fairness not found in most courts these days. He as much as told a local town’s cops that any speeding ticket on a certain section of road would be dismissed. The road almost out of town, few houses and had the steepest hill around, at 35 mph limit, you HAD to ride your brakes to comply. The judge understood that and when the town wouldn’t do the right thing – he did. Get a ticket, and laugh at the Barny Fife giving it to you, all you had to do was go before Judge Green and it was gone. They finally raised the speed limit to 45 and everyone agreed it was fair. But this is NC, land of Andy, Opie, Aunt Bea etc

  • avatar
    b787

    Here in europe you can be pulled over for no reason at all, it is frequently done by police on friday and saturday nights (DUI). Personally I think there is nothing wrong with it.

    • 0 avatar
      Robstar

      What happens when/if you are driving a weird/exotic car and you are pulled over 6-10 times an hour & asked about it? Imagine you have to drive 200 miles. You’ll never get there in any reasonable amount of time.

      • 0 avatar
        b787

        I guess we don’t have a law against that, but I haven’t heard of a single case where a cop would pull over an exotic car just to look at it, so its probably not necessary.

        • 0 avatar
          Robstar

          Use your imagination:

          - Perhaps the police pull you over because you are an immigrant.
          - Or you are the wrong skin color in that section of the city
          - Or you’ve taken one of them (or their friends) to court for some reason or other and your plate has been published internally as someone who should be harassed
          - Or perhaps you have a foreign city/state/country plate and that/those officers don’t like you for that reason

          Or maybe none of the above, but the police decide to sit along a popular road and go “fishing” because they need to hit a hidden ticket quota and/or justify their own employment. “Lets stop everyone! We’ll find someone with something wrong with their car or something illegal on their person”.

          Maybe it’s not personal but they have to show their boss they are “doing something” to earn their pay & just pulling people over.

          I can’t imagine why ANYONE would not mind being pulled over for no reason at all!

          • 0 avatar

            Hey Robstar!

            Once I was pulled over for driving a brand new car. I had bought a Fiat Siena and it was one of the first ones. The police pulled me over and asked if they could take a look!

            At the time I didn’t mind because I was driving a plateless car across state lines. According to the law, I’d have to ask for authorization from the DMV before doing it. As I was technically wrong, and the cops were very nice about it, the truth was I was relieved they didn’t notice, or pretended not to!

          • 0 avatar
            Summicron

            @Robstar

            Pfft…

            I’m 58 and I’ve never been pulled over for no reason. I did get pulled and cited for 45 in a 25 once on the kind of downslope heading out of town Junebug mentioned.

            Totally my fault, ditzing with a message from work instead of paying attention to the road. Only points I’ve ever had on my license and I deserved them.

            Now, I’ve never driven while black. The media tells me that can get you harassed anywhere in ameriKa. I’m also told that by myriad people on the internet whose only information comes from that same media.

          • 0 avatar
            Robstar

            I’ve been stopped by a cop because at the time I had some facial similarities to a local celebrity & he wanted an autograph.

            I’ve also been stopped (I’m white) for being in the “wrong neighborhood” and asked what I was doing there…

            Seriously.

            Pissed me off.

          • 0 avatar
            danio3834

            Robstar is right, they can easily make up enough reasons to pull you over, we don’t need any more.

            When my friends and I were younger, anyone who was associated with us in the police database from various parties, gatherings, and other run-ins, would get randomly pulled over.

            We weren’t criminals, just kids getting into trouble from time to time. They would make it a routine to harass us and our friends as a show of force. I don’t agree with it or the premise of anyone who enables this practice.

          • 0 avatar
            bryanska

            In high school my buddy and I were taking home his younger sister and her friend. Two 18-year old guys, two minor girls. (No hanky panky) We left early to make sure they were home before curfew.

            The cop that pulled me over before curfew (for NO reason according to his own admission) proceeded to check everyone’s IDs. I mentioned the curfew thing, and he took his time checking everyone’s IDs until it was exactly curfew. Then he threatened the girls with tickets. Only after extracting enough pleading did he let us go.

            Yes, American cops deserve all they get. They cultivate this attitude towards their work, and as long as they do so I’ll hold their feet to the fire.

      • 0 avatar
        MeaCulpa

        It doesn’t happen all that often even if I’m sure that it does sometimes. The difference between the systems are probably almost non existent in reality. The European system has the advantage of being faster/convenient as you’re pulled over then show your license and blow into the machine and of you go. The american system has the advantage of – in theory – protecting the public from harassment, but in reality a police force bent on harassing you will just make up some BS excuse and go on harassing you.

    • 0 avatar
      Firestorm 500

      I’m glad I don’t live there because of actions like that.

      Come to think of it, DUI/DWI checkpoints here in the United States should be illegal.

    • 0 avatar
      danio3834

      “Here in europe you can be pulled over for no reason at all, it is frequently done by police on friday and saturday nights (DUI). Personally I think there is nothing wrong with it.”

      And that’s why it happens.

      Over here, we have very specific rules designed to protect us from arbitrary inspection by the state, even if they are disregarded from time to time.

      Apparently the major difference between our two countries is that over here, most people still think there is something wrong with arbitrary government compliance checks.

      • 0 avatar
        MeaCulpa

        Or most european countries use other means than their constitution to curtail police powers. The same end result can be achieved using different methods. A police officer engaged in a pattern of harassment would face disciplinary action in most industrialized countries. My personal view is that the american police seems to have more leeway than in most developed countries. If a cop in europe acted the way that is SOP in many american cities, counties and states he would be fired or possibly prosecuted. Pulling out his gun for a routine traffic stop, cuffing somebody suspected of a minor infringement and safety pat downs are something that isn’t widely accepted conduct in europe.
        In sweden, as that’s the law I’m most familiar with, an unlawful action perpetrated by the police would not make the evidence gathered un-admissible in court, instead the officer engaged in the unlawful conduct would be prosecuted, in theory at least. Anyway the end result is the same as the most egregious behaviour is curtailed to some extent, meanwhile, a lot of “minor” unlawful action by police that nobody outside the blue brotherhood – that matters – ever find out about.

    • 0 avatar
      hreardon

      b787 -

      Nothing wrong with it? That seriously gets my red blooded American dander up. In my world (deluded though it may be), the police are mostly a deterrent and a reactive force: they respond when there is a need and they keep a presence to let the less scrupulous members of society know that someone is keeping an eye out.

      There is no way in hell I want a proactive police state ‘just checking in’ to make sure I’m not doing anything wrong. If you see me doing something wrong, then by all means, get involved. Otherwise stay out of my business and I’ll stay out of yours.

  • avatar
    Waterview

    So what happened to the 16-year old cheerleader tied up in the back seat? Can we get a ruling on that?

  • avatar
    wstarvingteacher

    I made a mistake and studied PS in a masters program. That exposure was enough to make me ill when most government actions are discussed. I’m afraid that it could be terminal.

  • avatar
    jacob_coulter

    Police officers and law enforcement in general seems to be more about revenue than it is public safety.

    I used to be one of those that always backed police officers, I come from a family full of them, but over the years I’ve definitely done a 180.

    Most places in this country need a lot LESS cops.

  • avatar
    Summicron

    Heh… this one is worthy of Wired.

    Da Maaan, he bees eviler and eviler!

  • avatar
    OneAlpha

    This is why I say that I’d rather live in a world where drunk driving was legal, than one where The State has the power to stop drunk driving.

    Better individual deaths due to abuses of freedom, than the death of an entire civilization due to abuses of power.

    • 0 avatar
      Summicron

      “Better individual deaths due to abuses of freedom…”

      Well, since Jack mentions Wisconsin…. I know some families right here in Buckyland that could enlighten you on that. It isn’t just the victim whose life is destroyed.

      • 0 avatar
        OneAlpha

        Don’t even try playing the sob-story card with me – I’ve already been there.

        My best friend died in a wreck because two guys thought a few for the road would be a good idea. The Army gave him a nice send-off, though.

        But while it pains me that he’s not here, it’s worse that demagogues, totalitarians and those who think they’ve got to “do something” use tragedy as an excuse to destroy liberty.

        Freedom is a messy, beautiful, dangerous, fun, painful, awesome business – and it’s way better than the alternative.

        We all die from something sooner or later, but I’d prefer to die a free man than a piece of State property.

  • avatar
    Larry P2

    I always giggle when I read articles like this one.

    Reminds me of the torrent of hysterical jeremiads gushing daily from the New York Times RE: The Patriot Act, and how a handful of foreign terrorist suspects had their phones tapped without a warrant. And the awful conditions of confinement faced by the foreign terrorist detainees at Guantanamo Bay. And how those poor terrorist suspects were being tried before a Military Court (except the times has now forgotten to mention that these detainees are presently being represented, with virtually unlimited expense accounts, by some of the foremost and formidable criminal defense attorneys living today, each detainee appearing with a brace of up to five distinguished attorneys at each day’s court proceeding) in front of Military Juries that are almost inevitably some of the most anti-government, most-likely-to-acquit juries you will ever find. The detainees, I am told by one of these defense attorneys, gains on average of at least 50 pounds of weight during their horrific “detentions” in this tropical paradise. By all accounts, the military judges presiding over the trials takes the issue of conditions of confinement, legality of the arrest, and confessions gained from torture very very seriously. Those issues have been ferociously litigated for many years, with pretrial hearings on just one issue sometimes going on for months.

    At the time that the most frothing hysteria was being emanated by the NYT (although, to its credit the Gray Lady has now mysteriously ceased attacking the Patriot Act, now that Obama has openly violated his campaign pledge to seek to repeal it); I was a public defender with a caseload of some 5,000 open files, with about 1,000 of those being classified as “serious felony” charges. There was no money for any investigation or expert witness fees of any kind. Approximately 95 percent of those cases were the result of a warrantless arrest. About 75 percent of them were the result of warrantless searches. About 15 percent of them featured both a warrantless entry into somebody’s home, whereupon a warrantless search took place. While my client base of exclusively poverty-stricken American citizens rotted away for on average at least six months in the local county jail, waiting for their trial, they underwent sadistic, horrific conditions that were far, FAR worse and more brutal than those suffered by the Guantanamo detainees. If by some freakish, “struck-by-lightening” chance you managed to convince a Judge that your client’s rights had been violated, you were “commended” by having the office Flying Pig mascot (a plastic pig with angel wings attached) returned to your cubicle. The pig was transferred among the attorneys, in a good year, maybe three or four times. I held onto the pig for 16 months once. There were 14 full-time attorneys at that office, each with a similar caseload. There are two judges in this county that have never dinged a cop for a constitutional violation, in a combined 46 years on the bench. Another judge, who finds sometimes as many as two constitutional violations a year, will always apologize to the cop from the bench for being forced to make such a freakish finding. Unbelievably, the judge in question in this article issued an opinion! Imagine that! An opinion, instead of the usual denial without explanation!

    About the time I am writing about, the United States Supreme Court reversed 40 years of settled law that allowed a car to be searched upon the arrest of the driver. During those 40 years, several million ordinary Americans had their constitutional rights systematically violated. During that 40 year period of unbridled, unfettered police power, no national newspaper or magazine ever attacked the practice.

    Mysteriously, the New York Times never called me about the scandal of 10s of thousands of warrantless searches and arrests occurring every year in this small rural county in a rural state.

    The 4th Amendment of the United States Constitution has been virtually a dead letter since before I started practicing law 18 years ago.

    • 0 avatar

      well said

    • 0 avatar
      gslippy

      Your testimony makes me sad because it’s true.

    • 0 avatar
      Mykl

      Your rants are fun to read. I would like to subscribe to your newsletter.

    • 0 avatar
      Steven Lang

      Larry, that’s an amazing story.

      Feel free to email me at steve.lang@thetruthaboutcars.com

      All the best!

    • 0 avatar
      CV Neuves

      That all pretty much describes the good old USSR – just, they did not bother to feed that many lawyers in the process.

    • 0 avatar
      shaker

      Would it be a stretch to say that a properly “lawyered” (i.e. “Rich Person”) stands a better chance of not becoming a guest at the government-owned, privately-operated “Graybar Hotel” due to these enforcement practices and constitutional side-steps?

      If the “law” were applied more “equally”, you’d get such a backlash from the well-off that it would stop.

    • 0 avatar
      thelaine

      Blaming the police for the abuse of their power is like blaming the skin on the bottom of Frankenstein’s foot when he stomps on your head. The majority of people in this country have voted for a cradle to grave nanny state.

      Food, housing, education, medical care, disability, unemployment benefits, retirement benefits, drug rehab, job training, career counseling, you name it. The government tells you what gas you can put in your car, what light bulbs you can buy, how big your soda can be, and how much water your toilet can hold.

      If the government runs out of money, the government prints more. If you don’t qualify for a loan, and the government thinks you should have a house, the government tells the bank to give you a loan. When the bank goes bankrupt from giving out bad loans, they get bailed out. When you lose your house because you never should have gotten a loan in the first place, you get government assistance too.

      If your business goes bankrupt, and the government likes you, the government bails you out. If you want to start a company and you have connections to the government, the government will give you money. If the government wants to build a mall where your house is, and you don’t have connections, the government buys your house at a price the government considers fair. If you don’t like it, you can sue the government. If you get arrested and you have government connections, it will get handled. If you get arrested and you have no money and no connections, too bad for you.

      We have voted for all of this and an endless list of more. It is precisely what the founders of this country warned us against. Government colossus and freedom are incompatible. Get used to unrestrained police power. Don’t expect any help from judges. They are the government too.

      We voted for it, over and over again. Just about every government program, from food stamps to windmills can be justified as having some benefit, but at what cost? In the aggregate, the government leviathan that they create will enslave us, just as has occurred over and over again in history. It is not a paranoid fantasy, it is the fate of virtually every large country in the history of the world to have a massively powerful government working with an elite class and everyone else can go fk themselves.

      What do you think the founders of this country were reacting to when they insisted we have a small government? They saw that individual autonomy, property rights, self-defense, and all of the essential components of human freedom were routinely destroyed as soon as governments got big enough to take them away.

      The founders of this country saw the problem, identified it, and did everything they could to prevent it. Human folly has overwhelmed their efforts. We shouldn’t blame the cops, we have done it to ourselves. You want government to be your mommy, you better expect daddy to tell you what to do.

      • 0 avatar
        hreardon

        thelaine -

        From Hobbes pen to God’s ear – The Leviathan is built over many decades in a methodical way, ostensibly for the public good.

        Then one day the Leviathan turns on you.

  • avatar
    daveainchina

    The problem I have with this is that it’s all couched in legalize terms.

    If you asked your average person on the street that if xxx is pulled over by the police because the police officer in question made a mistake but wanted to complete the stop so that the xxxx motorist realized it was a mistake. IE.. the officer is being polite.

    However upon speaking with xxx motorist the police officer noticed the person had been drinking and decided to do a sobriety test which xxx motorist failed.

    Should the motorist get away with it? Was the police officer wrong?

    I know you can have police officers later claiming they made xxx mistake to get more people pulled over and harassed but somehow in this case I don’t see an issue with what the police officer did.

    Show me a history of an officer abusing this and yes, something needs to be done, but sheesh let’s leave off the hyperbole in an individual instance. Most officers are out there trying to do a good job, can we stop with conceit that all police officers are bad?

    They do a great service to our community and frankly after living in other countries, I think many of need to relax a little before we have proverbial heart attacks from stressing out over little stuff.

    As I said show me a history of abuse of this type, then let’s deal with it, otherwise, I’m not concerned and I’m guessing most people aren’t either.

  • avatar
    DC Bruce

    Nothing new here. There’s a huge body of law about what constitutes “probable cause” for a warrantless search. A lot of that creates an opportunity for some “creativity” on the part of the arresting officer. The truth is, an cop can follow just about any driver around for a bit and find some reason for a traffic stop — failure to signal for a turn, coming to a stop over the edge of a crosswalk at an intersection, etc. In my days as a police beat newspaper reporter in Houston, I rode around and saw cops who did just that. They would follow someone they considered “suspicious” wait for him to make some minor traffic violation, and then pull him over for a chat. It’s this kind of behavior directed at minorities that makes a lot of them bitter about being penalized for DWB (“driving while black”).

    And while I’m hardly a fan of the police state, I agree completely that the inside of a car being driven on public roads does not deserve the same “dignity” or protection as the inside of someone’s residence.

    That your truck driver was operating his vehicle not in a manner that indicates he was impaired proves nothing. The test would be how he operates the vehicle when something unexpected happens and he has to react quickly.

    Unfortunately, I’ve read the tables which say how much I need to drink in order to become legally intoxicated. Knowing what those numbers are, I have always felt that I would have been quite drunk had I consumed that amount . . . and just for reference, in my 20s I had the frequent habit of ordering a pitcher of beer all for myself at the beer joint I frequented in Houston. I always walked home; it was two blocks.

    • 0 avatar
      Detroit-Iron

      “That your truck driver was operating his vehicle not in a manner that indicates he was impaired proves nothing. The test would be how he operates the vehicle when something unexpected happens and he has to react quickly.”

      So you are saying we should have an emergency reaction aspect to the driving test, and whatever BAC you have when you pass it is how drunk you can be when you drive? Sounds good to me. I am going to go for the high-score.

  • avatar
    David Hester

    Okay, so what should the oficer have done? He mis- read the tag. None of you jailhouse lawyers and civil libertarians have any proof that there was any malice on the part of the officer. The officer deserves the same benefit of the doubt on that question as the intoxicated driver did. (There doesn’t appear to be any allegation made by the suspect that officer intentionally falsified his report. Both sides in our adversarial court system appeared to agree that the mistake made was, in fact, an honest one.) Speaking as someone who actually has run tags at night, misreading a plate (and/ or subsequently misentering it into the MDC) happens.

    So, the officer misread the plate and believed that the vehicle was improperly registered. Improper registration has always been a primary offense. Comparing it to a former secondary offense such as seatbelt usage is dishonest. The state has always had a vested interest in making sure that the vehicles that operate on public roadways are properly registered.

    So, believing that he had a primary violation, the officer initiated a traffic stop. Sometime between the time he hit the lights and the time he approached the driver, he realized that he had misread the tag. Based on my own experiences making traffic stops, it probably happened when he got on the radio to inform dispatch that he had made a stop and repeated the plate number out loud. He realized it didn’t match what he’d run.

    So, now what should he do? Just drive off and leave the citizen on the side of the road with no explanation? That’s kind of rude, at a minimum. He decided to explain his mistake.

    Which would be well and good except, oops, the driver had been drinking, which was readily apparent when the officer made contact to explain his mistake.

    So what’s your solution? What should have been done instead? Keep in mind, Jack is wrong. Registration offense are primary offenses. Always have been. An honest mistake was made. Honest mistakes will happen again. What is the officer supposed to do?

    • 0 avatar
      mx6er2587

      nothing different. The cop is not the issue in this case. It does however fall to the court to throw out any tickets/fines/violations that may have been levied against the driver.

      The Cop made an error and pulled someone over without proper cause. End of story. Without that proper cause everything that happens as a result of that needs to be dropped and thrown out. Otherwise you open giant loop holes were cops make “mistakes” every day and abuse their powers at will.

      The cop may have been acting in good faith but because he made the error the driver should have gotten off.

    • 0 avatar
      Summicron

      We keep a scanner on in my office. Every American citizen should have to log 12 hours listening time on one every year in 4 hour blocks centered on morning rush, evening rush, bartime. Then they’d have an idea of what you have to put up with.

    • 0 avatar
      gslippy

      If the cop discovers – even by happenstance – that the driver is intoxicated, he still has a duty to ‘protect and serve’. This means he ought to remove the driver from the road if he fails a roadside sobriety check.

      Consider what would happen to the cop if he lets the driver go and said DUI driver kills someone? How would that play on the news?

      If the driver can prove he was stopped in error, the judge should then throw out the evidence and let him go. And by then, the DUI menace to society has long since passed. So therefore, the 4th Amendment has been honored while still protecting the citizenry.

      • 0 avatar
        David Hester

        You and Mx6er in his post above are arguing for an absolutist vision of the exclusionary rule. That’s not how the exclusionary rule works, but let’s pretend for a second that it did.

        I make a mistake, such as fat- fingering the keyboard when entering a license plate, and initiate a traffic stop believing that I have probable cause to take enforcement action. Between the time I intiate the stop, or “detain” you, but before I make contact with you, I realize that I have made a mistake and that I don’t have the probable cause that I thought I did.

        First decision: I can just leave you on the side of the road without making contact with you and explaining the mistake. On the surface, that’s rude. Dig a little deeper and, if we’re taking an absolutist view of everything, and if I just stop you and then leave, with absolutely no explanation as to why I did so, have I not made an “unreasonable” seizure of your person? That’s not going to fly in a world of legal absolutes, so I need to make contact with you in order to explain my actions.

        I make contact, in order to explain my mistake, and discover another crime. In this case, it’s DUI. Maybe it’s something more nefarious, like the tied up cheerleader.

        You argue that I should still take action in this case, knowing that my initial probable cause for stopping you has evaporated and that under an absolutist interpretation of the exclusionary rule all of the evidence that I have observed after I discovered that my PC had evaporated will be excluded, wich will lead to any charges against you being dismissed. That’s not going to work. I would be making an arrest based upon evidence that I knew would be tossed out, which means I would essentially be making an arrest without any evidence, leaving myself and my department open to being sued for false arrest. I don’t have to wait for the courts to rule. I’m supposed to know what the rules are and apply them correctly at the beginning in my role as gatekeeper to the criminal justice system.

        Fortunately, the exclusionary rule is not absolute. It exists for a specific reason: to deter police misconduct, not to guarantee that a mistake is never made.

        • 0 avatar
          Nick 2012

          +1 Det. Hester.

          Courts still vigorously protect civil liberties. However, any system operated man must account for the failings of men. Also, those not involved in the justice system may not fully realize the import of the court’s “good faith” requirement. If “fat fingering” becomes a pattern or practice by the officer or department then there is no doubt appropriate civil and criminal penalties will be imposed against the officer/department.

          I’ve written drafts of appellate opinions tossing drug evidence and letting dealers walk free solely because an officer searched a bag a bit too soon when it would be abundantly clear to anyone that the guy was selling dope. In those cases, some hurl the exact inverse of many comments to this article (e.g. “liberal courts letting drug dealers go free!”). But the constitution always applies to everyone equally, regardless of race, immigration status, gender, etc.

          Also for every decision like the one Jack highlights, there is a counterpoint like this decision – http://weblive.ibj.com/lawyer/PDFs/2012/october/10191202par.pdf. (Summary: stoner driving slowly with turn signal on but never turning gets pulled over. Stop ruled invalid and pot suppressed)

          The contours of the 4th Amendment are always in flux. This decision could be overturned by the Wisconsin Supreme Court and in any event isn’t the law in the 49 other states.

          Keep things in perspective – jack booted agents are not about to kick in your door. Unless Jack Bauer comes out of retirement.

          • 0 avatar
            rwb

            “If “fat fingering” becomes a pattern or practice by the officer or department then there is no doubt appropriate civil and criminal penalties will be imposed against the officer/department.”

            There is certainly doubt in my mind about this.

    • 0 avatar

      Dave,

      How many traffic tickets have you issued to off-duty cops? What are your feelings about “professional courtesy”?

  • avatar
    -Nate

    Before carping as some here do , try living in a corrupt third world shytehole like I did ~ it changes your view quickly .

    -Nate

  • avatar
    stryker1

    “But it bears repeating that this fellow was not in the middle of plowing through an elementary school with a bottle of Wild Turkey in each hand and two feet jammed on the accelerator pedal.”

    Best. Album Cover. Ever.

  • avatar
    Larry P2

    Not one single cop signed either the Declaration of Independence or the constitution. Were the 4th Amendment put up to popular vote in today’s “Law and Order” intoxicated political climate, it would be defeated by gigantic, overwhelming majorities. I seriously doubt the Amendment would achieve even a 5 percent vote in favor. With the immense political clout and colossal financial firepower of modern, rapidly expanding Law Enforcement and its staunch opposition to the very concept that citizens have a zone of personal privacy, it would surely be rejected by historic huge majorities.

    On its face, and given the clear history of the vehement opposition American revolutionaries exhibited towards “General Warrants,” it is clear the Amendment requires a warrant issued by a detached magistrate in the overwhelming majority of cases. The founders would have never believed a cop could just stop someone for something so superficial as the above story and go on a wide-ranging search for something incriminating without a warrant. .

  • avatar
    OldWingGuy

    I am very disappointed in Mr. Baruth’s article. I don’t see the need to resort to insults (“Some dumb cop…”, “…80-IQ individual…”).
    I’m not a police officer, or related to a police officer, etc. My dealing with police has always been professional. These people have a very difficult job to do, and I think a little respect is due. You can make your point about the legality of search-and-seizure in much better way.
    In the future if Mr. Baruth phones 911 in an emergency, I hope he has the courage to explain to the operator that he would appreciate if “some dumb cop with an 80-IQ” could please come to his rescue. And I’m quite sure that even though Mr. Baruth was being a total jackass, that yes indeed, the police would respond in a professional manner.

    • 0 avatar
      CV Neuves

      Police Reject Candidate for Being Too Intelligent: http://nyletterpress.wordpress.com/2008/02/29/police-reject-candidate-for-being-too-intelligent/ (and a myriad of other sources).

      • 0 avatar
        David Hester

        The city involved in that bit of nonsense was New Haven CT. It wasn’t so much an issue of prejudice against smart people as it was the soft bigotry of low expectations against minority people. By using a cut off that threw out candidates who scored in the upper range of the assesment test they hoped to eliminate more white candidates and increase the percentage of minority candidates in the remaining pool. New Haven won this battle during the mid nineties and only got worse with the hijinks when it came to race based hiring. Their hiringand promotional practices eventually earned them a smackdown from SCOTUS in 2009 in Ricci v. Destefano.

    • 0 avatar
      burgersandbeer

      Have you read Jack’s writing before? This was pretty mild as far as his insults go.

      I think reading Jack’s articles is actually similar to watching an episode of Family Guy. Always hostile. Sometimes hilarious, sometimes over-the-top and not funny at all. Full of pop-culture references. The best episodes even have a worthwhile message. If you don’t like it, there is no need to get offended. It isn’t personal; no one is safe from the venom. Just change the channel.

      I thought this story was hilarious and excellent comment bait. I actually find myself sympathetic to both sides of this argument, and found the comments worth reading. Bonus points to TTAC for having a LEO commenting as well.

  • avatar
    Hoser

    So all a cop has to do is screw up a plate and it’s probable cause?
    O:”28 on J uhh TY 551″
    D:”That’s a red 81 Chevette, expired 1 of 2002″
    O:”Doesn’t match the description, I’ll be out on traffic at First and Main with a late model blue F150.”
    O:”Driver is 10-55, no proof of insurance, drug paraphernalia and oh, and the license plate was J eye Y 551″
    D:”JIY 551 comes back on a blue 2012 F150, expires 8 of 13, RO is valid and 10-74″
    O: “Whooopsie! I’ll be 10-95 to jail.”

  • avatar
    dwford

    So, a police officer responds to an address for a complaint, and as he rings the doorbell he realizes he is at the wrong address. Rather than wander off, he waits for the owner to come to the door, and while he waits, he notices through the window the owner beating his wife. When the owner answers the door, the police officer is supposed to say “sorry, I’m at the wrong address, please continue beating your wife?” I would expect if the police stumble across a crime that they would handle it, not ignore it because they weren’t supposed to be there. I doubt this ruling will open the door to the police randomly stopping citizens driving any more than it would encourage the police to ring random doorbells looking for crimes.

    • 0 avatar

      I think there’s a difference between an officer stumbling on a scene of domestic violence and an officer insisting to investigate a wrong address because, let’s say….he suddenly detected an odor of marijuana coming from inside of the home.

  • avatar
    Larry P2

    Cops DO pull people over for no reason, and I have a personal experience I want to share about that. I bought/traded for a real beater of a 1984 Ford F-150 with the storied 300 6 (I still have it 8 years later, and would not hesitate to jump in it and drive it cross country). Little did I know that the prior owner had spent numerous stints in prison for drug dealing (he was a seedy looking character so I should have been on notice). He had paid his license plates up for six months, so I just left them on without transferring them to my name until they expired. What an eye opener!

    I got stopped by the police so often in that pickup, they I actually started taking notes and video taping these dishonest thugs in action. Once I got stopped six times in one day. They would always approach with guns drawn, and would always call for backup. Upon finding out that I was the driver and the real reason for the stop evaporated (which was obviously from running the plates and finding out the prior owner’s numerous drug convictions), I was given the following lame excuses for the stop. I sometimes exploded with laughter when the cops offered up the following. They knew that I knew that they were lying, but felt obligated to lie anyway:

    - “Your truck needs a full width mudflap if the rear differential is visible from behind;”

    - “Your trailer hitch ball obscures the license plate;”

    - “Your license plate light is burned out”

    - “Your front license plate is only held on with two screws. It needs four”

    - “Your F-150 emblems have fallen off so I was doing a registration check”

    - “You were driving two miles per hour under the speed limit”

    The cop in the story, in my opinion, clearly perjured himself on the stand, so the real moral of the story is far more sinister. You have to hand it to him, that was a real whopper.

    • 0 avatar
      28-Cars-Later

      I’d blame the courts for failing to uphold the perjury law. There are plenty of gray area cops and crooked departments running scams that the court’s wont chase down, but perjury is one of those actual crimes they should prosecute.

      I could see a magistrate not disagree with everything on there save maybe the emblem one (although running registration for any random reason would prob pass muster) and this:

      “Your truck needs a full width mudflap if the rear differential is visible from behind”

      No government on the planet could have a DOT reg stating this, its just too ridiculous.

    • 0 avatar
      -Nate

      Yeah ;

      I know this routine too ~ back in the early 1970′s , I’d be out just driving ’round L.A. well past midnight in my old hooptie and get pulled over by our finest and they too , always used full felony stop procedures until they saw who was driving the car and they’d say something like ” hey partener ! this guy isn’t black and 7′ tall ! ”

      Then they’d sheepishly laugh and ask me if I was by any chance , armed and dangerous ? .

      In time , the a$$hat who lived maybe two miles from my house and had the *exact* same name , got himself shot to death but for most of the 1970′s , I never flinched because I didn’t want to get shot by mistake .

      My point is : armchair quarterbacking is fun for you boobs who have no real clue but if you’re *so* paranoid about The Men In Blue and our duly elected Government , maybe you should leave America .

      -Nate

  • avatar
    Slocum

    This ruling will make absolutely no difference because cops *already* pull people over whenever they feel like it. Twice, in recent years, I’ve been in a car that was pulled over for imaginary ‘crossing the center line’ infractions. Both times were on a weekend night — the cops were clearly ‘fishing’ for drunk drivers.

    About the only possible defense for this BS is to install your own dashcam so you can prove the cop was lying. That’s very common in Russia, BTW — that’s why there were so many amateur videos of that meteor a couple of months ago. As TTAC readers already know:

    http://www.thetruthaboutcars.com/2013/02/cameras-bought-to-catch-corrupt-cops-nab-meteorite/

    • 0 avatar
      truffle_shuffle_steer

      Jack,

      I’m 100% with you on this. Anyone who thinks the US legal system is functioning needs to open their eyes.

      From Wikipedia:
      “The incarceration rate in the United States of America is the highest in the world. As of 2009, the incarceration rate was 743 per 100,000 of national population (0.743%).[2] In comparison, Russia had the second highest, at 577 per 100,000, Canada was 123rd in the world at 117 per 100,000, and China had 120 per 100,000.[2]”

      Our legal system is completely out of control.

  • avatar
    George B

    Solution: Dashcam Video. In places where you can’t trust police to follow the law, you can at least record what really happened.

    http://www.vice.com/read/the-insane-world-of-russian-dash-cam-videos
    “In Russia, the highways are icy, the drivers are drunk, the police like to extort motorists at random, insurance companies will cheat you whenever possible (sound familiar?), and road rage is, well, all the rage. As a result, drivers buy dashboard cameras—or dash cams—to record their traffic accidents and altercations, providing undeniable proof for the courts or their insurance company.
 At the very least, having a dash cam lowers your insurance rates. At the very most, it can save you a lot of money in an accident or a lawsuit.”

    • 0 avatar
      burgersandbeer

      Are these dash cams always uploading to a server through a data connection? Why wouldn’t corrupt police simply take the dash cam and destroy the media?

  • avatar
    vww12

    Good post, Jack.


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