Police Error Is A Primary Offense Now

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.