Sean Sowards was cruising along Interstate 77 in western North Carolina one day, heading home to Ohio after visiting Atlanta. Probably had some good tunes going.
He was pushing the speed limit just a little, which was 70 mph for that stretch of highway.
Sowards passed an area where Deputy James Elliott was waiting, a bear in the grass. He had placed his car at an angle that purposely prevented him from using his radar system.
Elliott watched Sowards go by and said to himself, that car is going 75 in a 70 zone. Cue the flashing blue lights. Elliott pulled Sowards’ car over.
The officer asked who owned the car. Sowards said his girlfriend, Deanna, but he didn’t really know her last name. A records check, however, showed the owner lived in Georgia.
Sowards started sweating profusely. He had a pre-paid cell phone, the officer noticed, probably thinking to himself, hmm, potential drug runner.
With Elliott was his faithful drug dog, Ringo. Elliott asked Ringo to sniff the outside of the car.
After getting a whiff outside the trunk, Ringo barked, “Bingo!”
Inside, Elliott found laundry detergent, often used to mask the scent of drugs, and, you guessed it, about 10 kilograms of cocaine. Sowards was busted and taken to jail, charged with possession.
Can a cop do that? Can he justify a car stop just because he looked at it and said, “Gee, that vehicle is travelling five mph over the speed limit”?
No, said a split panel of the 4th Circuit Court of Appeals last week. The case of U.S. v. Sowards (VLW 012-2-140) features a pretty testy back-and-forth between Judge James A.Wynn Jr., who wrote the opinion, and Chief Judge William B. Traxler Jr., who filed a 27-page dissent.
Elliott comes across as Barney Fife in Wynn’s view. Traxler makes him look like an officer-of-the-year candidate.
Wynn quoted several passages from the trial transcript that indicate that Elliott had some problems with distances. He said he watched Sowards’ car for about 100 yards until it passed him:
Q:[Government lawyer] And how many feet are in a hundred yards?
A: [Elliott]: There’s 12 feet in a yard.
Q: So 300 feet?
OK, he wasn’t a math scholar. The judge wanted to push this line of inquiry further.
Q: [Judge]: Do you know what a yardstick is?
A: [Elliott]: Yes, sir.
Q: How many inches in a yardstick?
A: Well, on a yardstick there’s 12 inches. Well, it depends on the yard stick that … you have.
Defense counsel asked how he knew the car was going 75 in the 70 zone. Elliott responded, “My training and experience.”
Despite the math issues, the trial judge said the officer had probable cause to stop the car, based on his training to estimate speeds.
Hogwash, said Wynn, joined by Judge Roger L. Gregory. Elliott is trained only on how to run a radar unit, Wynn wrote. His training on estimation is education on how to guess. He guessed the car was speeding, and he did not use any of the accepted corroborating methods. He didn’t use his radar gun. He didn’t drive behind the suspect car and pace it with his own vehicle. Nothing more than eyeballing to support the stop. And that won’t do, they said.
The majority slammed home the point in a footnote: “The dissent has not cited – nor have we found – a single case issued by any court at any time, whether state or federal, finding probable cause exists to initiate a traffic stop for speeding on the sole basis of an officer’s unaided visual estimate that a vehicle was exceeding the speed limit by five mph or less.”
Cocaine suppressed. The court reversed the conviction and sent the case back to federal court in Statesville, N.C.
Traxler, in dissent, cited the 10 years of service Elliott had logged with the force and marched through the police course designed to train officers on estimation. And he pulled out all the facts that made Sowards look a bit sketchy. Sowards didn’t contest that he was speeding and he didn’t present any contradictory witnesses at the trial. Traxler would have affirmed.
Given the sharp tone of the discussion – which has been escalating in recent years in cases from the 4th Circuit – this one might be heard en banc.
As for Ringo, he missed his star turn. Sowards also was ready to fight the open-air dog sniff, claiming that Elliott lacked the necessary reasonable suspicion to deploy the pooch.
But the court said, we’re kicking the case on lack of probable cause and don’t need to consider the dog’s search.
Ringo will have to wait for another day.