Publisher's Notebook

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?
A: Correct.

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.

The emergency dispatcher must have done a double-take at this one: The frantic caller said that a vehicle carrying two dogs — and no humans — had just gone through an intersection and struck a tree.

Were the pooches behind the wheel? Were they escapees from some pound making a getaway? Robbers on the lam after knocking over a butcher shop?

None of the above, reports the Richmond Times-Dispatch.

The dogs were passengers in the car. Their owner parked her car at South Richmond convenience store and apparently didn’t put the brake on.

The car rolled across a parking lot, through an intersection and hit a tree. When cops arrived, the dogs were OK, which was good news for the owner. More good news: The cops won’t be filing any charges against her.

Maybe we need to update last August’s feature on “Dog Law: A Legal Salute to Man’s Best Friend.” That piece examined what happens when Bowser shows up in case law, statutes and lawsuits.

This past week, we hit a Dog Law trifecta, with three different items making the news.

Domesticated Animal Relations

The case of Whitmore v. Whitmore (VLW 011-7-068) may be the closest the Virginia Court of Appeals ever has come to a dog custody case. In an unpublished opinion, the court wrote that husband appealed the court’s award of the family dog, a Welsh Corgi, to the wife. The court had awarded the man $750, the cost of the dog.

The guy filed 13 different assignments of error and was turned down on every one.

The court’s opinion could easily substitute the word “children” for “dog” in the way it refers to the animal. The parties discussed with whom the dog would live. Both parties “contributed to the care, training and maintenance of the dog.” The wife paid the dog’s $4,000 doctor bill and visited it in the hospital when it was sick and laid up for five days; the husband didn’t visit. The wife engages doggy day care when she travels, hiring a service to walk and care for the pooch.

And the husband actually argued the court failed “to consider the best interests of dog” in its decision.

The trial court noted the evidence showed the wife provided “a stable and caring environment.” The appeals court said there was no reason to overturn the decision to give her the dog and the husband money to go buy a new pet.

Homeowners’ association antics

The Hillbrook-Tall Oaks Civic Association, which serves a neighborhood in Annandale, elected a political newcomer as its association president recently…a shaggy white dog named “Ms. Beatha Lee.”

Perhaps residents were confused by the name, which could be human, but the truth is, no one else stepped forward to claim the job, according to the Washington Post.

The pooch belongs to Mark Crawford, who served three terms as president and couldn’t run again, according to the by-laws. He is now vice-president, serving under his pet.

The by-laws require the president to be a resident (she’s OK there) but they don’t actually state that the leader must be a human. Others in the neighborhood apparently are reassessing their willingness to get involved for the next time elections are held.

As for Ms. Beatha, the Post reporter asked how she was going to fulfill the presidential duties such as running meetings and co-signing checks. “Well,” Crawford said, “she delegates a lot.”

Here’s the scoop

The Virginian-Pilot’s headline Wednesday wasn’t elegant, but it got right to the point: “Dog poop slip-and-injure case against PetSmart settled.”

A man from Poquoson visited a PetSmart store where, apparently, a pet hadn’t been smart. A dog had done its business in an aisle, the guy stepped in it and slipped. He fell hard against his companion, his daughter, and hurt himself. “The dog feces in question was not open and obvious,” he told The Pilot. Good coaching there, whoever his lawyer was.

He had to have back surgery and sought a million bucks from PetSmart, which settled the federal lawsuit for an undisclosed amount.