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The eyes have it: 4CA upholds ‘visual speed’ estimate

It’s a tale of two traffic stops.

On June 26, the 4th U.S. Circuit Court of Appeals threw out a traffic stop based on an officer’s eyeballs-only estimate of a driver’s speed in the case of U.S. v. Sowards. But last Friday, the appellate court upheld a search – same North Carolina district court, same judge, same interstate highway – after officers used the same no-tech method to clock a car’s speed.

It’s true, in the earlier case, U.S. v. Sowards, the officer was “to put it mildly, measurement-challenged,” the appellate panel said. The deputy testified there were 12 inches on a yardstick, and the number of inches on a yardstick depended on the yardstick.

This time around, the officers got it right in U.S. v. Mubdi, shoring up their visual estimates that Mubdi was traveling from 63 to 65 mph in a 55-mph zone with evidence that their radar certification training required visual estimates of vehicle speed within a narrow margin of error.

The appellate court found other commonalities in the two cases. The officers in Mubdi had positioned their marked police cruisers perpendicular to the highway and near an exit. Because of the angle at which they were parked, they were unable to verify their estimates with radar equipment, according to the majority opinion in Mubdi. The deputy in Sowards also parked his cruiser in that odd-angle-for-radar position.

And in Mubdi, the officers apparently chose “an optimal location” for their visual estimate exercise, near a particular stretch of highway where the posted speed limit progressed from 55 mph, to 60 mph and then 65 mph, according to a concurring opinion by Judge Andre Davis.

Davis went along with the result in Mubdi, upholding convictions for the drugs and guns found in the rental car because the officers also could support the traffic stop with their observation that defendant violated a statute prohibiting “following too closely.”

But Davis also mentioned the “depressing sameness” of traffic-stop cases and the difficulty of wrestling with the role that constitutionally permissible “pretextual” traffic stops play in ordinary, probable-cause Fourth Amendment analysis.

The Sowards case “laid down an important marker that there are indeed limits to the scope of law enforcement creativity,” Davis said. He could not find any “material difference in outcome” between the two cases on the issue of uncorroborated visual speed estimates, and did not join the majority holding on this point.
–Deborah Elkins

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