Probable Cause to Stop Vehicle - ESTIMATE OF SPEED w/out Radar or Pacing 2012
Probable Cause to Stop Vehicle - ESTIMATE OF SPEED w/out Radar or Pacing 2012
Visual Estimate of Speed - LACK OF PROBABLE CAUSEpolice lacked probable cause to initiate a traffic stop based exclusively
on an officer's visual estimate--uncorroborated by radar or pacing and unsupported by any other indicia of reliability
4th Amendment - Vehicle Stop - Legal StandardThe Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "When a police officer stops an automobile and detains the occupants briefly, the stop amounts to a seizure within the meaning of the Fourth Amendment." United States v. Digiovanni, 650 F.3d 498, 506 (4th Cir. 2011) (citing
Whren v. United States, 517 U.S. 806, 809-10 (1996)). "[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable." Wilson v. Arkansas, 514 U.S. 927, 931 (1995); see also Whren, 517 U.S. at 810 ("An automobile stop is thus subject to the constitutional imperative that it not be 'unreasonable' under the circumstances.").
Probable Cause - DefinitionProbable cause exists
if, given the totality of the circumstances, the officer "had reasonably
trustworthy information . . . sufficient to warrant a
prudent [person] in believing that the petitioner had committed
or was committing an offense." Beck v. Ohio, 379 U.S. 89,
91 (1964); see also Porterfield v. Lott, 156 F.3d 563, 569 (4th
Training: Estimating Speeds or Using a Radar?it was clear error for the district court to find that
Deputy Elliott was "trained to estimate speeds." J.A. 121.
Contrary to this finding, the record indicates that Deputy
Elliott was trained to use a radar unit. Rather than being
"trained to estimate speeds," Deputy Elliott was given the
opportunity to "guess" the speed of twelve vehicles and, in
doing so, he demonstrated the proficiency of guessing within
a total margin of error of 42 mph for all twelve of those vehicles.
There was no testimony or evidence that Deputy Elliott
received any specialized training in the estimation of vehicle
speeds. In fact, Deputy Elliott's testimony confirmed that he
used absolutely no technique or method to visually guess
Four Feet = 1 YARDTHE COURT: And how many feet are in a yard?
[Deputy Elliott]: How many feet? There's 12 feet in
THE COURT: Well, do you know what a yardstick
[Deputy Elliott]: Yes, sir.
THE COURT: How many inches in a yardstick?
[Deputy Elliott]: Well, on a yardstick there's 12
inches. Well, it depends on the yard stick that . . .
THE COURT: Use your hands to indicate a yardstick.
[Deputy Elliott]: A yardstick is about that long (indicating).
THE COURT: All right. And how many inches are
THE WITNESS: Four foot in a yard.
Speeding - Prima Facie EvidenceState v. Estes, 223 P.3d 287, 290-91 (Idaho
Ct. App. 2009) (holding that certified officer's visual speed
estimate was insufficient to convict defendant of speeding,
where officer's testimony failed to reveal precise accuracy
rates and margin of error for his visual speed estimates during
Clear Error of District CourtSecond, it was clear error for the district court to find that Deputy Elliott's "difficulty with measurements is immaterial to his estimate of speed as that did not depend on time or distance." J.A. 121. This finding rings in the absurd because one cannot discern a speed of a vehicle measured in miles-per- hour without discerning both the increment of distance trav- eled and the increment of time passed. Indeed, the very defini- tion of speed derives from the mathematical formula of distance divided by time. See, e.g., Warboys v. Proulx, 303 F. Supp. 2d 111, 116 n.6 (D. Conn. 2004) ("To calculate average speed, one divides the distance traveled by the time it took to travel this distance. [distance ? time = speed . . .]"). This Court may properly take judicial notice of this formula. See, e.g., Ballantine v. Cent. R.R. of New Jersey, 460 F.2d 540,
543 (3rd Cir. 1972).6
Reasonableness under Fourth Amendmentthe Fourth Amendment does not allow, and the case law does not support, blanket approval for the proposi- tion that an officer's visual speed estimate, in and of itself, will always suffice as a basis for probable cause to initiate a traffic stop. Instead, for the purposes of the Fourth Amend- ment, the question remains one of reasonableness. Critically, and as further explained below, the reasonableness of an offi- cer's visual speed estimate depends, in the first instance, on whether a vehicle's speed is estimated to be in significant excess or slight excess of the legal speed limit. If slight, then additional indicia of reliability are necessary to support the reasonableness of the officer's visual estimate.9
High Speed = Greater Level of Objective Reasonablenesswhere an officer estimates that a vehicle is traveling in significant excess of the legal speed limit, the speed differential--i.e., the percentage difference between the esti- mated speed and the legal speed limit--may itself provide sufficient "indicia of reliability" to support an officer's proba- ble cause determination. See, e.g., United States v. Banks, No. (finding reasonable suspicion where officer "estimated vehi- cle speed [was 45 mph in a 30-mph zone, which was] signifi- cantly higher than the posted speed limit and, as a result, a difference that would be discernable to an observant and trained law enforcement officer"); cf. People v. Olsen, 239
N.E.2d 354, 355 (N.Y. 1968) (holding officer's visual speed estimate of vehicle traveling 50-55 mph in a 30-mph zone suf- ficient to support speeding conviction).
Closer to Limit = Subject to Stricter Scrutiny Iwhere an officer estimates that a vehicle is trav- eling in only slight excess of the legal speed limit, and partic- ularly where the alleged violation is at a speed differential difficult for the naked eye to discern, an officer's visual speed estimate requires additional indicia of reliability to support probable cause. See United States v. Moore, No. 10 Cr. 971 (RJH), slip op. at *6 (S.D.N.Y. Dec. 19, 2011) (finding that stop was unsupported by probable cause and explaining that, absent an officer's estimate that a vehicle is traveling "signifi- cantly in excess" of the legal speed limit, "courts will credit an officer's testimony regarding firsthand observation of a speeding vehicle if additional, specific details of his or her account confirm that the officer's observation and belief were reasonable"); cf. City of Kansas City v. Oxley, 579 S.W.2d
113, 116 (Mo. 1979) (holding that officer's uncorroborated opinion evidence of defendant's 45-mph speed in a 35-mph zone was. . .
Closer to Limit - Subject to Stricter Scrutiny IIinsufficient evidence to allow trier of fact to find that defendant was speeding); Olsen, 239 N.E.2d at 355 ("[A]bsent mechanical corroboration, [testimony] that a vehi- cle was proceeding at 35 or 40 miles per hour in [a 30-mph] zone might for obvious reason be insufficient [to sustain a conviction for speeding], since it must be assumed that only a mechanical device could detect such a slight variance with [sufficient] accuracy."); State v. Kimes, 234 S.W.3d 584, 589 (Mo. Ct. App. 2007) ("[W]here an officer's estimation of speed is 60 m.p.h., a fact-finder cannot conclude with any degree of certainty that a defendant was exceeding a 55 m.p.h. speed limit because the accuracy of human estimation of speed cannot easily, readily, and accurately discriminate between such small variations in speed."); Peoples Drug Stores v. Windham, 12 A.2d 532, 537 (Md. 1940) ("[A]n esti- mate is necessarily approximate and not exact for without mechanical aides it is manifes
Closer to Limit - Subject to Stricter Scrutiny IIImanifestly impossible for any one . . . to estimate precisely the speed of a moving object, and that fact is assumed by every one possessing ordinary common sense.").
Rebuff to DissentNotwithstanding the dissent's protestations, the sky will not fall as a result of today's majority decision.15 According to the dissent it is "[i]ronic[ that] while a lay person can estimate the speed of [ ] a vehicle based upon his or her personal observa- tions, an experienced and trained police officer no longer can." Post at 26. But the irony, if any, of the dissent's com- parison is lost when one recognizes that lay persons do not use their estimates to stop vehicles on public highways. Because police officers do stop vehicles, their estimates must satisfy the Fourth Amendment's probable cause requirement.
Rebuff to Dissent IINext, the dissent contends that "the majority completely invalidates the road test North Carolina has employed for its traffic officers to demonstrate their ability to estimate the speed of cars." Post at 52. Setting aside that it is wholly unclear why such a policy consideration would have any rele- vance to a Fourth Amendment probable cause analysis, today's majority opinion makes no such holding that invali- dates North Carolina's radar certification test for its intended purpose: namely to instruct officers on the use of radar instru- ments.
Additional resources provided by the author
- North Carolina Traffic & Criminal Law Information
- Sowards - Fourth Circuit Opinion
- North Carolina Constitution
- Criminal Defense Lawyers in North Carolina
- Should I go to Court Alone?
- North Carolina Traffic Violations Help - Carolina Attorneys
- Criminal Defense "Lawyer of the Year" Charlotte NC 2017 - Best Lawyers - Criterion for Inclusion
- Listen to Law Talk with Bill Powers - What To Do When You Receive a Traffic Ticket in North Carolina