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4/25/2014
Federal Court Finds Upright Driving, Acne Suspicious
Good posture while driving can contribute to reasonable suspicion that a driver is smuggling illegal aliens, federal appeals court finds.

Judge Scott M. Matheson JrDriving with good posture, with hands at the classic ten and two position on the wheel, is sufficient reason to pull over a driver with a bad complexion, according to a ruling handed down Thursday by the Tenth Circuit US Court of Appeals. A unanimous three-judge panel approved the Border Patrol's April 18, 2012 stop and search of a motorist who happened to be nervous when pulled over.

Border Patrol Agent Joshua Semmerling saw the white Ford F-150 pickup truck being driven in the opposite direction on Highway 80 in New Mexico, about 40 miles from the border with Mexico. It was 7:45pm, a time the Border Patrol agent found suspicious. The truck had an Arizona plate on the back and tinted windows, but its driver, Cindy Lee Westhoven, violated no traffic laws. Instead, Agent Semmerling noted she had "stiff posture" and hands "at a ten-and-two position on the steering wheel" so he decided to do a U-turn and pursue.

A registration check showed the truck was registered to a Lawrence Westhoven in Tucson, which suggested to the officer that Westhoven was either smuggling illegal aliens or drugs. He hit his emergency lights and forced her to pull over. Agent Semmerling testified that he believed Westhoven must have been a methamphetamine addict after he noticed she had acne. Agent Semmerling ran Westhoven's license, and it came back with no warrants, but he continued the stop.

"I thought you were going to let me go," Westhoven told the Border Patrol agent. "Do you think I'm hauling illegal aliens?"

The agent asked to search the vehicle, but she refused to give him permission. Westhoven was ordered out of the truck so a drug dog could sniff it. She was told she was not under arrest but that she was being detained. Twenty minutes into the stop the drug dog arrived and alerted, revealing marijuana. Westoven's lawyer pointed out that the federal agent's story sounded fishy.

"Agent Semmerling contends that he noticed in passing the vehicle that it had an Arizona license plate," attorney Bernadette Sedillo told the district court. "The F-150 does not have a front license plate so Agent Semmerling would have had to observe the rear license plate in the rear view mirror traveling the speed limit of 60 miles per hour."

Sedillo added that there was no reason to continue the stop after Westhoven provided her license, which proved she was a US citizen. The appellate panel was not convinced, finding the totality of circumstances suggested that Westhoven was transporting illegal aliens over the border.

"Driving stiffly, having tinted windows, slowing down when seeing law enforcement, and driving in an out-of-the-way area may be innocent conduct by themselves," Judge Scott M. Matheson, Jr wrote for the appellate panel. "But when taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity."

The appellate court rejected Westhoven's motion to suppress the evidence. A copy of the decision is available in a 150k PDF file at the source link below.

Source: PDF File US v. Westhoven (US Court of Appeals, Tenth Circuit, 4/24/2014)



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