Monthly Archives: November 2012

West Virginia: Traffic Stop Cannot Be Used to Justify Home Search

Police may not use a traffic stop as a pretext to enter a man’s “crib,” a federal judge ruled last week. US District Judge Irene M. Keeley last week adopted the findings of a federal magistrate overturning the evidence a Morgantown police officer obtained by following a West Virginia man, Samad Harvey, into his home. Harvey had been one of three black men in a silver Jaguar stopped by Officer Kenneth Walker Murphy on University Avenue at around 9:45pm on December 16, 2010. “My original reason for the stop was because there was no registration,” Officer Murphy testified. The vehicle, in fact, was properly registered. A New Jersey temporary registration card was visible in the rear window, as required by that state’s law. Even after he saw the valid registration, Officer Murphy believed it was illegal to drive without a license plate. Under a New Jersey law in effect at the time, the temporary tag “shall be carried in the cab of the vehicle” (New Jersey has since switched to the use of temporary paper plates). Judge Keeley found display in accordance with New Jersey law violated West Virginia law and a city ordinance. “In the circumstances of this case, the placement of the registration in the rear window of the vehicle rendered it not ‘clearly visible’ under Morgantown City Code Section 351.03, and Officer Murphy was justified in pursuing the normal incidents of the traffic stop,” Judge Keeley wrote. As the traffic stop proceeded, Officer Murphy questioned the Jaguar driver, Rashawn Billingsley, who was not carrying his driver’s license. Three other officers arrived on the scene, and they agreed that they smelled marijuana. The Jaguar and its three occupants were searched. A bong was found in the trunk. Officer Jason K. Ammons asked Harvey, a passenger, for his license. “My ID is in my crib,” Harvey responded. Officer Ammons ordered him to go into his house, which was nearby, to retrieve his identification. Ammons followed him into the house. Harvey’s lawyer insisted this created the opportunity for a search in violation of the Fourth Amendment. “When Officer Ammons followed Mr. Harvey into the residence without consent, he reportedly smelled marijuana and saw a Rice-a-Roni box ‘that was open and had a blunt and a plastic bag sticking out of it,’ while Mr. Harvey located his identification,” public defender L. Richard Walker argued. “A so-called police ‘escort’ of a citizen who is not under arrest or detained, without any type of consent or permission, is not an accepted, valid exception to the warrant requirement.” On the basis of what he saw, Officer Ammons decided to obtain a search warrant, and a subsequent search uncovered a .22 pistol. Prosecutors argued Officer Ammons was justified walking into the home because by not stopping Ammons, Harvey gave implied consent. The argument failed to persuade the court. “Notably, the government has cited to no case stating that consent to search can, in the first instance, be inferred solely from the silence of a defendant who was never asked,” Judge Keeley ruled. “Rather, the weight of authority holds that the government may not show consent to enter from the defendant’s failure to object to the entry. To do so would be to justify entry by consent and consent by entry.” With the evidence suppressed, the state no longer has a case against Harvey. A copy of the ruling is available in a 90k PDF file at the source link below.
Source: PDF File US v. Harvey (US District Court, Northern West Virginia, 10/25/2012)

Study Admits Yellow Times Too Short at Intersections

A report by state transportation officials released last week tacitly admitted drivers are being shortchanged when the light at an intersection turns yellow. The National Cooperative Highway Research Program (NCHRP) released its guidelines on how municipalities can best time their signals for safety. The net result is that most intersections would see yellows extended by roughly half-a-second if the recommendations were adopted.

Signal timing has become a highly political issue due to lobbying by the National Motorists Association and the 2001 release of a report on the issue by the US House Majority Leader (view report). Various changes to the signal timing formula and other techniques have been used so that yellows are roughly one second shorter in the current Institute of Transportation Engineers (ITE) formula compared to what the prior formula used in 1976 generated. The states of Ohio and Georgia responded in the past three years by enacting laws mandating an extra second of yellow, resulting in a documented reduction in red light running. The NCHRP report admits the benefit of longer yellows.

“Increasing the yellow change interval to the duration calculated by current ITE guidelines has been shown to reduce red-light running occurrences between 36 and 50 percent,” the report explained.

As the report detailed, there is no one standard system for determining yellow timing. Some states, such as Virginia, mandate the ITE methodology for intersections that have red light cameras. Other states spell out minimum standards in their regulations as codified in their state Manual on Uniform Traffic Control Devices (MUTCD). California, for example, says a 30 MPH intersection must have a yellow of no less than 3.2 seconds. A specific provision of California’s red light camera law reminds traffic engineers that they may implement longer yellows, but not shorter yellows. Other states use a rule-of-thumb where the yellow duration is determined by dividing the speed limit by 10, so that a 30 MPH intersection has a 3.0 second yellow. The appendix of the new NCHRP report suggests the same 30 MPH intersection should have a 3.7 second minimum yellow time. For a 40 MPH intersection, California’s minimum is 3.9 seconds, the rule-of-thumb is 4.0 seconds while NCHRP suggests it should be no less than 4.5 seconds.

NCHRP has not modified the current ITE formula to arrive at these figures. Instead, the researchers concede municipalities do not measure the actual speed of traffic when deciding how much time motorists need to stop safely when approaching an intersection. Instead, local engineers commonly plug the posted speed limit into an equation that needs the “85th percentile” speed to work properly. The 85th percentile is a measure of how fast at least 85 percent of traffic is flowing. The researchers also concede that traffic engineers tend to deliberately post speed limits far below the actual speed of traffic. This results in yellow times that are too short, as the researchers documented by studying actual intersections.

“For 3,632 vehicles sampled, the mean approach speed typically exceeded the speed limit at locations with a posted speed limit of 35 mph and below,” the report determined. “However, at nearly all locations, the 85th percentile approach speed was found to exceed the posted speed limit… Therefore, speed limit in itself does not provide an accurate estimate of 85th percentile speed.”

To remedy this, NCHRP recommends calculating yellow times at by adding 7 MPH to the posted speed limit to more closely approximate the actual speed of traffic. The NCHRP research was conducted by the Transportation Research Board of the National Academies and sponsored by the American Association of State Highway and Transportation Officials in cooperation with the Federal Highway Administration.

An excerpt from Appendix A of the report appears in a 650k PDF file at the source link below.

Excerpt: Guidelines for Timing Yellow and All-Red Intervals (National Cooperative Highway Research Program, 10/28/2012)

Red Light Cameras Become Hot Campaign Topic in Texas Town

Red light camera proponents on League City, Texas city council are targeted for defeat by photo ticketing opponents.

Three city council seats are up for grabs in League City, Texas and the candidates are lining up in opposition to the use of automated ticketing machines. The Houston suburb is one of five municipalities in which voters today will have an opportunity to ban or recommend a ban on the use of automated ticketing machines.

A League City resident attempted to circulate an immediate ban on the use of red light cameras on the November 6 ballot, and city leaders responded by proposing their own camera ban initiative that would only take effect in 2014 after the contract with Redflex Traffic Systems runs out. Redflex filed a lawsuit in an attempt to block the measure from coming before voters. Councilman Mick Phalen, a vocal supporter of keeping that contract, is looking to defend his council seat against challenger Heidi Thiess.

“So far we, our community, have been fined $5 million by Redflex, a company out of Australia,” Heidi Thiess said during a city council meeting in August. “We now know that accidents are up two-thirds… So if Redflex would like to go to the mat with us and say that they have made our intersections safer, I beg to differ. I urge you stand strong against this company from Australia that’s trying to come and tell us what we may and may not vote on in our community.”

Accident data suggest (view statistics) the cameras have failed to reduce accidents in League City. That is one of the reasons camera foe Geri Bentley is looking to oust incumbent Councilman Phyllis Sanborn, the last remaining council member who voted in favor of the red light cameras.

“I believe that we should be more concerned with League City residents’ safety and less concerned about lining the pockets of select individuals who work with and for Redflex,” Bentley wrote on her campaign website. “The voters should have the ultimate decision.”

Todd Kinsey opposes red light cameras and is seeking an open council seat. Calling the red light camera program a “cash cow,” Kinsey said he early voted late last month, casting a “yes” vote in favor of the red light camera ban.

“Many people are saying this is the most important election in our lifetime,” Kinsey wrote. “While that may be a slight exaggeration it is certainly the most important election since Reagan defeated Carter.

Byron Schirmbeck, director of League City Camera Scam believes League City’s traffic camera vendor has already conceded the election.

“I don’t think Redflex has done anything to influence the vote down here, I haven’t heard about any mailings and I haven’t seen any signs up,” Schirmbeck told TheNewspaper. “I guess we will see how big the ‘wide circle of friends’ Redflex sales manager and League City resident Lee Buckels has on election night.”

Last year, Dennis OKeeffe won a council seat by running on a “no red light cameras” platform.

Colorado: Court Endorses Handcuffing of Innocent Motorists During Robbery Search

Judge rules search for bank robber in Aurora, Colorado justifies holding 29 innocent motorists at gun point for nearly two hours.

Police in Aurora, Colorado did nothing wrong when they handcuffed dozens of motorists and held them at gunpoint for an hour and forty-five minutes, according to a ruling issued last month. US District Court Judge William J. Martinez refused to play the role of a Monday morning quarterback in deciding whether the controversial mass detention violated the Fourth Amendment rights of drivers who had been going about their business on a Saturday afternoon.

On June 2, police were responded to the robbery of a Wells Fargo Bank. A masked man waved a gun in one hand and an air horn in another, ordering customers to get down on the floor as he scooped stacks of cash into a bag. He walked out, but a GPS tracker on the money revealed his location within a thirty-foot radius. Police had a better scanner that could narrow the range to five feet. Officers noticed at around 3:52pm that day, the signal showed the robber had stopped on Greenwood Drive, but they did not respond before he began moving again three minutes later. At 4pm, Officer Kristopher McDowell followed the signal to the intersection of Iliff Avenue and Buckley Road and order all twenty cars in the vicinity to stop. Thirty more officers soon arrived.

Twenty-nine drivers and passengers were ordered to remain in their cars without moving, holding their hands outside the window of their cars while officers trained their guns on them. At no point was anyone allowed to use a restroom, contact families or tend to young children in the backseat of vehicles. Nobody was informed about the reason they were being detained.

At first, only a few were ordered out of their vehicles with their hands up at gunpoint. Police noticed one of them, Christian Paetsch, who turned out to be the prime suspect, was seen making furtive motions within his Ford Expedition SUV. An hour into the stop, the handheld GPS unit was brought to the Expedition where it gave the strongest response of any car in the area.

At this point, occupants of seventeen other cars were ordered out using “high-risk” techniques that left all adults not traveling with children handcuffed at gunpoint. By 5:28pm, Officer Alfred Roberson looked through the Expedition’s window and saw a bundle of cash in the front passenger seat. About fifteen minutes later, the innocent drivers were freed after crime scene photographers finished documenting the area. Paetsch was taken into custody and his SUV was found to have a 9mm Glock, a .22-caliber Walther handgun, a wig, an air horn, gloves and $22,956 in cash with an embedded GPS transponder.

Paetsch wanted the evidence thrown out because the search was conducted without a warrant. Judge Martinez rejected his motion, citing the Supreme Court’s precedents governing drunk-driving roadblocks. The court found it was reasonable to believe the dangerous bank robber was among the vehicles stopped, but it went further to back the tactics used by Aurora police.

“The court questions whether such invasive techniques were necessary to use on all twenty vehicles, as opposed to, for example, only the two vehicles in which occupants were observed moving around inside their vehicles and otherwise acting suspiciously,” Judge Martinez wrote. “However, the fact of the matter is that the officers had only very vague suspect information, such that it was reasonable to err on the side of caution and assume that the robber could be any of the stopped adults. Further, the fact that the court questions whether less invasive measures could have been utilized is, under the circumstances, unwarranted second-guessing of the officers’ actions here, given that they were attempting to apprehend a dangerous felon in real time.”

Under the high court’s precedent, roadblocks may only detain motorists not suspected of any wrongdoing for a “brief” time. Judge Martinez also brushed aside this concern, insisting the actions were reasonable under the unusual circumstances.

“The court is to some extent troubled by the overall invasiveness of the traffic stop, but not enough so to hold that the officers’ overall actions were unconstitutional under the circumstances,” Judge Martinez wrote.