Charlie Buttrey

May 19, 2022

I have had many clients who were stopped for driving in excess of the speed limit.  I have had others who were stopped for driving below the speed limit (since that gave the officer reason to believe that my client was impaired). And — I am not making this up — I had a client who was stopped, the officer testified, because HE WAS DRIVING EXACTLY AT THE SPEED LIMIT.

So… if you can be stopped for going too fast, or going too slow, or going just right, when can you NOT be stopped?

New Hampshire Public Radio recently ran a story (which you can access HERE) about what we in the law call “pretextual stops.”  Those are stops that are made ostensibly because of a traffic violation or even just something that the officer may consider unusual, but are used because the officer has a gut feeling that the driver may be engaged in an activity that may be a bit more nefarious. The story relates stops that were precipitated by a driver’s body language, by the use of a rental car and because a car was unusually clean. And, in turns out, that the drivers in cases in which the stop is based on pretext are disproportionately people of color.

In one instance, a trooper pulled over a vehicle because: (1) the driver had his hands at the “ten-and-two” position; (2) the passenger was reclined far back in his seat; and (3) neither the driver nor the passenger looked in his direction as they passed by him (the trooper, by the way, was in an unmarked cruiser parked in a parking lot off the road, and it was dark outside). In that case, the judge granted the defense’s motion to suppress, noting that there was a certain “heads-I-win-tails-you-lose” quality to treating the driver’s and passenger’s reactions as suspicious: “Had either the driver or passenger, or both turned to face the trooper’s vehicle, he could have speculated that they appeared hypervigilant about being observed by the police. Had either looked towards the trooper and then away from the trooper, he could have speculated that they recognized him to be a police officer and then tried to blend in with traffic. What permutation does not fit the profile?”

I was once stopped late at night because the rear-plate light (on my wife’s vehicle) was broken. Yes, the stop was technically legal. Yes, it was a waste of everyone’s time.

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