The 5th Circuit Court of Appeals recently published the best case so far that describes the law regarding a traffic stop. In USA v. Brigham, an en banc court finally explains why it is reasonable to temporarily detain a driver, question him, and obtain consent to search without violating the 4th Amendment. Recent cases from that Court have been ambiguous. I recommend you read this entire opinion, including the dissent, to teach your local officers about the law of the Traffic Stop.

For a copy of the opinion, go to the 5th Circuit website, do a search for the 8/19/04 opinion, and download a PDF of the opinion by clicking on the case name.

And then tell us what you think of the opinion.

John, thanks for the heads up on this case. What is the deal with these four dissenters? Are they all former defense attorneys? Lifetime memebers of the ACLU?

I agree that it is a very helpful opinion. The Trooper obviously did a good job testifying and articulating the various reasons he had for his actions. And, of course, we all stress that when we talk to officers, but it was great that the encounter was on video with sound. One has to wonder how much of an impact that had on the 5th Circuit.

Wow. Reading the majority opinion, I find myself nodding along and actually enjoying that the opinion makes sense.

Simply apply a direct line of reasoning to the circumstances and be certain that the officer only causes delay that is designed to resolve any reasonable suspicions arising during the stop as well as the disposition of business related to the stop. (IE: writing a ticket and checking the license and registration.)

Conversation regarding the destination of the travelers is not strictly prohibited and can be used as an investigative technique to verify information provided by multiple passengers in the vehicle. (As long as this does not cause some sort of unreasonable delay and it is not used as a blind fishing expedition.)

Then, you get to the dissent. Holy cow. Initially, the dissent begins with statements that seem to fly in the face of US. v. Orozco. Rather than considering the evidence in the light most favorable to the prevailing party, the dissent seems to take the tactic, 'light most favorable to our pissed off point of view.' Using language that appears to be a veil-free indictment of the majority, the dissent offers a racing preamble to its "facts" in the record section then immediately recites the races of the occupants in the vehicle. (Note: the race of the trooper is not described, though it also would be completely irrelevant to these circumstances.)

By page two of the "facts" section, the dissent is attacking the officer for not catching that the address of the rental agreeement was the same address as the driver's license address. This is in the "facts" section that according to case law should be reviewed in the light most favorable to the prevailing party. Keep in mind, the speaker continues to use inflammatory and bias language such as: Trooper conklin 'launched into his consent to search request'. (The verbage is riddled with opinion reflecting language casting the "facts" in an aggressive pursuit of ferreting out this great injustice.)

At footnote 22, the dissent finally makes an interesting point: Conklin had not articulated any particularized objective fact which would justify a suspicion that the car was carrying any contraband which required a search. I think this point should be contemplated. Should there have been a search of the vehicle at that point? What gave rise to the need for the search? The only offenses the officer was investigating at that time were stolen vehicle and the false ID. Now, if the officer was able to articulate facts that would justify a search for information that would confirm or resolve the suspicion that the car was stolen, I can see a search. At this point, I'm not sure.

The dissent continues to ramble on about 'objective facts' without construing those facts in the 'light most favorable to the prevailing party'. The most disturbing double talk involves 'not second guessing the officer' but second guessing the officer's opinion regarding whether or not his suspicion was reasonable. The dissent completely ignores the FACT that there was no PERSON in the vehicle authorized to be driving it. The rental agreement only listed the mother as an acceptable driver. Four kids driving in a completely different State far away from the authorized driver SMACKS of UUMV.

By footnote 27 we discover what I've already aluded to: the dissent wants to make this case about race. I am really damned tired of hearing about racial profiling. A defendant last week accused me of offering him Pen time because he was black. Never mind his prior felony conviction charges. Never mind his multiple opportunities on probation. Never mind his multiple misdemeanor convictions. He was convinced that he wasn't being offered probation for BURGLARY of a HABITATION, because he was black. I looked his defense attorney in the face and said, "You only say that because I'm white."

And it's true. This trooper's opinions wouldn't be second guessed if he weren't caucasian. I've started calling this the 'Cracker' defense. If it's a cracker that arrests you, you've got a 50/50 shot of making it about race and sluffing the fact that you had sex with a four year old and your dog while driving drunk and selling methamphetamine in a school zone where you randomly discharged your SKS at a soccer field full of children.

Excellent rant.