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Opposition to Motion to Supress: An Example (Sept. 30, 2016)

COMES NOW State of Nevada, by and through ENRIQUE R. SCHAERER, Deputy District Attorney, and hereby submits this opposition to the motion to suppress all evidence. This opposition is supported by all pleadings and papers on file, the attached points and authorities, and any oral argument this Honorable Court may hear on the motion.

Points & Authorities

The motion rests on a myopic view of the facts and misapplication of controlling law. It should be denied.

I. Factual Background

On August 6, 2015 at approximately 11:32 P.M., dispatch informed Trooper Friendly of the Nevada Highway Patrol that a 911 caller was following a suspected impaired driver in a dark-colored Chevrolet pickup, NV license plate ABC123, on westbound Interstate 80. The highway has two travel lanes for westbound traffic there, the number-one lane on the left and the number-two lane on the right. The trooper, who was in the area, located the vehicle in the number-two lane and, before the video camera in his patrol vehicle began recording, observed the vehicle’s tires cross over the solid-white fog line on the right.

The video camera then begins to record. At 21:41:52 on the video, the suspect vehicle drifts left and touches the dotted-white line. At 21:42:02, it drifts right and touches the solid-white fog line. No other vehicles are beside the suspect vehicle, and the trooper is a safe distance behind it in the same travel lane. The suspect driver drifts left at 21:42:12, then right at 21:42:20, then left at 21:42:24, and then abruptly hits the brakes and changes to the number-one lane at 21:42:41. At 21:42:45, the driver drifts left and touches the solid-yellow fog line for an extended period of time. Between 21:42:56 and 21:43:00, he signals a lane change to the right, moves toward the right, and then abruptly turns off his signal and veers sharply to the left, touching the solid-yellow fog line again. At this point, the trooper conducts a traffic stop of the driver, later identified as the defendant.

II. Legal Standard

The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const. amend. IV. As the constitutional text states and the U.S. Supreme Court has affirmed, “the ultimate touchstone of the Fourth Amendment is reasonableness.” Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (internal quotation marks omitted, and emphasis added). A routine traffic stop is a “seizure” within the meaning of the Fourth Amendment but, because the stop is more analogous to a Terry stop than a formal arrest, law enforcement may conduct the stop without “probable cause,” so long as there is “reasonable suspicion”—that is, “a particularized and objective basis for suspecting the particular person stopped of breaking the law.” Id. (internal quotation marks omitted).

Probable cause requires only “a fair probability” that evidence of a crime will be found, and reasonable suspicion for a traffic stop and related investigation is “obviously less demanding” than probable cause. United States v. Sokolow, 490 U.S. 1, 7 (1989). Although reasonable suspicion must be based on more than an inchoate “hunch,” law enforcement need only articulate “some minimal level of objective justification for making the stop.” Id. (internal quotation marks omitted). To determine whether reasonable suspicion exists, this Court must consider the “totality of the circumstances.” Id. at 7–8.

III. Argument

The motion does not dispute that Trooper Friendly had probable cause for the DUI arrest. The only issue in the motion is whether he had reasonable suspicion for the traffic stop. The trooper had reasonable suspicion (and probable cause) to stop the defendant under the totality of the circumstances, which included a 911 call from a concerned citizen who believed the defendant was driving impaired and who provided a description, location, and license plate number for the defendant’s vehicle, as well as the trooper’s observation that the defendant crossed the fog line once, touched lane lines several times, drifted back and forth, and otherwise displayed erratic driving and unusual behavior. Even if the trooper did not have reasonable suspicion (he did), suppression is not warranted.

A. Trooper Friendly had reasonable suspicion (and probable cause) for the traffic stop under the totality of the circumstances.

The totality of the circumstances provided reasonable suspicion, as the trooper relied on a 911 call, traffic violation (or reasonable belief of a violation), and erratic driving (or unusual behavior).

1. The 911 call, which reported the defendant, bore adequate indicia of reliability to provide reasonable suspicion for the stop.

The motion glosses over the critical fact that, even before Trooper Friendly observed the defendant’s driving pattern, the trooper had reasonable grounds to suspect the defendant of driving under the influence based on a 911 call. Dispatch informed the trooper that the 911 caller, a concerned citizen, believed that the defendant was driving impaired. The motion suggests that the caller did not detail the defendant’s specific driving pattern, but “reasonable suspicion is not a stringent standard.” State v. Rincon, 147 P.3d 233, 235 (Nev. 2006). It was sufficient that the caller suspected that the driver was impaired based on his driving pattern. Plus, the caller provided a description, location, and license plate number for the defendant’s vehicle. Reasonable suspicion can rest on such a 911 call.

In Prado Navarette v. California, a California Highway Patrol trooper stopped a silver pickup truck solely because it matched the description of a vehicle a 911 caller had recently reported as having run her off the road. 134 S. Ct. 1683 (2014). The U.S. Supreme Court held that, despite the anonymous nature of the 911 call, it bore adequate indicia of reliability to provide reasonable suspicion to conduct the traffic stop. Id. at 1688–89. Specifically, the Court said the 911 call was reliable for three reasons: (1) the 911 caller was an “eyewitness” to the alleged dangerous driving; (2) she gave a “contemporaneous report”; and (3) she used the “911 emergency system,” which incorporates safeguards against making false reports with impunity. Id. at 1689–90.

Here, the 911 call bore the same indicia of reliability and thus should be sufficient, standing alone, to provide reasonable suspicion for Trooper Friendly’s traffic stop of the defendant. First, the 911 caller was an eyewitness following a suspected impaired driver in a dark-colored Chevrolet pickup, NV license plate ABC123. See id. at 1689 (“By reporting that she had been run off the road by a specific vehicle—a silver Ford F–150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving.”). Second, the caller gave a contemporaneous report to dispatch while in the very process of following the driver—even more contemporaneous than the reporting in Prado Navarette. Cf. id. (“That timeline of events suggests that the caller reported the incident soon after she was run off the road.” (emphasis added)). Third, the caller used the 911 emergency system, which “permits law enforcement to verify important information about the caller.” Id. at 1690 (also noting that “911 calls can be recorded”).

Accordingly, the 911 in this case is at least as reliable as the 911 call in Prado Navarette and, therefore, provided Trooper Friendly with more than ample reasonable suspicion to conduct a traffic stop of the defendant. As in Prado Navarette, the location, description, and license plate of the defendant’s pickup truck matched the report of the 911 caller. This alone was sufficient for the trooper to stop the defendant in accordance with the Fourth Amendment, regardless whether, as set forth below, reasonable suspicion independently arose from a traffic violation pursuant to NRS 484D.223 (or the trooper’s reasonable mistake of law regarding that violation) and the erratic driving (or unusual behavior) of the defendant in his vehicle. Thus, the Court should deny the motion based on reasonable suspicion from the 911 call alone.

2. The defendant violated NRS 484B.223; in any event, reasonable suspicion can rest on a reasonable mistake of the scope of that statute.

In addition to a reliable 911 call regarding the defendant’s vehicle, Trooper Friendly relied on other specific, articulable facts to support the traffic stop of the defendant. One such fact was the defendant’s driving pattern, which the trooper believed was a traffic violation under NRS 484B.223. That statute applies to Interstate 80, where the defendant was driving, because it has “two or more clearly marked lanes for traffic traveling in one direction,” and the statute provides, in relevant part, that the defendant’s vehicle “must” have been driven “as nearly as practicable entirely within a single lane.” NRS 484B.223(1)(a) (emphasis added). The motion emphasizes the words “as nearly as practicable” in the statute but glosses over the word “entirely.” It is well-established that the proper interpretation of a statute requires the Court to give effect to all the words in the statute. Paramount Ins., Inc. v. Rayson & Smitley, 472 P.2d 530, 533 (Nev. 1970) (recognizing that “[n]o part of a statute should be rendered nugatory, nor any language turned to mere surplusage”). Here, the defendant violated NRS 484B.223 because, based on a proper reading of that statute and under the totality of the circumstances, he failed to drive his vehicle within a single lane.

At the motion hearing, the Court will hear from the trooper (and dispatcher) and have the opportunity to view the video of the traffic stop. Trooper Friendly will testify that, before the video camera in his patrol vehicle began recording, he observed the defendant in the number-two travel lane “allow[] the right side tires [of his vehicle] to cross over the [solid] white fog line [on the right-hand side] by approximately the width of the tires,” as noted in the trooper’s report. The defendant’s crossing over the fog line, by itself, was a violation of NRS 484B.223, as recognized (in dicta) by the Nevada Supreme Court in Alejandre v. State, 903 P.2d 794, 797 n.2 (Nev. 1995) (noting that “[c]rossing over the fog line is apparently a violation of NRS 484.305(1),” later codified at NRS 484B.223), overruled on other ground by Gama v. State, 920 P.2d 1010 (Nev. 1996).[1] Notably, the Nevada Supreme Court is the final, proper authority on the meaning of Nevada state law, including NRS 484B.223. And the high court has repeatedly recognized that even a single traffic violation provides reasonable suspicion for a traffic stop. In Gama v. State, for example, the court held that a police officer may stop a driver who appears to commit a traffic violation, so long as a reasonable officer “could have” done so, even if he “would not have” absent some purpose unrelated to traffic enforcement. 920 P.2d 1010, 1012-13 (Nev. 1996); see also State v. Rincon, 147 P.3d 233, 236–37 (Nev. 2006).

Further, the trooper will testify—and the video will confirm—that the defendant was touching the lane markers on both sides, drifting back and forth, repeatedly. On the video, the defendant starts in the number-two travel lane; touches the white-dotted line to the left at 21:41:52; touches the sold-white fog line to the right at 21:42:02; drifts left at 21:42:12, right at 21:42:20, and left at 21:42:24; hits his brakes and changes to the number-one travel lane on the left at 21:42:41; touches the solid-yellow fog line to the left at 21:42:45; and, between 21:42:56 and 21:43:00, signals a lane change to the right, moves toward the right, and then suddenly turns off his signal and veers sharply to the left, touching the solid-yellow fog line a second time. It was reasonable for the trooper to believe the defendant committed a traffic violation not only when he crossed the solid-white fog line, but also when he touched lane lines repeatedly on both sides. See Acree v. State, 319 Ga. App. 854, 855 (2013) (“The videotape shows that Acree touched the centerline, drifted back, and then touched the right fog line. Acree’s weaving justified a stop under [a Georgia law requiring that a vehicle be driven as nearly as practicable entirely within a single lane].”). Thus, the trooper had reasonable suspicion to stop the defendant.[2]

To dispute reasonable suspicion, the motion relies on non-controlling, out-of-state precedent. This reliance is misplaced. Far from calling into question Trooper Friendly’s reasonable suspicion, the cited cases actually support it. In United States v. Wendfeldt, 58 F. Supp. 3d 1124, 1128 (D. Nev. 2014), a federal district court in Nevada relied mainly on an unpublished memorandum disposition from the Ninth Circuit—United States v. Delgado-Hernandez, 283 Fed. Appx. 493 (9th Cir. 2008) (unpublished)—as well as unpublished trial court orders, to hold that police had no reasonable suspicion to stop a driver who “merely touched” a fog line several times but “never crossed it.” Wendfeldt is distinguishable because, unlike the driver there, the defendant here actually crossed the fog line. It is further distinguishable because, in reaching its holding, Wendfeldt noted that the driver was not “driving erratically in any way” and “the presence of the police vehicle [in the driver’s blind spot in the lane to the left] was a reason that [the driver] moved towards the right side of the outside lane” and touched the fog line. 58 F. Supp. 3d at 1130. Here, by contrast, no vehicles were near the defendant’s, Trooper Friendly was a safe distance behind the defendant in the same travel lane, and there were indicia of erratic driving based on the defendant’s drifting, his abrupt braking before his first lane change, his sudden decision not to change lanes a second time, and his veering sharply to the left. The Ninth Circuit’s unpublished opinion in Delgado-Hernandez, relied upon by Wendfeldt, is likewise distinguishable. 283 Fed. Appx. at 497 (“There is no evidence that Delgado-Hernandez drove erratically.”); see also United States v. Colin, 314 F.3d 439, 445 (9th Cir. 2002) (“The Honda touched the lines only twice, both times before making safe lane changes. It is reasonable . . . in the course of making a lane change to ensure that it is safe to do so.”).

Most importantly, the U.S. Supreme Court effectively overruled Wendfeldt to the extent the Wendfeldt trial court held that, “[e]ven if [a police officer] was mistaken in good faith about whether [a suspect’s] driving violated NRS 484B.223(1), this does not transform [an] unlawful traffic stop into a lawful one.” 58 F. Supp. 3d at 1130. The Court flatly rejected that notion in Heien v. North Carolina, 135 S. Ct. 530 (2014). In Heien, a police officer stopped a driver because the driver’s vehicle had only one operable brake light, not two. The officer believed the absence of the second brake light was a traffic violation under North Carolina law, which violation gave him reasonable suspicion for the traffic stop. A state court later held that, because the applicable law required only one operable brake light, the driver had not committed a traffic violation and the investigatory stop was based on a mistake of law. But the U.S. Supreme Court held that the traffic stop nonetheless did not run afoul of the Fourth Amendment, even though it was based on a mistake of law. The Court reasoned that “reasonable suspicion can rest on a [police officer’s] mistaken understanding of the scope of a legal prohibition.” Id. at 536 (emphasis added). The Court announced a clear rule for lower courts to follow: If “it was reasonable for an officer to suspect that the defendant’s conduct was illegal[,] . . . there was no violation of the Fourth Amendment in the first place.”[3] Id. at 539. The Court said the officer’s mistake of law in Heien was reasonable because that law had “never been previously construed by North Carolina’s appellate courts” and was ambiguous enough to bear the officer’s mistaken interpretation. Id. at 540.

Similarly, the Nevada Supreme Court has not previously construed the statute at issue in this case. United States v. Wendfeldt, 58 F. Supp. 3d 1124, 1129 (D. Nev. 2014) (noting that “the Nevada Supreme Court has not interpreted NRS 484B.223”). The plain text of NRS 484B.223—a vehicle must be driven “as nearly as practicable entirely within a single lane”—can reasonably bear Trooper Friendly’s interpretation that crossing over a lane marker once, or touching lane markers more than once, constitutes a violation of the statute. This may well be the correct interpretation. At a minimum, the statute is ambiguous enough to bear that interpretation. Significantly, the only notable instance in which the Nevada Supreme Court has commented on a proper interpretation of the statute, it stated (in dicta) that “[c]rossing over the fog line is apparently a violation . . . .” Alejandre v. State, 903 P.2d 794, 797 n.2 (Nev. 1995). And courts in other states have understood the same or similar language in their own state statutes in a like manner. See supra notes 1 & 2.

Accordingly, even if Trooper Friendly misinterpreted NRS 484B.223 (he did not), his misinterpretation would have been reasonable. His traffic stop of the defendant therefore would be based on reasonable suspicion and would not run afoul of the Fourth Amendment.

3. Even absent a traffic violation, reasonable suspicion arises where, as here, there are indicia of erratic driving or unusual behavior.

In State v. Rincon, the Nevada Supreme Court held that, “absent evidence of a traffic violation, there must be additional indicia of erratic driving or unusual behavior before a reasonable suspicion arises.” 147 P.3d 233, 237 (Nev. 2006) (emphases added, and footnote omitted). In this case, under the totality of the circumstances, the defendant’s driving was erratic (and his behavior unusual). This is so because of the defendant’s weaving in his lane, by which he slowly drifted back and forth from left to right; his abrupt braking before his first lane change; and his sudden decision not to change lanes a second time, at which point he veered sharply to the left.

The bottom line is that the totality of the circumstances—the 911 call, the defendant’s failure to maintain his lane (or the trooper’s reasonable mistake of law about that traffic violation), and the defendant’s erratic driving (or unusual behavior)—provided more than ample reasonable suspicion (and probable cause) for Trooper Friendly to conduct a traffic stop of the defendant. United States v. Sokolow, 490 U.S. 1, 9 (1989) (holding that various factors, which by themselves were “quite consistent with innocent travel,” collectively amounted to reasonable suspicion); accord United States v. Arvizu, 534 U.S. 266, 274–75 (2002).

B. Even if Trooper Friendly violated the Fourth Amendment, suppression is not the proper remedy because the trooper acted in good faith.

In any event, a broad application of the exclusionary rule is not warranted here. The Fourth Amendment does not provide for the suppression of evidence arising from unreasonable seizures; rather, the exclusionary rule is a judicial remedy designed to deter law enforcement from future Fourth Amendment violations. United States v. Leon, 468 U.S. 897, 906 (1984). For this reason, the U.S. Supreme Court has “repeatedly emphasized that the rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule.” Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 364–65 (1998). In this case, Trooper Friendly did not violate the Fourth Amendment because, as set forth above, he had reasonable suspicion to stop the defendant under the totality of the circumstances, including a 911 call and the defendant’s driving pattern. But even if the trooper somehow ran afoul of the Fourth Amendment when he stopped the defendant (he did not), evidence from the ensuing DUI investigation should not be suppressed. The reason is that Trooper Friendly acted in good faith when he relied on a 911 call—along with a driving pattern that he believed amounted to a traffic violation or, at a minimum, erratic driving—to stop the defendant. Thus, the motion should be denied and the evidence from the traffic stop should be admitted under the good-faith exception to the exclusionary rule. See, e.g., Davis v. United States, 131 S. Ct. 2419, 2432 (2011) (applying good-faith exception where police officer relied in good faith on an appellate case that was later overturned); Illinois v. Krull, 480 U.S. 340, 349–51 (1987) (applying good-faith exception where a police officer reasonably relied on a law later found to be unconstitutional); Leon, 468 U.S. at 919–20 (applying good-faith exception where police officers relied in good faith on a search warrant later found to be invalid); Byars v. State, 336 P.3d 939, 947 (Nev. 2014) (refusing to suppress evidence from warrantless blood draw that a police officer mistakenly believed to be valid).

IV. Conclusion

For all of the above reasons and under the totality of the circumstacnes, Trooper Friendly acted in full compliance with the law. Thus, the State respectfully requests that this Honorable Court deny the defendant’s motion.

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[1] Significantly, courts in other states have held that even a driver’s single, momentary crossing of a lane marker violates similarly worded statutes in those jurisdictions. See, e.g., Mitchell v. State, 347 P.3d 1278, 1279–80 (Mont. 2015) (momentary crossing of center line violated statute requiring vehicle be driven as nearly as practicable entirely within single lane, and thus reasonable suspicion existed for traffic stop); State v. Westfahl, 2012 WL 5392119, at *5–*7 (Kan. Ct. App. Nov. 2, 2012) (unpublished) (crossing over center line once provided reasonable suspicion to stop defendant for violation of traffic code); State v. Popke, 765 N.W.2d 569, 574–75 (Wis. 2009) (crossing “center of the road only momentarily” violated traffic code, and thus probable cause existed for traffic stop); State v. Wagner, 637 N.W.2d 330, 336 (Minn. Ct. App. 2001) (“Crossing the center line is a vioaltion of the traffic laws and will ususally provide the officer with an objective, reasonable suspsicion to conduct an investigatory stop.”).

[2] Courts in other states have likewise held that touching, as opposed to crossing, a lane marker violates their state statutes requiring a motorist to drive a nearly as practicable in a single lane. See, e.g., People v. Green, 2013 WL 1501904, at *2 (Ill. App. Ct. Apr. 11, 2013) (unpublished) (defendant violated traffic code when her tires touched, but did not cross, fog line and, hence, reasonable suspicion existed for traffic stop).

[3] In Heien, the U.S. Supreme Court recognized that the Fourth Amendment does not demand perfection, only reasonableness. 135 S. Ct. at 536 (“To be reasonable is not to be perfect . . . .”). The Fourth Amendment “allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.” Id. (internal quotation marks omitted).

I have made this blog available for educational purposes only, not to provide specific legal advice. By using this blog, you understand that there is no attorney–client relationship between you and me. This blog should not be used as a substitute for independent legal advice from a licensed professional attorney in your state.