Ninth Circuit: Police Can Lie About Critical Traffic Stop Without Losing The Resulting Evidence

Judge_Paul_J._Watford546f4fb64f427.imageJust two weeks ago, Judge Paul Watford of the United States Court of Appeal for the Ninth Circuit was on the short list for the Supreme Court. Now he is back in the news with a notable decision where the court rejected the appeal of Hector Magallon-Lopez despite his showing that the police lied about the reason for the critical stop in his case. Watford, applying past Supreme Court cases, ruled that it does not matter if the police lied about the stop in the case. That led to an interesting exchange with a concurring colleague on the meaning of the controversial Whren case.

Hector Magallon-Lopez was challenged the admission of two pounds of methamphetamine seized in a 2012 search of his car. He argued for suppression on the basis that the police officer lied about why the suspect’s vehicle was being stopped. The officer claimed that Magallon-Lopez had failed to signal properly before changing lanes. In reality, it was a pre-planned stop based on a Drug Enforcement Agency wiretap intercept that indicated that two Hispanic males (one with a distinctive arm tattoo depicting a ghost and skull) would be transporting a supply of methamphetamine from Washington state to Minneapolis. The tip included the description of the car as a “green, black or white” car with Washington plates through Bozeman, Mont., between 3 a.m. and 4 a.m. on Sept. 28.

Around 3 a.m., the police spotted a green Volkwagen Passat with Washington plates, registered to Hector Lopez in Washington. Magallon-Lopez has a tattoo resembling a ghost or “grim reaper” on his right forearm and the other man was identified as Juan Sanchez whose name was first disclosed on the wiretap intercept. The search led to the seizure of methamphetamine hidden in a compartment under the trunk.

So the Court accepted that the police had lied about the stop. Watford said that the police had reasonable suspicion due to the confirmed facts from the intercept and found

That the officer lied about seeing Magallon-Lopez make an illegal lane change does not call into question the legality of the stop. The standard for determining whether probable cause or reasonable suspicion exists is an objective one; it does not turn either on the subjective thought processes of the officer or on whether the officer is truthful about the reason for the stop.

The holding by Watford is based on a controversial case from twenty years ago in Whren v. United States, 517 U.S. 806, 812–13 (1996). The Court ruled that police could conduct a pretextual stop, such a stop for minor traffic violations, to achieve a search so long as there is probable cause or reasonable suspicion to justify a traffic stop. Watford applied the controlling law including the holding in Devenpeck v. Alford, 543 U.S. 146, 153–55 (2004); United States v. Ramirez, 473 F.3d 1026, 1030–31 & n.2 (9th Cir. 2007) where the Court held:

While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required. Hence, the predictable consequence of a rule limiting the probable-cause inquiry to offenses closely related to (and supported by the same facts as) those identified by the arresting officer is not . . . that officers will cease making sham arrests on the hope that such arrests will later be validated, but rather that officers will cease providing reasons for arrest. And even if this option were to be foreclosed by adoption of a statutory or constitutional requirement, officers would simply give every reason for which probable cause could conceivably exist.

543 U.S. at 155 (footnote omitted).

While accepting the binding precedent from such cases, Judge Marsha Berzon wrote a concurrence to express her unease with such a rule and believed that Watford could have drawn a distinction in the case. She noted that

Whren and the other cases the majority cites do not deal directly with flat out lies about what police officers saw. Instead, Whren dealt with pretextual stops—that is, instances in which the officers did perceive actions that violated the traffic laws, but were really using the traffic violations as a basis for investigating some other crime.

She added:

“Is it fine for police officers flatly to tell the drivers they stop that they observed — or thought they observed — a traffic violation when they really did not?. We hold today that it is. And I cannot disagree, as the line of (prior) cases…seems to lead to ineluctably to that distressing conclusion…So long as the facts known to the officer establish reasonable suspicion to justify an investigatory stop, the stop is lawful even if the officer falsely cites as the basis for the stop a ground that is not supported by reasonable suspicion.”

She noted that a challenge could have been made under Montana law but that no such claim was made by the defendant:

Most relevant here—as Magallon-Lopez was stopped in Montana by a Montana officer—Montana requires an arresting officer to “inform the person to be arrested of the officer’s authority, of the intention to arrest that person, and of the cause of the arrest.” Mont. Code Ann. § 46-6-312 (emphasis added). Magallon-Lopez has not asserted that his arrest was unlawful under this provision, and Montana’s courts have not extended the statute, applicable only to “arrests,” to Terry-type stops premised on reasonable suspicion, as occurred here. Nonetheless, that Montana and other states have such laws in place may guard against the frequent use of stops similar to the one here.

That seems a rather undisguised invitation to states to act to counter the expansion of Whren and a reminder to counsel to consider challenges under state law when applicable.

It is an interesting opinion to come out at a time when Watford was considered for the Court but opposed by due to a view that he was soft of death penalty cases and immigration violations. Here he gave the police a resounding win in holding that police can knowingly lie about stops without losing the resulting evidence.

Here is the opinion: Magallon-Lopez opinion

48 thoughts on “Ninth Circuit: Police Can Lie About Critical Traffic Stop Without Losing The Resulting Evidence

  1. What is disturbing about this case to me, and the case decided summarily by the SCOTUS this morning, is how lazy it is for the police to act on “anonymous tips” to score drug busts.

    Obviously, the tipsters are in pari delicto, looking to move up or compete and just use the police to knock of a rival. The police just like the high profile collar and don’t seem to do much investigating about where the tip came from. And the judges seem unconcerned. Not even curious. Ugh.

  2. Paul Schulte:

    Coincidentally, in 2006, there was a movie produced titled: “The Lives of Others”. That film (coincidentally) released during the Bush Administration, is the blacklisting model that the U.S. government is aspiring to become and that your children will inherit.

    It’s also almost a carbon-copy of the FBI’s “CoinTelPro” blacklisting system that the ACLU warned about in October 2001 (just one month after 9/11). Congress actually published the “Church Committee Reports” in the mid 1970’s, just take a look at the report’s Table of Contents (available on the internet and at the Library of Congress). You will be totally amazed!

    The judge in Jonathan Turley’s above article is helping to promote this type of system by not upholding the 4th Amendment in his ruling.

  3. Paul Schulte:

    Read the report published by Congress “Church Committee Reports” also called the Select Sub-Committee On Intelligence Activities” published in the 1970’s. That’s the same program that targeted a Baptist minister, Martin Luther King, Jr.

    Paul, these type of disloyal bureaucrats frankly aren’t that original, they ail are using the exact same 1950’s -1970’s playbook just with better computers and better technology. It’s same type of creeps doing exactly the same types of things. The “Table of Contents” itself is very interesting.

    With my experience as a former federal (pro se) Plaintiff, being opposed by a TEAM of DOJ U.S. Attorneys in a federal court – I prefer you read the report published by Congress. It makes it easier for this Congress or a judge to read and understand how blacklisting really works in full context based by hard evidence.

    I’ve urged my members of Congress to declassify the 9/11 CoinTelPro blacklisting program (which deputized local and state officials) but Congress hasn’t done so yet.

    • RB – I am not going to track down the 1970s Church comm report. However, from our conversation, I think you do not understand the meaning of ‘blacklisting.’

  4. Not sure of circumstances of this case, but this is what the future of Deep State policing looks like with the NSA having access to ALL our private communications and locations.
    Local police are now secretly buying StingRays that trick your cellphone into giving away everything on your phone and your location. Police find location of phone who’s user recently texted about a drug deal, they make possible ID on person/car, call out to other officers at location of drug deal, cops spot car, they already know he’s got meth in the trunk, but shit, he’s following all traffic laws at 3am.
    Doesn’t matter, they make up pretext for traffic stop and find drugs. Just good police work….NOT. Policing is changing in the new Deep State. Now they convict you by illegally gathering evidence and then creating the legal pretense for detention and arrest without ever having disclosed the evidence was collected in an Unconstitutional manner.
    Don’t like criminals being freed on technicalities but cops have to follow the Constitution…I think.

  5. Regarding the statement that the car was pulled over for traffic signal or bla bla: The question is whether the cop told the people going forward that he pulled the punk over for a turn signal; or whether he told the punk he pulled him over regarding a turn signal. By “the people going forward” I refer to the police report, and testimony thereafter.

    If the crime is about felony possession of meth. Then, how did they find it? They had some facts conveyed to them that a hispanic dude in a certain color car with Washington State license plate would be driving through their area. What they said to dude when they pulled him over may be relevent. But to what? Yo, Dude, nice hate. How’s your momma in Mexico? etc.
    All that is not relevant to the case at court when they provide evidence as to why they pulled him over. All the reasons why. Nuff said.

  6. Those who are surprised that LEO’s regularly lie and that most judges protect them are only those who don’t operate within the criminal justice system. Most people I know are amazed to find out lying to a federal officer is a crime but their lies to you are not. As they say in the Orient, “Sum Ting Wong.”

  7. JMRJ and Elmer Fudd must be nice. Only those infrequently stopped or with wonder encounters when stopped would ever advocate more stops under questionable circumstances. I want to say more but valor tells me to stop!

  8. Steve, I am disappointed. You are allowing your hatred of Scalia skew his 4th Amendment record. Yes, I do think Scalia would have sided w/ the plaintiff, as he has in many similar cases.

  9. Paul Schultz:

    Most judges, justices and most constitutional scholars don’t really understand blacklisting either. I think it’s primarily due to lack of interest. It’s also why it’s so dangerous and lethal. Blacklisting denies “legal standing” under Article III of the U.S. Constitution to the citizens blacklisted but not even judges fully understand it.

    Famed Nazi hunter, Simon Weisenthal, considered blacklisting tactics by the East German Stasi during the Cold War as far worse than Gestapo tactics during World War Two. East Germany had one of the highest death rates due to these tactics – they essentially tortured their fellow citizens into committing suicide. These tactics are very close to the FBI’s CoinTelPro blacklistng. Even today in 2016, we don’t know how many Americans were destroyed and killed by CoinTelPro blacklisting from the 1950’s until the 1970’s. The ACLU warned in 2001 and 2002 that CoinTelPro blacklisting in the 21st Century computer age could be far more dangerous than the original low-technology CoinTelPro blacklisting.

    Even today, probably the world’s leading experts on the dangers of blacklisting are James Madison and the Founding Fathers – they created a thing called the Bill of Rights that was designed to prevent non-confrontational blacklisting or non-confrontational punishment by government.

    The Framers also required all government officials (including judges, police, prosecutors at the federal, state and local levels) to take a supreme loyalty oath to follow the U.S. Constitution as a condition of employment and authority over regular citizens. For those bureaucrats entrusted with tremendous and secret power, proper loyalty is the most important qualification – yet only people like Edward Snowden have upheld that supreme loyalty oath.

    That’s the real irony, FBI officials and prosecutors swore a supreme loyalty oath to follow the Bill of Rights. Today those same oath-sworn officials are trying to shake down Apple in violation of their own oath.

    • RB – blacklisting as you describe it was done by businesses and sensitive government offices. Federal officers swear an oath to uphold the Constitution, not just the Bill of Rights. And there is no such thing as a supreme loyalty oath. BTW, Edward Snowden is a traitor.

  10. Mick was right: “all the cops are criminals”. I assume the resident cop here agrees that it’s just fine and dandy to
    lie, cheat, steal, entrap, plant evidence etc. if it’s necessary, in order to arrest someone – even for a victimless crime like certain drugs, having consumed alcohol etc.

  11. No one who comments here has said that they know that the cop lied to anyone other than the perp about why they stopped him. I figured that someone would have found this information out fro some news report or something. The court decision was not attached to the Article here. Unless I missed it.

  12. My problem isn’t specifically with this judge. I don’t like the impact of the ruling, but I don’t know if he did anything other than rule in accordance with the precedents already set by higher courts. Not that I agree with those precedents, but it’s not a circuit court judge’s job to make up jurisprudence that conflicts with that handed down by the higher courts. I am more angry at the higher court rulings cited that, apparently, justify this one.

    To me, the worst things about cases like this are that 1) very few people will hear about it and take away the basic lesson that cops can pull you over and lie to you about why; 2) too many people who do read it will think, “So the cops lied to this scumball and caught him. So what?” and not understand that for every person pulled over in this manner who turns out to have done something illegal, there are quite likely dozens pulled over who haven’t done anything wrong and who have the intimidating and infuriating experience of having their stuff rifled through and then being sent on their way with a disingenuous “have a nice day.” Most of those latter people don’t have time to file complaints about this and police deliberately don’t keep track of such stops, so we seldom hear about them; and 3) The acceptance by the police that it’s okay to lie to citizens about police activity as long as it be justified to other LEOs later on perpetuates the us-versus-them mentality that is corrupting many officers. To be clear: A policy like this implicitly defines a class of people that it’s okay to lie to. And, any class of people it’s okay to lie to is a lesser class of people. Routine lying to people who have been pulled over is part of the mentality that thinks “What gives you the right to know what I’m doing to you, chump? You aren’t the one in charge here. Shut up, don’t question what I tell you, and do what you are told.” An officer with that attitude will be incapable of understanding that he is a paid public servant – SERVANT, NOT RULER – and the people with whom he interacts are those who is sworn to “protect and serve”.

    • freedomfan: Thanks for your post. I agree wholeheartedly that if the stop would have been illegal otherwise, falsely claiming a valid reason should be good enough to suppress evidence, let alone grant a dismissal. On the other hand, I’d like to know more about the reasons for lying. Is it solely to have a basis for the stop? I don’t know that this is always the case. For instance, there may be occasions when chaos would result from disclosing the reasons for the stop.

      I also agree that the precedent seems contrary to the express language of the 4th Amendment, if that’s what you meant. As the opinion states, the “Fourth Amendment permits investigatory stops if the facts known to the officers established “reasonable suspicion to believe that criminal activity may be afoot.”
      United States v. Arvizu, 534 U.S. 266, 273 (2002). Frankly, I don’t think this is a fair reading of the Fourth Amendment, but admittedly I’ve not read Arvizu other than the summary.

      It seems to me that this law’s lineage goes back to Terry v. Ohio and the ability for cops to stop-and-frisk/patdown individuals while walking the city streets on mere reasonable suspicion that crime may be afoot. Apart from Terry being abused most notably by NYPD for decades, there’s likely little doubt it has helped get officers to their homes at night, However, a patdown is a search to any reasonable person, and I think Terry is short of satisfying the search standard in the Fourth Amendment which has been extended to stopping cars on highways on less than probable cause through Arvizu’s line of cases.

      From Arvizu: “Because the ‘balance between the public interest and the individual’s right to personal security,’ United States v. Brignoni-Ponce, 422 U. S. 873, 878, tilts in favor of a standard less than probable cause in brief investigatory stops of persons or vehicles, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity “may be afoot,” United States v. Sokolow, 490 U. S. 1, 7.” Although our most famous strict constructionist and alleged protector of the Fourth Amendment, Justice Antonin Scalia, agreed with this reasoning absent any express language supporting it in the Fourth Amendment, I don’t buy it. (Nick, take note.)

      In my opinion, reasonable suspicion is below the actual constitutional standard to initiate contact which amounts to even a brief detention, no matter how brief and no matter how much the Supreme Court opines that a patdown or stopping a vehicle on the highway is not a detention. In my opinion, it is a detention anytime LEOs stop an individual, but my opinion and $2.25 will get me a black coffee with free cream and sugar.

      • stevegroen – hate to burst your bubble but the cream and sugar is included in the $2.25 coffee, whether you use it or not.

  13. I assumed the cops could disclose they had a wiretap until they were sure they had the right people. Otherwise word would get out and their entire sting would be for naught. Similarly, they wouldn’t disclose the name of an informant before they have to. They did have a legal reason to stop the car, due to the description in the wire tap. I thought cops could lie to suspects about the information they had. At least they do it all the time in the movies. (“He already ratted you out. You should just tell us what you know.)

    I thought if they were sure enough they had the right people, however, to arrest them, that they did have to state the reason for their arrest. Didn’t they tell them they were being arrested for meth? Or is the objection that they did not disclose how they knew about the drugs beforehand?

    Correct me if I am wrong, but didn’t they disguise the search for the DC sniper through drunk driver checkpoints? Or am I thinking of the wrong search?

  14. when CRIMINALS get into positions of power, they inevitably create rules, regulations, and any and all justifications to make their crimes legal.. These “judges” are just giving cover to their armed thugs.
    If you or I were to lie to a government official during an investigation, they tell us that is a crime, BUT WHEN THEY LIE, it’s perfectly legal and you can’t do squat about it.. Ha ha, can you say rigged game?
    Seem fair to you?? if so, you’re a boot licking sycophant and you should be sterilized, so that you don’t procreate and spread your cognitive dissonance beyond your person!

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