Just 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.
“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