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. It’s a DEA sting period.

    “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”.

    Tattoos ID’s the gang. Latin Kings, or ms -13. Or other flavors?

  2. If it’s all right for police to lie to suspects when interrogating them, why wouldn’t it be all right to lie to a suspect when you stop them?

    I don’t see the problem here.

  3. Paul Schulte:

    In the Judicial Branch it’s never about one case.

    Each “District Court” ruling affects other cases within that district. A single “Appeals Court” rulings affects every lower court within that region. A single “State Supreme Court” ruling affects every lower court within that state. A single “U.S. Supreme Court” ruling affects every lower court in the entire United States.

    When judges are derelict in their duty to suppress evidence from unconstitutional searches it creates an incentive for “Blacklisting” – where the police harass citizens for years and decades – many times to silence and punish legal constitutional exercises like Freedom of Speech. Essentially the police harass citizens trying to find something, anything, even when there is no probable cause or reasonable suspicion. It appears many federal agencies actually destroy the innocent family members or associates of a suspected criminal, even if they know nothing about the suspected activity.

    I know how dangerous blacklisting is first hand. I’ve lost nearly $500,000 since 9/11 due to unconstitutional blacklisting and have never had a criminal record or ever been accused of anything. This is largely due to judges allowing these types of unconstitutional searches which leads to blacklisting. These bureaucrats won’t even apologize to their blacklisting victims.

    This dereliction by judges also creates an “incentive” for police and intel agencies to fabricate probable cause or fabricate reasonable suspicion – there is virtually no legal penalty or enforcement for this type of police and intel corruption. After 9/11, the DOJ actually funds this type of corruption so there is little incentive for DOJ enforcement of federal “color of law” statutes since they are funding it.

    The Bill of Rights are totally meaningless if law abiding citizens can be treated like this for years and decades.

    1. RB – could you explain how you have been blacklisted? Liberals don’t blacklist, don’t you know.

  4. Paul writes, “It seems they needed to make a pretextual stop since they did not know which of three different color cars they would be in. I am with the second judge on this.”

    A reasonable suspicion ain’t much of a hurdle, and I think the tip from Washington met that standard.

  5. The strongest defender of the 4th Amendment on SCOTUS died recently.

  6. It was a reasonable decision based on the precedent in my humble opinion: WA license plate, within the time frame, one of the lucky three (!) car colors, and a correct racial profile add up to reasonable suspicion. The bitter taste with a case like this seems to be the physical remoteness of the arrest in relation to where the tip originated it seems to me. If those same facts leading to an arrest in Bozeman were discovered in Bozeman rather than in the State of Washington, I don’t know that the arrest would have caused such a stir.

    As for cops lying about the basis for the stop, they had reasonable suspicion already and even if the Defendants had argued that they had a right to know the actual basis for an investigatory stop, I don’t know that the 4th Amendment requires it if there is a valid basis. It’d be nice that all states require the truth be told by LEOs, but I can see how sometimes it’s better not to sound the bugle before putting on the cuffs.

    Whether or not a truthful basis for an investigatory stop must be communicated to the Defendant under the 4th Amendment and whether or not a failure to do so is enough to suppress evidence, I think we should give our bests thoughts toward the poor public defender who forgot to assert his or her client’s statutory right to know the actual basis for the stop. Imagine going to work this past Friday, the day after Judge Berzon’s concurring opinion was published. Whew! A serious, anxiety-ridden day that would have been!

  7. Many Americans don’t seem to get this. The reason judges have a constitutional duty to “suppress” or throw out evidence is not to help criminals but to make sure the police, including federal police, operate within the U.S. Constitution and Bill of Rights – not to protect criminals but to protect the rest of us.

    Many police agencies, including federal police agencies, only want the voters to know about cases where the unconstitutional searches bear fruit – justifying the unconstitutional search. There are no accurate statistics about the vast majority of unconstitutional searches that come up empty. Most potential Plaintiffs that have legal standing are not likely to sue the police if they are NOT charged or arrested. The other question in this case is did the DEA have legitimate probable cause as spelled out under the 4th Amendment to begin the search or was that fabricated also?

    In court cases, it is never just about a single case. Unconstitutional legal precedents affect every other case, which creates a “pattern & practice” of police corruption (a federal crime).

    The Founding Fathers would have likened today’s system to the 18th Century British “General Warrants” – where all citizens must submit to be searched anytime for any trumped up reason – a “Guilty Until Proven Innocent” system where the burden of proof is on the citizen.

    1. RB – every so often it is about ONE case. The SC will say that this case sets no precedent.

  8. Because so many people, especially in Montana, carry loaded guns, police need more freedom to keep their encounters believably benign. Reduce the number of guns and US police can be more predictably honest, polite, and restrained, as they are in many countries without ubiquitous guns.

  9. Did the cop lie in a police report or did he lie in court about the false traffic violation? Or, did he lie to the person driving the car when he pulled him over?

    Different strokes for different folks.

  10. They do a routine thing in almost every state. They stop each vehicle going down a road and ask for the drivers license and check the tags on the license plate to see if they are expired. They give the driver a look over and ask if he has been drinking. No probable cause.
    These stops should be a topic.

    Under current law and accepted procedures it would have been legal to stop every car with a Washington license plate at 3:00 a.m.

  11. Ok so the Judge thinks it’s ok to stop THIS guy because they knew someone was coming thru….so how many other cars did they stop to get to this one?
    Reminds me of the “safety checks”, they always have in the paper how many people they caught, but they never seem to print how many INNOCENT people were stopped….maybe they just ran to get a loaf of bread and then got tangled up in this mess….
    Then for icing on the cake we have the courts saying that driving is a privilege…really? So people have no RIGHT to travel? If I drive a wagon with a team of horses I need no license, is that a privilege, or do people have the right to use roads built with their tax money!?!?

    So cops can lie to you on a stop, in a interview, and rarely get punished for lying under oath….what a system….

  12. There were reasons “other” than some stated reason to the driver, as to why he was “stopped”. They had sufficient reason to put on the lights and siren and pull him over and look at his arm for a tatoo and go from there.
    What if they walked up to the car and said: “Are you the guy with meth in the car?” And the guy stomped on the gas and ran over the cops foot, a dog standing nearby, and then slammed into another moving car?
    So, the lie about why they pulled him over might have had some legitimate function and is indeed unrelated to the “stop”.
    The issue should be: whether they had probable cause to pull over any car which had some degree of match to the information they had about a 3:00 a.m. out of state car with a Washington license plate. Had they held a live kidnapped person in the trunk then the comments here might be different.

    I suppose the dialogue when the cop walked up should have been: “Yo, Bro, you da one with meth in da trunk?” “We be looking for a friggin Mexican with Washington plates in a blue car scheduled to roll through here at 3 a.m. or so?”

    I do not think that the opinion is a good reason to put a plus or minus on this judge for consideration in the future.

  13. I’m not clear about why the cop had to lie about the reason for the stop. Why didn’t he just tell the driver the truth – that he resembled a DEA tip concerning someone transporting drugs. The color of the car is vague, and the driver looks Asian to me – not Hispanic – but the Washington tags and the one-hour timeline at 3-4 am is very specific. I do not agree with the ruling and hope this judge never makes it to the SCOTUS. And BTW, I read somewhere that Obama was considering him because he is black, despite graduating from UCLA Law instead of the traditional Harvard or Yale. This is the first time I’ve seen a picture of him, and I must say, he is the whitest looking “black” guy I’ve ever seen.

  14. It seems they needed to make a pretextual stop since they did not know which of three different color cars they would be in. I am with the second judge on this.

  15. Sorry, I didn’t do a very good job of proof reading. It should have read one does NOT need. Cops have been lying forever about their reasons for “traffic” stops. The old “broken tail light” comes to mind, cop breaks tail light, lies in court. Texass has a “public intoxication” law, it is used any time a cop doesn’t like you. Old friends tried to get me back in law enforcement when I had to move back to Texass. i told them straight up not no but hell no, the cops down here are dishonest to the core. Most of the cops I worked with in New Mexico were straight up guys, not so anymore. Like me, they are all retired.

    1. Whew! Thank you for that I know we are inching closer and closer to a complete Police State, this ruling is mind boggling in its disregard for the public. I used to be a Police Officer not so sure I take much pride in that career anymore.

      1. Bunnie – It makes you wonder if you are eligible for a public defender for a pretextual stop.

        1. I was thinking with the dearth of Lawyers we are told we have, when you get your drivers license it should come with attached name or as part of your auto insurance policy. There are very few of us who will never be stopped. By that reasoning we insure against accidents this now should be part of our policies for some of more than others.
          Another troubling part of this stop and it being upheld is this, the car could be one of three colors, the make and model not certain and the subject would have a certain tattoo. So that means everyone who looks Latino, has a tattoo that you (Police)are looking at from afar could be and probably were stopped questioned searched and let go until you finally picked the “right”one! Very troubling in this land of the free.

  16. Just reading the comments of sgtsabai and RWL, Where do these people live? Unless there is a specific curfew in effect. It is lawful to drive a lawfully registered vehicle with insurance and a valid driver license anywhere you would not be considered trespassing on private property. So taking a night drive to say calm your child to sleep or as I do often you just want to drive. The reason for the stop is a lie, if it were that the driver could not legally be out driving there would have been no reason for the lie. The driver would have committed an offense and a stop would have be okay, necessary or required depending on jurisdiction. So I am at a loss as to what the two comments are about

  17. Then what is the point of the Law. This means the only persons constrained by Law are citizens who are not Law Enforcement Officers. We can understand and may disagree with the Officer’s ability to lie to us in an interrogation to supposedly get at the truth but what now of the many people stopped under false pretenses Sandra Bland comes to mind. This is what Black people have been fighting against their entire history;being stopped for no reason and lied to and about to justify the stops the arrests and the deaths. This particular time is not the wrong Climate to codify bad behavior on the part of Law Enforcement. It seems to me, we should change that title don’t you. I mean the title is a Lie right. LAW ENFORCEMENT OFFICER?

  18. Last time I checked one does need a reason to be driving down a highway at any time of day or night. Well, unless that person is black, Hispanic etc. The court has ruled, that might make it law but it damn sure doesn’t make it right for the cops to lie. The fumbling bureau of idiots does it all the time and in fact taught that as part of their “Interviews and Interrogations” course I attended while a certified/commission law enforcement officer. Remember they can lie to you, you can’t lie to them, ahem, yea that seems quite fair, NOT!

  19. I am confused. According to the article (and only JT’s article), it appears to me that the police had sufficient ‘reasonable suspicion'(s), with the help of the DEA, to stop Lopez? He wasn’t going to or leaving from work, hospital ED room, etc. Being out at 3 am, without a good reason, should be grounds to be stopped and searched.

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