Fourth Amendment

South Dakota Court Sets Up a Roadblock to Avoiding the Cops

|

I noticed you making a narrowly wide-ish turn back there.

If you'd rather turn around and head the other way than burn gas waiting for some flatfoot (yes, I actually used that word) to get around to sniffing your breath and asking about your destination this evening, you might just want to work on building up those reserves of patience. Last week, The Newspaper reports, South Dakota's be-robed supreme jurists ruled that, while a driver making a 180 at the sight of a police checkpoint isn't itself sufficient grounds for pulling a car over, pretty much anything else on top of that is. Really. Anything.

In the ruling, the Supreme Court of the "Ugly Rockpile Carved With Politicians' Faces State" didn't exactly chart new ground. Hemmed in, as they are, by Fourth Amendment decisions handed down by the Eighth Circuit Court of Appeals, they simply followed that federal body's fine example. And what an example it is. In the past, the Eighth Circuit has said that turning tail at the sight of a roadblock is not, in and of itself, sufficient reason for getting the third degree. But in one of the cases where it made that point, the court hedged its bets, saying such behavior "is indeed suspicious, even though the suspicion engendered is insufficient for Fourth Amendment purposes."

Because not wanting to be hassled by the cops is just incomprehensible behavior in an innocent person.

And if making a u-turn is "indeed suspicious," what raises the suspicion level to search-worthy heights?

Wrote the Eighth Circuit in U.S. v. Carpenter, "Factors consistent with innocent travel, when taken together, can give rise to reasonable suspicion, even though some travelers exhibiting those factors will be innocent."

Not surprisingly, in the two Eighth Circuit cases cited above, the court ultimately upheld stops and searches. In one case, "Carpenter drove a car with Texas license plates, exited just beyond the ruse checkpoint signs, and then parked off the road for no apparent reason. These factors at least begin to raise a reasonable inference that the driver may have departed the highway without a destination in mind because he was carrying drugs and wanted to avoid the purported checkpoint."

The suspicious activity in the South Dakota case of South Dakota v. Rademaker (PDF) involved a driver making a "wide turn" to avoid the roadblock. And it was 1 a.m. Oh, and after turning on his lights and pursuing the car, the officer claimed he noticed "excessive speed." The "totality of the circumstances," says the South Dakota court, justified a stop.

So be careful out there. If you absolutely insist on turning away from a police checkpoint, whatever you do, don't display any "factors consistent with innocent travel."

NEXT: Obama Tries to Rewrite His History of Promising Forbearance for Medical Marijuana Suppliers

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The “totality of the circumstances,” says the South Dakota court, justified a stop.

    “Fuck you, that’s why.”

    1. Personally, when I have time, I go through them on purpose. “Have you been drinking, Mr. Phod?” “All day, officer. Four different things.” An hour later… “You never mentioned alcohol, officer. I meant milk, water, Diet Sunkist and tea.”

  2. “Factors consistent with innocent travel, when taken together, can give rise to reasonable suspicion, even though some travelers exhibiting those factors will be innocent.”

    Not doing anything wrong is suspicious.

    Welcome to the police state.

    1. Yeah he was acting suspicious by not being suspicous.

      1. Nothing more suspicious than that. I mean, its exactly what people with something to hide do, isn’t it? Isn’t “not acting suspicious” pretty much the definition of hiding something?

        1. “If he had nothing to hide, he would have acted like he did, so we’d have cause to search him.”

          1. Wow. That was incoherent, even for me.

  3. But we DON’T live in a police state, I swear!

  4. Are there any judges who don’t completely defer to the cops? Any?

    1. Actually, one of the circuit judges in my county is pretty open about his mistrust of anything the police do around here. Of course the prosecutors and cops can’t stand him.

    2. No. It’s an ATM jurisprudence libertine dream, a veritable Human Centipede of legal alimentary canal. But you knew that.

  5. SD Judge: You little people don’t have rights.

    That would have been a more succinct headline

  6. Drug War, Global Terror and Mothers Against Drunk Driving have destroyed the bill of rights (hereafter referred to in lower case letters).

  7. “Gotta make water, Miss Daisy.”

  8. I’ll be honest… I thought U-turning away from a checkpoint was already probable cause for search/beating/arrest/planted evidence. Or at least a good old Tulpa-style electro-execution.

    1. I thought Tulpa was into auto-asphyxiation. Wait, sorry, he’s into frotteurism. My mistake.

      1. Auto-frotteurism.

      2. Auto-frottage, actually. But only with girl cars. He’s not gay or anything.

        1. I still think Tulpa is a woman. Nothing short of genetic proof can change my mind.

          1. Don’t be absurd. He just has Klinefelter’s syndrome.

            1. I loved Hogan’s Heroes back in the day.

  9. What kind of idiot transports drugs at night?

    Shit, I’d think if I were a cartel I’d have a few cars traveling with me to act as spotters and as decoys. Getting tailed by the cops? Have your buddy drive erratically to distract him.

    1. For the kind of scratch a big drug operation has, you’d think they’d run a tighter ship. Nothing but three – five year old family sedans, driven by clean-cut guys in suits, under strict orders (and strict orders from a cartel would be probably be pretty fucking strict) to drive the speed limit, not be sampling the goods, etc.

      1. I don’t know, I mean driving slower than the flow of traffic might be suspicious.

      2. You broke the rules. You opened the package.

    2. Am I wrong to assume that the real pro drug smugglers are already doing this? Having a “clean” car blast down the interstate doing 30 or so over the speed limit to pull the fuzz in and clear a path…

      1. The cops don’t really give a shit anyway. When all they need to seize everything you have is the “suspicion” of drugs, why do they need to bother themselves with accurately predicting which car has drugs?

      2. Just need a car with a white guy driving and no minorities.

        1. What about seniors? They can get away with driving erratically and their cars would hold a lot of product.

          1. Having someone drive hundreds of miles with their turn signal on is pretty distracting, I’ll give you.

  10. In the ruling, the Supreme Court of the “Ugly Rockpile Carved With Politicians’ Faces State

    Yes. America is the kind of place with a vast number of people running around who think it just swell to fuck up the side of a mountain with the faces of a few monsters, and over the top reverence and worship of the two who weren’t.

      1. Say it isn’t so, our indigenous peoples have caught the powerfucker bug?

        1. Who gave them the infected blanket, was it shrike?

          1. no not shrike since duvall shot that white devil all dead

        2. They’ve become agricultural city-statists!

  11. “Ugly Rockpile Carved With Politicians’ Faces State”

    You will change your tune when Ron Paul is up there or Brian Doherty will change it for you.

    1. Ron Paul’s face will be on the ten thousand dollar bill.

      1. Ron Paul’s face will be on the ten thousand dollar bill gold coin.

      2. Obama’s face will be on the ten thousand, and the Benjamin will be the new dollar.

    2. As the Buddhist would say, If you pass the Buddha on the road, turn around and kill him! If Paul’s face is put on that ugly rockpile, blow the motherfucking pile up to Kingdom Come.

      1. Ten minutes and not a nibble? What’s wrong with you people? You know we FBI informants work on commission, right? Handlers want like this at all.

      2. Ron Paul will order the rock pile to be used as a fighter target.

  12. “In light of this line of case law, we join the Eighth Circuit in holding that avoidance of a checkpoint alone is insufficient to form a basis for reasonable suspicion,” Justice Lori S. Wilbur wrote for the court. “However, the Eighth Circuit was clear that checkpoint avoidance is indeed suspicious and thus our analysis does not end here.”

    Wait, what? Has my reading comprehension gone south?

    Avoiding a checkpoint is not sufficient to be stopped, but avoiding a checkpoint is suspicious and so you can be stopped.

    Do I have that right?

    1. Holy Jesus in a tin can!

      “In addition to the checkpoint avoidance, the trial court also relied on two other suspicious factors: the time of day, 1 am and the police officer’s observation that Rademaker made an unusually wide, but legal, turn,”

      So… ok… help me out with my reading comprehension here.

      The justices add up three perfectly legal acts and come up with one suspicious act?

      1. Driving at 1 am.
      2. Making a wide (but legal) turn.
      3. Turning before you get to a checkpoint.

      Clearly, this highly nuanced logic is too much for me. I guess I’m forever stuck in the private sector…

      1. not that i agree with their logic, but the fact that a behavior is in itself legal does not necessarily say anything about whether it rises to the level of reasonable suspicion

        walking down the street dripping blood (and from no apparent wounds of your own) would certainly justify a stop under both RS and the community caretaking function, but is clearly not illegal (spare me the littering complaint 🙂 ).

        whether the totality of circ’s rises to reasonable suspicion is tangential to the inherent legality of the behavior itself

        for example, most of the behaviors our local burglary crews use in ‘casing’ potential victim businesses and residences are in themselves perfectly legal

    2. you are having difficulty yes

      they are saying avoiding the checkpoint does not meet the legal threshold of reasonable suspicion iow 5 quatloos of suspiciousness

      it does not therefore follow that it is not at all suspicious

      give it maybe 3 quatloos

      if the coppers can get an additional 2 quatloos, they got RS

      saying something does not rise to the level of RS (or PC for that matter) does not say that it does not present any indicia whatsoever

  13. I like how one of the suspicious factors was the time of day… that the cops chose to have a roadblock.

    A wide but legal turn is suspicious. As, I’m sure, a sharp but legal turn would be. Or signalling too long. Or not long enough. Or obviously staying just under the speed limit.

  14. “Don’t worry, the search is voluntary. But if you don’t consent, then we can do an involuntary search.”

  15. Its okay, South Dakota. You were never on my “preferred” list.

  16. Soon, driving carefully and not violating regulations in the vicinity of cops will be ruled as sufficiently suspicious behavior to stop and inspect citizens.

    1. ironically, if you read the original intel reports that were used by new jersey cops to stop suspected drug traffickers (and that later resulted in complaints of racial profiling, which were then later debunked as written about by heather mcdonald at city journal), some of the factors were not that different from what you mention

      rental cars, driving 5-10 under the speed limit were two (among others) factors identified in the intel reports as used by the traffickers.

  17. you could choose to live in a state that respects privacy, such as WA. that’s one of the reason i chose this great state

    no roadblocks. they violate the state constitution

    simple

  18. It should be obvious that anybody who makes a 180 before a roadblock and declines to consent to a voluntary search gives probable cause for a search … in a police state.

Please to post comments

Comments are closed.