This week the SJC held that "a law enforcement officer's investigation of a third party's civil speeding offense cannot, standing alone, justify the stop and seizure of a motorist." State of Maine v. LaPlante, http://www.courts.state.me.us/court_info/opinions/supreme/index.shtml#mostrecent.
The facts were undisputed. A state trooper clocked a red Pontiac traveling 71 mph in a 45 mph zone. As the trooper made a turn to pursue, a motorcycle passed him. The trooper lost the car, arrived at a fork, continued down one way a little distance, drove back to the fork, took the other way, still didn't see the car, but saw the motorcycle. He stopped the motorcyclist to ask him whether he had seen the Pontiac. When he did, he noticed that the motorcyclist seemed intoxicated. Ultimately, the motorcyclist was charged with and convicted of criminal operating under the influence.
Noting that a traffic stop is a seizure for constitutional purposes, the SJC (opinion by Levy, J.) applied a three-factor test included in Brown v. Texas, 443 U.S. 47 (1979) for determining whether this stop was allowed; in Brown, the Supreme Court stated that a seizure for information-seeking purposes may be reasonable in the absence of a reasonable articulable suspicion if "the gravity of the public concerns served by the seizure [and] the  degree to which the seizure advance the public interest" outweigh " the severity of the interference with individual liberty."
The gravity of public concern was not sufficiently great with civil speeding violations – the SJC cited a web site statistic saying that 80% of drivers speed. Looking at factor number 2, the Court said that the odds of a motorist who witnesses noncriminal speeding remembering is less than one who witnesses a hit and run accident or robbery. And finally, noting the new Maine statute that requires people to stop when an officer signals them to to so (17-A M.R.S s. 751-B(1)(A) (2010)), the SJC noted that any traffic stop's "intrusion on … individual autonomy is not insubstantial," and "if law enforcement officers routinely stopped morotirsts to inquire about third-party speeding offenses, the aggregate damage to indivdiual liberty would be great."
So the conviction was vacated and the evidence from the stop suppressed: "The investigation of a civil speeding offense does not justify the discretionary seizure of a motorist in absence of reasonable articulable suspicion."
Congratulations to Zach Heiden, who represented the defendant along with Jeffrey Toothaker and who filed an amicus brief for the MCLU. The Maine Association of Criminal Defense Lawyers also filed an amicus brief; on the other amicus side, were Attorney General Schneider with AAG Donald Macomber.
If the Brown factors are dispositive, then I don't see anything hinky in the SJC's reasoning. So why am I given at least a little pause?
I think it's because the 4th Amendment stops "unreasonable" searches and seizures – the police officer's conduct is unconstitutional; it's bad. Is it really a bad thing for a police officer to seek help? Is it wrong to stop someone to ask them whether they saw something, even if what he saw seems at that point to be a civil, not criminal offense? Why? If a police officer is running down the street after someone and doesn't see where the person he is chasing turns, it can't be wrong for the officer to ask the people around which way the person went. The problem with a speeding issue is in order to ask, the officer has to physically stop a car. Should this make a difference? You can't really say well, it's ok to stop the person to ask, but then you can't use what you see against them. What if the officer hadn't seen that this potential witness was intoxicated, but that there was a big bomb in plain view in his car? Should that make a difference? Why?
Obviously, you don't want a rule that could result in abuse by the police — as the court said, if police officers stopped cars willy-nilly to ask if they saw speeding, that could be a mess. It also could theoretically lead to evisceration of the need for a reasonable suspicion to stop someone. But here, there doesn't appear any suggestion of bad faith.
What if the police officer had no suspicion, reasonable or otherwise, of misconduct by anyone but was doing something for public safety? How is the gravity test measured? What if animal-lover police officer sees a duck with its ducklings trying to cross a road, so he stops cars to let them cross. Is duck-schmooshing not serious enough for him to take that step so he is constitutionally barred from helping them to the other side? If not, then if he does stop someone and sees a bomb in the front seat of their car, or that the driver is drunk, then shouldn't he be able to do something about it?
In short, while this is just my blog-level musing without looking at pesky things like precedent, maybe there should be a different analysis when the issue isn't determining whether the degree of suspicion about the person being stopped is sufficient for 4th Amendment purposes, but rather, when there's no suspicion about that person, but he's being stopped for a reason other than investigating him. I just don't want to see those little ducklings pancaked.