Friday, December 23, 2005

Case o' The Week: Whrenewed Problems with Traffic Stops -- Willis

Remember Whren, that terrible Supreme Court decision that allowed for pretextual traffic stops? The only Fourth Amendment protection left after that case was a requirement that the traffic violation had actually occurred. Even that small hurdle was sidestepped in Willis, when the Ninth finds facts to support a traffic stop despite contrary findings below – findings which the government did not contest. See United States v. Mark Willis, __ F.3d __, 2005 WL 3454681 (9th Cir. Dec. 19, 2005), available here. Great dissent by Judge William Fletcher (left).

Players: Judge Willie Fletcher calls it like it is in a compelling dissent.

Facts: A Las Vegas cop saw a car make a rapid turn in a high-crime area, make two more quick turns, and stop. Willis got out, ran up to an apartment, returned, come back to the car, and made an “illegal” U-turn. Id. at *1. A computer check produced a missing person’s report associated with the car. Id. The cop requested backup, ordered Willis to put his hands up, asked the defendant if he had a gun, and recovered it when Willis answered “yes.” Id. Charged with § 922(g)(1), Willis challenged the stop. The magistrate found no reasonable articulable suspicion of criminal activity to support a Terry stop, but upheld the stop based on a “community caretaking function.” Id. at *2. The district court adopted the recommendations, Willis appealed. Id.

Issue(s): Was there reasonable suspicion to make the stop?

Held: “We decline to determine whether the community caretaking function, or the emergency aid doctrine, justified the officers’ detention of Willis. Instead, we hold that the detention came within the scope of a valid traffic stop, because Officer Boehmer had at least reasonable suspicion – if not probable cause – to stop Willis for violating the traffic laws.” Id.

Of Note: Judge Bybee spends much time on Whren, emphasizing that even a pretextual traffic stop is OK if there is reasonable suspicion of a traffic violation. Id. at *3. So be it – that’s settled law. What’s disappointing is that there was not reasonable suspicion for a traffic stop. As Judge (Willie) Fletcher points out in a thoughtful dissent, Willis had voluntarily pulled over before the police approached so this was not a Whren traffic stop. Id. at *5 (Fletcher W., J., dissenting). Moreover, the magistrate made factual findings on the merits of the traffic stop and found it was not warranted – and that finding was not contested by the government! Id. Finally, this was not the “run-of-the-mine” traffic stop tolerated in Whren. Id. There were not “specific, articulable facts” of a traffic violation – so the stop was not legal. As Judge Fletcher laments, “If, on these assumed facts, Officer Boehmer provided ‘specific, articulable facts’ to support a reasonable suspicion that Willis had broken the traffic laws, ‘reasonable suspicion’ has lost much of its meaning.” Id. at *13.

Willis is a little case that is a big deal for those committed to indigent defense. Just as the defense bar warned, Whren opened the floodgates to pretextual traffic stops and to the inevitable race-based targeting that follows. The only (slim) protection after Whren is the requirement that a stop is actually legitimate – that some traffic offense must have actually been committed. Given the huge potential for abuse after Whren, federal courts bear a heavy responsibility to play it straight when evaluating the facts of a traffic violation: at minimum a cop must actually articulate specific facts meriting the stop. Judge Fletcher is right – in Willis, the Ninth shirked that responsibility.

How to Use: Willis is so bad it is hard to find the silver lining. The best one can hope for is to emphasize the majority’s proclamation that there were traffic offenses – an illegal U-turn, for example. Id. at *4. Then try to push the district court in your case to make factual findings that there were not facts demonstrating an actual traffic violation.

For Further Reading: Did you take the California Bar? If so, Professor William Fletcher probably taught you “remedies” in Bar-Bri. A Rhodes Scholar, Supreme Court clerk, and Boalt Hall professor, Judge Fletcher was appointed by his former roommate Clinton, and took the bench in 1999. See Boalt Webpage here. Because he is the son of Judge Betty Fletcher, she took senior status when he took the bench. As his former students know (undersigned included), Judge Fletcher read Supreme Court decisions before he was in college – every one of them.
Though W. Fletcher is to the right of B. Fletcher, he is to the left of many of his Clinton class. In cases like Willis, one detects the beloved Betty spark.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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