Case o' The Week: Cops Lied, Suppression Denied -- Magallon-Lopez, Whren, and Traffic Stops
Lie by a cop? Defendant goes to jail.
United States v. Magallon-Lopez, 2016 WL 1254033 (9th Cir. March 31, 2016), decision available here.
Players: Decision by Judge Watford, joined by Judges Fisher and Berzon. Compelling concurrence by Judge Berzon. Hard-fought appeal by AFPDs Michael Donahoe and Mark Werner, FPD, D. Montana.
Facts: A wiretap lead officers to stop a car shipping meth. Id. at *1. The cops made an “investigatory stop,” but had not observed any traffic violations. Id.
An officer lied and told the driver the reason for the stop was failure to signal properly. Id.
The cops got a search warrant and found meth. Id. The driver, Magallon-Lopez, moved to suppress: his motion was denied. Id.
Issue(s): “Unable to contest the existence of reasonable suspicion, Magallon–Lopez challenges the legality of the stop on a different theory. He contends that the stop violated the Fourth Amendment because the officer who pulled him over deliberately lied when stating the reason for the stop, and the reason the officer gave was not itself supported by reasonable suspicion.” Id. at *3.
Held: “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. If, for example, the facts provide probable cause or reasonable suspicion to justify a traffic stop, the stop is lawful even if the officer made the stop only because he wished to investigate a more serious offense. Whren . . . 517 U.S. 806, 812–13. . . (1996). Likewise, if the facts support probable cause to arrest for one offense, the arrest is lawful even if the officer invoked, as the basis for the arrest, a different offense as to which probable cause was lacking. Devenpeck. . . , 543 U.S. 146, 153–55 . . . (2004); . . . The same principle—that the objective facts are controlling in this context, not what the officer said or was thinking—applies here. 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.” Id. at *3.
Of Note: Judge Berzon is troubled. “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 cases that begins with Whren . . ., seems to lead ineluctably to that distressing conclusion. But lying to government officials can lead to lengthy prison terms. See U.S.S.G. § 2J1.3(a) . . . . One would expect that lying by police officers to citizens would have consequences as well.” Id. at *4 (Berzon, J., concurring.”)
Citing legal commentators and Justice O’Connor, Judge Berzon worries that Whren and related cases encourage officers to offer “phony explanations” for their actions. Id. at *5. (In California, an officer must inform a detainee of the basis for his or her detention. See id., citing Cal. Penal Code § 841.) Whren also allows minor traffic infractions to be used and abused by law enforcement, with a disproportionate effect on racial minorities. Id. This concurrence is a compelling reflection on what Whren has wrought: well worth the read.
How to Use: Is there a Due Process (not Fourth Amendment) right to be truthfully informed of the true basis for a stop or arrest? That argument is “not foreclosed,” for Judge Berzon. Id. *5.
Take this invitation to heart: this is a welcome invitation for some interesting future litigation.
For Further Reading: In the recent Lundin opinion, the Ninth considered the subjective intent of officers in the context of a search. See blog post here. In Section 242 actions (prosecutions of cops for violating rights under color of law), courts are considering whether Whren’s pretext protections should preclude a subjective inquiry as well.
For a good piece on the next chink in Whren’s pretextual armor, see, When Cops are Robbers: Reconciling the Whren Doctrine and 18 U.S.C. § 242, available here.
Image of police car in rear view mirror from http://img.odometer.com/slides/1/7/2/2/2/4/1722240075/5e6b8f37a9b84edba68dafec92f603589d2b53b0.jpeg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org