We are often asked when meeting with our clients, “Can the officer pull me over for that when I am driving?”
The Supreme Court has set forth a relatively clear standard to govern when an officer can or cannot do something.
The Supreme Court set forth the standard of “reasonable suspicion” in Terry v. Ohio. The standard was explained well by the United State Court of Appeals, Tenth Circuit, in Amundsen v. Jones. This case focused on when an officer can conduct field sobriety tests.
By Kyler Ovard
1. Can an officer do anything he wants if he has reasonable suspicion to make a stop?
No. A valid Terry stop requires two things. First, the officer’s actions to stop an individual need to be “justified at the stop’s inception”. For an officer’s stop to be justified the officer must have a “reasonable suspicion, based on specific articulable facts, that a crime has been, or will be committed.” So, this means that an officer cannot just stop an individual because he wants to talk; he needs more than that.
Second, the officer’s conduct after the stop must be “reasonably related in scope to the circumstances that justified the interference in the first place.” So, if an officer has a valid reasonable suspicion, that does not mean that he can ask you about anything-his questions and actions must be focused on what created the “reasonable suspicion.” A practical application of this would be an officer asking an individual to step out of the car to perform field sobriety tests when he pulled the individual over for having a burnt out tail light, and did not smell alcohol. Such actions by the officer would exceed the scope of the stop.
2. Does an officer have reasonable suspicion, if he witnesses an automobile swerving in and out of traffic lanes, to conduct field sobriety tests?
Yes. The Tenth Circuit has held on several occasions that weaving in and out of lanes is “reasonable suspicion of driving under the influence”. The court has held:
See United States v. Hunnicutt, 135 F.3d 1345, 1347-48 (10th Cir.1998) (holding that an officer’s observations of a vehicle weaving between the center line and the shoulder line four to five times over a distance of approximately five miles created reasonable suspicion that the driver was under the influence); United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995) (holding that observations of a driver swerving from the outside lane, straddling the center line, and then swerving back to the outside lane gave rise to a reasonable suspicion that the driver was driving under the influence); United States v. Rodriguez-Pando, 841 F.2d 1014, 1017 (10th Cir.1988) (holding that a car that “mov[ed] from side to side,” “left the paved portion of the road,” and “weaved over the center of the road” created reasonable suspicion of driving while intoxicated). We have also held that drifting onto the shoulder twice creates reasonable suspicion of driving under the influence. United States v. Ozbirn, 189 F.3d 1194, 1199 (10th Cir.1999).
The practical application of the case law is that if an officer witnesses a vehicle swerving to the level indicated in the case law, and does not smell any alcohol, he still can conduct field sobriety tests.
3. Does any amount of swerving give an officer reasonable suspicion to conduct field sobriety tests?
No. The Tenth Circuit said the following: “There are limits, however, on the extent to which weaving can serve as a factor creating reasonable suspicion of driving under the influence. For instance, an isolated incident of crossing into another lane will not ordinarily create reasonable suspicion of driving while impaired.”
The Tenth Circuit also said: “Nor will weaving within a lane, without more, ordinarily create reasonable suspicion of driving under the influence.”
The Tenth Circuit has taken a reasonable approach to the creation of reasonable suspicion. The Tenth Circuit concluded that most people do not drive as their driver’s ed teacher taught them to at all times. The Tenth Circuit articulated this thought by stating the following:
“Indeed, if failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of privacy.”
An officer does need much to have reasonable suspicion to stop an individual and perform field sobriety, however, they do have rules that they have to play by.
By Kyler Ovard