HAWAII COURT EVICERATES "REASONABLE SUSPICION" AND REPLACES IT WITH GUESSWORK IN DRIVING CASES
SAN DIEGO DUI DEFENSE ATTORNEY NEWS:
Now here is another one for the "You've Got To Be Kidding" pile.
Hawai'i decides a Hawaii search and seizure case in favor of the cop where the cop had reason based on the timing of defendant's reapparence on the streets after a prior arrest for driving without a license. Thank goodness there was a dissent to this madness.
State v. Spillner, 2007 Haw. LEXIS 376 (December 24, 2007):
Spillner challenged the cop's conclusion. He contends that, regardless of how close in time prior criminal activity is with current activity of a similar nature, the prior activity cannot be a factor in the analysis of reasonable suspicion and that an officer's prior knowledge of past violations, standing alone, can never, as a matter of law, authorize a traffic stop predicated solely upon the officer's suspicion that a driver is committing the offenses of driving without a license or driving without adequate insurance.
The court goes on to say:
"This absolutist proposition is demonstrably flawed. Let us posit that, late one evening, an officer effects a valid traffic stop of a vehicle after witnessing an uncontested violation of the traffic or vehicle safety codes and, incidental to that valid stop, the officer discovers that the driver is not merely without his or her license but is, in fact, unlicensed to drive in the jurisdiction. Upon encountering the same individual later the same evening, once again driving -- at a time during which the license-issuing authority has not yet reopened -- the officer would have more than reasonable suspicion to effect a second brief traffic stop of the driver to investigate whether he or she is driving without a license. Reasonable suspicion can, therefore, be established that the defendant has fixedly refused to cease prior criminal behavior, personally observed by the officer, absent other observed violations of the traffic or safety codes."
"Even in light of a more protracted interval, however, during which the individual could have corrected the former criminal behavior, a police officer may nevertheless have reasonable suspicion that the person has, in fact, failed to amend his or her behavior. To extend the hypothetical, if the second encounter occurs after the licensing authority has reopened, it would then be conceivable for the defendant to have renewed his or her license in the interim -- the realistic likelihood of the defendant doing so increasing with the passage of time -- but, depending on the particular facts informing the officer's decision, reasonable suspicion could still warrant effecting a traffic stop of the driver, despite the possibility of innocence, because "[a] determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct," Arvizu, 534 U.S. at 277; see also United States v. Cortez-Galaviz, 495 F.3d 1203, 1208 (10th Cir. 2007) ("Reasonable suspicion requires a dose of reasonableness and simply does not require an officer to rule out every possible lawful explanation for suspicious circumstances before effecting a brief stop to investigate further.") (concluding that reliance on twenty-day old information that the driver did not have insurance did not render the investigatory stop unreasonable); Decoteau, 681 N.W.2d at 806 (explaining that "[t]he reasonable suspicion standard does not require an officer to rule out every possible innocent excuse ... before stopping a vehicle for investigation," and, insofar as "[p]robabilities, not hard certainties, are used in determining reasonable suspicion," concluding that "[t]he officer's suspicion is not rendered unreasonable merely because the driver's license may have been reinstated in the intervening week")."
