Wednesday, October 20, 2010

Justifying BS traffic stops

There's a telling discussion string at the Texas District and County Attorneys Association user forum in which an assistant DA from Snyder, TX is seeking to justify a traffic stop where a driver was pulled over for not having mud flaps on their truck. Only problem: That's not actually an offense under the Transportation Code. Prosecutor Ben Smith asked his colleagues:
Is there any statutory authority to stop a dually pickup truck because it is missing a mudflap? I've scoured the transportation code and the closest authority I can find is the 547.004 general offense of operating a vehicle that is unsafe so as to endanger a person (AKA "defective equipment"). If this is all I have to rely upon I will need some evidence as to how this was putting persons in danger -- flying gravel perforating hapless hitchhikers perhaps.

Any ideas on where there might be some specific authority for this stop?
Another forum member informed Mr. Smith that the only requirement for mudflaps on such vehicles arises if it is towing something, which the driver in question was not.

You see discussion strings like this all the time on the TDCAA user forum, and they always stick in my craw. This ADA has the process back-assward, seeking to justify the stop after the fact instead of insisting that police don't pull people over without cause in the first place. He seems to think his job isn't to evaluate the cop's actions but to rationalize them.

A prosecutor's duty is to seek justice, not convictions. So here we have a prosecutor evaluating a case where there was no legal justification for a traffic stop that he or anybody else can identify. But instead of dismissing the charges, he's seeking to stretch unrelated statutes to justify overreach by police on the street. His suggestion for claiming the truck had "defective equipment" ignores the fact that there's no requirement in the law that the truck have the equipment in question, not to mention no evidence (beyond speculation about "flying gravel perforating hapless hitchhikers") that the vehicle was in fact "unsafe."

This is an example of seeking a conviction instead of justice, and only a naif would say it's an isolated instance.

UPDATE: An attorney from DPS this morning posted a link to DPS' inspection criteria, which require "safety guards or flaps" on such trucks. Mr. Smith is happy to find something to hang his hat on, declaring "The DPS inspection requirements seem to require them on all dually pickups so I'm gonna go with that." However there's no Transportation Code violation and no evidence the vehicle had an invalid inspection sticker. Clearly he'd "go with" any argument that would support the officer's bogus traffic stop. It still strikes me that this fellow is looking for an excuse to justify the stop as opposed to following the law as it's written.


R. Shackleford said...

Happens 24/7. Prosecutors who do this kind of unethical thing are lower than the 'offenders' they chase. Total assbackwards perversion of their purpose. Sadly, I think this kind of douchebag behavior is the norm, rather than a rare exception. Insert Prison Doc's Churchill comment here.

DLW said...

Here is the way the case will play out in Scurry County. The prosecutor will file the case. The Defense Lawyer will file a Motion to Suppress. The Trial Court will deny the MTS. The Citizen will plead and take the search issue up to the Eastland Court of Appeals. Eastland will approve the stop. The CCA will deny a PDR and it will be the law in Texas that you can be pulled over for something else that isn't illegal.

Mike Howard said...

Some prosecutors throw out bad stops themselves and some try to find justifications. I think the real issue is the culture within the individual DA's office. If you've got an inexperienced ADA and his/her superiors create a culture of don't think for yourself, don't ask questions, don't challenge the norm - this will happen. If the ADA is willing to do what he/she thinks is right, justice gets done. But either way, this underlines the need for good defense lawyers to advocate for their clients' rights.

zeety said...


Anonymous said...

This is another reason that the public does not respect authority. Too often authority abuses its position and the public becomes slaves to them. As their power grows, so does their arrogance. Not all. but far too many.

Anonymous said...

Next thing you know if you do have mudflaps but with a silhouette of a naked girl then that's probable cause to try to determine the age of the fake girl on the flap!!!

Anonymous said...

"This is another reason that the public does not respect authority. Too often authority abuses its position and the public becomes slaves to them. As their power grows, so does their arrogance. Not all. but far too many."

Interesting. Does this logic extend to all abuses of authority or just those you don't like?

I doubt you have similar condemnation for Harris County's DIVERT program.

Anonymous said...

11:54, I don't understand the comparison you're making on DIVERT. How is that an example of when "authority abuses its position and the public becomes slaves to them"? Who are the "slaves" in your analogy? What are you talking about?

zeety said...

Okay, IANAL, but just for S&Gs let me take a shot at this:

Inspection/Rejection Criteria
20.22 Safety Guards or Flaps. Safety Guards or Flaps Requirement and Inspection.

Required on all:
Trucks or Light Trucks -
If the rearmost axle of the vehicle or (combination) has four tires or more.

Trailers or semitrailers (In combination with a towing vehicle).

Not Required:
Motor homes
Pole trailers

This seems pretty straightforward to me. By law a dually is required to have mud flaps because it has four tires on the rearmost axle.

Yet ADA-tard is doing semantic contortions over the definition of "truck" and fretting about "one ton" when the GVW has nothing to do with it.

I'd say the cop who issued the citation got it right, and knows more about the traffic code than this neophyte. Maybe he should ask the po po under what statute he wrote the ticket. Oh wait, then everyone would know he's a jackass.

Gritsforbreakfast said...

Zeety writes: "By law a dually is required to have mud flaps"

What law are you talking about? Be specific. Details of "inspection criteria" are not synonymous with "law." Read the Transportation Code and you'll discover that "by law" a dually only needs flaps if it's towing.

I agree somebody "should ask the po po under what statute he wrote the ticket," because in fact as it turns out there isn't one.

The truck is required to have mud flaps to pass inspection once per year, which presumably it did since there's no claim of an invalid inspection sticker. But unless the vehicle is towing something (547.606), a lack of mud flaps doesn't on its face seem to violate the Transportation Code.

Melinda said...

"A prosecutor's duty is to seek justice, not convictions." Thank you, Grits. Not enough prosecutors remeber this, It's nice to know a few of us are trying to keep this ideal at the forefront.

Anonymous said...

zweety, the safety guards on a dually are the large flared fenders that cover both wheels. Flaps would be required on things like flat beds where the wheel is exposed.

/dually driver


Anonymous said...

"It still strikes me that this fellow is looking for an excuse to justify the stop as opposed to following the law as it's written."

The Supreme Court of the United States has ruled that if a stop was objectively appropriate (i.e. another person in the officer's shoes could have reasonably believed that there was a law violation would have justified the stop, using only what the officer saw to justify that stop) then it doesn't matter what the officer's subjective reason for the stop was. The prosecutor is applying this standard to see if he has admissible evidence to prosecute a crime. The prosecutor is "following the law as it's written."

What if the stop had resulted in the officer discovering the dead body of a family member of yours in the driver's trunk, and that discovery was essential to proving that person murdered your family member? Wouldn't you want the prosecutor to look into every possible way that that evidence could potentially be admissible before kicking the case, even if the officer had been mistaken about the legal justification for his stop?
Grits, you have no idea what offense the prosecutor is looking into, but you rush to condemn him for following the law and his legal duty to see that justice is done. To paraphrase your quote, it strikes me that Grits is looking for an excuse to vilify the prosecutor and the cop by misrepresenting the law surrounding search/seizure issues as opposed to communicating the actual state of the law to his readers and acknowledging that there may be facts about this case that he doesn't know after reading a discussion between 3 people on an internet forum.

Anonymous said...

Anon 12:16,

1. DIVERT demonstrates a complete and total disregard for legislative intent and the law
2. all 1st time zero personal and property damage DUIs are not treated with equal objective standards

Equal protection under the law is an issue for me as well as abuse of process.

Anon 11:54

Anonymous said...

Grits, your definition of "justice" and that of the prosecutor here may be different. If the stop led to evidence of drug possession or a more serious crime (as suggested above), then the prosecutor may feel like simply throwing up his hands over the stop may not serve the ends of justice. I know you think it's "justice" whenever the guilty go free because the police made a mistake. Many people, however, feel that justice is denied in those cases, despite the fact that the guilty criminal's rights were vindicated.

And I would certainly not be surprised to learn that a prosecutor used to dealing with serious felonies does not have an intimate knowledge of the traffic code or the inspection criteria. He may have found it more convenient to ask his colleagues for assistance rather than pore over the books for the information he needed. This does not make him incompetent or unethical.

Anonymous said...

Anon @ 2:19
The police did not make a mistake, they consciously chose to violate the constitution by stopping a vehicle without cause. I am unhappy with people calling systematic and intentional violations of the constitution a mistake, or in other cases a technicality.

Gritsforbreakfast said...

1:13, the question is precisely whether "another person in the officer's shoes could have reasonably believed that there was a law violation [that] would have justified the stop, using only what the officer saw to justify" it. As it turns out, they couldn't because there's no law requiring mud flaps.

@2:19, you and 1:13 are arguing that the end justifies the means. You're entitled to that opinion, but don't confuse it for "justice."

Gritsforbreakfast said...

Oh, and Rage, thanks for your clarification. I think you've put your finger on exactly how the DPS inspection criteria jibe with the Transportation Code. Assuming your terminology is accurate, if a truck has "safety guards" (i.e., "the large flared fenders that cover both wheels,") then mud flaps wouldn't be required unless you're towing.

Hook Em Horns said...

You better check Grits, that may be a violation in Scurvey, oops I mean Scurry County.

zeety said...

I see where you're going with this, Grits, and I would agree the issue is ripe for challenge just because it gives an opportunity for dumbasses to make a stink. But still, the whole point of mud flaps is to stop those little pesky balls of gravel from dinging up your windshield when you are stuck behind a big truck. I don't think it's unreasonable to enforce this statute.

I do think it's comical this particular ADA has no clue when it would seem the statute clearly covers this instance.

Maybe I'm wrong, I'm not a lawyer and I don't even live in Texas. I'm just calling it like I see it.

Thanks for insight, I always love to read your blog :)

zeety said...

Oh yea, what I forgot to mention is under Grits scenario, because you happened to get some gas station attendant to issue you an inpection sticker you are absolved from the obligation of maintaining safety equipment on your vehicle until the expiration date.

Sorry, it doesn't work that way. Just because you have that sticker on your windshield doesn't mean you are immune to spot inpection by law enforcement. You are required to keep your vehicle in good, safe operating condition regardless of how long it's been since the last official inspection.

If you can't handle that, then do like me and get yourself one of these new anti-gravity space pods that hover over cop cars on the energy of two ZZZZ batteries.

Anonymous said...

Most cops are thugs in uniform. Given a little authority, they think they are gods. There needs to be police authority over these gods, to prorect us from the cops.

zeety said...

Grits wrote:

But unless the vehicle is towing something (547.606), a lack of mud flaps doesn't on its face seem to violate the Transportation Code.

The sub chapter I quoted, 20.22 covers that when it says "if the rearmost axle of a vehicle or (combination) has four or more tires.

This is what ADA-tard and his buddies got from the DPS website. Is it a statute? Hell, I don't know. But it is on the official DPS website so I'd think that's sorta what they are enforcing?

Gritsforbreakfast said...

Zeety, that's not a law and certainly not a "subchapter" of the statute I referenced. It's a list of "inspection criteria" developed by a state agency.

Besides, as Rage said, assuming the dually had the (usually standard) flared "safety guards," it wouldn't need mud flaps even under the DPS inspection criteria unless it's towing something.

Phelps said...

It's a violation of section C-22, "Contempt of Cop/Elected Official".

Ben Smith, ADA Scurry Co. said...

I am the prosecutor who caused this whole flap over mudflaps. I take my job of doing justice very seriously and have now for almost 15 years. In fact, that is exactly what I was trying to do in determining if the traffic stop was legitimate. If the traffic stop was not legitimate then whatever evidence was discovered after the stop is not admissible. I don't ever hesitate to refuse to prosecute cases where the traffic stop is not supported by law. Since I am a felony prosecutor, I am not nearly as familiar with the transportation code as I am the penal code; and this was the first mudflap stop I'd ever seen. Therefore, instead of rushing to judgment, I was trying to do my duty to justice and the people of Texas by making sure that the traffic stop was lawful. I don't see how its unethical or unconstitutional or in any way abhorrent for me to do so. In making sure that only cases in which the officers are justified by law go forward to prosecution, I am acting as the first gatekeeper to our constitutional rights to be free from unreasonable searches and seizures. Good defense lawyers, judges, and juries and the appellate courts are the gatekeepers later in the process, but many cases (that you never hear about) never make it that far because a prosecutor saw the problem right off the bat and refused the case.

Anonymous said...

Here's the thing, though, Mr. Smith. If the police officer didn't know what he was pulling over the driver for, then the traffic stop was, from the get-go, without justification and, therefore, illegal.

Your search for after-the-fact justification may well be legal, but it is an attempt to turn an illegal stop into a legal one so you can get other evidence into court.

If I (a private citizen) broke into somebody's house and shot the owner in the back because he cut me off in traffic, would you (as an ADA) try to find a reason to justify my actions on the idea that, if you look hard enough and bend and twist the law enough, there's probably some legal justification for my actions?

The traffic stop was illegal, and a violation of the driver's civil rights. If you job is to find justification for criminals, shouldn't you do that in every case that comes across your desk?

Anonymous said...

And, not for nothing, it wasn't a "mudflap stop" until you were given that potential justification on the message board.

We don't know what the police officer used to try to justify the stop, but since you're now calling it a "mudflap stop", I'm assuming he didn't have one at all.

Anonymous said...