probable cause stop is to seize someone who has already committed a crime. See, e.g., id. at 201 ("Probable cause exists if the totality of the circumstances as viewed by a reasonable and prudent person would lead that person to believe that a crime has been or is being committed and that the arrestee committed or is committing it." (Citation and internal quotation marks omitted.)).”

State v. Tyler, 830 N.W.2d 288, 293 (Iowa 2013).


Probable cause is “better” for officers because it suggests heightened suspicion of an actual crime—no matter how trivial the crime.

Officers will sometimes justify a stop with both reasonable suspicion to believe the motorist was impaired and probable cause of some trivial equipment or traffic violation to bolster their case for the stop. But in any case, “faking” the trivial equipment or traffic violation is a way to get near the driver and smell alcohol, see their purportedly bloodshot and watery eyes, and observe their supposedly slurred or thick tongued speech. Or simply send the motorist on his or her way if they can’t establish all of that.

If you or a loved one has been arrested for a crime, such as OWI (DUI), or other Iowa criminal offense following a traffic stop, please contact David A. Cmelik Law PLC for an initial consultation today.

 

Officers will sometimes justify a stop with both reasonable suspicion to believe the motorist was impaired and probable cause of some trivial equipment or traffic violation to bolster their case for the stop.

Can an Officer "Fake" a Traffic Stop to Get Up Close and Personal with Someone he Suspects of Drunk Driving?

by David Cmelik


Unfortunately, it is a common—and legal—practice for an officer to “fake” an otherwise trivial traffic stop merely to make contact and make observations about a motorist’s physical condition, the odor of alcohol, and slurred or thick tongued nature of the driver’s speech.


Of course, prosecutors and police will certainly disagree with the characterization that a traffic stop was “faked.” But let’s face it. The obvious reason that officers want to conduct a traffic stop after bar close is to do something other than write a citation for an equipment violation—like a burned out license plate. Let’s just be real.



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That’s what’s known as a “pretextual stop” and it is also, unfortunately, totally legal—as long as the officer actually has probable cause to believe the driver committed a traffic violation. That’s because, as the United States Supreme Court has ruled, “[s]ubjective intentions [of the police officer] play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996).

There is, the Court held, no “balancing test” for “reasonableness” of the stop when the officer has probable cause to believe a crime has been committed, no matter how minor. Id. It stands to reason that an officer will cite to both probable cause a minor traffic violation occurred and any purportedly reasonable grounds to believe a motorist is impaired to appeal to a dual purpose for the stop.


Of course, prosecutors and police will certainly disagree with the characterization that a traffic stop was "faked." But let's face it. The obvious reason that officers want to conduct  a traffic stop is to do something other than write a citation for an equipment violation.

The Iowa Supreme Court has upheld these standards in its cases over the year. For example, dating all the way back to 1975, the Iowa Supreme Court has held that “an investigatory stop of a motor vehicle is constitutionally permissible only if the stopping officer has specific and articulable cause to reasonably believe criminal activity is afoot. By the same token, circumstances evoking mere suspicion or curiosity will not suffice.” State v. Cooley, 229 N.W.2d 755, 760 (Iowa 1975).

However, if the officer has probable cause to believe a crime has been committed or contraband is present. Courts in Iowa distinguish between probable cause and reasonable suspicion thusly:

 “Perhaps the greatest distinction between a probable cause analysis and a reasonable suspicion analysis is the purpose of the stop. Our decisions have universally held that the purpose of a Terry stop is to investigate crime. See, e.g., Tague, 676 N.W.2d at 204 (noting that the police need only have reasonable suspicion to detain "for investigatory purposes"). Conversely, the purpose of a