Wednesday, January 29, 2014

Tenth Circuit US v. Harmon 12-2099

Decision here.

   Harmon was driving a car through New Mexico with drugs in the spare tire.  A cop saw him weaving within his lane for a while and crossing the fog line with both passenger side tires once.  The officer did not pull him over immediately because they were in a construction zone.  When he did stop him, the dashcam turned on and captured footage beginning one minute before the stop was made (it was one of those systems that starts the recording before you turn it on, so as to capture the actual violation).  Since all the weaving and the fog line crossing occurred more than a minute prior to the stop, they weren't part of the recording.  The recording didn't show any violations.

   The officer asked Harmon to come back to his car, and then asked him if he was fatigued or impaired.  He didn't do FSTs.  He gave Harmon a written warning, told him that he was free to go, and as Harmon was walking back to his car he asked if he would mind answering a few more questions.  Harmon came back, and the officer asked him if there were illegal drugs in the car (he had been tipped off by a heavy air freshener smell).  Harmon denied that there were, but gave him consent to search.  The officer found the drugs in the spare tire, and Harmon was charged with possession with intent to distribute.

   Harmon conditionally pled guilty, and moved to suppress the evidence.  He argued that there was no reasonable suspicion to justify the stop and that the search exceeded the scope of the stop.

   The New Mexico statute related to crossing lane markers says that a vehicle shall be driven as nearly as practicable within a single lane, and shall not be moved from that lane until the driver has first ascertained that such movement can be made with safety.  Pretty similar to Colorado... anyway, the NM courts have held that just crossing a little over the fog line once is not necessarily a violation of the statute.  The statute doesn't create a per se violation for crossing lines, so you would need something more like a continuous drifting out of the lane, straddling lanes, or some other dangerous driving to create a violation of this statute.  I have no idea what the Colorado courts say about our own similar traffic code.

   Since the New Mexico Supreme Court is the final authority on New Mexico laws, the question before the Tenth Circuit wasn't whether or not they thought it was a violation, but whether or not they thought the NM Supreme Court would think it's a violation.  They looked at a few cases which fell on both sides of the argument, and decided that they really didn't know what New Mexico would say.  Instead, the Tenth held that given the weaving AND the line crossing, the officer had RS for driving while impaired.  So the stop is good.

   As far as exceeding the scope of the stop, the search happened after the stop had transitioned from a detention to a consensual encounter.  So that was good, too.  Harmon's conviction was upheld.

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