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Again winning a DWI trial after attacking the cop’s hunch

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Five months ago, I blogged about winning a driving while intoxicated trial when the judge ruled that the police stope of my client’s car was unconstitutional, for being based on no more than a hunch about whether my client or his passenger had been involved in an amorphous domestic dispute that had been called into the police

Last week, in the same Northern Virginia courthouse, I again won a DWI trial after arguing to the judge that the arresting officer stopped my client with no more than a hunch that my client, his passenger, or both were involved in a criminal breaking and entering into a house in the vicinity, where the police officer, on the trial date, did not know what street the house was on, who made the call, what the caller said about any suspected breaking and entering, nor what description had been provided by the caller of the suspected perpetrators. At this bench trial, the judge merged the suppression hearing into the trial. Although the judge allowed, over my objection, for the police officer to say that a canine officer at the scene was with a dog that alerted to my client’s car, no evidence was presented showing any significance about that alert.

Although the prosecutor and police officer in discovery told me that my client was running to his car with his passenger, and drove erratically after the officer started driving after my client with his emergency lights running — as a possible effort independent from the hunch to stop my client — I told the prosecutor that evidence of driving behavior after an officer orders a driver to stop (here with his emergency lights) — and the suspect does stop, which my client did here — is inadmissible in court; the basis of the stop must rely on the information available to the stopping officer once s/he makes the order to stop, and not on information obtained during the reasonable time period for stopping for the officer. I also learned in discovery that the police determined at some point after stopping my client that he and his passenger were not responsible for a breaking and entering crime, and they were never charged with that.

The prosecutor did not even get as far as to provide testimony about my client’s driving behavior. The judge looked at me when he sensed the police officer had provided all the testimony the judge was ready to hear about connecting my client to the amorphous breaking and entering report, and asked if I had any questions. It often is a nice sign for the defense when the judge offers for the defense to start cross examining before the prosecutor confirms that s/he is finished with a particular stage of direct examination. My cross examination confirmed the above hunch-showing factors that had not already come out in direct examination. After the prosecutor asked any redirect questions, the judge asked if I had any request. This was another good sign for the judge to invite a motion from me rather than to wait to see if I wanted to argue a motion.

I moved to dismiss the stop as being without reasonable articulable suspicion to believe that my client had committed a crime. Terry v. Ohio, 392 U.S. 1 (1968). The prosecutor argued that reasonable articulable suspicion existed to stop my client. The judge ruled in my favor and dismissed the stop, and we won, because without a stop, no DWI conviction was available to the prosecutor.

Delayed justice was done. I was not sure whether the judge would consider my client’s driving behavior in deciding whether the stop of him was lawful. Had the judge allowed testimony about his driving behavior, the judge may have let in the evidence about my client’s post-stop behavior, including his performance on the field sobriety tests, and we may have then suffered a DWI conviction. Fortunately, the judge invalidated the stop, and we won.