Curious, I looked up the case and read the facts. An officer was patrolling the three lanes of westbound traffic on I-10 in Tucson when he saw a pickup truck in the far-left lane going under the 65 mile-per-hour speed limit. The officer noticed other cars were slowing behind the black pickup and passing it in the center lane. When the speed limit increased to 75 miles per hour, the officer paced the truck, which stayed in the far left lane going 60 to 65 miles per hour. The officer gave the truck plenty of opportunity to move into the right-hand lane, but vehicles continued to pass it on the right. Two cars had to slow behind the truck. The officer eventually initiated a traffic stop and saw five undocumented immigrants hiding in the back seat.

The opinion is about whether the officer had reasonable suspicion for the stop, and the magistrate recommends the court find he did. Honestly, though, that isn’t what matters to me. This is the type of case I wouldn’t touch with a ten-foot pole.

I know plenty of defense lawyers who won’t represent defendants in certain types of cases because they find the subject matter disturbing. They’re usually bothered by sex crimes or crimes against children, and they don’t take those cases because they can’t set aside their personal feelings and properly represent the client. For me, this is that type of case. It strikes far too close to home for me to look at the facts and fully consider the legal issues. Emotions get in the way. I just couldn’t represent the driver, and it isn’t because I care about whether he was smuggling humans or not. The problem is that the evidence suggests he was going under the speed limit in the left lane.

Here in Arizona, we’re all about highways. We have high speed limits, though not quite high enough, and lots of lanes, though still far fewer than we need. Highways connect everything. It’s a big state, and the only way most people get from one point to another is by driving. I occasionally feel like I’m more of a driver than a lawyer. It’s rare for me to travel less than 250 miles in a week. Often, I have to drive two or three times that much.

Nothing ruins a pleasant drive through the desert quite like some idiot in a beat-up truck going under the speed limit in the left lane. I’ve lost countless hours of productivity, perhaps days of my life if you add it all up, to people going way too slow in the left lane. As much as the criminal defense lawyer in me wants to see a motion to suppress granted, the driver in me wants to see someone punished for driving too slow in the passing lane. In this instance, the driver in me wins.

I find the opinion disturbing because of the callousness with which the court addresses the defendant’s abominable driving. This is no mere swerve over a marked line. This isn’t extreme speeding or an expired tag. Those things don’t really affect anyone. This moron had three beautiful, wide, newly-paved lanes in which to travel. He was on the fourth-longest highway in the country in a major metropolitan area. The monumental stupidity of his decision to pick the left-most lane in which to travel under the speed limit defies belief. Whatever punishment he gets for smuggling isn’t nearly enough to provide retributive justice for the heinous and unforgivable crime of going too slow in the far left lane.

You wouldn’t see a news article saying “Man stopped fleeing scene after murdering family, officer finds he is unable to provide proof of insurance.” Why do we care about a bunch of guys hunkered down in the backseat catching a ride to Phoenix? The defendant could’ve had a semi-trailer full of people and I wouldn’t care. They could be sitting on bales of marijuana carrying fully-automatic assault rifles. I wouldn’t bat an eyelash. Who cares? Not me, that’s for sure.

What has this world come to when we think that a victimless crime like smuggling humans is the greater harm based on those facts? How twisted must our priorities be for us to think that a dangerously slow driver in the left lane should be punished not for leaving numerous innocent and utterly helpless motorist-victims in his slow wake, but rather for being found to have some buddies in the backseat when he’s stopped?

We need to wake up. We’ve really lost sight of what matters. For shame.

There’s an Arizona court of appeals case from last year called State v. Sweeney. In it, the court held that, after a traffic stop has concluded, an officer must have reasonable cause to initiate a second detention of a suspect. Based on the totality of the circumstances, the officer in my case didn’t have reasonable suspicion of anything that would allow him to continue the detention by asking to search. It was a routine traffic stop in every conceivable way, yet the officer chose to detain the occupants again after the stop had already concluded.

The prosecutor claimed that my client, unlike the defendant in Sweeney, eventually consented to the search and wasn’t forced to wait for a drug drug. He thought the reasoning in Sweeney shouldn’t apply. He thought not only that those facts made the detention after the termination of the initial stop de minimis, a factor considered in Sweeney, but also that consent by itself should change the analysis. He got that from the part in Sweeney discussing State v. Box, which discussed de miminimus intrusions in greater depth. He didn’t think differences in the facts between my case and Box changed the analysis at all.

In the end, the suppression issue turned out to be moot, and speaking with the prosecutor long after the fact, he seemed to think that was good for me because I would’ve ended up “making bad law” for defendants. He thought an appellate court would severely narrow the ruling in Sweeney. He thought a case with bad facts, a description he used for my case, would lead an appellate court to make the de minimis exception swallow the rule or to broadly remove cases involving a consensual search from line of cases including Sweeney. What was most interesting to me was that he viewed all of that as a problem not just in the context of the case we had together. He seemed to think that I had a duty as a defense attorney to avoid creating case law that would limit the rights of defendants.

I was fascinated that he viewed my role as extending past the specific client I’m representing. He’s wrong, of course. I could have the worst facts in the world, the kind that would make the Supreme Court of the United States reconsider the exclusionary rule altogether, but if I thought they gave rise to a motion to suppress, especially one with enough merit to make it that far, I should probably file it. Sitting on a motion that’s worthy of appellate review almost sounds like malpractice. The most harm I can imagine any valid motion to suppress doing is to make the plea go away. Even then, a good motion results in a better plea more often than not, and when it does make the prosecutor pull the plea, it’s usually because the defense attorney is filing it because the case isn’t going to plead anyway.

Even more fascinating was the fact that the prosecutor thought the possibility of making bad law was anything more than wild speculation. Our court of appeals doesn’t have to issue published opinions. They can simply write a memorandum decision that cannot be cited, and if our supreme court denies the petition for review, nothing binding or even worthy of citation has occurred. Even if I had two clients with the same issue and one had a case facts that could lead an appellate court to change case law in a way that could theoretically affect the client in the other, I’d still file both unless there was some better reason not to do it. The odds of the worse case ever making it far enough to affect the other are slim to none. Speculative prejudice based on the speculative rulings of courts that don’t have to create precedent anyway sounds a lot like the kind of dubious “trial strategy” stuff lazy lawyers often say to justify their laziness during ineffective assistance of counsel proceedings. I’m not buying it in this context.

It’s strange that a smart, experienced prosecutor would so obviously misunderstand my duty as a criminal defense lawyer. It’s even more confusing to me that he would do it because of concerns about something that occurs only in the most unusual of cases. It confirms my skepticism towards prosecutors-turned-defense-lawyers. Assuming the issue has merit, I have no obligation to make good law or to avoid making bad law. My only obligations are to the person I represent, the one on the other side of the “V” from the state.

What I’d like to be able to do is take the marijuana from the police evidence and put it in one car out of ten and let the officer try and pick the right vehicle. I’ve never heard of a judge allowing such a test, but I’ll keep looking and trying. Alternatively, I’d like some type of scientific test that could be used to call into question the officer’s ability. I think the American Bar Association, ACLU, or some other organization could do a great deal of good by funding a study that could be cited by attorneys to prevent such blatant violations of our 4th Amendment rights. Shouldn’t marijuana be of comparable odor to something else that would allow meaningful comparison? I can’t smell unburnt scented candles or bottles of cologne riding around in people’s trunks. To my knowledge, no such study or test exists, and without it, I don’t see any indication that judges are suddenly going to start realizing the officers aren’t being honest (or alternatively stop pretending it is plausible).

If I’m wrong and this officer could smell such an incredibly small amount of pot through plastic baggies, metal, rubber, nylon, glass and any other materials blocking his nose from the weed’s odor, then why isn’t this officer simply allowed to walk around parking lots all day pointing to vehicles that contain marijuana? Why do we have police dogs if officers can smell as good as if not better than our four-legged friends? How many people have been subject to search and then released when nothing is found? In my experience, this is very common among poorer people, especially minorities, and it certainly doesn’t help instill confidence in police officers. Most importantly, I wonder how many people are in jail because of some dishonest officers who are willing to testify that they smelled something that they didn’t. You can argue that the ends justify the means, but if officers can tell “little white lies” to win cases, when does it stop? In case you think that I simply have a problem with police officers, my father was a police officer and specialized in marijuana interdiction for many years. I don’t think all cops are willing to lie to make a case. I just find it disheartening when I meet the ones that do.