Courts are cool with pretextual stops. As long as a cop can make up a reasonably good excuse for pulling someone over, they can start casting their lines in hopes of bigger fish. Given enough time and bullshit, cops can often talk people into warrantless roadside searches.
But the pretext needs to be reasonable. And, thanks to the Supreme Court’s 2015 Rodriguez decision, delaying the stop unreasonably to engage in fishing expeditions is no longer lawful. That’s where these two deputies fucked up. Caught on their own cameras, the deputies ignored the pretext for the stop and tried to convert reasonable questions from the driver, as well as the driver’s chronic medical condition, into reasonable suspicion.
The Sixth Circuit Court of Appeals is not amused. The deputies cannot have the immunity they requested because… well, because they’re terrible law enforcement officers who violate the Constitution at will. Here’s the opening of this recent decision [PDF] affirming the denial of immunity to this pair of deputies with long histories of rights violations.
Daniel Wilkey and Tyler McRae, deputy sheriffs from Hamilton County, Tennessee, stopped William Klaver for a tinted-window violation. They eventually requested a drug-sniffing dog because Klaver was shaking and refusing to say why. After the dog “alerted,” the deputies searched Klaver’s vehicle but found nothing illegal. Klaver then noted that he had muscular dystrophy. He now says that the officers unreasonably prolonged the stop without reasonable suspicion that he possessed drugs. When the historical facts are taken in the light most favorable to Klaver, we agree with the district court that the deputies violated clearly established Fourth Amendment law.
There are all sorts of concerning things here. The connection of “shaking” to the presumed existence of drugs in the car. The decision to call in a drug dog even though the deputies had concluded the objective of the stop (window tint violation). The dog “alerting” despite the non-presence of drugs. The presence of Deputy Daniel Wilkey.
That name may ring a bell with Techdirt readers. Hamilton County (TN) Deputy Daniel Wilkey is a disgrace to even the worst of the worst who have ever worn a badge. Pulling people over for alleged window tint violations is his standard M.O. Everything past that point is, however, extremely non-standard.
As of December 2019, Deputy Daniel Wilkey was facing 44 criminal charges, including 25 felonies, ranging from official oppression to sexual battery to rape to extortion. In just one case leading to these charges (and at least one lawsuit), Wilkey followed a female resident to her home, forced her to “shake her bra and shirt” to prove she hadn’t hidden any contraband, and then offered to ignore any possible criminal charges if she would agree (wait for it) to be baptized. I really wish I was making this up.
Wilkey told Plaintiff that [Deputy] Goforth was present because, in order for a baptism to be valid, a witness must “attest” to the ritual.
Wilkey then stripped nearly naked, with only his boxer shorts on.
Wilkey then gave Plaintiff the option to strip too, but Plaintiff declined.
Wilkey then lead Plaintiff into the near waist deep and frigid water, placed one hand on Plaintiff’s back, and his other hand on Plaintiff’s breasts, and completely submerged Plaintiff under the water.
Wilkey held Plaintiff under water for several moments, then with his hands still positioned on her back and breasts, raised Plaintiff from the cold water.
Weird shit. Deputy Wilkey was hit with another lawsuit on the same day, this one alleging he had beaten and anally violated (with a gloved hand) another driver pulled over for another supposed “window tint violation.” A third lawsuit soon followed, alleging roadside searches of minors (including one strip search) pulled over for (you guessed it) a window tint violation.
The other involved deputy, Tyler McRae, comes with his own history of controversy: his partnership with Wilkey, along with an act of violence against a high school student, led to a judge questioning why he had ever been allowed to become a school resource officer.
So, that’s Wilkey and McRae. And this is what they did. They stopped William Klaver on April 17, 2019, claiming his window tint was too dark. Things went sideways almost immediately.
Wilkey told Klaver that he had stopped the van because its windows were “way too dark” and requested Klaver’s license. As Klaver searched for his license, Wilkey inquired about where Klaver was headed. Klaver’s failure to respond led Wilkey to ask: “Not going to talk to me?” Around this time, McRae pulled up and approached the van’s passenger side. After several more seconds, Wilkey asked Klaver, “You okay?” and again requested his license. Klaver responded with a question of his own: “Am I being detained?” Wilkey replied “yes” because of the “window-tint violation,” and Klaver handed over his license. As Wilkey and McRae headed back to Wilkey’s cruiser, Wilkey said the words “sovereign citizen” to McRae.
Wonderful. A deputy who thinks that someone asking “Am I being detained?” is indicative of being batshit crazy. Deputy Wilkey, captured by his own body cam, continued to make some seriously questionable assumptions about Klaver.
He opined that they should “make sure he ain’t got no pot or anything” because Klaver was “shaking like crazy.”
When Wilkey suggested that they call for a drug-sniffing dog, McRae agreed because Klaver would “say no to a search.”
That’s an unforced error. Everyone has the right to refuse a search. This is two officers conspiring to bypass this right — something they definitely cannot do under Rodriguez, which was decided four years earlier.
Deputy Wilkey, waiting for the drug dog to arrive, went back to harassing the driver.
Wilkey turned to questioning whether Klaver was on any “kind of medication” (Klaver said no) or had “any kind of disability” (Klaver was silent). Wilkey explained that the “reason I’m asking is ’cause you’re shaking,” and he inquired whether Klaver had “Parkinson’s or anything like that?” Klaver indicated that he did not think that Wilkey could ask him these questions. Wilkey justified his questioning on the ground that Klaver’s shaking might suggest that he was “hiding something” or had “drugs,” so Wilkey asked, “You don’t have any of that, do you?” Klaver responded: “You know I don’t.” A minute later, Wilkey again asked Klaver if he had “anything illegal in the car” like “weapons or anything like that.” Klaver again said no.
Klaver was right. Deputy Wilkey had no right to demand information on any medical conditions the driver might have. This line of questioning had nothing to do with the window tint. Nor was it any indication Klaver might be hiding contraband.
Klaver refused to allow the deputies to search his car. Eight minutes after the stop began, Deputy Wilkey requested a drug dog. He then spent six minutes slow walking the window tint violation ticket, opining that Klaver’s windows were too dark and that he must have tinted them that way “for a reason.” Then he returned to the vehicle to again try to talk Klaver into consenting to a search, mentioning the window tint violation and a supposed license plate violation.
Twenty-two minutes after Klaver had been pulled over, the drug dog arrived. Wilkey told the officer with the drug dog that Klaver was being “combative” (something clearly contradicted by the recordings). He again claimed Klaver was a “sovereign citizen” and was trying to “conceal” himself with the window tint. Then he asked Klaver to exit his van so the drug dog could perform its search. The drug dog then did tricks for treats.
At 8:40 p.m., McRae told Wilkey (and an incredulous Klaver) that the dog had alerted to drugs in the van. McRae and Wilkey searched the van for five minutes, finding nothing.
Having failed to achieve anything more than some rights violations, the deputies let Klaver go.
As Klaver signed the citation, he noted: “In case you were wondering, I have muscular dystrophy.” Wilkey replied: “That’s all you had to say, sir.”
Bullshit. Deputy Wilkey would not have ended the stop if Klaver had informed him of this fact. He was intent on performing a search of the vehicle and nothing — not even Supreme Court precedent — could deter him.
The Appeals Court says this precedent applies. And the deputies’ actions and statements (caught by their own cameras) indicate they were extending the stop to investigate something entirely unrelated to the objective of the stop: illegal window tint.
WIlkey and McRae spent several minutes questioning Klaver about his criminal past and the possibility that he had drugs or weapons in his van. Perhaps they could have been completing the ticket during this time? The canine officer also did not just happen to drive by the stop. Rather, Wilkey called the officer precisely because he “want[ed] to make sure [that Klaver] ain’t got no pot or anything”—in other words, because he was investigating criminal conduct unrelated to the traffic stop. Wilkey and McRae also waited some 14 minutes for the canine unit to arrive. During this delay, Wilkey even asked McRae: “you seen [the canine officer] yet?”—a question that could suggest the deputies had been dragging things out to give this officer more time to arrive.
Rodriguez applies. The only way it wouldn’t is if the deputies had reasonable suspicion of criminal behavior outside of the objective of the stop. The sued deputies argued this suspicion exists.
Wilkey’s and McRae’s briefs identify four pieces of evidence as their grounds for reasonable suspicion to believe that Klaver possessed drugs: (1) the deputies suspected that Klaver might be a sovereign citizen; (2) Klaver removed the tint from his window and lied about doing so during the stop; (3) Klaver was shaking; and (4) he was generally uncooperative and did not respond to the officers’ questions about the shaking. The deputies have not argued that the excessive tint or obstructed license plate could also help create a reasonable suspicion that Klaver was transporting drugs, so we need not consider those grounds.
The court says all of these arguments are bad.
To begin with, we may reject the deputies’ first factor—Klaver’s sovereign-citizen status— based solely on the conclusory fashion in which they have presented it to us. The deputies believed that Klaver might be a sovereign citizen (an individual known to be “uncooperative”) because he asked if they were detaining him and hesitated before providing his license. Yet the video shows that Klaver was reasonably polite, not loudly confrontational. Unless everyone who is reluctant to speak with the police might be a “sovereign citizen,” the deputies’ claim appears to have rested more on a “subjective hunch” than objective facts. Even more critically, they do not identify a single judicial decision or evidentiary citation suggesting that a suspect’s “sovereign citizen” status correlates with the type of criminal activity suspected here.
The court also says Klaver’s removal of the driver side window tint while the deputies talked among themselves cannot be considered part of the reasonable suspicion equation. First, the deputies weren’t even aware this had occurred until well after they had prolonged the stop. Second, any false statements made by Klaver about the tint were (again) not detected until the stop had passed the point of its objective.
But what about the alleged “shaking” and Klaver’s refusal to answer only two of the many questions Deputy Wilkey asked (where he was going and whether he had any medical disability)? The Appeals Court says these are also indicative of nothing reasonably suspicious and the officers involved in this stop should have been well aware of this.
Once again, however, our clearly established caselaw would have left no doubt for any reasonable officer that Klaver’s nervousness and reluctance to cooperate did not create reasonable suspicion, absent additional evidence of criminal activity. We have a mountain of caselaw indicating that heightened nerves represent weak evidence of wrongdoing and cannot be the primary justification for a stop.
Qualified immunity denied. The case goes back to the lower court to be presented to a jury. Deputy Wilkey and his partner in constitutional crime will have to engage in litigation just like the lowly people they appear to enjoy abusing: without a shield standing between them and accountability.
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