AR: Mere color discrepancy between the DMV record and what the car looks like is not reasonable suspicion

Mere color discrepancy between the DMV record and what the car looks like is not reasonable suspicion, following FL3 and CA7. Schneider v. State, 2015 Ark. 152 (April 9, 2015), rev’g 2014 Ark. App. 711, 492 S.W.3d 601:

In making his argument, appellant urges this court to adopt the reasoning utilized by a district of the Florida Court of Appeals in Van Teamer v. State, 108 So. 3d 664 (Fla. App. Dist. 2013). In Van Teamer, the Florida appellate court held that a discrepancy between the color of a vehicle and the color listed on the registration, standing alone, does not justify a traffic stop. Appellant also directs this court to the decision in United States v. Uribe, 709 F.3d 646 (7th Cir. 2013), in which the United States Court of Appeals for the Seventh Circuit held that no reasonable suspicion of vehicle theft attached to a completely lawful color discrepancy in the absence of any evidence suggesting otherwise.

In arguing that the decision of the circuit court should be affirmed because the color discrepancy gave rise to a reasonable suspicion of criminal activity, the State relies on the decision of the Georgia Court of Appeals in Andrews v. State, 658 S.E.2d 126 (Ga. Ct. App. 2008) as well as the decision of the Indiana Court of Appeals in Smith v. State, 713 N.E.2d 338 (Ind. App. 1999). In both Andrews and Smith, the appellate court held that a color discrepancy gave rise to a reasonable suspicion of criminal activity sufficient to justify a stop of the vehicle because the discrepancy was an indication that the vehicle may have been retagged or stolen.

We conclude that the decisions in Van Teamer and Uribe are more persuasive given the facts presented in this case. In Van Teamer, the court noted that there was no requirement under Florida law for a registration to be updated to reflect a change in a vehicle’s color. In affirming the court of appeals decision, the Florida Supreme Court stated that “the color discrepancy here is not ‘inherently suspicious’ or ‘unusual’ enough or so ‘out of the ordinary’ as to provide an officer with a reasonable suspicion of criminal activity, especially given the fact that it is not against the law in Florida to change the color of your vehicle without notifying the DHSMV.” State v. Teamer, 151 So. 3d 421, 427 (Fla. 2014).

Arkansas, like Florida, has no requirement that the owner of a vehicle change the registration to reflect the color of a vehicle in the event it is painted or the color otherwise altered. It is also not prohibited in Arkansas to replace portions of a vehicle’s body with new body pieces that do not match the vehicle’s original color. The innocence of the conduct, however, is not determinative, as the United States Supreme Court has stated, in connection with a reasonable-suspicion inquiry, that “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” United States v. Sokolow, 490 U.S. 1, 10 (1989).

Here, although Officer Wiens testified that he would conduct a stop in the event of a color discrepancy to determine whether the vehicle was stolen, he did not testify that, in his experience, car thieves would change the color of a vehicle after it had been stolen or that a discrepancy in color was indicative of any type of criminal conduct. There was, therefore, no evidence before the circuit court that a color discrepancy was indicative of any criminal activity that would possibly allow otherwise innocent behavior to give rise to a reasonable suspicion of criminal activity. See Uribe, 709 F.3d at 652 (stating that the government had provided no information on the correlation between repainted vehicles and stolen ones).

It is clear, based on the testimony at the suppression hearing, that Officer Wiens was acting on a purely conjectural suspicion that appellant was engaged in illegal activity at the time he initiated the traffic stop. …