CA8: Objectively reasonable to stop for speeding; dissent doesn’t buy it

It was objectively reasonable for the officer to stop the defendant for speeding. The officer estimated 50-55 in a 35, and the majority goes along with that under Heien. The defense investigator used the video to conclude it was 35.8 at the most, and the dissent finds this whole thing “confounding.” United States v. Gaffney, 2015 U.S. App. LEXIS 10088 (8th Cir. June 16, 2015)*:

Although the district court lacked confidence in the officer’s estimate, the issue is not whether the evidence supports his belief that Gaffney was traveling at 50-55 mph. “[S]earches and seizures based on mistakes of fact can be reasonable.” Heien, 135 S. Ct. at 536. The issue is whether the totality of the circumstances at the time of the stop supports the reasonableness of the officer’s belief that Gaffney was speeding at all. See United States v. $45,000 in U.S. Currency, 749 F.3d 709, 715 (8th Cir. 2014) (“Any traffic violation, however minor, provides probable cause for a traffic stop.”).

Officer Bovy was familiar with the area, thought Gaffney was speeding, and Gaffney “braked hard” immediately after Bovy u-turned to follow him. Based on the totality of these facts—corroborated by Gaffney’s admission and the investigator’s measurement—the district court correctly concluded that Officer Bovy’s belief that Gaffney was speeding was objectively reasonable.

Dissent:

The objective facts of Gaffney’s case are contained within the video created by the dashboard camera located in Officer Bovy’s patrol car. From this video, the investigator determined Gaffney’s vehicle traveled at an average of 35.8 miles per hour, in a 35 mile per hour speed zone, from the time Officer Bovy could first see Gaffney’s vehicle on Franklin Street until the point where Gaffney’s vehicle was parallel with Officer Bovy’s patrol car. Over the course of this period, the vehicle appears to travel at a consistent speed, and Gaffney does not brake until after his vehicle has already passed Officer Bovy’s patrol car. Further, when Gaffney brakes, he is doing so to slow his vehicle to make a right turn and almost immediately stops. All of these events occurred during nighttime hours.

From these facts, the majority somehow concludes a reasonable officer would have a sufficient basis to stop Gaffney for speeding. I disagree. To conclude Officer Bovy or any other officer could visually discern a difference of a mere .8 miles per hour above the posted speed limit is confounding. See United States v. Sowards, 690 F.3d 583, 594 (2d Cir. 2012) (“[T]he accuracy of human estimation of speed cannot easily, readily, and accurately determine between such small variations [5 m.p.h.] in speed.” (internal quotation marks omitted)). Moreover, although this figure is an average, and the district court concluded Gaffney “likely traveled faster than 35.8 miles per hour at some point or points over the course of the nine seconds,” the objective facts do not support this conclusion. The video shows Gaffney’s vehicle traveling at a consistent speed, and he did not begin to slow his vehicle until he passed the end point of the investigator’s measurements.

Further, the majority attempts to make Officer Bovy’s familiarity with the area and that he thought Gaffney was speeding into objective facts. While courts have considered an officer’s visual estimation of speed as an objective fact to consider in the reasonable suspicion analysis, those courts have found the officers had the necessary skills, training, and experience to make such an estimation. …