N.D.Iowa: Rejecting R&R, court finds stop pretextual and without RS

After USMJ sustained the stop (United States v. McLemore, 2016 U.S. Dist. LEXIS 177419 (N.D.Iowa Dec. 21, 2016), posted here), the USDJ disagrees and disbelieves the officer’s testimony and finding the stop pretextual that the paper temporary tag couldn’t be read except after the stop. The stop thus lacked reasonable suspicion and is suppressed. United States v. McLemore, 2017 U.S. Dist. LEXIS 27489 (N.D. Iowa Feb. 28, 2017):

While the officer in Givens was able to articulate a suspicion of an actual crime (failure to have proper temporary registration), the officers in this case make no such claim. In her report, Del Valle stated:

I observed the BMW had promotional/advertising dealer plates and I observed a paper plate affixed to the left portion of the rear window, but I was unable to see the letters or numbers on the paper plate from my vehicle, or when even when I got close to the vehicle. It wasn’t until I was standing near the rear window, when I was able to see the paper plate.

Def. Ex. B at 1. Del Valle did not state that that she suspected Rode or McLemore were violating Iowa Code § 321.25 by not having proper registration. See Def. Ex. B. Similarly, the audio recording reflects no discussion suggesting that Del Valle or Richter suspected fraudulent registration. See Def. Ex. A. Rather, the conversation shows that the officers were looking for a pretext to stop the vehicle and that Richter specifically directed Del Valle to scrutinize the temporary registration that both officers knew to be a temporary registration. Id. At that point, Del Valle stated that because of darkness she could not read the registration. Id.

Moreover, Del Valle’s testimony contains no indication that she actually suspected a motor vehicle registration infraction. Rather, as quoted above, when asked whether she even glanced at the temporary registration, she stated, “as I approached the vehicle, I already had the probable cause, which was a temporary tag. I wasn’t focused on whether that tag was valid or not at that time.” Tr. at 43. Del Valle also openly referred to the temporary tag as a pretext for the stop. There is no contemporaneous record that Del Valle ever articulated a suspicion that Rode or McLemore were committing a traffic code violation based on the temporary tag.

This is the precise factual situation that occurred in Wilson and that the Eighth Circuit relied upon in distinguishing Givens. In Givens, the officer plausibly explained why he believed a crime might have been occurring. He stated that he typically could read temporary tags at night, that he could not read Givens’ tag, and that there had been a rash of fraudulent tags. There are no similar facts here. Thus, Givens is not controlling. The record in this case contains no evidence that the traffic stop was based on a reasonable suspicion that a crime was actually occurring. Rather, the Government’s argument is based on the incorrect premise that an officer’s inability to read some letters and numbers on a temporary registration, by itself, gives rise to reasonable suspicion to stop a vehicle.

For there to be reasonable suspicion that criminal activity is occurring, an officer must be able to point, at least generally, to the actual criminal activity. That determination “is not to be made with the vision of hindsight, but instead by looking to what the officer reasonably knew at the time” United States v. Sanders, 196 F.3d 910, 913 (8th Cir. 1999). In many cases, the contemporaneous belief standard favors the Government because even if an officer is mistaken about facts or law, a stop will not be suppressed if the officer had a reasonable suspicion of criminal activity at the time. See United States v. Sanchez, 572 F.3d 475, 479 (8th Cir. 2009). Here, however, the opposite is true. At the time of the stop, Del Valle had no suspicion, reasonable or otherwise, that Rode or McLemore were engaged in any criminal activity related to the temporary registration sticker. The stop was made simply because officers wanted to investigate other crimes. This is a classic case of a pretextual detention that was not supported by valid reasonable suspicion. Eldridge, 984 F.2d at 947. Accordingly, the defendants’ motions to suppress must be granted.