The officer’s probably unintentional causing of defendant’s traffic violation made the stop unreasonable. Even if the stop was reasonable, there was no reasonable suspicion for continuing it. United States v. Esteban, 2017 U.S. Dist. LEXIS 211294 (D. Utah Dec. 22, 2017):
I. Trooper Tripodi provoked the traffic violation and, therefore, the stop was not valid at its inception.
“[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” Morgan, 855 F.3d at 1125 (quoting United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995)). Trooper Tripodi observed that Mr. Esteban violated Utah traffic law when he failed to signal for a full two seconds before initiating the second lane change. Even so, Mr. Esteban argues that Trooper Tripodi induced the traffic violation here, and that a traffic stop should not be deemed reasonable when the officer provokes the violation.
In support of this position, Mr. Esteban points the court to a number of cases in various jurisdictions, though none are binding on this court. (See Def.’s Mem. in Support, p. 9-10, ECF No. 42; Reply, p. 4, ECF No. 53.) Of these cases, the court finds United States v. Sigmond-Ballesteros, 285 F.3d 1117 (9th Cir. 2002), most analogous to the facts of this case. In Sigmond-Ballesteros, a border patrol agent stopped a truck partly based on the driver’s attempt to “obscure” or “conceal” his face with his hand and the driver’s “sudden move to a different lane” and move off the road to the shoulder. Id. at 1120-21. In suppressing the evidence found during the stop, the Ninth Circuit concluded that the facts identified above, even in consideration with other circumstances, did not provide a particularized and objective basis for the stop. Id. at 1121. The Circuit found the driver’s attempts to conceal his face were a necessary reaction to the officer’s shining his “alley light” into the driver’s window. Id. at 1123. And the Circuit found that the defendant’s driving behavior in that instance was a “rational reaction” to the officer’s own driving alongside and tailgating the vehicle. Id. at 1122. The case is also distinguishable, however, because the Circuit noted that there was no evidence the driver broke any traffic laws in making lane changes. Id. at 1121 n.2.
Mr. Esteban also cites to the settled principle that law enforcement officers cannot create the exigency justifying their intrusion. Cf. Kentucky v. King, 563 U.S. 452, 462, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011) (discussing the “police-created exigency” doctrine as limiting the exigent circumstances exception to the warrant requirement); see McInerney v. King, 791 F.3d 1224, 1235, 1238 (10th Cir. 2015) (citing the doctrine and finding it “clearly established that officers may not create exigent circumstances to justify their actions”). The logic of this principle, that law enforcement officers cannot create the circumstance justifying an intrusion implicating the Fourth Amendment, clearly parallels Mr. Esteban’s argument that an officer cannot engender or provoke a traffic violation forming the basis for the subsequent stop, particularly if the violation is a reasonable reaction to the officer’s conduct.
At least one district court in this circuit has used similar reasoning to find driving conduct that could, in the absence of other circumstances, provide the basis for a traffic violation failed to do so because of the officer’s conduct. In United States v. Ochoa, two troopers observed a Toyota following a Lincoln too closely, and they could not see a tag on the Toyota. 4 F. Supp. 2d 1007, 1009 (D. Kan. 1998). The officers believed the two vehicles were traveling together and starting following them. Id. The patrol car caught up to one of the vehicles and pulled into the passing lane to drive alongside it. Id. At that point, the second vehicle momentarily drifted a couple feet onto the right shoulder of the road and then back into its lane. Id. at 1011. Ultimately, the troopers pulled both vehicles over, citing the vehicle’s drift as one of the bases for the stop. Id. In these circumstances, Judge Marten found the troopers had “caused or contributed to causing the drift” onto the shoulder and concluded that the drift did not constitute a traffic violation under the circumstances, where the record showed the officers were clearly looking for a reason to pull both vehicles over. Id. at 1012 & n.4. The Tenth Circuit Court of Appeals has considered and distinguished Ochoa in later cases without disavowing its reasoning. See United States v. Worthon, 520 F.3d 1173, 1180 (10th Cir. 2008) (noting Ochoa’s unique facts and distinguishing it because “the record does not show that the officer was the cause, in the way that the officer was a ‘significant factor’ in the violation in Ochoa”); United States v. Rodriguez, 215 F.3d 1338 [published in full-text format at 2000 U.S. App. LEXIS 11076], at *4 (10th Cir. 2000) (unpublished Table Decision) (noting the circumstances did not suggest the officer caused the driver’s drifting onto the shoulder, thereby distinguishing Ochoa); United States v. Ozbirn, 189 F.3d 1194, 1199 (10th Cir. 1999) (noting the officer did not contribute to causing the motor home to drift onto the shoulder, unlike in Ochoa).
In the particular circumstances of this case, the court finds that Trooper Tripodi provoked the two-second traffic violation, though perhaps unintentionally. But see Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (holding the subjective motives of the officer are not at issue in Fourth Amendment analysis). The Supreme Court has held that observed traffic violations provide “the ‘quantum of individualized suspicion’ necessary to ensure that police discretion is sufficiently constrained” in conducting traffic stops. Id. at 817-18 (quoting Delaware v. Prouse, 440 U.S. 648, 654-55, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979)). But police discretion is not constrained when an officer’s conduct provokes or substantially contributes to a violation, even unintentionally. Though Trooper Tripodi may not have been “tailgating,” he significantly increased his speed, exceeding the acknowledged speed limit while also passing the emergency vehicles on the side of the road, and came up behind Mr. Esteban’s vehicle very quickly. Trooper Tripodi recognized that Mr. Esteban could reasonably have thought that a police officer, approaching quickly from behind, wanted his vehicle to move out of the way as soon as practicable. (See Tr. 83:12-16.)
In addition, Mr. Esteban’s conduct generally conformed to the safe-driving advice given by the Utah Driver Handbook, which notes that highway driving is “faster and conditions are not the same as in normal driving” and that a driver can be cited for “impeding traffic if a vehicle is following behind you in the left lane of travel on a multi-lane highway and you do not change lanes and allow for the other vehicle to pass.” Utah Dep’t of Public Safety, Utah Driver Handbook 8-8 (Aug. 2016). The Driver Handbook also notes that a driver must yield the right-of-way when emergency vehicles approach using sirens, emergency lights, or other warning devices. See id. at 11-5. Though Trooper Tripodi did not have his emergency lights on while coming up quickly behind Mr. Esteban, the cars were simultaneously passing an emergency vehicle on the side. In these circumstances, the court finds a reasonable person would have noticed the police car’s quick approach and reasonably assumed that they should change lanes as quickly as possible. Mr. Esteban clearly understood the two-second rule because he implemented it just seconds before while properly passing the earlier emergency vehicle.
Because the traffic violation that provided the basis for the stop was provoked by the officer’s own driving conduct, the “minimal level of objective justification” for the stop falls away and the stop becomes unreasonable under the Fourth Amendment. See United States v. Winder, 557 F.3d 1129, 1133-34 (10th Cir. 2009). As a result, the court must exclude any evidence obtained from the invalid stop.
