S.D.W.Va.: Pretext on pretext too much for this court; no RS for stop

A lane change without signaling that affected no other motorist wasn’t justification for defendant’s stop. One crossing the fog line isn’t enough. Pretext on pretext is just too much. Motion to suppress granted. United States v. Womack, 2021 U.S. Dist. LEXIS 123416 (S.D. W.Va. July 1, 2021):

I am aware that Fourth Amendment jurisprudence has evolved over the decades to adopt the concept of the pretextual stop in which an officer detains a person or a vehicle on the nominal basis of some minor offense because he holds the ulterior belief that greater criminality is brewing. See Hassan El, 5 F.3d 726 (4th Cir. 1993). What I cannot accept is the notion that a person’s Fourth Amendment rights are adequately safeguarded when officers stack pretext on top of pretext. That is to say, that if an officer is to make a pretextual investigative stop, he may not claim to have obtained probable cause unless there is an actual instance of breaking the law.

I am troubled by the fog line issue because it offers patrolling officers such a powerful and unfalsifiable wedge with which to detain drivers, question them about their destinations, smell the interiors of their cars, and even ask them to consent to pat downs and warrantless searches. It is nearly impossible for a driver to dispute that he crossed a fog line on any one instance. Here, Deputy Thompson testified that two of the major reasons for his deciding to follow Womack in the first place were his Michigan license plates and his knowledge that Route 68 connects to Route 33, which is a path well-beaten with the tracks of drug lords and their pawns from Ohio and Michigan. The incidental fog line crossing gave the Deputy a foot in the door to follow up his suspicions and discover the drugs hidden in Womack’s car. Deputy Thompson’s intuition happened to be correct but using a single touching or crossing to stop a traveling car is unreasonable because such conduct is not a violation of West Virginia law. I suspect that nearly every person who has ever operated a motor vehicle has touched the white fog line.

. . .

… I am persuaded by the reasoning in these cases and hold that a single fog line crossing is insufficient, without more, to create probable cause when the statute merely requires that a vehicle be driven within a single lane of traffic “as nearly as practicable.”