Talk Nice, Just Talk Nice!

by | June 19, 2023

United States v. Fagan, 2023 WL 4014052 (1st Cir. 2023)

Damon Fagan and a passenger were driving north on the Maine Turnpike late one night. A state trooper followed behind. After running Fagan’s car registration and learning the vehicle was a rental car from a location much further north, the trooper continued to follow Fagan. The trooper saw Fagan move to the middle lane to pass a tractor-trailer and then move back into the right lane. The trooper determined Fagan had made an unsafe lane change and initiated a traffic stop.

Over the course of the stop, which included more than an hour and a half of questioning, Fagan gave up 37 grams of heroin and the trooper arrested him. Fagan moved to suppress the evidence, arguing the stop was illegal and that his Fourth and Fifth Amendment rights were violated by the trooper’s questioning. The trial court held two hearings, initially denying the suppression motion, but agreed to a second hearing when a recording of the trooper was revealed. The trial court held fast to denying the suppression motion after listening to the recording. Fagan appealed.

The court of appeals observed the trial court “record supports an inference that the reason the trooper chose to follow Fagan was because Fagan, a Black man, fit the trooper’s profile of what he calls ‘thugs’ whom he suspects of drug dealing.” As the trooper was conversing with another officer, the second officer’s body-worn camera recorded the trooper’s remarks:

“He’s wearing a wife-beater, he’s got dreads, he looks like a thug, he may not be. And I’m not profiling him racially, because I don’t care that he’s white, Black. White kid, neck tats all over him, f—ing sideways hat, thug, you know what I mean? I hate when people try to make it seem like that’s what it is. I care about where people are from, and the way they seem, do you know what I mean? Like, do they seem like they could be involved in the drug game, or gangs, or something, you know what I mean? I don’t give a f— if somebody’s Black, white, like…And I like saying this, Nicole has a f—ing niece who is half Black, I’ll tell someone like, my niece is half-Black, don’t play that racial shit with me.”

The court of appeals performed a number of mathematical calculations to estimate the distance between Fagan’s car and the tractor-trailer as Fagan “cut in” to the right lane in front of the tractor-trailer, “leaving very little distance between the two.” Both the majority opinion and the dissenting opinion feature time/distance/speed formula calculations.

A stop for a mere traffic violation, even when supported only by a reasonable suspicion that such a violation occurred, does not violate the Fourth Amendment.

The majority opinion upheld the denial of the suppression motion. The court reiterated three rules of law supporting their decision: (1) A stop for a mere traffic violation, even when supported only by a reasonable suspicion that such a violation occurred, does not violate the Fourth Amendment; (2) racial profiling, while a violation of the Fourteenth Amendment, does not trigger the exclusionary rule as it might were it a Fourth Amendment violation; and (3) the trial court was entitled to broad leeway in determining the credibility of witnesses, such as the trooper who testified about his reason for stopping Fagan.

The court’s decision makes sense and does little more than follow established law. Nonetheless, it is certain there would never have been a second hearing on the suppression motion had not the trial court, and the court of appeals, perceived a strong basis for suspecting the trooper of racial profiling. One can easily take the trooper’s statements at face value: He is after any thug carrying illegal drugs. Were the statements helpful? Did they unnecessarily complicate what should have been, could have been and really was a simple traffic stop that resulted in a drug seizure? You decide. Just talk nice.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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