Violating the 3-Second Following Rule Leads to 4 Years in Prison

United States v. Banks, 2022 WL 3206316 (8th Cir. 2022)

An officer monitoring traffic on an interstate freeway saw a silver Nissan Altima following another vehicle at what he believed to be an unsafe distance. The officer noted an unsafe lane change and used a stopwatch to twice clock the Altima as traveling less than one second behind the vehicle in front of it. Remember the rule from Drivers’ Ed? The National Safety Council recommends a minimum three-second following distance.

After stopping the Altima, the officer asked the driver, Zachary Macomber, to come back to the police car. After talking to Macomber, the officer returned to the Altima to check the VIN and speak with the passenger, Drake Banks. Banks and Macomber both said they were driving from St. Louis to Denver but gave inconsistent stories concerning whom they intended to visit in Denver, whether they spent any time in Denver before turning back and whether they obtained the Altima, a rental car, in Colorado or Missouri.

The officer asked Banks whether he had any drugs in the car and Banks admitted he had “some smoke,” digging out a baggie of marijuana from the glove compartment. The officer placed Banks in the patrol car with Macomber. The officer then searched the car, finding marijuana crumbs throughout the passenger compartment. He found a used blunt near the center console and 1.5 grams of methamphetamine stowed inside a pill bottle in a compartment in the driver-side door. He seized the drug evidence and five cell phones.

The court restated the well-established law that an officer’s observance of a traffic violation, no matter how minor, gives the officer probable cause to initiate a stop.

The officer next searched the trunk. He found four Glock pistols, three larger “military style” pistols, several magazines and “a large amount” of ammunition. One of the loaded guns, a Glock .45, bore DNA with a profile that was 1.43 trillion times more likely to match Banks than an unknown individual.

Banks was convicted of unlawful possession of a firearm by an unlawful user of a controlled substance. He appealed, alleging the traffic stop was illegal.

The appellate court disagreed, beginning by restating well-established law that an officer’s observance of a traffic violation, no matter how minor, gives the officer probable cause to initiate a stop. The officer observed the Altima traveling less than a second behind the vehicle in front of it—once at 0.9 seconds and once at 0.8 seconds. The officer reasonably believed Macomber’s following distance was not reasonable and prudent. The court cited one of its earlier decisions holding “that when one car trails another by less than two seconds, an officer will generally have probable cause to believe that the trailing car is closer than what is reasonable and prudent” (United States v. Andrews, 454 F.3d 919 (8th Cir. 2006)). There’s no need to tell the court that the National Safety Council recommends three seconds, not merely two. Thus, Banks will spend four years in prison thinking about riding with a driver who apparently didn’t pay attention in Drivers’ Ed.

Ken Wallentine

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 four 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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