Judges Don’t See it the Same on Speed, Stopping, and Suspicion

By Chris Mincher

Of counsel, McAllister, DeTar, Showalter & Walker

Reasonable suspicion under the Fourth Amendment is a treadmill issue for appellate courts, and the constant churn of opinions usually involves judges’ different attempts to articulate what exactly is, and what should be, suspicious about human behavior. Those questions are far from easy. Every judge — every person, really — may have different thresholds about when something becomes reasonably suspicious.

The task often involves adding up a bunch of small details about a police encounter, each of which may be only a little bit suspicious, and determining whether they cross that varying threshold. A good case in point is the recent Snyder v. State, App. Ct. of Md., Sept. Term 2021, No. 1127 (Feb. 3, 2023), which suggests that strategy by the State may not always be effective. There, the State sought to satisfy the Fourth Amendment by throwing a bunch of suspicion spaghetti against the wall. Peeling it off one by one, the Appellate Court majority found it wasn’t enough — but there was one sticky noodle that triggered a dissent.

From the Lack of a Glance to Drugs in the Pants

The incident stems from a police officer sitting in his vehicle observing highway traffic, attracting the attention and gaze of the passing motorists — at least until the defendant, Mr. Snyder, rolled by. According to the officer, he and his passenger, unusually, didn’t look over at him at all. That was enough for the officer to pull out and follow behind to see if any violation occurred that would justify a stop.

Mr. Snyder eventually made a careless lane change, causing a truck to hit its brakes to let him in, so the officer activated his lights and siren. Mr. Snyder exited the road, drove past a turn lane and unmarked lane, and “very slowly” entered a gas station, with both occupants of the vehicle repeatedly looking back at the officer and making noticeable movements in their shoulders. Oddly ignoring a few empty spaces, Mr. Snyder parked at one of the pumps instead, but when the officer told him to move somewhere else in the lot he did.

Noting the individuals’ “high levels of nervousness” — including physical shaking — the officer then identified Mr. Snyder and his passenger. Back at his patrol car, the officer discovered they had various pending charges and convictions for drug possession. Over the police radio, an assistant sheriff’s deputy also told the officer about a recent interaction with the passenger where he was suspected of being involved in drugs.

The officer requested a police dog to come inspect for narcotics. In the meantime, he spoke more to Mr. Snyder, who had said they were returning from the house of a friend who he had no information about. The passenger’s answers to the officer’s questions were also inconsistent with Mr. Snyder’s. The dog arrived, detected drugs, and a bunch of painkillers with fentanyl were found in the car and Mr. Snyder’s “groin area.”

The Rulings: Evidence In, Evidence Out

Mr. Snyder moved pretrial to suppress the evidence on the basis of an unconstitutional search. The trial court found the “totality of the circumstances” gave the officer a reasonable suspicion of illegal activity and allowed the evidence, and Mr. Snyder was convicted. On appeal, the State argued that six things, when considered together, justified the search: (1) Mr. Snyder and his passenger didn’t look at the officer while driving by, when most motorists do; (2) when the officer began following them, Mr. Snyder made an improper lane change; (3) after the officer initiated a stop, Mr. Snyder drove slowly and parked at a gas pump rather than in a parking spot; (4) Mr. Snyder and his passenger repeatedly glanced at the officer and made movements with their shoulders; (5) Mr. Snyder was nervous; and (6) Mr. Snyder had pending criminal charges.

One by one, the Appellate Court shot these down, and ultimately concluded the evidence shouldn’t have come in. Judge Albright dissented, focusing particularly on Mr. Snyder’s slow maneuvering while being pulled over and choosing to park at a pump rather than a space. She found reasonable suspicion when those were considered with the totality of the other circumstances. (My kids would say this was “sussy”; does anyone else’s kids say that?) It wasn’t exactly an ardent clash of opinion by any means, but, given how frequent these kinds of factors are cited by police and prosecutors, it is worthwhile to explore the opposing viewpoints.

A Curious Concurrence

First, anyone looking at this case will notice Judge Friedman’s concurrence, which could really be the subject of an entire separate post. In sum, he doesn’t like how this stop ever came about in the first place — that the officer went looking for a reason to pull Mr. Snyder over. That kind of pretext is permitted by Whren v. United States, 517 U.S. 806 (1996), which Judge Friedman disagrees with.

Judge Friedman’s concurrence acknowledged this wasn’t a preserved argument and wasn’t appropriate to decide in the case. Instead, he directs the criminal defense bar to argue in the future that Maryland should, through Article 26 of the Declaration of Rights (and seemingly on policy grounds rather than anything specific about that Article), adopt an independent restriction on this kind of police behavior. Quite interesting, but also sort of an aside, so I’ll move on.

Majority Opinion: Officer’s Reasons Unreasonable

Because she relied on the “totality of circumstances,” I’m going to assume that Judge Albright believed each of the details cited by the State had at least some merit. Walking through the list, however, the majority’s analysis is pretty persuasive:

1. Failure to look at the officer. As the majority noted, police in other cases have found it suspicious when people do look at them as they pass. It can’t be that if you look at an officer it is suspicious, and if you don’t look it is also suspicious. (Personally, my vote is for people to not stare down parked police cars on the side of the road. Do you mindless rubberneckers even realize how many commutes you ruin? C’mon!)
2. Mr. Snyder made an improper lane change. Maybe this would be compelling if the State had demonstrated that the lane change indicated an attempt to evade the officer, but it didn’t. The lane change wasn’t even egregious enough to be worthy of a citation. Improvidently changing lanes, by itself, isn’t indicative of criminal activity.

4. The car’s occupants looked at the officer repeatedly and moved their shoulders. There was, again, the problem of it being previously argued that it is both suspicious to look at an officer and to not look at an officer while being pulled over. The majority did grant that furtive movements consistent with concealing property can create a reasonable suspicion, but that wasn’t proven either.
5. Mr. Snyder was nervous. Everybody is nervous when getting pulled over; Mr. Snyder was still fully cooperative with the officer, as a nervous but law-abiding person otherwise would also be.
6. Mr. Snyder had pending drug charges. The majority thought the officer’s reliance on this was “precisely the problem” — they likely doubted the officer would have been able to articulate what he really thought Mr. Snyder and his passenger were doing until he discovered the charges. While past criminal activity can, with other pertinent information, justify a search, it can’t alone convert unsuspicious behavior into something suspicious. Otherwise people with criminal records could be detained at any time.

I’m on board with all that. But, as I’m sure all you astute readers immediately realized, I skipped over (3), about Mr. Snyder’s slow driving and unusual parking choice after getting pulled over. Judge Albright believed this deserved a little more attention, and I agree.

The Disagreement — Slow Speed and Empty Spots

First, it is true that, as the majority notes, the officer’s testimony about Mr. Snyder’s parking location went too far. The officer found it questionable that Mr. Snyder chose a gas station, because he believed criminals were more likely to pull into a public business when in contact with police. That assertion, as the majority said, “defines common sense.” There are all kinds of reasons why completely innocent people in a traffic stop would prefer that occur in a highly visible area. One might wonder whether assertions like this just made the panel doubt the officer’s testimony in general, and what impact that might have had on the overall outcome.

But what about the other part of it — driving “very slowly” past empty parking spots and then stopping at a gas pump? It wasn’t obvious to the majority that the unmarked lane and turn lane Mr. Snyder passed were appropriate places to pull over. The majority also noted that anybody in that situation might drive slowly while looking for a safe place to stop. As for the choice to park at a gas pump rather than an empty parking space, the majority could “conceive of no rational basis for attaching criminal significance” to that. Hmmm.

My gut reaction to this is, yeah, but getting pulled over and then driving “very slowly” past empty parking spaces to finally stop at a gas pump is just… weird. I do realize “that’s weird” isn’t a good enough Fourth Amendment reason to detain and investigate someone — otherwise weird people’s lives would be ruined by being constantly stopped by police to explain their weird behavior — so luckily Judge Albright’s dissent is more articulate than I am.

To her, “slow rolling” past empty spots and ending up at a pump — where Mr. Snyder was almost certainly going to be told to move again — could be interpreted as buying time to conceal drugs. Which also could explain, I guess, how a sandwich bag with capsules of fentanyl and painkillers ended up in Mr. Snyder’s groin area. (I don’t know about you all, but that doesn’t seem to me to be a comfortable place to cram a fentanyl stash while driving around.)

So might there be more to an officer’s suspicion about how slowly and where a defendant stops? For one, it’s a more objective analysis than most behaviors cited by police — testimony can quantifiably estimate how fast a person was driving, and describe with particularity what other opportunities a person had to pull over. At least those create clear questions for the court about how slow is too slow, and whether the other possible stopping locations were plausible.

As in this case, I agree with the majority that criminal suspicion shouldn’t necessarily attach to a defendant’s choice to avoid pulling over in narrow shoulders, turn lanes, unmarked lanes, and the like. I also agree that some amount of deceleration should be expected of a driver who is looking for a place to stop, though I think there are grounds to be suspicious when someone drops to an inordinately low speed.

Overall, it seems logical to me that when a defendant “very slowly” passes completely empty parking spaces, and then stops in some other unusual location, an officer has cause to wonder whether the occupants of the car are using the time to hide something. (Particularly when, after the stop occurs, those occupants claim to be coming from visiting a “friend” they have no information about — a fact that strangely didn’t come up again in any of the judges’ opinions.) As the dissent points out, one can reasonably make assumptions either way, but the officer has a right to make a stop in order to “resolve the ambiguity.”

Bonus Thoughts!

To me, Snyder indicates a risk to the State’s position when it tries to clear the Fourth Amendment “totality of the circumstances” hurdle by stacking up a bunch of subjective, somewhat flimsy instances of suspicious conduct. If most of those aren’t convincing — and particularly if some really aren’t convincing — an appellate court may be driven by the overall weakness of the justification given and disregard specific details that might more clearly explain the officer’s decisions.