Can an officer’s visual estimate of a vehicle’s speed, uncorroborated by radar, pacing, or other techniques, support a speeding stop? The Fourth Circuit has been whipsawing back and forth on that question recently.
First, in United States v. Sowards, __ F.3d __, 2012 WL 2386605 (4th Cir. June 26, 2012), a case I discussed here, the court said that when the estimated speed is only slightly above the posted limit, a visual estimate isn’t good enough. Then last week, in United States v. Mubdi, __ F.3d __, 2012 WL 3243478 (4th Cir. Aug. 10, 2012), the court upheld a stop based on a visual estimate of speed.
In Mubdi, the defendant was driving on I-77, which happens to be the same highway involved in Sowards. Two Statesville police officers, parked alongside the highway, saw him pass and visually estimated his speed at between 63 and 65 m.p.h. in a 55 m.p.h. zone. The officers, in separate vehicles, pursued the defendant. One overtook the defendant, and the defendant changed lanes and pulled in two to three car lengths behind the officer’s cruiser. The officers then activated their blue lights and pulled the defendant over.
Suffice it to say that one thing led to another and the defendant was arrested and charged with federal gun and drug offenses. He moved to suppress, arguing, inter alia, that the officers lacked probable cause to make a traffic stop. (Remember that reasonable suspicion is the standard for traffic stops in state court.) The district court denied the motion and the defendant pled guilty and appealed. The Fourth Circuit affirmed, agreeing with the district court that there was probable cause for the stop based on the officers’ visual estimates of speed, even assuming that 63 to 65 m.p.h. in a 55 m.p.h. zone qualifies as slight speeding. Distinguishing Sowards, the court noted that here two officers independently made virtually identical estimates; it also observed that the officer in Sowards was “measurement-challenged,” as detailed in my prior post. The Mubdi majority generally seemed sympathetic to the Sowards dissent and appeared to want to soften the impact of Sowards.
The case includes several other legal issues, and features an interesting concurrence suggesting that the officers were overzealous, undertook a pretextual stop, and even perhaps engaged in racial profiling. (The concurring judge would have followed Sowards as to the speeding issue, but nonetheless would have upheld the stop on the basis of following too closely.) But I think that the visual estimate issue is the most significant: Mubdi and Sowards are of obvious importace to anyone connected to federal court, but I continue to believe that they are harbingers of similar issues arising in state court. Stay tuned.