The Best Opinion Ever

Simply the Best Criminal Law Opinion Ever Written

We all learned back in elementary school that speed equals distance over time, right? Driving at 70 mph means that over the course of an hour, you travel 70 miles. In mathematical terms, speed equals distance travelled divided by time elapsed [speed = distance / time]. One might think that type of calculation doesn’t quite require a rocket scientist; rather that it is more in the realm of the early rounds of “Are You Smarter than a Fifth Grader?” One might be wrong.

This formula is pretty important for police officers making visual estimates of vehicle speeds. For them to eyeball a car’s speed with any degree of accuracy, they need an idea of the distance over which a vehicle is traveling and how long it takes to travel that distance. It doesn’t take a radar gun to estimate speed for it to stand up in court, but at long last it now takes more than an uneducated guess without a clue as to how the estimator arrived at his conclusion.

In State v. Sowards, decided this past June, the Fourth Circuit Court of Appeals found that a visual estimation of speed based on nothing more than a guess didn’t cut the mustard. That means that a cop stopping your car based on his or her haphazard and unsupported speculation as to your car’s speed when it is travelling only slightly over the speed limit violates your Constitutional rights to be free from unreasonable searches and seizures.

Mr. Sowards was traveling northbound on I-77 through North Carolina when a deputy signaled him to stop. The deputy claimed that he stopped Sowards for doing 75 mph in a 70 mph zone. Our eagle-eyed hero claimed that he could detect that Sowards was driving five miles over the speed limit by simply eyeballing the car. The deputy in question didn’t use radar, lidar, vascar or even bother to pace the car. The actual trial testimony makes it abundantly clear that this deputy had absolutely no basis in math, science or, well, reality from which he could determine Soward’s speed. Thankfully, the Fourth Circuit called him on it.

When asked by the trial court to provide a foundation for how he arrived at his estimate of Sowards’ speed, the deputy testified that there were 12 feet in a yard, that “300 yards would be a [100] yards” (I checked this twice, it is what he said) and that there were “12 inches on a yardstick.” When the befuddled trial judge asked him for clarification, the deputy actually said that “math could change ‘depend[ing] on the person who’s behind it.’”

Clearly concerned by the witness’ inconsistent and bizarre assertions the trial judge gave him a generous series of opportunities to clear up the confusion by asking him a number of profoundly basic questions. These follow up questions included asking him for a second time how many inches there were on a yardstick. The second time around, perhaps sensing His Honor’s discomfort, the deputy answered that the number of inches in a yardstick “depends on the yardstick.”

This may go a long way to explaining the recent referee crisis in the NFL. Perhaps the scab refs simply had different sized yardsticks? Or, perhaps while our brave deputy wholeheartedly believes it to be his sworn duty to uphold the laws of the State of North Carolina, he cannot abide by the rules of mathematics and holds the laws of physics in utter contempt.

The point is the deputy didn’t have a clue as to the actual distance over which to gauge Sowards’ speed, much less any understanding of how to gauge distance or speed at all. Typically, if an officer is going to measure speed without the aid of a radar gun or pacing, he’ll establish two points along a road and use a stopwatch to measure how quickly a vehicle travels between those two points. Understanding and comprehending distance is a basic requirement when calculating speed. Law enforcement receives training as to how to estimate speed and I tell you with great confidence that it involves estimating time and distance. Nonetheless, the deputy in Soward repeatedly stated that he had NO technique for measuring speed. He simply relied on “his experience.”

Despite his utter failure during testimony, the trial court found this deputy to be qualified as an expert in the estimation of speed. This bears repeating. The trial court found this mathematically impaired deputy, a man who amply demonstrated his lack of understanding when it comes to how to estimate speed, to be an expert witness for the purpose of estimating speed. Having so found, the trial court went on to determine that the deputy had probable cause to stop Sowards for speeding (this stop ultimately led to the discovery of a trafficking quantity of cocaine).

The Fourth Circuit, unimpressed by this finding of the trial court, held that the difference between 75 mph and 70 mph cannot be determined reliably by the naked eye. They went on to conclude that the trial judge’s determination to qualify the deputy as an expert was “inexplicable.” The fact is that not even someone standing alongside a road who was trained in estimating speed with a yardstick that measured the customary 36 inches could make the determination that a car was speeding by such a slight margin.

Parenthetically, the logic underlying this opinion also goes a long way toward explaining why it is that I almost swallowed my tongue when a judge allowed law enforcement to testify to their results without showing their work in one of my own cases. Though I had proven that the law enforcement expert witness was either mistaken or dishonest in his report, I still wasn’t allowed any insight as to how it was that the witness arrived at his conclusions. Without that information, it sure is tough to know if that particular law enforcement officer was a fool or a knave. Just like back in school when we all had to show our work so that our math teachers would know that we arrived at our answers honestly, so too should a court perform that same function as an honest and vigilant gatekeeper.

The Fourth Circuit’s opinion is an affirmation that we do still enjoy some civil liberties and at least some modicum of protection under the Fourth Amendment’s clause prohibiting unreasonable search and seizure. As a career criminal defense lawyer and as a citizen who does not want to be pulled over if I have done nothing wrong, this is a greatly appreciated fact. Though it is limited in scope, the opinion makes it clear, as they aptly state in footnote 3, “For probable cause to mean anything, it has to mean something.” Amen to that.

The text of the opinion can be found here: United States v. Sowards. I can safely say that I have never laughed so hard when reading an opinion. It is a well thought out and absolutely amazing, albeit absurd bit of jurisprudence that ranges from citing the fastest major league pitch ever recorded to quantum space-time concepts from The Matrix. It blends common sense and wit in a way that I have never before seen in my study of law. I commend it to you.

The Sowards opinion now stands as the yardstick by which all other opinions should be measured.