Thread by @briangallini

1/ A former (& talented) student of mine @UARKLaw—Marion Humphrey—was subjected to race-based policing by the AR. St. Police. As a dean & scholar who is deeply committed to issues of crim. law & procedure, I can’t sit by w/o comment. So, let’s talk. THREAD
arktimes.com/arkansas-blog/…

2/ The stop: The officer alleged he stopped Marion for “changing lanes too quickly.” Maybe he did, but the dashcam footage I’ve seen doesn’t support that claim. My take: The officer stopped Marion because he’s a young black male who was driving a rented U-Haul on the interstate.

3/ The stop (cont.): Yes, pretextual stops are constitutional so long as police have a valid basis for the stop (Whren v. United States, 517 U.S. 806 (1996) needs revisiting), but that hardly means pretextual stops are normatively appropriate.

4/ Extension of stop: After Marion exercised his right to refuse consent to search the U-Haul, the officer extended the traffic stop based on a general claim of reasonable suspicion.

5/ Extension of stop (cont.): But that suspicion was untethered to any *particular* criminal activity. The extension of the stop lacked constitutional support and was therefore unlawful.

6/ Duration of stop: Marion was forced to wait 28 min for a drug dog to arrive. This constituted a de facto arrest (an arrest unsupported by prob. cause). SCOTUS & the AR Sup. Ct. agree that an “arrest on mere suspicion collides violently with the basic human rights of liberty.”

7/ The dog alert: After the dog arrived, it alerted at the front of the U-Haul, an area outside the view of the dashcam. Thus, we are unable to discern the circumstances that led to the dog alert or whether an alert even occurred.

8/ The arrest & search: The dog alert caused two problematic police reactions. First, Marion was formally arrested. But SCOTUS precedent is clear: A dog alert to a vehicle permits a warrantless search of the vehicle.

9/ The arrest & search (cont.): A dog alert does not—repeat, does NOT—permit a warrantless arrest of a vehicle occupant. Here, officers conflated probable cause to search the U-Haul with probable cause to arrest Marion. This clip illustrates the devastating nature of that error.

10/ Second, police searched the rear compartment of the U-Haul and the *contents* of Marion’s personal belongings (in addition to the front passenger area, which is where the alert ostensibly occurred).

11/ From a professionalism standpoint, the officer said the following to Marion: (1) Marion: “Am I under arrest?” Off: “Well, not when I get those handcuffs off you won’t be.”; (2) Off: “You haven’t lost any humanity.”; & (3) Off: “Next time just don’t get pulled over.”

12/ Summary: I find it disheartening & exhausting to learn about race-based policing fueled by a dramatic misunderstanding of basic criminal procedure principles. But I’m proud of Marion for his composure under the circumstances. For so many reasons, I condemn what happened here.