Colorado Supreme Court: Police Lacked Reasonable Suspicion for Traffic Stop Based on Alleged Unsafe Lane Change
by Anthony W Accurso
The Supreme Court of Colorado, sitting en banc, ruled that a state trooper lacked reasonable suspicion to initiate a traffic stop based on the driver allegedly making an unsafe lane change based on the totality of the circumstances.
Trooper Bollen was patrolling in the eastbound lanes of I-70 when he noticed a Jeep SUV with Arizona plates and began following it on the suspicion that it was being used to transport narcotics. He later testified that he based his suspicion on the fact that (1) it was an apparent rental vehicle, (2) I-70 is a major drug corridor, and (3) the Arizona plates arose suspicion because the state borders Mexico, which is the primary source of bulk narcotics in this region of the country.
Bollen was in the left lane, with his front bumper aligned with the SUV’s rear axle in the right lane. He noticed an emergency vehicle ahead on the right shoulder and slowed down from about 74 mph to 62 mph. At that point, the SUV’s driver, Eduardo Barrera, signaled a lane change, executing it with “less than three seconds” of distance between the SUV and the patrol car. But Barrera immediately sped-up, creating four seconds of distance between the two vehicles.
After they passed the emergency vehicle, Bollen initiated a traffic stop on the grounds that Barrera’s lane change was made without the recommended three seconds of distance stated in the Colorado Driver’s Handbook (“Handbook”). Bollen advised Barrera that he pulled him over because he was required to leave “more space” during the lane change and that he “cut [him] off” but that it was “not a big deal.” Bollen then began questioning Barrera about his travel plans and his passenger. At the same time, another trooper questioned the passenger.
Based on the fact the occupants were traveling from Phoenix to Denver – an alleged drug corridor – and they didn’t give matching answers to the troopers’ questions, Bollen decided that he had probable cause to search the SUV. He found a large amount of illegal drugs during the search and arrested both occupants.
Both Barrera and the passenger were charged with possession with intent to distribute. The passenger filed a motion to suppress, arguing that Bollen violated his constitutional rights because he didn’t have reasonable suspicion to initiate the traffic stop. Barrera filed a motion to adopt the ruling issued in the companion case. The trial court granted both motions, finding that the prosecution failed to prove that Barrera made an unsafe lane change, and suppressed all evidence recovered from the SUV. The People filed an interlocutory appeal.
The Court began its analysis by noting that both the U.S. and Colorado Constitutions protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Colo. Const. art. II, § 7. This constitutional protection applies to traffic stops. People v. Chavez-Barragan, 365 P.3d 981 (Colo. 2016). Police are constitutionally permitted to conduct a brief investigatory stop based upon articulable reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur. People v. Brown, 461 P.3d 1 (Colo. 2019); see also Terry v. Ohio, 392 U.S. 1 (1968). Consequently, police are allowed to initiate a traffic stop as long as there is reasonable suspicion that the driver has committed a traffic violation. People v. Burnett, 432 P.3d 617 (Colo. 2019).
The Court stated that reasonable suspicion standard requires “more than a mere generalized suspicion or hunch.” People v. Wheeler, 465 P.3d 47 (Colo. 2020). Reasonable suspicion requires “an articulable and specific basis in fact” for suspecting criminal activity. People v. Arias, 159 P.3d 134 (Colo. 2007). Courts performing this review consider the totality of the circumstance, including those facts known to the police prior to conducting the traffic stop. Id.
The Court then turned to the narrow legal question at issue in this case – the lane-change statute, § 42-4-1007(1)(a). It provides that a “vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”
The People argued that the statute is ambiguous with respect to the phrase “made with safety,” so Bollen properly referenced the Handbooks’ three-second rule as an objective measure to determine whether Barrera executed a safe lane change under the statute.
The Court rejected that argument, stating that the statute doesn’t contain any such three-second rule and it isn’t ambiguous. It explained that the Handbook is merely regulatory material that doesn’t interpret statutes and so has limited relevance to criminal violations. See Christensen v. Harris County, 529 U.S. 576 (2000).
The Court further explained that it has already ruled that a totality of the circumstances review is the proper standard when determining whether a motorist violated the lane-change statute in People v. Chavez-Barragan, 365 P.3d 981 (Colo. 2016). The Chavez-Barragan Court interpreted a different phrase within the same traffic law – “as nearly as practicable” – and rejected a bright-line rule like the three-second rule urged by the People in the present case. Rather, that Court held that determining whether a motorist violated the lane-change statute requires a totality of the circumstances analysis. Chavez-Barragan.
In the present case, the Court stated that the same logic applies to both the phrase “made with safety” and the phrase “as nearly as practicable.” They both have a plain and ordinary meaning, according to the Court. That is, “made with safety,” the Court stated, “directs the driver to assess the specific situation because a driver will only know what is safe by evaluating their surroundings.” Thus, the Court concluded that there’s no need for a bright-line rule; instead, the totality of the circumstances must be considered.
Applying the totality of the circumstances standard to the facts of this case, the Court ruled that Bollen didn’t have a reasonable suspicion that Barrera committed a traffic violation prior to pulling him over. The Court based its determination on the fact that Bollen was not forced to apply his brakes when Barrera changed lanes, he wasn’t surprised by the lane change because Barrera used his turn signal, and Bollen indicated to Barrera that he was yielding his lane by braking and creating space. Based on the foregoing facts, the Court concluded that Barrera didn’t make a lane change until he determined it could be “made with safety” as required by the lane-change statute. Thus, the Court ruled that Bollen lacked an objectively reasonable belief that Barrera violated a traffic law when he pulled him over, and so, the traffic stop was unlawful.
Accordingly, the Court affirmed the suppression order and remanded for further proceedings consistent with its opinion. See: People v. Barrera, 517 P.3d 61 (Colo. 2022).
Editor’s note: The Court in this case confirmed what everyone already knew – the state trooper initiated a pretextual traffic stop to go on a fishing expedition. As regular readers of CLN know, this entire case could have been avoided if the occupants of the vehicle had simply exercised their Fifth Amendment privilege against self-incrimination and refused to answer any of the troopers’ questions. The lead trooper stated that the occupants’ answers to the troopers’ questions differed, and thus, he believed that constituted reasonable suspicion to search the vehicle, which resulted in the discovery of incriminating evidence.
As a reminder, you do not forfeit your privilege against self-incrimination by operating a motor vehicle. Furthermore, the U.S. Supreme Court has instructed that refusing to answer police inquiries unrelated to the purpose of the traffic stop cannot serve to establish reasonable suspicion of criminal activity. Florida v. Bostick, 501 U.S. 429 (1991); Brown v. Texas, 443 U.S. 47 (1979). Courts have acknowledged that “many motorists, even innocent ones, might think it none of the trooper’s business how long” they spent at a particular location or where they came from or are going. E.g., United States v. Santos, 403 F.3d 1120 (10th Cir. 2005). That is, you are under no obligation to answer questions about your travel plans or any other questions unrelated to the purpose of the traffic stop, i.e., the alleged traffic violation.
It is important to note that the wisdom of invoking one’s Fifth Amendment privilege against self-incrimination is by no means limited to traffic stops. In fact, it is advisable to never speak to the police without the presence of a criminal defense attorney. False confessions are one of the leading causes of wrongful convictions. Even in situations where a person does not confess, there is rarely anything to be gained by speaking to police, despite their declarations to the contrary, without the benefit of legal counsel, but a person can very easily make himself a prime suspect by talking with police, even though he is factually innocent of the crime being investigated.
In discussing the right to counsel and confessions, U.S. Supreme Court Justice Robert Jackson astutely observed that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.” Watts v. Indiana, 338 U.S. 49 (1949) (Jackson, J., dissenting).
There is little to be gained but a whole lot to lose by speaking to the police without the presence of legal counsel.
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