The Arizona Court of Appeals has a message for motorists: Driving on the freeway at less than the speed limit but not being in the right lane is not an automatic excuse for police to pull you over.
In fact, according to appellate Judge Peter Eckerstrom, such a reading of the law would be overly technical and illegal.
The Fourth Amendment protects individuals from unreasonable search and seizure, he said.
"Because a traffic stop is a seizure within the meaning of the Fourth Amendment, an officer must have reasonable suspicion that a traffic violation has occurred to initiate a stop,'' the judge wrote.
But Eckerstrom said that has to be evaluated based on the "totality of the circumstances.'' And that, he said, includes "the factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act.''
And there's something else.
The judge said if observations do not distinguish between innocent and unlawful behavior they cannot be used to provide grounds for a traffic stop. Otherwise, Eckerstrom said, "they may cast too wide a net and subject all travelers to virtually random seizures.''
This case involves the decision in 2018 by DPS Trooper Ashton Shewey to stop Asalia Alvarez-Soto on a stretch of Interstate 10 between Phoenix and Tucson. That stretch has three lanes in each direction, and the trooper was driving in the center lane.
Shewey conceded that he had targeted the vehicle after seeing it had a license plate registered in Nogales and that a check showed this vehicle had recently crossed the international border multiple times.
Based on that profile, Shewey said he "made a decision that he was going to attempt a traffic stop.''
He followed the sedan which was driving in the middle of three lanes, driving 78 miles per hour in an area where 75 was the limit. Shewey said that after several minutes of him following, the vehicle slowed to 70 mph.
It was at that point an SUV in the right lane β a vehicle that had been traveling at the same speed β overtook Alvarez-Soto on her right.
"Because Arizona law requires slower traffic to remain in the right-hand lane, Shewey determined he had sufficient grounds to stop the sedan for a traffic violation,'' wrote Eckerstrom for the majority in the 2-1 ruling.
After a DPS dog alerted to a drug, officers searched the vehicle and found the marijuana. Alvarez-Soto eventually was convicted of possession and transportation of marijuana for sale and sentenced to five years in prison.
Eckerstrom said the statute used by Shewey to stop Alvarez-Soto specifically applies to vehicles moving "at less than the normal speed of traffic,'' requiring they drive in the right-hand lane except to pass another vehicle.'' That statute also requires consideration of "the conditions then existing.''
But Eckerstrom said there was no evidence that Alvarez-Soto, driving just five miles per hour below the posted speed limit, was below "the normal speed of traffic'' for the middle lane under the conditions at the time β conditions that included a marked squad car.
In fact, the judge noted, that Shewey conceded that nearly all drivers tend to slow down when they see a marked police car. And a video demonstrates that Alvarez-Soto continued to travel at the same rate as the vehicle on her right β the one that passed her only when she slowed down β until the front of the DPS cruiser was nearly parallel to her back bumper.
And then there's the fact that Shewey offered no testimony that he had witnessed any other vehicle pass Alvarez-Soto, or that any other vehicle had been impeded by her pace.
In essence, Eckerstrom said, the officer pulled her over solely because she had been passed by one vehicle.
"Furthermore, to avoid being passed by that vehicle, the record suggests Alvarez-Soto would have been required to exceed the maximum posted speed,'' the judge said. Put another way, the situation put the driver in the position of violating either the law on speeding or the law on not driving in the right lane.
Eckerstrom sniffed at the dissent by appellate Judge Patrick Gard that Alvarez-Soto could have moved into the right-hand lane and avoided committing the violation that allowed the trooper to stop her.
"But the Fourth Amendment establishes a personal right to be free of unreasonable seizures by the government,'' Eckerstrom wrote. "Its enjoyment should not require travelers to thread behavioral needle to avoid the risk of unwanted intrusions.''
The new ruling also means that the suitcase in the trunk with bundles of marijuana can't be used as evidence. And that tosses her convictions for possession and transportation of marijuana for sale and the five-year prison sentence.
There was no immediate comment from DPS.
But attorney Rosemary Gordon Panuco, who represents Alvarez-Soto, said the majority ruling makes sense.
"They can clearly pull you over for a traffic violation,'' Panuco said. "But it has to be a reasonable interpretation of the traffic laws."
"And this is not a reasonable interpretation of the traffic laws," she said.
