Legal Updates

STATE V. LIVINGSTON
(Decided 09/16/03 - State Court of Appeals)

Any Arizona officer trained in detecting a D.W.I. driver has been given a list of suspect driver activities that have been found to be consistent with actions attributable to a D.W.I. driver. Observing a driver cross the white shoulder line is one such indicator.

CASE FACTS - A DPS officer was patrolling a rural area of Arizona when he observed Livingston "cross the white shoulder line on one occasion." Other driver activity was described as normal. Using 28-729(1) which reads:
*"A person shall drive a vehicle as nearly as practicable **entirely within a single lane and shall not move the ***vehicle from that lane until the driver has first ascertained **that the movement can be made with safety."

The officer stopped the defendant. Consent was obtained to search the defendant's vehicle. The officer recovered 100 pounds of marijuana and $30,182.25 in cash. The defendant was charged under multiple statutes.

ISSUE PRESENTED BY DEFENDANT - Does a momentary single vehicle movement crossing the white shoulder line with no other deviations noted in defendant's driving establish reasonable grounds to stop the defendant's vehicle. Short answer: NO!

DISCUSSION - The Court reasoned that the legislative intent in interpreting the statute's language was to avoid penalizing a driver for "brief, momentary, and minor deviations outside the lane lines." The Court reasons "with no other even minor deviations in driving, the officer did not have reasonable grounds to stop."

Though crossing the solid white shoulder line once may be one of the concerns listed by an officer in a totality of circumstances evaluation for justifying a stop, according to this case, such action by itself will not justify a stop!

Reference Cases Affecting
Daily Police Activity

Wilson v. Layne, 526 U.S. 603 (1999)

Law Enforcement agencies may be liable for Fourth Amendment violations when they bring non-law enforcement persons into areas protected by the Fourth Amendment.

Citizen Ride-Along

CASE #1

Ride Along guests, including the media, who have no law enforcement function must not be approved to enter areas protected by the Fourth Amendment without the consent of a person with authority to consent.

Liability for entry without consent will be imputed back to the officer in charge and the law enforcement agency.

CASE #2

Florida v. Bostick, 501 U.S. 429 (1991)

A police officer need not have reasonable suspicion or probable cause when his or her encounter with a citizen is consensual.

Consensual Contact - Distinguishing consensual contact from seizure:

Would the words or conduct used by the officer lead a reasonable, objective, innocent person to believe they were not free to leave, refuse the officer, or otherwise terminate the encounter?

Mere questioning by police is insufficient to establish coercion on the part of the officers.

The Court will review all factors from the perspective of a "reasonable" citizen.

Source: Chandler PD Legal Unit