On October 4, 2013, the Eleventh Circuit Court of Appeals decided Jenkins v. Gaither et al. [i], which serves as an excellent review of the law pertaining to an officer liability when making a warrantless arrest. The facts of Gaither, taken directly from the case, are as follows:
John Jenkins consumed a single beer with dinner between 6:00 and 6:30 p.m. on October 13, 2009. Around 10:00 p.m., Jenkins drove home through Butts County, Georgia. Wil Smith, an off duty officer of the Department of Natural Resources officer and a peace officer in Georgia, observed Jenkins driving slowly through Smith’s neighborhood. Because he knew that there had been several break-ins in the area, Smith followed Jenkins. Smith observed Jenkins driving erratically and crossing the lines on the road. Jenkins turned north on Highway 42, and Smith followed him because he was travelling in the same direction. Smith observed that Jenkins continued to travel at an unusually slow rate and weave over the roadway. Based on his training as a law enforcement officer, Smith concluded that Jenkins was impaired. Smith called 911 and reported this information to the operator. Smith stayed on the phone with the operator and gave updates on his location.
Deputy James Gaither of the Butts County Sheriff’s Office responded when the dispatcher relayed the report of a vehicle that was all over the roadway, and his entire pursuit and interaction with Jenkins were recorded by the camera on the dash of his patrol vehicle. When Gaither caught up with Jenkins and Smith, Smith pulled to the side of the road and reported that the vehicle directly in front of him was the one that had been weaving. Gaither followed Jenkins for about 25 seconds. Gaither turned on his blue lights, and Jenkins pulled over to the side of the road.
Gaither approached the passenger side of Jenkins’s truck and told him that he had pulled him over because he had received a report that he was weaving and all over the roadway. Gaither asked Jenkins to exit the vehicle and stand behind the rear of the truck, and Jenkins complied. Gaither asked Jenkins if he had anything to drink that night, and Jenkins responded, “No.” Gaither then asked, “None, whatsoever?” and Jenkins responded, “Nope.” Gaither asked if Jenkins drank alcoholic beverages, and Jenkins said that he did. Gaither asked, “When was the last time you consumed alcohol?” Jenkins responded, “‘Bout four hours ago.”
Gaither returned to his vehicle and reported the information from Jenkins’s driver’s license to the dispatcher. While Gaither waited for a response from the dispatcher, Jenkins reached into his pocket and pulled out smokeless tobacco. Gaither yelled from his vehicle, “Do not put any dip in your mouth.”
Gaither then joined Jenkins behind his truck and said, “To make sure that you’re safe to drive on the roadway, there’s a few exercises that I would like for you to perform.” Jenkins asked Gaither whether he was certified to administer a field sobriety test. Jenkins then insisted that he was not drunk and that the field sobriety test was voluntary. Without confirming that Gaither was not certified, Jenkins said that he was “not going to do” the field sobriety test.
Gaither asked Deputy John Acosta to assist him, and after about four minutes, Deputy John Acosta arrived. Gaither explained what had happened to Acosta, and Acosta explained to Jenkins why he had been pulled over. Acosta asked Jenkins to remove the smokeless tobacco in his mouth, and Jenkins reached into his mouth and removed some smokeless tobacco.
After Acosta spoke to Jenkins, Gaither and Acosta met next to Gaither’s patrol car. Acosta contacted the dispatcher and asked who had reported the erratic driving. The dispatcher responded that the report came from “DNR 319,” which indicated that the report came from an officer of the Department of Natural Resources with the badge number 319. Acosta responded, “Really? Okay.” Another officer who had responded for backup then asked who reported the erratic driving, and Acosta replied, “Wil Smith.”
Acosta called Smith and asked about what he had observed. After his call with Smith, Acosta told the other officers that Smith had observed Jenkins weaving back and forth and failing to maintain his lane. Acosta also reported that Smith had agreed to write a statement about what he had observed.
Gaither and Acosta arrested Jenkins for driving under the influence. Acosta explained to Jenkins that his driving had been reported by an off duty officer and that he was under arrest for driving under the influence and failing to maintain a lane. The deputies took Jenkins to the Butts County jail, and he submitted to a blood alcohol test. Jenkins requested and paid for his own blood alcohol test. The results of Jenkins’s blood test showed that he had no alcohol in his system. The charges against Jenkins were dropped. [ii]
Jenkins filed suit in federal court alleging that Officer Gaither violated his rights under the Fourth and Fourteenth Amendments when he stopped his vehicle based on the report of his erratic driving, and that Officer Acotsa violated those same rights when he arrested him for DUI. This district court granted summary judgment in favor of the officers and Jenkins appealed to the Eleventh Circuit Court of Appeals.
The first issue before the court of appeals was whether Officer Gaither had arguable reasonable suspicion that Jenkins was involved in a traffic violation. The court explained:
When an officer asserts qualified immunity, the issue is not whether reasonable suspicion existed in fact, but whether the officer had ‘arguable’ reasonable suspicion to support an investigatory stop.” Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000). “[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675 (2000). [iii]
Thus, even if actual reasonable suspicion did not exist, the officer is still entitled to qualified immunity or summary judgment if another reasonable officer in the same situation would have believed reasonable suspicion was present. That is what is meant by “arguable reasonable suspicion.” In this case, the court noted that Georgia has traffic statutes that require a person drive their vehicle within a single lane and not change lanes unless it can be done so safely. Additionally, the state DUI law prohibits driving under the influence to an extent that it is less safe to drive.
The court then held that based upon the reports from a known complainant, Officer Gaither had at least arguable reasonable suspicion to justify the stop of Jenkins in accordance with the two traffic statutes discussed above. As such, Officer Gaither is entitled to summary judgment.
The second issue before the court was whether Officer Acosta had arguable probable cause to arrest Jenkins for DUI. The court stated:
An arrest without probable cause is unconstitutional, but officers who make such an arrest are entitled to qualified immunity if there was arguable probable cause.” Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999). “The standard for arguable probable cause is ‘whether a reasonable officer in the same circumstances and possessing the same knowledge as the officer in question could have reasonably believed that probable cause existed in the light of well-established law.'” Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997) [iv]
Again, the court noted that Georgia has a statute that prohibits being in control of a moving vehicle when a person is under the influence to the extent that they are less safe to drive. The court then examined the facts relevant to the issue of whether Officer Acosta had a least arguable probable cause to believe that Jenkins was driving in violation of the DUI statute. First, the court noted that Officer Acosta received a dispatch that Jenkins was driving erratically and failing to maintain his lane. The report was further provided by an off-duty law enforcement officer. Second, when Officer Acosta asked Jenkins whether he had consumed alcohol that evening, Jenkins first said that he drank nothing, and moments later changed his story and said that he had one alcoholic beverage. Third, Officer Acosta observed Jenkins put smokeless tobacco in his mouth and attempt to put more in his mouth after having been told not to do so. The officer knew that smokeless tobacco can be used to mask the odor of alcoholic beverage. Fourth, Jenkins refused to perform field sobriety tests. The Eleventh Circuit noted that under Georgia law, the refusal to perform field sobriety evaluations can be considered as circumstantial evidence of intoxication.
In consideration of the facts above, the court then held that Officer Acosta had arguable probable cause to believe that Jenkins was in violation of the Georgia DUI law; as such, he was entitled to summary judgment.
Therefore the court of appeals affirmed the decision of the district court.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 12-15631 (11th Cir. Decided October 4, 2013 Unpub)
[ii] Id. at 3-6
[iii] Id. at 7
[iv] Id. at 8