On September 21, 2022, the Eighth Circuit Court of Appeals decided Clinton v. Garrett[i], which is instructive regarding when it’s reasonable to stop a car bearing a temporary tag that the officer cannot read.  The relevant facts of Clinton are as follows:

On October 3, 2019, Jared Clinton was pulled over by Des Moines Police Department Officers Ryan Garrett, Brian Minnehan, and Ryan Steinkamp riding together in Officer Garrett’s marked police vehicle. According to Officers Garrett and Minnehan, as Clinton’s vehicle passed the patrol car, Clinton’s front-seat passenger sat up quickly from a reclined position, looked at the officers in an apparently nervous manner, and sat back down quickly. The officers subsequently began to follow Clinton’s vehicle.

Additionally, the officers noted that Clinton’s car did not have permanent license plates. Instead, the plates on Clinton’s car advertised the dealership “Dewey Auto Outlet.” See R. Doc. 35-1, at 19. Clinton had a valid temporary tag in the appropriate place in his vehicle’s rear window. However, the officers were unable to “make out any writing” on it from their position behind Clinton’s vehicle. Id. at 11. The officers “observed that the vehicle had . . . dealer plates and a white piece of paper taped in the back window. [They] followed the vehicle for several blocks and could not make out any writing on it.” Id. According to Officer Minnehan, “mostly it [was] the angle of the back windshield and then the glare from the sun” that made the tag unreadable. Id. at 59. Officer Garrett similarly testified that he “could not have said” whether the tag “was blank or not blank” because “there was no way to tell” from where they were following Clinton’s vehicle. Id. at 47. He further testified to having previously encountered forged tags because of the fact that paper tags are “easily altered.” Id. Officer Steinkamp testified about his previous experiences with drivers placing counterfeit or blank documents in the windows of unregistered vehicles to mimic temporary registration tags.

The officers “initiated a traffic stop . . . to verify that the paper tag was legitimate.” Id. at 11. Officer Minnehan approached the vehicle and saw that Clinton’s temporary tag was legible and that it was not expired.  Officer Garrett went to Clinton’s window. He testified that “he immediately detected a strong odor of marijuana coming from the vehicle.” Id. He asked whether the car was titled in Clinton’s name. Clinton asked Officer Garrett why he had been stopped. The officer said, “I’m pulling you over because I was just checking up on your ID tag, OK?” J.A. at 374 (USB drive) (Garrett Body Cam. at 2:50-3:00). Officer Steinkamp explained to Clinton that the police encounter “a lot of [temporary registration tags] that are fraudulent. We don’t know that until we verify it. That’s why we pulled you over.” Id. (Steinkamp Body Cam. at 5:20-5:50). Officer Minnehan told Clinton that he had been stopped because the officers could not “read [his] paper tag” from their vehicle. Id. (Minnehan Body Cam. at 22:00-22:30). He also told Clinton that the officers’ attention had been piqued when his passenger “looked at [them] real hard, like [he was] super nervous.” Id. (Minnehan Body Cam. at 22:00-22:30).

In addition to observing the odor of marijuana, Officer Garrett saw what he believed to be evidence of the same on Clinton’s person. Clinton told the officers that he had been smoking marijuana in the same clothing earlier that day. Thereafter, the officers searched the car and its occupants and discovered a vape pen and a vape cartridge both alleged to contain THC.

Clinton was arrested and charged with possession of a controlled substance, in violation of Iowa Code § 124.401(5). He spent approximately four hours in Polk County Jail. After Clinton filed a motion to suppress, the county attorney filed a notice of intent not to prosecute, and Clinton’s criminal case was dismissed without prejudice.[ii]

Clinton then filed suit against the officers and the city alleging both federal and state constitutional violations.  This article will only discuss Clinton’s claim that the officers violated his rights under the Fourth Amendment when they stopped with without reasonable suspicion or probable cause.

The district court granted summary judgment to Clinton and denied qualified immunity for the officers, ruling that the officers violated the Fourth Amendment when they stopped him because they could not read his temporary tag.  The officers appealed to the Eighth Circuit Court of Appeals.

The court of appeals then set out to determine if the officers were entitled to qualified immunity in this case.  Regarding qualified immunity, the court stated

An officer is entitled to qualified immunity if two elements are met. First, the court asks, “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Next, the court asks “whether the right was clearly established.” Id.[iii]

In other words, when deciding a motion for qualified immunity, the court must consider the facts in a light most favorable to the plaintiff, which means accepting their version of events unless the evidence clearly contradicts the plaintiff’s version.

The plaintiff must satisfy a two-pronged test to defeat an officer’s qualified immunity.  First, the plaintiff must establish that the officers violated the plaintiff’s rights.  Second, the plaintiff must establish that the law was “clearly established” such that any other reasonable officer in the same situation would have known he was violating the plaintiff’s rights.

The court then noted the general legal principles relevant to the case and stated

A traffic stop is a seizure within the meaning of the Fourth Amendment and, as such, must be supported by reasonable suspicion or probable cause.” United States v. Houston, 548 F.3d 1151, 1153 (8th Cir. 2008). In determining whether reasonable suspicion exists, we “look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981)). Additionally, we “allow[] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.'” Id. at 750-51 (quoting Cortez, 449 U.S. at 418). “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” Cortez, 449 U.S. at 417.[iv]

Thus, an officer needs at least reasonable suspicion of a violation of traffic law or other laws for a vehicle stop to be reasonable under the Fourth Amendment.

The court of appeals noted that Iowa law allows a period of 45 days after a person has purchased a vehicle from a car dealer for the purchaser to drive with a “card bearing the words ‘registration applied for’” and being “plainly stamped or stenciled [with] the registration number of the dealer from whom the vehicle was purchased and the date of delivery of the vehicle.”[v]

The court also noted that

To stop a driver for a suspected temporary-tag violation, police must have “articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered.” Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). Despite the states’ “vital interest in ensuring that only those qualified to [drive] are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed,” id. at 658, the Fourth Amendment does not permit random “spot checks,” id. at 661. “A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” Arvizu, 534 U.S. at 277.[vi]

Thus, to stop a driver for a tag violation, the officer must have reasonable suspicion that the vehicle is not registered.  Further, absent reasonable suspicion, the Fourth Amendment does not allow officers to conduct random “spot checks” to determine if a vehicle is registered.

In light of the legal principles discussed above, the court of appeals then set out to determine if the officers violated the Fourth Amendment when they stopped Clinton’s vehicle.  The court first acknowledged that the temporary tag in Clinton’s window complied with Iowa law.

The court examined precedent from the Eighth Circuit.  Clinton argued that the United States v. McLemore[vii] controlled this issue.  In McLemore, the officer that stopped the vehicle testified as follows:

[S]he “could not see the numbers or letters on [the] temporary registration tag which the DOT requires” from her police cruiser. However, she knew the BMW had a car dealer’s advertising plate where the rear license plate is customarily attached, and she knew the piece of paper taped to the rear window was a temporary Iowa registration “plate” in the form approved by the Iowa DOT. Indeed, in her Incident Report written the day after the stop, Officer Del Valle wrote, “I observed the BMW had promotional/advertising dealer plates and I observed a paper plate affixed to the left portion of the rear window, but I was unable to see the letters or numbers on the paper plate from my vehicle.”[viii]

The court held that

[N]o reasonable suspicion existed for a stop based on an officer’s inability to read the temporary tag taped inside the vehicle’s rear window. . .

McLemore stands for the proposition that it is a constitutional violation to stop a vehicle merely because it has a temporary tag without a particularized basis for suspecting the tag is in violation of Iowa law. McLemore, 887 F.3d at 867 [ix]

The officers argued that Clinton’s case should be controlled by the Eighth Circuit’s holding in the United States v. Givens[x], in which an officer testified that he stopped Givens because “he could not determine whether the paper affixed to the rear window was a valid temporary registration card and that he had, on prior occasions, been able to read temporary registration cards at nighttime.”[xi]

The court of appeals noted the difference between Clinton’s case and Givens.  In Givens, an officer “observed a vehicle with no metal license plates” and “what appeared to be a paper registration card in the rear window of the car but could not read it due to the angle of the rear window” and it was nighttime.[xii]  Whereas in Clinton’s case, the officers saw “what appeared to be a paper registration card” and “a dealer advertisement plate and matching decal next to it.”[xiii]

The court of appeals then held that on the facts in Clinton’s case

[T]he natural and reasonable conclusion would have been that the car was a recent purchase and that its temporary tag was likely valid. Even combined with the fact that the stop occurred in an area known for criminal activity as well as a momentary display of nervousness on the part of a passenger, there is not enough here to justify the stop. See McLemore, 887 F.3d at 866; United States v. Beck, 140 F.3d 1129, 1137 Accordingly, we conclude that the officers violated Clinton’s rights.

Thus, the court held that the officers violated the Fourth Amendment when they stopped Clinton.  As such, Clinton satisfied the first prong of the test to defeat the officer’s qualified immunity.

The court then set out to examine the second prong of the qualified immunity test, whether the law was “clearly established.”  Regarding the meaning of “clearly established,” the court stated

For the right to be clearly established, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Buckley v. Rogerson, 133 F. 3d 1125, 1128 (8th Cir. 1998) (internal quotation marks omitted). The burden falls on the party asserting qualified immunity to establish the relevant predicate facts. White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008). “We do not define clearly established law at a high level of generality. Rather, we look for a controlling case or a robust consensus of cases of persuasive authority.” Thurmond, 972 F.3d at 1012

The officers argued that the law was not clearly established as there was no case law that would put them on notice that, under the specific facts of their case, it was unlawful to stop Clinton’s vehicle.  However, the Eighth Circuit disagreed, citing McLemore, and stated they have previously held that

[R]easonable suspicion did not exist when officer’s sole reason for the stop was an inability to read a valid temporary registration tag), with Givens, 763 F.3d at 990 (holding an officer’s stop of a vehicle passes constitutional muster when he observed a car driving with no license plates but was unable to read its temporary registration and he credibly testifies that he is usually able to do so under similar conditions). The authority is clear: officers must have particularized facts that give rise to reasonable suspicion in order for a stop to be constitutionally valid. See McLemore, 887 F.3d at 866; Mendoza, 691 F.3d at 959; Sanchez, 572 F.3d at 479; see also Beck, 140 F.3d at 1137; Prouse, 440 U.S. at 661.[xiv]

The court then held that the law was clearly established and affirmed the denial of qualified immunity for the officers and the grant of summary judgment in favor of Clinton.

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.

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Citations

[i] No. 21-2763 (8th Cir. Decided September 21, 2022)

[ii] Id. at 3-6

[iii] Id. at 11 (emphasis added)

[iv] Id. at 12 (emphasis added)

[v] Id. at 13

[vi] Id. at 13-14 (emphasis added)

[vii] 887 F.3d 861 (8th Cir. 2018)

[viii] Id. at 15-16 (emphasis added)

[ix] Clinton at 14, 16 (emphasis added)

[x] 763 F.3d 987 (8th Cir. 2014)

[xi] Clinton at 18

[xii] Id. at 19

[xiii] Id.

[xiv] Id. at 21 (emphasis added)

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