Practice Pointer: Basic Traffic Stop Reconstruction
by: Tate Williams

Justice Ginsburg’s April 21, 2015, opinion for the majority Rodriguez v. the United States immediately states, “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.[i]

Whether a traffic stop takes too long, absent reasonable suspicion of another crime, is suddenly of paramount importance when other evidence is discovered as a result of the detention. This is not every case, but it is many cases where, as in Rodriguez, a stop is prolonged for the arrival of a narcotics detector canine or some other purpose.

Litigating this issue requires not only a familiarity with 4^th Amendment jurisprudence, but the ability of the defense lawyer to re-construct and present the encounter between the accused and law enforcement to the Court. That exercise is one that is easily learned and will improve the attorney’s practice in all cases.

Gathering the Evidence

Information commonly available in Harris County criminal cases, if obtained, allows the counsel, a judge and a jury to begin to evaluate the reasonableness of the detention. In addition to any officer’s report, the three most frequently available sources of evidence in local traffic stops are:

• Mobile Data Terminal Logs,
• In-Car Videos,
• Dispatch Audio.

Obtaining these materials requires diligence shortly after the arrest as many agencies only preserved them for a limited period of time. Sample subpoenas are on the HCCLA site. One may also make a Michael Morton Act request, but it is frequently better to know what they contain before you alert the prosecution to their contents.

If the agency moves to quash a subpoena, then one might determine it necessary to file a written motion stating exactly what is sought, what it is expected to show, why it is relevant, and cite the statutes and the accused’s constitutional rights to confrontation, counsel, and to present a defense.

If an agency denies the existence of the information, verification may be required via a subpoena, Public Information Act, or other form of request for information related to that denial:

The maintenance records on the relevant patrol vehicle;

• A complete list of all vehicles with recording equipment;
• A complete list of officers with body cameras;
• Video use and preservation policies.

The General Orders, Standard Operating Procedures, and lists of patrol units with recording equipment are items that HCCLA has previously obtained in admissible form and shared in the member’s section of the web site and may do so again in the future.

The Types of Evidence

Police Reports are generally not admissible as evidence in criminal cases. They may be used for impeachment purposes or to refresh an officer’s memory, but almost no local judge will allow it to be entered into the record. The following materials, though, may be obtained and offered pursuant to the business records exception.[ii]

MDT logs (sometimes referred to as call slips) are useful because their time stamps are reflected to the second as to when data was sent and received. After one learns how to read them, they are a reliable source of when the stop was made, when the officer requested additional information about client’s vehicle or criminal history, what else may have been communicated and when it was completed.

Any video recording should be watched and transcribed. Personally transcribing it word for word allows the attorney to learn the video. Time stamps should be made every few lines and at key events for later reference. Non-verbal conduct may be placed into parentheticals.

Dispatch tapes are also helpful but may be difficult to understand. They often contain statements from officers not contained in the MDT logs or reports such as a request for assistance by specialized units. Unfortunately, they do not contain time stamps but can be compared against the MDT logs to determine the identities of the speakers and relative timing of events.

Using the Evidence

Timelines are often helpful for case investigation and presentation to place consistent or conflicting evidence into an easily digestible format. Each of these discovery materials may be placed into their own timeline or combined into one indicating the source of the event.

Some lawyers construct timelines using columns on flip charts or chalkboards, spreadsheets in Microsoft Excel, or even foam story boards with actual still shots, document shots, audio clips etc., or a combination. The preference is personal may depend on whether it is in preparation or for use at trial with witnesses, pleadings, or argument.

However presented, it has to tell the tale of the stop accurately and effectively. These materials may sometimes be offered into evidence as a shorthand rendition of testimony if presented through witnesses or possibly as a summary of voluminous records.

Regardless, beginning to construct a with the paper materials to (report and MDT logs) allows one to quickly construct a skeletal timeline that one can more easily place events from the recordings into as they are reviewed in preparation or before the Court.

The purpose of the timeline is to show what actually happened. However, to illustrate unreasonableness for a judge or a jury it is sometimes necessary to show what should have happened.

Setting the Standard

In much criminal or civil litigation there is an appropriate standard of care against which a party’s conduct or a witness’s testimony is measured.   Police conduct is no different.

Whether required by statute or the standards of an accrediting body such as CALEA (which both the Houston Police Department and Harris County Sheriff’s Office aspire to adhere to) almost every law enforcement agency has enacted “General Orders” or “Standard Operating Procedures.” These are written directives by which they operate internally and against which they evaluate their own performance. In the Houston Police Department, these are formulated and promulgated by the Inspections Division’s Policy Development Unit (PDU).[iii] The Sheriff’s Department has a similar process.

Traffic stops and other investigations are often governed by these policies and may articulate standards against which the officer in a particular case should be judged. They should be reviewed to at least understand how the officer is trained to perform his duties and respect the rights of citizens. They frequently include not only what an officer is required to do, but in what order and reference other relevant policies.

These policies may be used to make a rough outline as to how an investigation should proceed for reference to what the evidence actually shows. They can be placed into the timeline to show what should have occurred and actually did or did not. If there is a violation of policy or a variance between what should have happened and what did happen, it could be argued that this is evidence of unreasonableness in prolonging the detention.

The Exercise is Good for You

Not every detention is unreasonable and not every investigation will yield evidence supporting suppression. But a large portion of criminal cases result from traffic stops and reconstruction of events with reference to source materials is easy to perform with materials easily and readily available. Once mastered, it is a skill that easily translates to any other type of case.

Knowing what the evidence is and isn’t is the foundation of any representation and the lawyer’s ability to properly advise a client.

If for no other reason, timeline reconstruction is valuable because it forces the lawyer to review the evidence in detail and reduce it to a format that can be easily referenced with the client, investigators, and at trial.

[i] United States v. Rodriguez, No. 13-9972, slip. op. at 1 (April 21, 2015) citing Illinois v. Caballes, 543 U. S. 405 (2005).

[ii] See Tex. R. Evid. 613, 803(6), (8)(B), and 902(10).

[iii] HPD Command Overview Manual, 2014, http://www.houstontx.gov/police/department_reports/command_overview/Command_Overview_Manual_2014.pdf