Slow down, you move too fast . . .

Lawrence Chacon won in U.S. v. Valadez-Valadez, No. 06-2341 (10th Cir. May 12, 2008), reversing a federal conviction for transporting illegal aliens out of New Mexico. The Tenth Circuit held that driving ten m.p.h. below speed limit does not provide a sufficient basis for a traffic stop for impeding traffic:

The obvious candidate for the victim of Mr. Valadez-Valadez’s allegedly impeding traffic would be [Officer] Pepper himself. After all, he had driven behind Mr. Valadez-Valadez for several miles before another vehicle pulled up behind him and then had driven several more miles before stopping the pickup. But Pepper never asserted that he could not have passed Mr. Valadez-Valadez during this lengthy stretch, nor did he provide information showing that he could not have. On the contrary, he testified that oncoming traffic was light—all he could say was that he encountered at least three vehicles while following Mr. Valadez-Valadez. And even though there were “multiple blind curves” along the highway, he did not say that it lacked intervals where passing would have been proper, making it unnecessary for Mr. Valadez-Valadez to pull over. Indeed, Pepper testified that passing was permitted at the very location where he stopped Mr. Valadez-Valadez and that his concern was that the road about a mile ahead becomes a mountain pass where “there are not a whole lot of passing zones for a good distance.” This testimony, rather than
implying that there had been few passing zones on the road as he had been following Mr. Valadez-Valadez, suggests the contrary. Moreover, Pepper’s concern about the difficulty in passing on the stretch of road a mile ahead could not justify the stop of Mr. Valadez-Valadez. Mr. Valadez-Valadez may have pulled to the side of the road before the mountain pass to let others go by, or he may have driven the speed limit on the pass to avoid backing up traffic. Vehicles cannot be stopped on “reasonable suspicion” that the driver will commit a traffic infraction in the future.

Perhaps the vehicle behind Pepper was impeded in its travels. But the record does not support a finding that Mr. Valadez-Valadez was responsible. The driver of that vehicle may have lawfully been able to pass Pepper and then Mr. Valadez-Valadez. That the driver decided not to pass Pepper hardly shows that he could not have lawfully done so. It would be a brave driver who would pass a police vehicle on a road with infrequent speed-limit signs.

This sort of reminds me of the line of state cases dealing with "failure to maintain a lane," which Kansas officers seem to be relying on more frequently. But subjective statutes such as these provide a pretty tenuous basis for reasonable suspicion and are really subject to attack in close cases.

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