Fourth Circuit Rejects "Uncorroborated" Expert Opinion Testimony About Car Speed

Although the FRE "do not apply at suppression hearings,” in a cocaine distribution trial suppression hearing, court erred by admitting arresting officer testimony as expert testimony about the excessive speed of defendant's car; officer lacked probable cause to stop the plaintiff based "exclusively on his uncorroborated and unsupported belief" that the defendant was driving 75 in a 70 MPH speed zone, noting that a somewhat more reliable assessment of speed must underlay probable cause to stop, in United States v. Sowards, __ F.3d __ (4th Cir. June 26, 2012) (No. 10-4133)

The question of the speed of a vehicle is not a simple one. Both expert and lay opinion testimony may be relevant to the issue. Often expert testimony is necessary under FRE 702 because the conditions under which speed is observed may be problematic -- such as calculating speed from the condition of a resulting wreck or physical evidence left on the road. But speed is also a matter of common every-day observation and under certain circumstances, a lay opinion as to speed of a vehicle is relevant. The Fourth Circuit recently examined a suppression motion case involving whether the officer had probable cause to stop the drug defendant's car, which he claimed was going 75 in a 70 MPH zone. While the FRE and Daubert did not formally apply to considering the admission of this opinion testimony, because of the objective standard of reasonableness that applied in Fourth Amendment suppression cases, there was still a requirement of reliability, similar in many ways to the FRE 702 concept of reliability.

In the case, defendant Soward was stopped by arresting officer Elliott for traveling 75 MPH in a 70 MPH zone. The officer reached this conclusion merely on the basis of his visual observation and it was not corroborated by radar, or pacing, or any other recognized indicia of reliability. This estimate way made even though the other methods of speed estimation were available to the officer. Accompanying Elliott was a "canine trained in drug detection, who alerted on the defendant's vehicle. A search by Elliott discovered 10 kilograms of cocaine and the defendant was charged with possession of at least 5 kilograms with intent to distribute.

Before trial the defendant sought to suppress evidence of the search. A substantial part of the defendant's argument was that testimony by the officer as to his visual estimation of the speed of the defendant's car was not reliable and therefore the search incident to the traffic stop based on the allegedly speeding vehicle should be excluded. In recounting his observation that the defendant's car had been traveling in excess of the speed limit -- by all of 5 MPH in a 70 MPH zone, officer Elliott admitted that "he did not attempt to verify or otherwise corroborate ... his visual speed estimate with his radar unit; he did not attempt to pace Sowards's vehicle with his patrol car to gague the speed; and he had not been trained on, and therefore did not use, the VASCAR system, which utilizes a stopwatch to approximate the time it takes a vehicle to travel over a predetermined distance." Sowards, __ F.3d at __.

Despite these admissions, the district court decided not to suppress the evidence discovered as a result of Officer Elliott's stop and search. The court concluded "Elliott had probable cause to initiate the traffic stop of Sowards’s vehicle" because the officer had probable cause to believe the traffic speed law had been violated. The officer's opinion on this was credited by the court as the officer was "trained to estimate speeds. His difficulty with measurements is immaterial to his estimate of speed as that did not depend on time or distance. And the certification that he received, I believe three times, depended on accuracy in estimating speeds. So he had a particularized and objective basis for suspecting that a traffic violation had occurred." Sowards, __ F.3d at __.

The circuit noted that this finding came after the trial judge decided to

... qualify Deputy Elliott as an expert in the unaided visual estimation of vehicle speed was clearly inconsistent with the requirement of Rule 702 of the Federal Rules of Evidence "that [expert] testimony . . . be the product of reliable principles and methods." Although the court’s role as "gatekeeper," in ensuring that expert testimony is "reliable and relevant," is constant throughout all judicial proceedings, we recognize that the "Federal Rules of Evidence[, apart from testimonial privileges,] do not apply at suppression hearings." As such, we need not and do not address the district court’s inexplicable determination to qualify Deputy Elliott as an expert.
Sowards, __ F.3d at __ n.5 (quoting United States v. Baptiste, 596 F.3d 214, 222 (4th Cir. 2010); see also United States v. Johnson, 617 F.3d 286, 294 (4th Cir. 2010) (stating that experts "must use reliable principles and methods, and apply those principles and methods reliably to the facts of the case."); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (the court role in screening expert testimony so that it is "reliable and relevant"), United States v. Schaefer, 87 F.3d 562, 570 (1st Cir. 1996) (The "Federal Rules of Evidence[, apart from testimonial privileges,] do not apply at suppression hearings."); FRE 104(a) ("court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible" and "is not bound by evidence rules, except those on privilege.")).

As the circuit indicated, it found the court's decision to admit the officer's opinion as expert opinion to be "inexplicable" for a number of reasons. These were based, not on whether the witness was reliable under FRE 702 or Daubert, but rather on whether the information available to the witness about the speed of the vehicle -- his own observation -- would give rise to "[p]robable cause ... given the totality of the circumstance." The focus of this inquiry was whether "Deputy Elliott had reasonably trustworthy information sufficient to support a prudent person's belief" that the defendant was speeding. Sowards, __ F.3d at __.

The circuit concluded that the trial court had no basis for its confidence that the witness had reliable information to inform a judgment that the defendant's car was going 75 MPH in a 70 MPH zone. In particular, the circuit noted that the record failed to disclose that the witness actually had the experience the trial court found that he had. This included that the record indicated that Officer Elliott himself testified that he "used absolutely no technique or method to visually guess vehicle speeds." Sowards, __ F.3d at __.

In addition, when questioned by the court as to how he measured speed of a vehicle, the witness disclaimed having an opinion as to the "increment of distance traveled " or the "increment of time that passed" to cover that distance. Yet both variables were necessary to the "mathematical" understanding of speed a calculation derived from measuring a distance divided by the time. The circuit was troubled that the court's questioning of the witness indicated he could be neither an accurate witness of distance or time, as the witness opined for the court that there were 12 feet, rather than 3 feet, in a yard or that on a yardstick "there's 12 inches," rather than 36 inches, or that the mathematical calculation of speed could change "depend[ing] on the person who's behind it." The circuit found this testimony, contrary to the trial court's findings, was material to his estimate of the defendant's speed. Sowards, __ F.3d at __.

Although the FRE do not apply at suppression hearings, this did not mean that there was no standards to be applied to the officer's statement that the car was going 75 in a 70 MPH zone. As the circuit concluded there must be evidence that provides a "sufficient indicia of reliability for a court to credit as reasonable an officer's visual estimate of speed." Indeed, the Fourth Amendment:

... does not allow, and the case law does not support, blanket approval for the proposition that an officer’s visual speed estimate, in and of itself, will always suffice as a basis for probable cause to initiate a traffic stop. Instead, for the purposes of the Fourth Amendment, the question remains one of reasonableness. Critically ... the reasonableness of an officer’s visual speed estimate depends, in the first instance, on whether a vehicle’s speed is estimated to be in significant excess or slight excess of the legal speed limit. If slight, then additional indicia of reliability are necessary to support the reasonableness of the officer’s visual estimate.
Sowards, __ F.3d at __.

The Fouth Circuit admitted that the different standard of proof applicable in the suppression hearing context (probable cause) than at trial (beyond a reasonable doubt) might, could pose a reason for distinguishing cases of speed estimate based on a witness's visual estimation. Admittedly the beyond a reasonable doubt standard was "more exacting than the standard sufficient to support probable cause," but part of the standard to be applied in the suppression hearing context concerning the officer's opinion on the speed of a vehicle, evidence of speed that is reliable generally provides the objectively reasonable basis for probable cause to initiate the traffic stop." It was clear to the circuit that Officer Elliott's speed estimate was not objectively reasonable. Rather, it was a matter of the officer's "guess" which was "merely conclusory, without an appropriate factual foundation, and simply lacking in an appropriate factual foundation, and simply lacking in the necessary indicia of reliability to be an objectively reasonable basis for probable cause to initiate a traffic stop." Sowards, __ F.3d at __.

Photo: Screenshot from Bullitt a 1968 movie by Solar Productions, distributed by Warner-Bros-Seven-Arts; the image is being used to illustrate the American iconic image of a speeding car and is used for informational or educational purposes only. The image is of low resolution and it is unlikely this image will devalue the ability of the copyright holder to profit from the original work. Screenshot Bullitt source:


Federal Rules of Evidence