Fourth Amendment

Published on December 22nd, 2016 | by David "Double D" Devereaux

6

Video Proves Austin Police Trampled Bikers Rights

On Tuesday the 13th of December at approximately 1:15pm Cody King was the victim of a motorcycle profiling stop in Austin, Texas. Cody was stopped under the pretext of failing to properly signal while riding his motorcycle. But the real intent was to illegally detain Cody so they could violate his privacy without justification by taking pictures of tattoos all over his body. Most bikers and club members have a similar story about being profiled. But Cody went the extra step and recorded the entire incident, exactly what all bikers should do.

 

Why The Stop Is Illegal

 

Under federal law, the US Supreme Court recently explained exactly how the 4th Amendment works in terms of extending traffic stops for investigatory purposes beyond an investigation of the traffic infraction that justified the initial seizure. The majority in Rodriguez v. US (2015) writes:

 

“A seizure for a traffic violation justifies a police investigation of that violation” – not more — and “authority for the seizure . . . ends when tasks tied to the traffic infraction are – or reasonably should have been—completed…” Traffic stops have to be reasonably short, and unless there is reasonable suspicion of some other crime, officers can’t use the stop as a subterfuge for extraneous investigation.” 1

 

The extended duration of Cody’s stop amounts to a 4th Amendment violation. The moment that the APD officer confirmed that Cody would not be receiving a ticket, authority for the seizure ended because “tasks tied to the traffic infraction” were- “or reasonably should have been- completed…”

 

Extending the duration of the stop to take pictures of Cody absent “reasonable suspicion of some other crime” is unconstitutional “subterfuge for extraneous investigation.”

 

Independently, photo-stops violate an individual’s Fourth Amendment rights because an investigative technique must be “reasonably related” to the original suspicion that justified the stop. 2 Obviously, photographing Cody’s tattoos the investigative technique in this instance- is in no way “reasonably related” to the turn signal violation that justified the initial stop.

 

Cody Did Not Give Consent

 

The APD offered Cody an unreasonable choice after the traffic infraction was adjudicated. The APD was going to take pictures of Cody regardless of his consent. It’s clear that he was still being detained and not free to leave. Cody was only given the choice between pictures being taken on the side of the road or at the jail. Cody being forced to choose between two unreasonable options does not amount to consent.

 

 

Motorcycle Club Membership is NOT Reasonable Suspicion

 

Many comments on the MPP reveal that some believe membership in a club that authorities label a gang amounts to reasonable suspicion and even probable cause for conducting an investigatory stop. This argument is specious for numerous reasons.

 

First, Cody is in a motorcycle club and has no felonies. This proves being in a club does not make you a criminal. The facts of the specific case override generalized conjecture.

 

Second, Membership in motorcycle clubs, including clubs labeled organized or criminal gangs by authorities, is protected by the 1st Amendment.

 

There is “no evidence that by merely wearing [motorcycle club] “colors,” an individual is “involved in or associated with the alleged violent or criminal activity of other [motorcycle club] members. It is a fundamental principle that the government may not impose restrictions on an individual “merely because an individual belong[s] to a group, some members of which committed acts of violence.” In fact, the Supreme Court has long “disapproved governmental action . . . denying rights and privileges solely because of a citizen’s association with an unpopular organization.” Healy v. James, 408 U.S. 169, 185-86 (1972). 3

 

The Austin Police Should Have Known They Were Violating Cody’s Rights.

 

The APD officers involved in Cody’s stop are responsible for their actions. Official APD procedures make it clear that Cody’s stop was impermissible. The APD Policy Manual is extremely precise about photographs taken in the field. Knowledge or suspicion of gang membership does not justify photos. The APD Policy Manual reaffirms Supreme Court precedent. The APD Policy Manual reads:

 

318.6.2  FIELD PHOTOGRAPHS TAKEN WITHOUT CONSENT Field photographs may be taken without consent only if taken during a detention that is based on reasonable suspicion of criminal activity and the photograph serves a legitimate law enforcement purpose related to the detention.

(a) The officer must be able to articulate facts that reasonably indicate that the subject was involved in, or was about to become involved in, criminal conduct.
(b) Mere knowledge or suspicion of gang membership or affiliation is not a sufficient justification for taking a photograph without consent.
(c) If, prior to taking a photograph, the officer’s reasonable suspicion of criminal activity has been dispelled, the detention must cease and the photograph should not be taken. 4

 

Conclusion: Motorcycle Profiling in Texas is Irrefutable

 

What appended to Cody is not isolated. Similar incidents have happened to thousands of bikers in Texas and across America. What happens too seldom is documenting these incidents. Filming the police in public is a constitutional right. Cody’s stop is not just an anecdotal story. Cody’s video is incontrovertible proof that motorcycle profiling is occurring in the state of Texas.

 

Footnotes:

 

1 Rodriguez v. US, 135 S. Ct. 1609 – Supreme Court 2015

 

2 Bruder, Molly. “Say Cheese! Examining the Constitutionality of Photostops.” American University Law Review 57, no.6 (October 2008): p. 1695

 

3 Coles v. Carlini 162 F.Supp.3d 380 (2015) p.28

 

4 APD Policy Manual, 2016, p.171 https://austintexas.gov/sites/default/files/files/Police/APD_Policy_Manual.pdf

 

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About the Author

David

is the Spokesperson for the Washington State Council of Clubs, Founder of the Motorcycle Profiling Project, and works with motorcyclists at the national level. Contact: Send Email,



DISCLAIMER: Although comments are encouraged and appreciated, not all comments will be posted by Motorcycle Profiling Project LLC. The Motorcycle Profiling Project LLC appreciates oppositional viewpoints but will not post any comments that do not contribute to a respectful and meaningful discussion or are blatantly discriminatory or otherwise offensive. Resubmissions will be considered at the commenter's request.


6 Responses to Video Proves Austin Police Trampled Bikers Rights

  1. Davr says:

    The last time I was stopped and photographed by LEO was during the investigation of a bank robbery in Vancouver, Wa. Took my picture, asked a lot of questions and let me go. When I got home minutes later LEO had surrounded my house and had search warrants in hand. More pictures, more questions, gang affiliations, etc. Then they left with a stern warning to not leave the state. Funny thing, they caught the Bank Robber some time later and ill be damned if he didn’t look like me! Still, no excuse and my circumstances were in the investigation of a crime.

  2. George says:

    Good lawyer, sue.

  3. Pingback: Video Proves Austin Police Trampled Bikers Rights – Oregon Confederation of Clubs

  4. big,hoss says:

    I would have told that cop give me a ticket I would not let a cop do all that shit to me I would have got on my bike road off ,fuck them cops you should a started video tapeing him ,its not against the law your in public and see if he likes it tell him your taken it to your lawyer, for harassment, fuck all you cops,

  5. Troy says:

    The most dangerous gang of terrorists in this country right now, are also the same people we pay to protect us.

  6. ANIMAL says:

    Ask the cop for his “bonding agent’s name or phone number” Almost all local, county, and state law enforcement agencies or governments require cops to be bonded as a means of protecting the citizens they come in contact with against illegal or wrongful acts by the cops. If the bond is paid to the citizen for the cops wrongful actions, it must be repaid to the bonding agent, and in most cases comes out of the cop’s retirement account. Hit them where it hurts, in THEIR pocketbook!!

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