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How Close is Too Close and Why Should I Care

Following Too Closely.  It’s a basic traffic violation that we rarely think about.  But the truth is that we all follow the car in front of us too closely.  “Wait a second,” you say.  “I’m a safe driver.  I’ve never even been in a wreck.  And I’ve certainly never hit anyone from behind.”

So what does it mean to follow too closely?  That’s a good question.  This is one of those violations that leaves much to the discretion of the police.  The law says that we can’t drive “more closely than is reasonable and prudent, having due regard for the speed” of the car in front of us.  I’ve been a driver since I was 16.  And a lawyer since 1995.  I have no clue what this means.  But the courts have held that we have to allot a car length for every 10 mph we are traveling.  At 60 mph, that’s 6 car lengths ahead.  Who does that?

The next question is why should we care?  Well, that depends.  On one hand, no one wants to get pulled over for following too closely.  That’s just a pain.  But it turns out that those who really have to worry fit a certain profile.

Say one is driving east through Preble County Ohio on I-70.  That’s just west of Dayton almost to the Indiana border.  And say that the person driving has a rental car with California plates.  The person is also of Hispanic or other ethnic decent.  Guess what.  The police are going to be suspicious.  Because they know that people transport drugs on I-70 from California.

There are rules against stopping cars at random based solely on a “profile.”  The pesky 4th Amendment and Due Process Clauses get in the way.  But nothing prevents stopping the car for a traffic violation, even if the true intent is to look for drugs.  So what better offense than following too closely?  After all, how can we know what is “reasonable and prudent.”  It may be the only violation that leaves the offense to the discretion of the stopping officer.

Now what happens?  The car is stopped and the police begin “routine questioning.”  Where are you going, what are you up to, etc.  The cops don’t like the response and claim the occupants look and act nervous.  They will even claim to see the driver’s pulse on his neck.  So, they investigate further.  They order everyone out of the car.  The police happen to have a drug dog ready and waiting.  They run the dog around the car, and it hits on the front fender.  Now they can search the car.  In the trunk (not the fender) they find drugs, and everyone is arrested.

This type of stop and search has been upheld time and time again.  There are, however, some remaining 4th Amendment issues.  The time frames of the search and other factors may result in a 4th Amendment problem and suppression of the drugs.  But it’s a tricky set of issues.

One can imagine in my line of work that I get questions from friends and family about various legal issues.  More often than not it turns into a debate about conservative politics, good police work, etc.  I recently had a discussion with some friends about this very issue.  An acquaintance was stopped on a main highway heading south out of Columbus, Ohio.  He travels the route regularly and commented on how many people are stopped along the way.  I explained that there is a drug task force looking for drug traffickers on that road.  I described the scenario above, and to my surprise, my friend commented that they should just stop everyone and end the problem once and for all.

“Wait”, I argued, “what about the innocent people who have to endure police stops?”

“It’s worth it,” he concluded.

Here’s the problem.  If we suspend our constitutional rights, even for seemingly good reasons, the door is now open.  Literally.  If we can do that, then what stops the police from just come into our house without a warrant to look for contraband in the middle of the night?  What’s to stop the police from stopping us on the street and searching us just because we are of a certain ethnicity or wearing clothes they don’?  Where does it end?

“Incrimentalism” is a dangerous thing.  It doesn’t matter what side of the aisle one sits.  We all agree that, on some level, we need to protect our constitutional rights.  This separates us from the extremes.

This is not a political opinion.  It’s just a missive to say this:  we should carefully watch and protect the constitutional rights that we enjoy.  And when we defend folks charged with crimes, guilty or innocent, we are often engaged in debates about all of our rights, not just those of the criminals.

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