An Aside In The Roger Shuler Story: Fourth Amendment Rights And Pretext

All my posts about Roger Shuler — the "Legal Schnauzer" blogger subjected to an unconstitutional preliminary injunction prohibiting him from blogging — are collected under a "Roger Shuler" tag.

One of Roger Shuler's loudest complaints has been that Shelby County Sheriff's deputies pulled him over for the purpose of serving him with papers in Robert J. Riley, Jr.'s defamation suit against him.

Shuler sees that — law enforcement stopping his car and detaining him, however briefly, for the purpose of serving him in a civil case – as a violation of his Fourth Amendment rights against unreasonable search and seizure. In my In my first post on the subject I pointed out that, regrettably, it probably isn't a Fourth Amendment violation — as part of the Great War on Drugs, the Supreme Court long ago decided that police may make pretextual stops. That is to say, police who wish to ask you questions, or sniff about your car, or otherwise develop probable cause to arrest you or search your car, may stop you for any traffic violation they (purportedly) observe even if under normal circumstances they would not bother to do so. Having stopped you, they may then talk to you and observe you and your car in an effort to develop sufficient cause to take further investigative steps. That doctrine probably allows Shelby County Sheriff's deputies to stop Shuler for a purported traffic violation and, as long as they are lawfully in contact with him, serve him with papers.

What I did not anticipate is how brazen law enforcement has become about this sort of thing. A helpful tipster sent me the Shelby County Sheriff's return of service and log of service attempts. The log generally supports the assertion (admitted by Shuler) that Shuler was evading service of process, which is part of the pattern of nutty pro se conduct that contributed to his trouble. But it also contains this entry describing the eventual traffic stop:

CONDUCTED A PRETEXT TRAFFIC STOP ON SHULER'S BLUE NISSAN AFTER OBSERVING IT ROLL THRU STOP SIGN AT MAC lAN/ KEITH DR; STOP WAS AT NORTH SHELBY LIBRARY; WARNING ISSUED FOR TRAFFIC VIOLATION AND BOTH PARTIES WERE SERVED WITH PAPERS, WHICH THEY DISCARDED IN THE PARKING LOT AS THEY LEFT.

Thanks to the United States Supreme Court, law enforcement can feel free to admit that their traffic stops are pretextual. Thanks, War on Drugs!

Last 5 posts by Ken White

Comments

  1. C. S. P. Schofield says

    I'm not sure how outraged I am by this. Clear up something for me; if the police have papers that need to be handed to a citizen by order of a court, do they not have the right to stop that citizen simply to present those papers?

  2. SarahW says

    That log would tend to support Alabama revising its service requirements to permit taping notice to the door with some set number of days before court, with follow-up mailing and filing the mailing notice with the court.

  3. Xoshe says

    While I understand the legal requirement to ensure that papers are properly and directly served to a person, is there any reason to not penalize someone for intentionally attempting to dodge service?

  4. Dion starfire says

    maybe … maybe … there's just a typo and they meant "pre-text" stop. The cops saw him pulling out a cell phone and stopped him before he could send a text (illegal while driving). Yeah, yeah, that's it. *smiles with the desperately hopefulness of deep denial*

  5. Ryan says

    I have a much bigger problem with a pretextual traffic stop for a fishing expedition than I do with using it to effect service of court documents.

    Frankly, the law should be designed to explicitly allow law enforcement to conduct traffic stops to effect service if they can document a pattern of prior evasion (e.g. if they try your residence/workplace and you continually evade them, they can then pull over your vehicle).

  6. JonasB says

    I don't understand the War on Drugs angle. The linked case involved drugs, yes, but the judge's ruling seems to have been based on the problems of the subjective assessment the petitioner's proposed test would involve, and that the point about the scope of traffic regulations allowing near-universal pretext was beyond the judge's ability (and potentially, right) to decide on. So yea, it was a drug case, but nothing I read suggests the result was somehow rooted in the War on Drugs.

  7. gramps says

    Having full ignorance of Alabama law, save what I might have gleaned from reading these posts, I forge ahead nonetheless. In some states the sheriff is cross-designated as the marshal of the court and has duties related to that as well as actual law enforcement. I would think that if that is the case in 'Bama then the sheriff deputy is well within his duty to stop the party in a public setting to serve court process, especially with a history of the more routine methods proving unproductive.

  8. CJK Fossman says

    @Xoshe

    is there any reason to not penalize someone for intentionally attempting to dodge service?

    Several, unless you think:
    – cops would never lie about having attempted service
    – the government would never attempt to characterize every missed service attempt as intentional
    – citizens of the USA have a duty to know if they are a defendant in a civil or criminal action

  9. Escaped Ugliness says

    If you have time, I would also enjoy hearing what you think about the Texas roadblock and "voluntary" requests for breathalyzer tests, blood, and saliva samples.

    On the surface, it sounds outrageous; but the chief of police apologized if anybody was erroneously "offended" by NHTSA's insane power grab, so surely that'll be the end of it.

  10. JonasB says

    @Xoshe

    A specific penalty for avoiding being served seems unnecessary in light of the disadvantage someone would suffer for not letting themselves be served, and thus not able to properly respond to the suit/order/etc.

  11. azazel1024 says

    I guess pardon my naivete…but what is the problem with pulling someone over to effect service of papers? No, I know all about the 4th. I support it. However, it also seems like in this case, there is no search and I don't see a particular seizure or detention of the person.

    I don't see it any worse than if a cop saw me on the street and recognized me handing me the papers or asking me to stop a second and handing me the papers. Which, unless I've missed something, is perfectly acceptable and legal for effecting summons currently.

    Also…they didn't gig him for littering*? Or maybe the log entry was refering to them tossing the papers in a trash can or something? Cause it sounds like they just threw them on the street.

    *Because in some ways, that would be hilarious the way Shuler is acting if they had and also because the way the justice system seems to be treating him (whether there is an element of him bringing it upon himself, legal or not), I am surpised they didn't use something like that as a pretext to stick him in jail.

  12. CJK Fossman says

    CONDUCTED A PRETEXT TRAFFIC STOP ON SHULER'S BLUE NISSAN AFTER OBSERVING IT ROLL THRU STOP SIGN

    ROLLING THRU STOP SIGN is a real traffic violation, so the traffic stop was valid. Unless the 'bama police are okay with rolling stops, which I seriously doubt.

  13. Joel says

    @CJK Fossman:

    None of that answers the question. Those are all claims to doubt the "intentional" clause, but if "intentional" doesn't apply, then the question is moot. Pretty sure Xoshe was specifically referring to cases like this and just about every case brought up against Team Prenda (for example), where you can be sure beyond all reasonable doubt (and even a decent amount of unreasonable doubt) that the defendants are aware of the actions against them and are purposefully trying to avoid being served in a vain attempt to dodge the system. I can't think of any good reasons not to punish that sort of behavior off-hand. Can you actually list some of those several reasons you are thinking of?

  14. JonasB says

    @Joel, I think Fossman's issue is that such penalties have the potential to be misused (or will be abused, depending on your view). To go back to the Prenda example, their punishment for their dodging attempts was even less leniency by the judge, and generally speaking getting the judge angry at you is a pretty harsh penalty.

  15. David C says

    In my first post on the subject I pointed out that, regrettably, it probably isn't a Fourth Amendment violation — as part of the Great War on Drugs, the Supreme Court long ago decided that police may make pretextual stops.

    Whether the Supreme Court says it is a violation of the Fourth Amendment really has little to do with whether it IS a violation.

    The Supreme Court could declare tomorrow that newspapers are prohibited. This would not mean that someone arrested for publishing a newspaper is not having his First Amendment rights violated. It would merely mean the Supreme Court is condoning the violation of those rights.

  16. JonasB says

    @David C: Under your reasoning, how can you know a pretextual stop is a 4A violation if the law and constitutional review says otherwise? You may feel strongly in your opinion, but I imagine so do the justices who ruled against your preference.

  17. David C says

    While I understand the legal requirement to ensure that papers are properly and directly served to a person, is there any reason to not penalize someone for intentionally attempting to dodge service?

    I used to be a process server. I once went to a house to serve a woman. A woman answered the door. When I introduced myself as a process server and stated who I had papers for, she quickly slammed the door. A couple of seconds later, another woman – the one I was actually trying to serve, as it turns out – answered the door and apologized for the other one's behavior. If she hadn't been there, I would have assumed the other woman was her and that she was trying to dodge service.

    Another time, the person was home but did not want to answer the door because she was alone and it was dark out (it can get dark early in winter around here) and did answer when I later attempted during daylight hours.

    Another time, someone was giving their young child a bath and reasonably didn't want to leave them alone to answer the door.

    Also, this varies by state, but where I'm from, if you make reasonable attempts to serve someone but cannot, you are allowed to publish and mail the summons and that counts as a service. So even if they dodge, they can't really dodge. And if you know for a fact the person is home and they refuse to answer the door but can hear you, you can yell that you're leaving the papers on their porch, and then do so. There's no requirement to actually put the papers in their hand.

  18. Chris says

    While I understand the legal requirement to ensure that papers are properly and directly served to a person, is there any reason to not penalize someone for intentionally attempting to dodge service?

    Courts sometimes do penalize litigants for intentionally dodging service. For instance, Charles Carreon's repeated efforts to dodge service were one of the factors cited by the court when ordering him to pay $41,100.25 in attorney's fees.

  19. David C says

    @David C: Under your reasoning, how can you know a pretextual stop is a 4A violation if the law and constitutional review says otherwise? You may feel strongly in your opinion, but I imagine so do the justices who ruled against your preference.

    A jury could find me guilty of murder, but the finding would not mean I was truly guilty. I might be innocent, which would make my imprisonment unjust. That's not to say my jailer shouldn't rely on the finding of guilty.

    In the same way, a Supreme Court ruling that pretextual stops are constitutional does not actually change the Constitution. Either they are constitutional or they are not, regardless of how the justices vote. But that doesn't mean cops shouldn't rely on the ruling.

  20. ChicagoTom says

    is there any reason to not penalize someone for intentionally attempting to dodge service?

    Who get's to decide when someone is intentionally dodging service? Based on what evidence? The say so of the person who has an incentive to get service over with? Process servers are notoriously disreputable. Sheriffs/LEOs tend to be more reliable, but I believe they cost more so most people use private process servers.

    I have had process servers come to my door looking for my sister and not accept/believe me when I tell them that no one by that name lives here. They have sworn at me and called me names, and left the papers lying on the ground or shoved in the mailbox, then swore that they properly served her.

    They did that while looking for my mother as well. The process server said they served my mother (when they actually served my wife), got a default judgement, froze her assets, and then when my mother's lawyer went to court to get the judgement overturned, she won, because the process server's description of who he served (a 30 something year old, slender woman ) did not match my mother's description (at 60+ year old short overweight woman).

    In general, I think, people who are being served (especially re debt/collections lawsuits) tend to also be somewhat transient. Most debt collectors/lawyers don't have up to date information on the address of the person being served. They use whatever public info that they can find whether its up to date or not, whether it's accurate or not, whether it's the right person or not, and then just want to serve someone, anyone, so they can get their default judgement since most defendants (in the debt world anyway) probably wouldn't show up to court anyway. Then they can get a garnishment, or asset freeze or whatever, and again they assumption is most people wont fight it.

    Hell I have had my accounts frozen over a debt that wasn't mine (again my sisters) where they didn't even have a full or correct name of the person being served. They obtained a default judgement and froze my assets because my name was a partial match. I had to pay a grand to a lawyer to get my money unfrozen for something that I had nothing to do with, nor was I involved with.

  21. ChicagoTom says

    ROLLING THRU STOP SIGN is a real traffic violation, so the traffic stop was valid

    If he really rolled through the stop sign.

    I find the idea of running people's plates at random, and then, upon getting a hit on someone of interest, following them to see if they do anything you can pull them over for (or even making something up) so you can serve them a bit unseemly and runs counter to the whole concept of being people having the right "to be secure in their persons, houses, papers, and effects"

  22. Anonymous Coward says

    I'm definitely on your side, Ken. But, I fail to feel the outrage over this. He rolled through a stop sign. I've been pulled over for that and given tickets several times (in my youth). I don't like it, but it is a legitimate stop.

  23. Mike says

    Apparently running out of steam in the fight to bring attention to government dishonesty/secrecy, Popehat now presents a new series: bemoaning government honesty.

  24. says

    @ChicagoTom, your experience is not mine. In Tennessee, at least, the base fee for a private process server is 2-3x the charge to have the sheriff serve. Despite this, we still make frequent use of private process servers, because depending on which county we are dealing with, the sheriffs are remarkably unreliable. Since the law went into place here that changed how the sheriff is compensated for service, all the incentive for officers to do more than the bare minimum is gone. We suspect, although can't prove, that one rural county simply holds process for ten days and returns it without even attempting it, for two reasons: one , we have literally never had a successful return from that county, and two, our private server has been able to serve in one attempt at the same address the sheriff claimed was invalid on several occasions. I have never had a sheriff's office make the kinds of effort that were used in Schuler's case, and I suspect that the only reason such efforts were made had to do with the powerful positions held by the plaintiffs. That doesn't change Ken's point about the grotesqueness of using pretext stops either in general or for service, but I doubt the practice is going to become endemic on that latter point.

    An article that I wrote in law school and am revising now that I am an attorney also gave me some sobering insight into how the meaning of a return of service has degraded over time. Back when all our state's case law regarding sheriff's duties to serve was formed (late eighteenth through early twentieth century), the presumption that attached to a sheriff's return of not to be found was that the sheriff had sought out the defendant not just at his home, but at his place of work, his church, and by consulting with his relatives and neighbors. Did sheriffs lie back then? Yep – such lies formed the basis of the case law and the judges often handed down severe penalties. The presumption remains unchanged, but the sheriffs candidly admit that they don't and can't live up to it any longer because of population growth and the volume of litigation. That matters for many reasons, notably that a return of not to be found in Tennessee opens up a defendant to prejudgment attachment without notice or hearing.

    Both sheriffs and PPSs have incentive to lie under our current system – sheriffs because the new fee system means courts almost never question their diligence in the way they did when compensation was tied to service success, and PPSs because they are paid to get results and are competing for return business with many others. I am lucky that my private server is, to my knowledge, ethical – he knows we will keep using him as long as he is diligent and won't fire him just because someone is hard to find, and he goes the extra mile for us because we use him for a variety of investigative services on addition to simple process service. But it doesn't change the quis custodiat question of who can be relied on to be honest about service – the evidence suggests "no one."

  25. CJK Fossman says

    @Joel

    Sure, why not add "evading service" to the list of bogus charges for the government to pile on. Obviously "resisting arrest" and "interfering with an officer" need a companion.

    Can you actually list some of those several reasons you are thinking of?

    Do you mean cases where the cops and prosecutors lie? You really doubt those exist?

    Since you drag up Carreon and Prenda, I would ask you to remember that anything they do to someone we don't like can also be done to us.

  26. Daniel says

    Good article. Under the facts stated in the article, the Supreme Court would likely rule in favor of the police. However, if the "pretext stop" was a stop without reasonable suspicion or probable cause of a crime or traffic offense, then even the current "anti-Fourth Amendment" Supreme Court would probably rule that the stop to serve *civil* papers violates the Fourth Amendment. In other words, the pretext for the stop can't be to serve the civil papers in the hopes that evidence of a crime might be discovered, rather the pretext for the stop must be of a criminal nature based reasonable suspicion, for the police to avoid a Fourth Amendment violation, as they probably did in this case.

  27. azazel1024 says

    @ChicagoTom

    I suspect that police weren't running plates looking for him. Odds are probably that a deputy waited for him to get in his car and leave and then followed him (from work or home) at a guess.

    As for randomly running plates, cops do it ALL THE TIME. Its how my wife got a $150 ticket for a suspended registration a couple of weeks ago. One state, one county and one local cop were running a stop near our house where the state cop had a license plate reader and the county and local cop were doing the stops.

    The annoying part was that it was suspended for failure to get a vehicle emissions inspection. We moved last year, changed addresses with the MVA between when the original notice would have been sent (they send them out 8 weeks before its due) and when it had to be done by. USPS never forwarded it to us and the MVA never sent a follow up notice or notice of suspension. Or if they did, THEY sent it to the wrong address and USPS didn't forward it again (because 3 weeks after changing our address with the MVA, I got my registration renewal notice for my car).

    So my wife has to drive 50 miles to court to fight the ticket and get a baby sitter for the kids too (since she can't take a 3 1/2 and 1 1/2yr old to traffic court).

    On the plus side, the local cop told her to go to court because he HATES giving out suspended registration tickets and thinks its BS to gig someone for stuff that often isn't their fault…so he doesn't show to those court dates.

  28. Tom says

    If pretext stops are considered legal due to a case or series of cases, I'd rather that police indicate when they make a pretext stop in their logs! It would make things much easier later if, for example, precedent swung the other way. While I'm happy to join with those of you complaining about the putative rights violations inherent in these decisions, I feel that for many here if the cops had not indicated that it was a pretext stop that that would also have opened them up to criticism. Smells like motivated reasoning.

    Although I guess if I had read all the comments prior to writing this, I'd have seen Mike make half of this point much better than I could (not that I am implying his endorsement of the remainder of my post), with the following:

    Apparently running out of steam in the fight to bring attention to government dishonesty/secrecy, Popehat now presents a new series: bemoaning government honesty.

  29. Anony Mouse says

    If he really rolled through the stop sign.

    So they were telling the truth with "pretext stop" and lying about "rolling through a stop sign". Glad you aren't letting your feelings color your thinking.

  30. andrews says

    I had to pay a grand to a lawyer to get my money unfrozen for something that I had nothing to do with

    At least some of these cases are credit cards. For those, there is a fee-shifting provision. You're not a direct party to it, but they are proceeding on that contract, so your lawyer may be able to obtain some recovery depending on your state.

    It is also possible that the freezing of assets caused financial harm, in which case you may want to ding them on general principles.

    If you are not familiar with your state's law, talk to a lawyer. I am not your lawyer.

  31. David C says

    If pretext stops are considered legal due to a case or series of cases, I'd rather that police indicate when they make a pretext stop in their logs! It would make things much easier later if, for example, precedent swung the other way.

    These are civil cases; there's about zero chance of having the courts go back and invalidate services that were legal at the time they were performed. The police are a third party to the case and the person did in fact receive their notice, in person, of the pending case. At this point they have received their due process in regards to being served. If they want to then sue the cops for an illegal stop that should be something separate, in my opinion.

    I feel that for many here if the cops had not indicated that it was a pretext stop that that would also have opened them up to criticism.

    Well, yes. OBVIOUSLY. Because then it still would have been a pretext stop AND the police would be lying about it. That's like saying "I feel that for many here if the cops had not indicated that they shot his taillight so they could have a reason to pull him over, that also would have opened them up to criticism." Being honest is better than not being honest, but it's the underlying behavior that's worrisome. Plus the fact that they don't even have to hide their worrisome behavior.

    And when the police admit they they pulled someone over on a pretext, because they know nobody can do anything about it, that's indeed worrisome.

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