Dave vs PRPD (Round 2) The Judges spar to a split decision

from Minnesota Lawyer Blog
by Mark Cohen

Friday, January 18, 2008
When representing a defendant in Pelican Rapids, don't phone it in!

There was a very interesting case out of the 8th U.S. Circuit Court of Appeals yesterday -- Sherbrooke v. City of Pelican Rapids. (.pdf file)

The federal appellate court turned back a civil-rights claim against the city and its police department over an arrest that sprang from a traffic stop that the motorist argued was invalid. The motorist had pulled to the side of the road and made a cell phone call from his car. When he re-entered the roadway, he kept his hazards on until he reached 55 miles an hour. A police officer, apparently cruising for drunk drivers, saw him driving with his hazards on and stopped him. The officer wound up arresting the motorist. Although police eventually let the motorist go without any charges, they recorded the call that the motorist made to his lawyer while he was at the station. The motorist sued, alleging his state statutory and constitutional rights had been violated by the stop, arrest and recording.

A U.S. District Court judge allowed the motorist's sec. 1983 suit to proceed, finding both the stop and the recording of the attorney-client conversation provided grounds for the lawsuit. The 8th Circuit disagreed on both counts, concluding that the stop was reasonable and that the motorist's rights were not violated by the recording. The call was made in a public place in the station and knew that police might be listening, the court reasoned.

The idea that police may be recording their conversations with clients is sure to rile criminal defense lawyers -- particularly those used to taking late night calls from DWI clients asking for advice. However, the three-judge panel was unanimous in that part of its decision.

The case did generate a dissent on the former issue however. Judge C. Arlen Beam (age 77) was not happy with the idea of police having the ability to stop someone who had just gotten back on the road and had not yet shut his hazard lights off. Beam viewed the motorist as just being cautious and having done nothing meriting being pulled over. He accused the majority of turning state law "on its head" and of taking a position that "defies common sense."

While such pointed attacks are relatively rare in a dissent, rarer still is it when the majority responds by lobbing a shot back. Responding to Beam's criticism of his decision, Judge Steven M. Colloton (age 45) wrote:

"We think the alternative interpretation of the statute apparently endorsed by the partial dissenting opinion -- that highway drivers may use flashing lights whenever accelerating from reasonable and prudent speeds below the maximum (say, 50 to 54 miles per hour) up to the speed limit of 55 miles per hour -- more nearly 'defies common sense' than does ours.

In other words, "I'm rubber and your glue, your words bounce off me and stick to you."