A driver given a warning ticket for speeding in June 2020 sued the South Dakota Highway Patrol trooper who stopped him.
In March 2022, a U.S. District Court judge found that the trooper did not violate the driver’s constitutional rights by searching the vehicle for drugs or prolonging the stop but held that it’s up to a jury to decide if the driver was indeed speeding.
The Highway Patrolman appealed that decision to the Eighth Circuit Court of Appeals, which heard arguments in Saint Paul on Tuesday, Oct. 18, 2022.
Sheck Mulbah and two other Stanford University recent graduates, all Black men, were traveling from the San Francisco Bay area to Chicago on June 19, 2020, when they were pulled over on Interstate 90 outside of Sioux Falls. It was 10:40 p.m.
Highway Patrolman Cody Jansen told Mulbah, the driver, that he was speeding, going 65 in a 55 mile an hour construction zone. Mulbah denied that he was speeding. Jansen asked Mulbah to sit in the patrol car while he wrote out a warning ticket.
In his lawsuit, Mulbah said he had difficulty fitting himself into the car because the passenger seat was pulled forward and obstructed with equipment. And in the back seat, behind a screen, a dog named Rex barked loudly and aggressively through much of the process.
After writing the ticket, Jansen went with Mulbah back to the van, asked about drugs, and asked if he could search the vehicle. Mulbah, in his lawsuit, said he did not feel that he could say no, and so he agreed, as did his two passengers. Jansen found nothing illegal. The stop lasted 20 minutes.
In court filings, Jansen said he was suspicious when he saw the van on the highway because it had California plates and was a rented vehicle, two markers that could indicate drug trafficking. He said he was not able to see that the occupants were Black, and so race was not an issue.
Jansen said based on his training and experience, he became more suspicious when he talked with Mulbah and learned that the men were not taking the most direct route from San Francisco to Chicago, and that they were making a one-way trip.
Mulbah explained to Jansen that the men were on a road trip and had stopped at Mount Rushmore.
In his lawsuit, Mulbah said the stop was extremely traumatic for him, a Black man stopped at night by a white officer with an aggressive dog barking at him.
Mulbah alleged that Jansen unconstitutionally prolonged what should have been a routine stop, that he had not willingly consented to a search of his vehicle, and that Jansen had no good cause to stop him because he was not speeding.
In reviewing the case, Federal District Judge Karen Schreier determined that Jansen was entitled to qualified immunity for the length of the stop and the search of the vehicle, but whether Mulbah was in fact speeding is a question of fact, and that a jury could conclude that he was not speeding.
Jansen appealed that determination.
At oral arguments before the Eighth Circuit, Jansen was represented by James Moore.
He said Mulbah had no proof that he was not speeding, and that Jansen said his radar gun had clocked the van at 65 miles per hour.
“What the District Court’s analysis essentially did is create a presumption that the officer is lying,” Moore said.
He said Jansen reported testing his radar gun before and after the stop and that it was accurate.
Moore told judges that Judge Schreier, in finding that a jury should evaluate the facts of the case, had offered hypotheses that perhaps the radar wasn’t working right, or that it had locked onto another vehicle, or that Jansen lied. But Moore said there was nothing in the evidence to support those suppositions, and Mulbah did not raise those arguments in his case.
Mulbah was represented at oral arguments by Pete Heidepriem. He said Mulbah’s claims that he was not speeding went beyond a bald denial. For one thing, Mulbah said he had been tracking the journey following Google instructions.
“He specifically recalled following posted speed limit signs,” Heidepriem said. “He specifically recalled cars passing him because he was driving slowly.”
Heidepriem said Trooper Jansen had nothing to offer as evidence beyond his own word, because he had not videorecorded the reading on the radar gun.
The three-judge appellate panel will issue an opinion at a later date.
