Pretextual stops are legal, but give police broad discretion to pursue their suspicions

By Paul Cuno-Booth, Granite State News Collaborative

*Side of the road photos with Trooper Cars are from NHSP Facebook page. (They were not taken at the time of the stops we reference in the story as far as we know.)*

Michael Vazquez didn’t know why a New Hampshire state trooper was pulling him over one afternoon in August 2018. He’d been driving his BMW on Interstate 93 in Salem, doing the speed limit.

Trooper Michael Arteaga told Vazquez he was tailgating another vehicle. But he had other reasons for the stop.

Arteaga was a member of a specialized unit whose chief mission isn’t traffic safety, but looking for drug traffickers on New Hampshire’s highways. He thought the car might be involved in criminal activity.

The reason he gave in his report: Vazquez was tapping on the brakes to stay in his lane rather than speeding up to pass.

“I became suspicious the operator was purposefully trying to maintain a speed of 65 miles per hour or under,” the trooper wrote.

The state and federal constitutions bar police officers from stopping and investigating civilians on nothing more than a hunch. But on the roads, there’s a workaround. Motor-vehicle violations are so common that an officer can usually find a legal reason to pull over just about any car, then probe unrelated suspicions.

It’s a legal but controversial tactic known as a pretextual stop, and one that has often been used by the drug-interdiction unit Arteaga belonged to — the N.H. State Police Mobile Enforcement Team, or MET.

In reports and court testimony, troopers from the unit have said they found vehicles suspicious based on drivers’ and passengers’ body language, their use of rental cars, legal driving behavior like obeying the speed limit and, in one case, a car being unusually clean.

Often, those cars weren’t breaking any traffic laws when troopers first saw them. Instead, the troopers followed and monitored them — sometimes for miles — before observing a minor traffic violation that allowed them to legally make a stop.

Police often say such stops are an important tool for seizing drugs and guns. Many legal experts, however, argue they are arbitrary, prone to racial bias and end up stopping innocent drivers more often than not — claims supported by empirical research.

In New Hampshire, defense attorneys and civil-liberties advocates have long criticized the MET’s use of pretextual stops for similar reasons. The unit has come under additional scrutiny in recent months, as news has emerged about a former trooper’s firing for misconduct.

State officials have celebrated the Mobile Enforcement Team’s many arrests and drug seizures, dismissing critics’ concerns as based on a handful of cases that have spilled into public view. At times, they have denied troopers were trained to use pretextual stops.

The Collaborative found court records documenting at least 18 instances of state troopers in Rockingham County — mostly members of the Mobile Enforcement Team — making pretextual stops between January 2018 and September 2020. More than half involved a vehicle with at least one Black or Latino occupant.

The N.H. Department of Safety, which includes State Police, responded to a few general inquiries in writing, but declined to grant an interview or answer a more detailed list of questions, including whether troopers continue to use these tactics. The troopers named in this story did not respond to requests for comment or could not be reached.

“Since its inception in 2015, the Mobile Enforcement Team has consistently put dangerous individuals who utilize our interstates to traffic illegal narcotics behind bars and undoubtedly saved countless lives,” Tyler Dumont, a department spokesperson, wrote in a statement last month.

But Joseph Lascaze, an organizer with the ACLU of New Hampshire, said such practices come at a cost. He compared them to New York’s policy of stop-and-frisk, which disproportionately targeted Black and Latino residents — and, in the vast majority of cases, people who were innocent of any crime.

“What is now the value that’s been placed on that person’s civil liberties and their freedom?” Lascaze said. “ … Is that worth more or less than whatever potential benefit others may feel that they’re getting by using these tactics?”

SUBHED: Praise and criticism

N.H. State Police formed the Mobile Enforcement Team in 2015, as more and more Granite Staters died of overdoses. Its members were tasked with interrupting the flow of narcotics into the state, particularly on Interstates 93 anfd 95 in southern New Hampshire.

State officials have praised the unit as a key part of their efforts to combat drug trafficking, saying it regularly assists other law enforcement agencies and makes stops based on intelligence from ongoing investigations.

But the MET has also attracted less positive attention.

In 2019, a driver sued the state alleging Trooper Haden Wilber, a member of the unit, had violated her civil rights during a 2017 vehicle stop in Portsmouth and the resulting criminal case. The state settled last year for $212,500. Wilber was fired after an internal investigation found he had illegally searched drivers’ phones and made false statements, among other violations of State Police policy. He has denied lying but admitted to the other allegations.

Also in 2019, judges suppressed evidence in two of Arteaga’s cases due to constitutional violations during highway stops.

In 2020, during meetings of the state’s Commission on Law Enforcement Accountability, Community and Transparency — formed as the murder of George Floyd focused attention on police reform — defense attorneys and civil-liberties advocates questioned the MET’s use of pretextual stops, voicing concerns that the practice led to racial disparities.

On two occasions, top Department of Safety officials denied that troopers were trained to use the tactic.

In a meeting that June, Lascaze asked whether state troopers were “trained to use motor vehicle stops as pretextual reasons for investigating nonmotor vehicle-related issues.”

Col. Nathan Noyes, the director of State Police, answered, “No.”

At a meeting week later, Donna Brown, a well-known defense lawyer, pointed to multiple cases that showed troopers doing just that.

“I want to tell you that we do not train for pretextual stops,” Department of Safety Commissioner Robert Quinn responded. “And I agree with you. That is not something that we want to see happening here.”

Asked about those statements recently, Assistant Commissioner Eddie Edwards told the Granite State New Collaborative that Quinn and Noyes had been referring specifically to stops “based upon race or ethnicity.”

SUBHED: “Indicators” of suspicion

Law enforcement agencies have used pretextual stops since at least the 1980s. The U.S. Supreme Court blessed the practice in 1996, holding that an officer’s ulterior motive does not invalidate an otherwise legal stop. Many legal experts have criticized that decision, arguing that the frequency of traffic infractions gives police the discretion to stop just about anyone.

“The traffic code is like a policeman’s dream,” said Frank Baumgartner, a political scientist at the University of North Carolina who has analyzed vehicle stops in that state. “It makes everybody a lawbreaker, and then the police can pick and choose when they want to enforce that law.”

Court documents show that playing out on New Hampshire’s highways.

In police reports and testimony, troopers have described stationing themselves along I-93 in Salem or at the I-95 toll plaza in Hampton, watching passing cars and following those that catch their interest, based on a few quick observations that have nothing to do with traffic safety.

In January 2018, Trooper Timothy Berky noticed a car passing through the I-95 tolls had apparently been borrowed from someone in Jamaica, Queens, and the driver was “very rigid and did not look at the cruiser as he passed my location.” At least one of the car’s occupants was Black. Berky followed the vehicle, pulling it over several miles later in Portsmouth, ostensibly for speeding in a 55-mile-per-hour zone and a lane violation.

That February, Trooper Jeffrey Costa began tailing a car when the driver looked at his parked cruiser and adjusted his ball cap, the front passenger sat up and someone in the back seat turned around to look at him through the rear window. Two of the occupants were white; the Collaborative couldn’t verify the third person’s ethnicity. Costa stopped them for allegedly failing to signal lane changes.

Two white men in a van heading north through Salem on I-93 caught Wilber’s attention that same month. He testified that he followed the vehicle after noticing that it was registered to a town well to the north and had two male occupants, one of whom was smoking. Wilber caught up to the van and pulled it over for allegedly following too closely.

Troopers say they have learned to spot subtle “indicators” of criminal activity. They have explained, for instance, that smoking a cigarette can betray a driver’s nervousness. Reclining in the front seat might suggest a passenger is trying to hide behind the doorframe. And traffickers favor rented or borrowed cars, troopers say, because they obscure the driver’s identity and aren’t subject to asset forfeiture.

Judges have pointed out that numerous law-abiding drivers engage in the same behaviors.

Testifying in one case about why he followed a rental with Massachusetts plates, Arteaga also “conceded that millions of people drive rental cars for perfectly legal reasons,” U.S. District Judge Landya McCafferty wrote.

Arteaga said his suspicions were heightened when he observed the driver, John Hernandez, holding the wheel in the 10 and 2 position.

The judge wrote that she found it “difficult to credit — and therefore to defer to — the Trooper’s testimony about what facts he found suspicious, especially where he testified that Hernandez’s hands on the steering wheel at ‘ten and two’ bolstered his suspicion of criminality. Drivers are taught to drive with their hands on the wheel at ‘ten and two.’ ”

Arteaga has cited that observation in other cases, too. In early 2018, six days apart, he stopped two out-of-state cars, each with a pair of Latino men, after claiming they first aroused his suspicion because the driver held the wheel at 10 and 2, the passenger was leaning back in the front seat and neither occupant looked in his direction.

In a well-known 2019 order on one of those cases, Superior Court Judge Andrew Schulman described such suspicions as having a “heads-I-win-[tails]-you-lose quality.”

“Had either the driver or the passenger, or both, turned to face the trooper’s vehicle, he could have speculated that they appeared hypervigilant about being observed by the police,” he wrote. “Had either looked towards the trooper and then looked away from the trooper, he could have speculated that they recognized him to be a police officer and then tried to blend in with traffic. What permutation does not fit the profile?”

Schulman concluded the MET seemed to be carrying out “an extraordinary policy” of “what amounts to rolling spot checks based on hunches.”

The Collaborative asked the Department of Safety what evidence it has that such observations are meaningful signs of criminal activity.

“We recognize that these factors or driving behaviors, individually, could be observed with any motorist and that there are often natural human reactions when witnessing or encountering a member of law enforcement,” Edwards said in a written response. “Our State Troopers are trained to take the totality of indicators, not a single indicator, to make lawful motor vehicle stops.”

SUBHED: A roadside search

When officers make stops based on suspicion — rather than in response to a clear safety issue like speeding — motorists notice the difference, according to drivers and experts interviewed for this story. They may feel they were pulled over for arbitrary reasons while doing nothing wrong, only to be asked a series of questions about their comings and goings. In some cases, the officer may have them exit the vehicle, frisk them and search their car.

In a recent interview, Vazquez said there was plenty of space between him and the next vehicle when Arteaga pulled him over.

Vazquez, then 29, had a small amount of marijuana, which New Hampshire had decriminalized a year earlier. Arteaga stated he could smell it. He then asked Vazquez a series of questions about his trip. Vazquez said he was driving to Manchester to visit his brother. Arteaga asked for his brother’s name and inquired about their plans.

In a report, Arteaga wrote that he had asked Vazquez for his brother’s name “because his last name sounded familiar to me.” While running Vazquez’ license, Arteaga took the extra step of Googling his brother, having “previously heard of” someone by that name being involved in drug activity.

Arteaga asked Vazquez to step out of the car and, according to Vazquez, patted him down. The trooper then began asking about his brother’s unrelated drug arrest from a year earlier.

“He said, ‘Oh, I just wanted to know if that’s your brother,’ ” Vazquez recalled. “And in my mind, I’m like, ‘What does this have to do with you stopping me here?’ ”

Arteaga asked to search Vazquez’ car, telling him that he’d call in a drug-sniffing dog if Vazquez refused.

“Part of me was like, ‘I have nothing to hide, so you want to search my car, go right ahead,’ ” Vazquez recalled. But he said Arteaga also “made it seem like, ‘Oh, you’re gonna get in more trouble if you don’t let me search the car.’ ”

Vazquez remembers being stopped on the road for well over an hour. He had just gone through a breakup and had all his clothes in his car. “He initially took everything out of my car,” he said. “So I was sitting on the highway, looking homeless, with all my stuff outside on the highway.”

The Department of Safety declined to answer questions about Vazquez’ case. Arteaga did not respond to a request for comment. In his report, he stated that he found it suspicious Vazquez was going to visit a relative with a prior drug arrest, in combination with the smell of marijuana and a handful of other observations about Vazquez’ demeanor, driving behavior and itinerary.

The search found marijuana and two doses of the addiction medication Suboxone.

SUBHED: Stops, searches and seizures

It’s hard to verify how good the MET’s intuitions are.

Police found drugs in each of the stops described above, which the Collaborative located by searching court records — sometimes in large amounts, sometimes much less. By contrast, there’s little public record of stops in which troopers detain a driver and find nothing at all.

Between late 2015 and mid-April of this year, according to the Department of Safety, the MET seized 158 guns and 170 kilograms of illegal drugs, including 75 kilos of marijuana or THC, 46 kilos of heroin or fentanyl, 28 kilos of meth and 15 kilos of cocaine.

During the same six-and-a-half-year period, the MET arrested more than 1,500 people. About 1,000 were drug arrests — 60 percent of them for simple possession and 40 percent possession with intent to distribute.

Dumont, the department spokesperson, was unable to say how many total vehicle stops the MET made in that time. But data obtained by the ACLU-NH show the MET stopped more than 1,700 drivers in 2019 alone — suggesting that most of the unit’s stops don’t find drugs.

That’s in line with research from other jurisdictions, which shows that officers need to stop a lot of cars to find the few with contraband.

“Trying to interdict drugs through random stops on the highway is actually very inefficient,” said Stephanie Seguino, a professor of economics at the University of Vermont who has studied traffic stops in that state.

Some researchers argue the costs of such policies outweigh any benefits. Arbitrary-seeming investigative stops can frighten and humiliate drivers and erode their trust in law enforcement — especially within communities of color, who disproportionately experience them, said Charles Epp, a professor at the University of Kansas who has studied pretextual stops in the Kansas City area.

Lascaze understands the desire for proactive policing, but said that should be based on specific intelligence, rather than stopping people on hunches.

“No one is saying that there should be drugs, fentanyl, guns,” he said. “ … What we’re saying is that using frivolous reasons — specifically when you are targeting marginalized community members — that should not be occurring in policing.”

SUBHED: “Why did I get stopped?”

Vazquez came away from the stop confused. “What just happened to me?” he said he asked himself. “Why did I get stopped?”

Nine months later, he was surprised to learn that he had been charged with a felony — possession of a controlled drug, Suboxone, without a prescription. He told the Collaborative he hadn’t known it was there and thinks it belonged to friends who’d been in his car the previous evening.

After his attorney challenged the search’s legality, Vazquez accepted a plea deal that dropped the felony to a class B misdemeanor — the lowest level of criminal charge, with no jail time and a suspended fine.

Vazquez still isn’t sure why Arteaga pulled him over that day. He has wondered if police had been watching him all along, hoping to get something on his brother — whose case was being dropped due to a Manchester officer’s misconduct — or simply singled him out based on his appearance.

“You know, I had braids that were hanging,” he said. “I looked kind of like a ‘hood kid.’ A ‘hood kid’ driving a BMW with a bunch of chains on.”

Part two of this series will examine the issue of racial bias and pretextual stops.

If you have a story about a vehicle stop you’d like to share, you can reach reporter Paul Cuno-Booth at paulcunobooth@collaborativenh.org or 802-234-8443.

This article is being shared by The Granite State News Collaborative, as part of its race and equity initiative. It was edited by The Concord Monitor, a partner in the collaborative. For more information visit collaborativenh.org.