U.S. v. Ludwig: An assault on individual rights

William Ross[1]

The Fourth Amendment’s prohibition against unreasonable search and seizures is one of the most fundamental rights guaranteed in the United States Constitution.[2] However, this right is not absolute and courts have traditionally limited its breadth in order to protect other liberties.[3] As a result, courts have developed several exceptions that allow for search and seizure if reasonable suspicion and probable cause are satisfied.[4]

While both the Supreme Court and Tenth Circuit have addressed reasonable suspicion and probable cause, the analysis of what satisfies these exceptions is heavily fact-dependent and thus has not been developed as a bright-line rule.[5] As a result, courts have seen an influx of defendants challenging the validity of reasonable suspicion and probable cause searches. In United States v. Ludwig,[6] the Tenth Circuit sought to clarify these issues.

While patrolling Interstate 80 in Wyoming, State Trooper David Chatfield spotted a car travelling over the speed limit.[7] Trooper Chatfield turned on his emergency lights and attempted to stop the driver.[8] The driver, Sergei Ludwig, pulled onto the highway’s shoulder but continued travelling for almost a minute before coming to a complete stop.[9]

As Trooper Chatfield approached he immediately noted a “strong smell of cologne.”[10] After a short series of questioning, Trooper Chatfield testified that Ludwig appeared abnormally nervous.[11] Trooper additionally noted that Ludwig’s story seemed “suspect.”[12] Based on Trooper Chatfield’s past experiences and training, these factors led him to conclude that Ludwig was partaking in some type of illicit activity.[13] Under reasonable suspicion grounds, Trooper Chatfield further detained Ludwig and employed a drug-sniffing dog to conduct an exterior search of Ludwig’s vehicle.[14] When the dog reached the trunk, it alerted to the presence of drugs wherein Trooper Chatfield discovered a secret compartment containing 11.3 pounds of ecstasy.[15]

Before trial, Ludwig moved to suppress evidence of the drugs found in his car.[16] The defense argued that the search and detention violated Ludwig’s Fourth Amendment rights.[17] However, the district court disagreed and denied Ludwig’s motion.[18] Ludwig entered a conditional guilty plea.[19]

Ludwig appealed the disposition of his suppression motion to the U.S. Court of Appeals Tenth Circuit. However, Judge Neil M. Gorsuch, in a unanimous decision, affirmed the district court’s ruling.[20] In the Court’s opinion, Judge Gorsuch addressed the various factors that provided Trooper Chatfield with the right to detain and later search Ludwig.[21] The Court found that the factors––while independently innocent––when considered together provided a “particularized and objective basis” for suspecting Ludwig of drug trafficking.[22] This in turn provided a legal basis for Ludwig’s detention.[23]

Though the case’s disposition is consistent with prior case law,[24] it is a marked expansion of police discretion at the cost of individual rights. The Tenth Circuit’s opinion will have serious real world implications including the potential increase in racial profiling.

By accepting wholly innocent factors in its reasonable suspicion analysis, the Court deferred to the subjective beliefs and judgment of the arresting officer. When the reasonable suspicion analysis originated in Terry v. Ohio,[25] Justice Brennan noted that he feared “police [would] conjure up ‘suspicious circumstances’ and courts will credit their versions.”[26] Though, Justice Brennan’s statements were made in 1967, they were eerily prophetic.

When Justice Brennan made the statement, “conjure up,” it is unlikely that he was implying that officers would fabricate stories and lie. Instead, “conjure up” was meant to entail unintentional subjective beliefs. It is these subjective beliefs, as reaffirmed in Ludwig, which are most problematic. For example, a border patrol agent is likely to unintentionally “conjure up” a suspicious circumstance upon seeing a truck of Hispanic-looking persons driving along the Mexican border. By comparison, a truck full of Caucasian-looking persons would not draw this same ire. These two seemingly identical situations would receive conflicting interpretations depending upon the racial appearance of the occupants. If the stop were made solely on the differences in appearance, this would be deemed unconstitutional because it is racial profiling.[27] Racial profiling relies on stereotypes and unfounded generalities about certain races or ethnicities.[28] Racial profiling originates from the false belief that members of a certain ethnicity are more likely to commit a specific crime than members of other ethnicities.[29] However, in reality, “profiling adds no security, and can in fact compromise it.”[30]

Prior to the September 11th terror attacks, racial profiling had long been condemned by the public.[31] However, post-September 11th, there was a re-emergence of acceptance over racial profiling. “[A]n ABC/Washington Post poll found that seventy-one percent of Americans were willing to give up some liberties to prevent future terrorist attacks.”[32] This widespread acceptance, combined with the Court’s loosening of Fourth Amendment restrictions, will undoubtedly result in more innocent minorities being deprived of their liberties. In fact, studies have found that one is more likely to be pulled over if Hispanic or black, than if white, even though the vast majority of these searches revealed nothing incriminating.[33]

Ludwig’s increased deference to police officers and their subjective beliefs will not only permit racial profiling, but will have the effect of furthering it. In Ludwig, the Court recognized the value of Trooper Chadfield’s training.[34] In practice, it is this training and experience that helps officers to form their subjective beliefs about criminal behavior patterns and particular neighborhoods.[35] It follows then that hypothetically, an officer could pull over a minority just because they are a minority who has stereotypically been linked to crime in that area. If questioned, the officer could defer to his police training and experience that led him to believe criminal activity was afoot. While race alone would not satisfy a reasonable suspicion standard, once the actor is stopped, wholly innocent factors such as a strange smell, nervousness, or a particular style of dress could all be considered in the actor’s continued detention. During this stop, if anything illicit were discovered, the actor would have little recourse in disputing the constitutionality of the initial stop. While in reality the stop was based on racial profiling, the officer could claim that it was the smell, nervousness, etc. that caused him to be suspicious, not race. In a court such as Ludwig where officers are regarded as experts, it is highly unlikely the officer’s findings would be disturbed. 

In effect, courts have implicitly created a new burden—virtually insurmountable—for defendants. In matters of disputed fact, it appears that courts will defer to the testimony, findings, and opinions of law enforcement officials unless the defendant can show a blatant abuse. In the criminal context, this seems contrary to the rule that a defendant is innocent until proven guilty.


It is clear from the Tenth Circuit’s opinion that the Court values public safety over individual liberty. Armed with a fact-dependent analysis and extreme deference to law enforcement, the Court’s assault on individual rights is unlikely to end in the near future. Most harmed by this decision are wholly innocent individuals who will inevitably lack recourse against officers who invade their privacy. This is especially true in the context of racial profiling, where the line between subjective beliefs and racial prejudice is often blurred. While public safety is a compelling interest, it is important that courts recognize the potential implications of their continued expansion of police power.

[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.

[2] E.g.,Ker. v. California, 374 U.S. 23, 47 (1963).

[3] Derek M. Alphran, Changing Tides: A Lesser Expectation of Privacy in a Post 9/11 World, 13 Rich. J.L. & Pub. Int. 89, 90 (2009).

[4] E.g., U.S. v. Ludwig, 641 F.3d 1243, 1243 (10th Cir. 2011).

[5] Id. at 1247-53.

[6] See generally id.

[7] Id. at 1246 (Trooper Chatfield testified that he originally estimated that the car was travelling about ten miles over the speed limit).

[8] Id.

[9] Id.

[10] Id. (Trooper Chatfield testified that cologne is “often used to mask the smell of illegal drugs”).

[11] Id.

[12] Id. at 1249.

[13] See id. at 1246.

[14] Id.

[15] Id.

[16] Id. at 1247.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 1255.

[21] Id. at 1247-51.

[22] Id. at 1250.

[23] Id.

[24] See e.g., U.S. v. Arvizu, 534 U.S. 266, 277 (2002) (using wholly innocent factors in a totality of circumstances analysis to gain reasonable suspicion).

[25] See generally Terry v. Ohio, 392 U.S. 1 (1968).

[26] Ryan J. Sydejko, International Influence on Democracy: How Terrorism Exploited a Deteriorating Fourth Amendment, 7 J.L. Soc’y 220, 241-42 (2006).

[27] See U.S. v. Garcia-Camacho, 53 F.3d 244, 247 (9th Cir. 1995).

[28] Sydejko, supra note 26, at 244-45.

[29] Id. at 247.

[30] Bill Dedman, Memo Warns Against Use of Profiling as Defense, Boston Globe, Oct. 12, 2001, A27.

[31] Alphran, supra note 3, at 137 (“According to a Gallop Poll, eighty-one percent of Americans opposed racial profiling.”).

[32] Id.

[33] Id.

[34] Ludwig, 641 F.3d  at1247-48 (“Mr. Ludwig offers us no affirmative reason to think that the trooper forgot his training or that his estimate should be discredited for any other reason. In these circumstances, the district court's factual finding about the reliability of the trooper's visual estimation remains untouched, must be affirmed, itself sufficient to support the traffic stop.”).

[35] Kit Kinports, Veteran Police Officers and Three-Dollar Steaks: The Subjective/Objective Dimensions of Probable Cause and Reasonable Suspicion, 12 U. Pa. J. Const. L. 751, 765 (2010).