Sowards was stopped for speeding based on the officer’s visual estimate that he was going 75 in a 70 zone. A dog sniff revealed cocaine. Sowards moved to suppress the cocaine arguing there was no probable cause to stop him. The district court denied the motion ruling the officer was trained to estimate speeds, that he did not need a technique to estimate speed and his inability to correctly state feet in yards was not dispositive. The panel, 2-1, reversed. The majority held that it was clear error to find the officer was trained to estimate speeds as the testimony only proved he was trained in using a radar unit and that he used no technique to estimate speeds. It also held that it was clear error to hold the inability to measure distances was immaterial to measuring speed as distance and time mathematically determine speed. The majority held that officer estimates a slight excess of the speed limit require greater indications of reliability than an estimate of significant excess. Applying that principle here, the majority held that in the absence of any corroborative evidence, the officer’s visual estimate did not support the stop. The dissent first argued that the officer was trained in estimating speeds, had years of experience doing so, and reasonably concluded Sowards was speeding. It next argued that the corroboration requirement is improper as lay witnesses can estimate speeds in testimony, that officers are trained throughout the country to estimate speeds within 5 mph of actual speed and the corroboration standard for testing convictions on appeal should not be imported into the probable cause determination. It argued that the unpublished cases relied upon by the majority dealt with untrained officers, not a mandatory corroboration rule. The dissent would have found the district court did not clearly error in finding the officer was trained in estimating speeds or that the errors in measurement were irrelevant. The dissent finally rejected the majority’s treatment of the training program saying it was rejected without evidence.
Fulks was convicted of murder arising out of kidnapping and carjacking and sentenced to death. After direct review was exhausted, he brought a federal habeas petition which was denied. The panel affirmed. It held that trial counsel was not ineffective by allowing a statement by Fulks about the murders to the FBI as the government refused to allow use immunity and the evidence against Fulks was overwhelming. The panel held there was no ineffective counsel during voir dire as evidence supported the district court’s factual finding that defense counsel’s mode of questioning did not harm Fulks and the jury empanelled was reasonable given the circumstances. The panel also rejected an ineffectiveness claim based on a mitigation instruction as the instruction accurately conveyed the jury’s duty to consider all mitigating evidence. The panel also rejected a claim that the government presented mutually exclusive views of the evidence as Fulks’ trial and his codefendant’s trial holding the alleged inconsistencies did not go to eh core of the prosecution case. Noting that Fulks understandably attempted through his petition to avoid the death penalty, the crimes committed were sufficiently aggravating to sustain the death sentence.