Are You Being Suspiciously Polite?

An Ohio man who was arrested after police discovered marijuana and a loaded firearm in his vehicle recently got great news from  an Ohio Appellate court [opinion here]. They affirmed the trial court’s decision to suppress the evidence in his case.  His initial crime?  Being “overly polite” and “breathing heavily:

On December 12, 2012, on an Ohio state highway, Patrolman Jared Haslar pulled over Joshua Fontaine for driving 45 miles per hour in a 35 miles per hour zone. According to a subsequent court ruling, Haslar became “suspicious of criminal activity” after Fontaine exhibited “unusual” body language and behavior. “He was extremely-like almost overly polite,” Haslar testified, “and he was breathing heavily at times while I was talking to him.”

Now, the key facts:

Haslar believed this behavior provided reasonable suspicion that Fontaine was up to no good, so he brought the man back to his patrol car, where he patted him down for weapons and wrote up a traffic ticket.* At this point, a second officer arrived with a drug-sniffing dog. The dog reportedly indicated that it smelled illicit material, so the officers searched the vehicle, uncovering a loaded .40-caliber handgun and a bag of marijuana.

And the courts’ response:

The trial court suppressed the firearm and marijuana, concluding that too much time had passed between the initial stop and the search and that excessive politeness does not constitute probable cause to search a vehicle. Ohio’s Eighth District Court of Appeals upheld the lower court’s ruling. As soon as Haslar finished writing the citation, it said, Fontaine should have been free to go in the absence of evidence that he was involved in criminal activity.

“We agree with the trial court,” wrote Judge Mary J. Boyle, “that ‘overly polite’ and ‘heavy breathing’ are not sufficient indicators that give rise to a reasonable suspicion of criminal activity.”

Reasonable suspicion is a problematic standard.  It’s generally up to individual judges to determine what they think meets the definition.  So we end up with wildly divergent jurisprudence in state courts as judges undertake the impossible task of intuiting what a “reasonable suspicion” is.  What we do know is that it has to be based on more than a “hunch.”  The case that invented Reasonable Suspicion, Terry v. Ohio, has this to say about when an officer has Reasonable Suspicion:

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger. 

Under the Court’s logic, there was never Reasonable Suspicion of criminal activity over and above the traffic violation.  So anything that happened after the police wrote the ticket is an unreasonable Search & Seizure.

While I agree with the outcome of this case, it also raises some interesting legal questions.  For example, why isn’t this case analogous to Illinois v. Caballes?  I’ll borrow Wikipedia’s summary of the facts for brevity’s sake:

An Illinois state trooper stopped Roy Caballes for speeding on an interstate highway. When the trooper reported the stop to his headquarters, a member of the state police’s drug interdiction squad overheard the report and proceeded to the location of the stop. When the drug officer arrived, Caballes was in the trooper’s car while the trooper was writing out a warning ticket. The drug officer walked his drug-sniffing dog around Caballes’ car, and the dog alerted at the trunk. Inside the trunk, the officers found marijuana. The whole episode lasted less than 10 minutes.

The U.S. Supreme Court ruled the Search and Seizure in Caballes permissible.  These are nearly the same facts: (1) Suspect gets pulled over for traffic stop, (2) Second Officer shows up a short time later with drug dog,  (3) drug dog alerts officers to drugs, (4) car is searched (5) contraband is found.

If you read the Ohio court’s opinion, the court even cites Illinois v. Caballes in its decision, without discussing the fact that SCOTUS ruled a very similar search Constitutional under the same facts.  What was the distinguishing factor?

My guess is that in Caballes, the second Officer showed up before the original purpose of the stop concluded (i.e. before the ticket was issued).  In the case from Ohio, the first officer continued to detain the suspect after the purpose of the original stop was concluded (i.e. after the ticket was issued).  In other words, the Ohio officer continued to detain the suspect for no other reason than to wait for a drug dog to show up and sniff his car.  But it would presumably be ok if the drug dog just “happened” to show up before the first officer finished writing his ticket.

So an Ohio officer looking to get around these two precedents might purposefully “take his time” writing tickets if he wants to get a drug dog to show up and have a drug sniff be ruled permissible.  On the other hand, Caballes takes into account the length of the time it takes to write out the ticket, so there’s a ceiling on how long the officer can extend the stop.  Either way, there’s some wiggle-room there.  A little too much, if you ask me.

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