Thursday, December 5, 2013

Ohio Judge: Drivers Cannot Be Searched for Being 'Overly Polite'

Posted By on Thu, Dec 5, 2013 at 1:35 PM

By the time the reds and blues begin flashing in the rearview and you nervously pull your car off to the side of the road, you're probably already rehearsing your "Ah, good morning, officer. Lovely badge! And is that a new gun you're holstering? It looks wonderful! How are the kids?"

Well, sometimes, as it turns out, officers don't like the overly polite routine and find it a bit suspicious. Some officers in Ohio, and likely elsewhere, have even used the front as a cause to search a driver's vehicle or person. But a recent ruling puts a stop to that Fourth Amendment runaround.

Via Ohio. v. Fontaine:

Patrolman [Jared] Haslar approached [Joshua] Fontaine’s vehicle, advised him of the reason for the stop, and then requested his driver’s license, proof of insurance, and registration, which Fontaine immediately provided. Patrolman Haslar further stated that, during this exchange, he became suspicious of criminal activity. Specifically, Patrolman Haslar testified as follows: “While speaking to Mr. Fontaine I felt that his body language and his behavior was a little bit unusual. He was extremely — like almost overly polite, and he was breathing heavily at times while I was talking to him.”

A state judge would go on to rule that Haslar was crossing a line in using those factors as causes to pat the guy down. But back at the scene (taking place in Strongsville, by the way), Patrolman Derek Feierabend arrived with a drug-sniffing dog. The pooch signaled something was amiss, so the police searched the car without a warrant, turning up a handgun and a bag of weed.

OK. So, the guy with drugs got arrested. But the fact that the police veered around the driver's constitutional protections embedded within "probable cause" regulations, prompted the court to toss the charges out. The state appealed and lost.

Here's Judge Mary Boyle with the word:

"We agree with the trial court that 'overly polite' and 'heavy breathing' are not sufficient indicators that give rise to a reasonable suspicion of criminal activity," Judge Boyle concluded. "These factors considered collectively simply do not support such a finding. Since Patrolman Haslar did not have a reasonable suspicion of criminal activity to warrant the canine sniff, the prolonged detention to do so violated Fontaine's constitutional Fourth Amendment rights."

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