Too Polite For His Own Good (Update)

Among the magic words that police will use, and judges will approve, to justify a person’s seizure at will, perhaps the worst offender is “too.”  Too much of anything places a person outside whatever the officer feels is “normal,” thus raising suspicions.

Of course, it may be that the person stopped merely fails to conform to whatever expectations the officer has. Or has other things going on in his life that the officer is unaware of.  Or that it’s just an excuse to seize and pursue further investigation, since it’s just an itty, bitty word and only requires three letters to type it into a report. Most cops are up to the task.

But the question remained whether merely adding the word “too” to anything, any attribute, any conduct, any attitude, was sufficient.  An intermediate appellate court in the Eighth Appellate District found a line that motorists can cross without being subject to seizure: politeness.

In Ohio v. Fontaine, Ohio State Highway patrolman Jared Haslar stopped Joshua Fontaine for driving 45 mph through a 35 mph stretch, a typical speed trap. That’s when Haslar perceived something very wrong:

Patrolman Haslar approached 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.”

Yes, Haslar said “overly” and I wrote “too,” but let’s not get hung up on inconsequential semantics and ruin a good story. After writing out a warning, Haslar kept Fontaine waiting for a few minutes while a canine unit arrived.  He then frisked Fontaine and put him in the cruiser, offering a very reasonable First Rule of Policing explanation:

Patrolman Haslar explained why he removed Fontaine from his own vehicle as follows:

It’s an officer’s safety issue for the canine handler as he’s walking the dog around because his attention is focused on running the dog around the vehicle, conducting a sniff, and it’s difficult to be watching a person inside the vehicle and do the job with the canine as well.

Of course, had they found nothing, Fontaine would have gone politely on his way, appreciative of the fine policing work done by Patrolman Haslar, and breathing a heavy sigh of relief. But they did find stuff, a .40 caliber Sig Sauer and a bag of pot. Eureka!

The defense didn’t dispute the officer’s authority to stop Fontaine for speeding. Nor did the defense dispute the probable cause based on the dog hit, even though some might think that is always a ripe area for dispute. Rather, the defense argued that being too polite did not provide a justification for holding Fontaine over, after the traffic stop aspect was completed, for the dog to walk around the car.

The court explained the relevant law:

Instead, the critical issue in this case is whether the police unreasonably prolonged the traffic stop to conduct the canine sniff, thereby detaining Fontaine beyond the scope of the initial traffic stop.

“[A] traffic stop must comply with the Fourth Amendment’s general reasonableness requirement.” State v. Aguirre, 4th Dist. Gallia No. 03CA5, 2003-Ohio-4909, ¶ 33, citing Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “The duration of a traffic stop may last no longer than is necessary to resolve the issue that led to the original stop, absent some specific and articulable facts that further detention was reasonable.”

What’s significant here is that many courts fudge the line at this point, that the extended detention was “brief” and “not unreasonable,” so that the burden to the defendant was inconsequential.  And indeed, that’s what the prosecution argued:

In this case, the state focuses on the amount of time that elapsed between the time of the initial stop and the point that Patrolman Feierabend conducted the canine sniff. According to the state, there was no prolonged delay because Patrolman Haslar testified that only ten minutes had elapsed from the time of the initial stop until the canine sniff.

The court refused to rubber stamp the dog sniff based on the ten minutes elapsed time, instead holding that once the traffic stop was done, it was done.  That the extended detention was a mere ten minutes was irrelevant as the polite Mr. Fontaine should have been free to thank the officer profusely and go on his way, though the court reached that position via some disturbing language:

We note that Ohio courts do not apply a bright-line test as to a specific amount of time that has elapsed for the sake of determining if the traffic stop was unreasonably prolonged. Instead, courts must look at the totality of the circumstances to determine if there was a prolonged delay.

See how they stuck the word “prolonged” in there?

Here, Haslar’s testimony indicates that he had finished running the LEADS inquiry on Fontaine and had begun “writing out a written warning for the speed” prior to Patrolman Feierabend arriving on the scene. This testimony reveals that Patrolman Haslar’s subsequent detention of Fontaine for the purpose of conducting the canine sniff was unrelated to the traffic violation. Indeed, instead of giving Fontaine the citation notice and sending him on his way, Patrolman Haslar detained him further and placed him in his police cruiser for the sake of conducting the canine sniff. At this point, the scope of the initial stop had been exceeded and Patrolman Haslar was required to have reasonable suspicion that criminal activity was afoot.

If the holding Is that Fontaine’s excessive politeness did not give rise to a “reasonable suspicion that criminal activity was afoot,” which it apparently is, then the fact that the detention was not “unreasonably prolonged” shouldn’t matter.  The court simultaneously confirmed that there is no “bright-line test,” which there should be, and then applied that test properly.

Once the authority to seize a person ends, it ends. At that moment, any further detention, whether ten minutes or a tenth of a second, exceeds the officer’s authority and violated the person’s constitutional right to be left alone.

So upon the officer handing over the warning, Fontaine had every right to say, “thank you, you brave enforcer of traffic laws,” and drive away at an appropriate rate of speed without fear of creating suspicion.  Then again, he also could have told Haslar to “kiss his ass” and do the same if we’re talking about constitutional rights.

Update:  Another decision (via FritzMuffknuckle), Heard v. State out of the Georgia Court of Appeals, similarly holds that upon completion of the traffic stop — in that case for a misplaced sticker on a license plate — the continued interrogation and request for consent to search was unconstitutional.  A trend, perhaps?

6 comments on “Too Polite For His Own Good (Update)

  1. TGM

    “What’s significant here is that many courts fudge the line at this point, that the extended detention was “brief” and “not unreasonable,” so that the burden to the defendant was inconsequential.”

    Fudge the line indeed. Just look at the way they butchered Miranda rights in Berkemer v. McCarty, where SCOTUS held that traffic stops like this one aren’t “custodial” for purpose of determining whether the suspect has a right to remain silent. This despite the fact that you are clearly being detained and your every wink and breath is subject to the approval of the officer. Thank god the court didn’t try to reason by analogy on this one.

    1. SHG Post author

      Berkemer, that traffic stops aren’t custodial for the purpose of providing Miranda warnings before interrogation, involves a very different issue than here.

      1. TGM

        Point taken. I mentioned that case only because it seems like courts regularly “fudge the line” when it comes to defining conduct that meets or exceeds Constitutional standards in criminal law matters, regardless of where the issue falls. Perhaps a more relevant example that confirms your point would be Florida v. Bostick, where SCOTUS fudged the line on 4th Amendment reasonableness for consent searches; or more appropriately, Whren v. United States, where they fudged the line on probable cause for traffic stops.

        Ohio v. Fontaine’s ruling seems like it should’ve been an obvious result. But because the courts hate when the “criminal goes free because the constable has blundered,” we have to cross our fingers and hope that yet another line doesn’t get “fudged” whenever these cases pop up. This is a 4th Amendment case, but the other Amendments don’t seem to fare much better.

        1. SHG Post author

          There is no shortage of decisions “fudging the line,” and all (though Whren holds a special dark place in my heart as one of the most cynical decisions ever) are good examples.

          But that’s not quite the fudging I had in mind. I’ve done too many suppression hearings for stops along “drug routes” where the drug dog magically appears, whether as the ticket was just finished up or within a half hour as the writing cop tells the driver that he’s got to wait a few minutes for the K-9 unit to arrive, and he doesn’t mind, right, because he’s got nothing to hide. I’ve had too many federal judges just shrug the whole issue off, saying “it was only a half hour,” there’s no bright line test and that’s not like a meaningful unlawful detention and constitutional violation.

  2. Turk

    The fact pattern reminds me of a case you (?) once did where the probable cause was that the driver was obeying every single traffic law, which the cop said was unusual behavior.

Comments are closed.