A running “joke” in crim law is that when cops need to manufacture suspicion, any conduct, no matter how benign, can be twisted into suspicious conduct. Walk too fast? Suspicious. Too slow? Suspicious. Walk the “right” speed? Very suspicious. It’s just a matter of surrounding the conduct with words to create the specter of some connection to crime. After all, it’s just sus.*

They tried this in South Carolina, after prolonging a stop for a broken third tail light (people, fix your damn broken tail lights!). and oral argument put it to the test.

But during a March Supreme Court oral arguments on the case, that kind of logic didn’t impress the justices.

“’Clearing the area.’ I’m not sure what that means,” said Associate Justice John Kittredge. “I teach my children to ‘clear the area’ every time they approach a parking lot, every time they get ready to park, get out of a car, go in a restaurant, go out of a restaurant. Clear the area’ — (that means) know your surroundings. Why does ‘clearing the area’ give rise to reasonable suspicion of drug activity?”

Of course, being resourceful and imaginative officers, that wasn’t the only firm basis to claim reasonable suspicion.

Hall testified that Jones took longer than usual to pull over although the dashcam video indicated it took less than a minute. Hall exited his patrol car and approached Jones’s vehicle. He informed Jones that her brake light was out, and while talking with her, Hall noticed the zipper was down on her pants. He testified that, from his experience, this suggested she was potentially hiding contraband in her pants.

You know who else has the zipper down on their pants? People who forgot to zip up their pants after going to the bathroom.

Hall testified that Frasier “just appeared to be nervous. He was sweating profusely. Did not want to really interact with me a whole lot as far as eye contact, something like that.” Hall asked them where they were traveling from, and after repeating the question several times, Jones answered that she picked up Frasier from the bus stop.

Why would anyone possibly be nervous when pulled over by the cops.** And, of course, there’s no way to confirm profuse sweating or eye contact, which appears in almost every justification for suspicion. Even with Whren, permitting the pretext stops as occurred here where the real purpose was always to search for drugs and the brake light violation was just a pretext to stop the car, police must end the detention when they have completed the purpose for which the stop was initially justified unless they have reasonable articulable suspicion to prolong the detention.

Although reasonable suspicion is not susceptible to a rigid, formulaic approach, it requires more than a mere hunch or unparticularized suspicion. In other words, for an officer to have reasonable suspicion, “there [must] be an objective, specific basis for suspecting the person stopped of criminal activity.” . . . This inquiry involves the totality of the  circumstances, and “[c]ourts must give due weight to common sense judgments reached by officers in light of their experience and training.”

It’s not much of a bar, and pretty much explains why police engage in the minimal effort of adding nefarious motives to make the most banal conduct smack of suspiciousness. This time, the South Carolina Supreme Court unanimously held that it failed to meet even this minimal bar.

The two plainclothes officers relayed to Hall that Frasier seemed suspicious, but that was only based on a subjective hunch. While “scanning the parking lot” is a relevant factor, it is far from establishing reasonable suspicion. Accordingly, in order for Hall to prolong the traffic encounter, there had to be more indications of criminal activity once Hall initiated the traffic stop. Although the State contends the following additional facts establish reasonable suspicion—repeating questions, noticing Jones’s unzipped zipper, sweating, and being nervous—we disagree. 5 Hall did not see any items that would demonstrate potential criminal activity—such as cash on hand, hollowed out blunt cigars, or the smell of marijuana—before deciding to extend the stop.

And as the court noted in footnote 5, Jones said that her zipper was down because she had just taken a shower and judicial notice was taken that everybody sweats profusely in Charleston in August. An additional basis proffered was consent to search, where officer  Hall asked “Do you mind?” and Frasier responded, “I do, but…” and raised his hands over his head. Hall claimed this reflected his consent, but the court found Frasier only did so because Hall told him too.

But what’s truly remarkable about this case is that the hunch of the two undercover cops watching the bus station as Frasier arrived in Charleston and was picked up by Jones, and upon which Hall was told to conduct a pretext stop, turned out to be right.

Ultimately, Hall found a white powdery substance later identified as cocaine on Frasier and a larger quantity in Frasier’s jacket in the back seat of the vehicle. Frasier was arrested and charged with trafficking in cocaine in excess of 100 grams.

While most cases of bad or prolonged stops tend to start with finding drugs, since there’s no arrest otherwise and they go unremedied, there’s a strong tendency for courts to bend toward recognizing a cop’s “training and experience” when it turns out they were right. Here, there was tons of faux suspicion language of the sort that almost always is deemed sufficient for reasonable suspicion. Not this time, cops.

*And if this strikes you as remarkably similar to the Catch-22 nature of “trauma-informed”investigations, where a story told accurately proves credibility, inaccurate proves traumatized credibility, forgotten is traumatized credibility and the story that keeps changing is the epitome of credibility caused by trauma. Cool beans.

**As great legal philosopher David Crosby noted. it “increases [his] paranoia.”