Ohio Court Throws Out Marijuana Conviction After Ruling That Polite Drivers are Not Suspicious

The Newspaper
December 3, 2013

The second highest in Ohio decided on Wednesday that police have no business searching a motorist during a routine traffic stop for being too polite. The Court of Appeals suppressed the evidence that allowed police to seize a .40 caliber Sig Sauer and a small bag of marijuana from Joshua A. Fontaine at 2:27 am on December 12, 2012.

On that day, Ohio State Highway patrolman Jared Haslar was running a speed trap on Pearl Road in Strongsville, where the speed limit is 35 MPH. Patrolman Haslar claims his radar gun clocked Fontaine at 45 MPH, so he pulled him over. In the course of the stop, Fontaine cheerfully handed over his license, proof of insurance, and registration. This caused the officer to suspect criminal activity.

“While speaking to Mr. Fontaine I felt that his body language and his behavior was a little bit unusual,” Patrolman Haslar testified. “He was extremely — like almost overly polite, and he was breathing heavily at times while I was talking to him.”

Patrolman Derek Feierabend was called in to bring a drug dog to sniff Fontaine’s car while Patrolman Haslar wrote out a warning for speeding. Fontaine was ordered out of his car and searched for weapons.

“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,” Patrolman Haslar testified.

The dog identified the small bag of marijuana in Fontaine’s glove compartment. The three-judge appellate panel considered only the question of whether the initial search of Fontaine’s car violated the Fourth Amendment protection against unreasonable searches. The court found that as soon as Patrolman Haslar finished writing the warning, he could not justify the search for drugs without some evidence that criminal activity was afoot.

“And here, we find that no such evidence exists,” Judge Mary J. Boyle concluded. “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. 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.”

A copy of the decision is available in a 45k PDF file at the source link below.

Source: Ohio v. Fontaine (Court of Appeals, State of Ohio, 11/27/2013)\