Polite Guy Pulled Over and then charged with Possession

“Overly polite” suspect wins appeal; search of car was illegal, court rules

A driver acting overly polite and breathing heavily is not sufficient cause for law enforcement to suspect criminal activity, an appeals court ruled.

CLEVELAND, Ohio – A Strongsville man was only going to receive a warning after an Ohio State Patrol trooper pulled him over for driving 45 mph in a 35 mph zone on Pearl Road.

Then the driver made the mistake of acting “overly polite,” which made the trooper suspicious.

A search of the car turned up a loaded pistol and a small bag of marijuana in the glove compartment, and the trooper arrested Joshua Fontaine, 29, on a charge of carrying a concealed weapon, a .40 caliber Sig Sauer pistol.

But a Cuyahoga County Common Pleas Court judge suppressed the evidence discovered in the search, and last week the Eighth Ohio District Court of Appeals agreed with that decision, and ruled the search illegal.

“Overly polite and heavy breathing are not sufficient indicators that give rise to a reasonable suspicion of criminal activity,” Judge Mary Jane Boyle wrote in her 10-page opinion.

When the trooper placed the suspect in his patrol cruiser while he called in a canine unit to sniff the car, the subsequent “prolonged detention” violated Fontaine’s Fourth Amendment rights against illegal search and seizure, Boyle said. Appeals court judges Kathleen Ann Keough and Mary Eileen Kilbane agreed.

The Cuyahoga County prosecutor’s office had appealed the original decision by Common Pleas Court Judge Carolyn Friedland, arguing that the search of Fontaine’s car and his detention were not unreasonable, and the extended detention was justified based on the alert by the dog to the presence of drugs.

Defense attorney Michael Cheselka Jr. said Friedland challenged the trooper’s probable cause standards, telling prosecutors that she was raised to be polite, too.

“That makes me suspicious?” Friedland said. “I don’t think so.”

Fontaine denied he was overly polite or breathing heavily that night.

Trooper Jared Haslar stopped Fontaine on Dec. 12, 2012, at 2:27 a.m.

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

That’s when Haslar called the canine unit and began to write a warning.

That’s also when the search became illegal, the court of appeals said.

“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,” Boyle wrote in the opinion.

“At this point, Haslar needed to have reasonable suspicion that criminal activity was afoot. … We find that no such evidence existed” to continue the traffic stop.

The appeals judges cited a law that said, in part, “the duration of a traffic stop may last no longer than is necessary to resolve the issue that led to the original stop.”

Cheselka said he took the case to combat what he considered to be an erosion of citizens’ Fourth Amendment rights.

“I don’t want Janis Joplin’s words to come true, that ‘Freedom’s just another word for nothing left to lose,’” Cheselka said.

Attorneys from the county prosecutors office said they will ask the appeals court for a reconsideration of its decision.

James F. McCarty, The Plain Dealer on December 06, 2013 at 8:00 AM, updated December 06, 2013 at 12:18 PM

photo credit: fairfaxcounty via photopin cc

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