You just can’t win. If you invoke your 4th and 5th Amendment rights with a cop who’s stopped you for whatever reason, that’s “suspicious.” The cop will claim that you must be hiding something. Why else would you not agree to answer his random interrogations? If you’ve done nothing wrong, you should have nothing to hide, right?
But if you decide to comply completely and politely, that’s also “suspicious.” “Hmm. He’s being really compliant. I bet he’s hiding something.”
I actually had a cop tell me that driving the speed limit could be considered suspicious, because drunk drivers often drive the speed limit. They could pull you over for driving the speed limit! [What? I know, right?]
Cop: Sir, you know why I pulled you over?
Driver: Uhh…because you’re trying to meet your quota?
Cop: Don’t get smart with me, son. I pulled you over, because you were going exactly the speed limit. That’s what drunk drivers do, you know, to try to throw us off. But we’re on to them. So, we can do this the easy way, or we can do this the hard way. What’ll it be?
Driver: What’s the “easy way?”
Cop: The easy way is for you to just be straight with me. You help me out, I’ll help you out. How much have you had to drink tonight, and where are you hiding the marijuana and the illegal weapons?
Driver: Officer, I have no idea what you’re talking about. I’m just trying to get home, and I was simply driving the speed limit –
Cop: OK, so we’ll do it the hard way?
Driver: Well, what’s the “hard way?”
Cop: I got two words for you: cavity search.
[Yes, the previous exchange was meant to be a joke.]
If you obey the law perfectly, it must mean you’re trying to hide something criminal. Because most people disobey the law a little.
So, this Ohio driver named Joshua Fontaine was pulled over for speeding. Ohio State Highway Patrolman Jared Haslar was lying in wait at a speed trap and clocked Fontaine going 45 miles an hour, 10 over the speed limit. But according to Haslar, Fontaine’s politeness was very suspicious.
He testified before the Ohio Court of Appeals: “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.”
At the traffic stop, Fontaine’s compliance made the officer “suspicious.” So, he had a drug dog sniff around his car, and sure enough, they not only located a small baggie of marijuana in the glove compartment, they also found a loaded .40 caliber Sig Sauer. They got lucky.
But the Ohio Court of Appeals threw Fontaine’s conviction out, because being “too polite” does not constitute reasonable suspicion to justify a search of his vehicle in the first place:
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.”
But they found drugs in his car. And a loaded gun! Who cares if the police didn’t “play by the rules” to find them? They still found them, and they need to get this gun-toting pothead off the streets!
But see, the Constitution is there to protect everyone from unreasonable and warrantless searches. Not just those who turn out to be innocent. In this case, the police got lucky. It very well could’ve been someone who had no gun and no marijuana. In fact, that happens all the time.
If you think that police can conduct these unconstitutional searches as long as they find illegal substances at least some of the time, then why not have police conduct random home searches? They could come into neighborhoods, knock on doors, interrogate homeowners, bring the drug dogs to sniff around the house, search the house, etc. They’re bound to find something sometimes. Would those relatively few cases of police locating samples of an evil plant justify their random searches of everyone’s homes?
The fact that Fontaine was going 10 over does not mean that he must have been in possession of marijuana or of a concealed weapon. [But they did find drugs!] I know they did. But there needs to be a logical or reasonable link between what they observe and what crime they suspect the person of committing as a result of what they observe. This is what protects innocent people.
Being respectful and compliant does not constitute reasonable suspicion that he has committed or is about to commit a crime. The 4th Amendment protects the innocent as much as it protects those who turn out to be guilty of something. Like Jefferson said, “I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.”