OH8: Being overly polite is not suspicious conduct; search after dog sniff suppressed

Defendant was stopped for doing 45 in a 35. He was overly polite, and the officer found that suspicious and had a drug dog go around the car ten minutes into the stop. Overly polite and somewhat nervous is not suspicious conduct warranting detention for a dog sniff. State v. Fontaine, 2013-Ohio-5257, 2013 Ohio App. LEXIS 5466 (8th Dist. November 27, 2013):

{¶17} 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.

{¶18} 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. 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.

{¶19} As noted by the Ohio Supreme Court, once the purpose of the traffic stop has ended, “the detention of a stopped driver may continue beyond [the normal] time frame when additional facts are encountered that give rise to a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop.” (Citations omitted.) Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 15.

{¶20} And here, we find that no such evidence exists. 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. …