Aaron Joshua v. Don Dewitt

sеparate specification included CLAY, Before NELSON and Circuit § R.C. 2941.1410 that Petitioner charged HAYNES, Judges; Judge.* District major drug aas offender. Petitioner’s trial suppress counsel filed a motion to HAYNES, J.,D. opinion delivered the of fruits of the search conducted state 451^454), CLAY, (pp. the court. J. troopers, yielded 100 highway grams which separate concurring opinion. delivered passenger’s of cocaine statement NELSON, 455-461), DAVID (pp. A. J. guilt. implicated that Petitioner’s Peti- separate opinion. dissenting delivered a asserted, essence, tioner’s counsel length stop the traffic alone violated of OPINION rights Fourth un- Amendment HAYNES, Judge. District The der United States Constitution. sup- dis- trial the motion to appeals Petitioner Aaron Joshua state court denied denying petition press plea order for entered a of nolo trict court’s Petitioner * Jr., Tennessee, sitting Haynes, by designation. The Honorable William J. United Judge States District for the Middle District of court, asserting that both his trial and The trial court sen- state contendere. years prison. for fail- appellate ten counsel were ineffective tenced Petitioner to challenge ing to the factual basis timely appeal direct filed a Petitioner arresting that the officer relied police flyer Appeals, asserting Court of with the Ohio detention investigative to conduct the error, including four claims stop. The of Petitioner after his traffic denying Petition- court erred state trial petition court denied the for habe- district because Petition- motion suppression er’s relief, appeal- but issued a certificate of unconstitutional virtue of er’s was stop ability. sum, the district court held i.e., duration, minutes. The forty-two its Appeals’ application that the Ohio Court of affirmed state Appeals Ohio Court federal law Petitioner’s motion to established court’s denial of trial finding objectively conviction. unreasonable suppress and Petitioner’s denied Petitioner was not effective assis- an application then filed Petitioner counsel, tance trial because there were reopen his Appeals the Ohio Court grounds justifying [PJetitioner’s “alternate (1) that arguing, in sum: appeal, direct (J.A. 172). detention.” district failed to trial court erred because state that the Court of court further held Ohio the factual dis- predicate establish finding that Petitioner was not Appeals’ to further that led Petitioner’s de- patch appellate of (2) denied effective assistance was that his counsel inef- tention and unreasonable, objectively counsel was not failing deficiency pursue fective for to this “the post-hearing [P]etitioner’s in the in the because issue of deten- state’s case 11, January On appeal. squarely presented briefs and on tion for both the was 2000, (J.A. of denied Appeals the Ohio Court to trial courts review.” appellate and reopen, to but with application 178). at court not district did discuss word, In a a statement of its reasons. Hensley. Appeals

Ohio Court of concluded Peti- “implicitly tioner’s counsel raised issue B. Facts justified of dispatch whether deten- tion,” at did not discuss suppression hearing transcript J.A. but The state Appeals The Ohio Court of also Hensley. that on March at 11:07 reflects independent grounds ruled that existed to aun.1, traveling Petitioner was southbound justify Petitioner’s detention that resulted on Route 104 in a car State rental when discovery drugs. in the Petitioner Hannon, James Trooper Ohio timely appeal then to the Ohio filed Patrol, Highway executed stop a traffic Court, contending Supreme that the Ohio Hannon, speeding. According Trooper to ignored Court misconstrued or Appeals his radar revealed that Petitioner was appel- Petitioner’s claim that Petitioner’s sixty-seven traveling hour in a per miles 3,May late was counsel ineffective. On fifty-five speed per mile hour zone. Peti- 2000, the Ohio dismissed traveling tioner was from Columbus to appeal for want of substantial consti- Portsmouth, Ohio, accompanied and was tutional question. and infant Chapman Gabriella her child. peti- Trooper approached filed his As Hannon the vehi- July On Petitioner cle, corpus Chap- tion for of habeas in district noticed that Petitioner and writ he preserved. videotape 1. Due to Petitioner's detention arrest, precise timing events book, acting suspicious. “Read & Trooper

man were nervous an- Barnes (J.A. swered, 148). Petitioner for “his No.” at Trooper Hannon asked “No. license, proof of insur- registration a.m., dispatcher At 11:15 called the 150). (J.A. at gave ance.” Petitioner Department Columbus Police to determine Trooper Hannon his license and driver’s warrants, if any outstanding Petitioner had papers. returning car Prior to to rental and was informed that not. Petitioner did patrol his car to conduct a status check of a.m., At 11:17 Trooper Barnes arrived at license, Trooper Han- Petitioner’s driver’s and, time, Trooper scene this Han- questioned his travel non Petitioner about Chapman non observed Petitioner and be- Trooper Hannon’s in- plans. ing nervous and restless. After he was his creased when Petitioner described drug informed that Petitioner was a known Portsmouth, route between Columbus and courier, Trooper Hannon examined the because, Hannon, according Trooper papers rental car and discovered that the described “didn’t make route Petitioner car papers rental did match the vehicle (J.A. 151). any what ever.” sense so a.m., occupied. that Petitioner At 11:20 a.m., Trooper

At 11:10 Hannon returned dispatcher Hannon asked the car patrol Enterprise to run a status check contact company rental car Petitioner’s driver’s license and to deter- if pos- determine Petitioner were in lawful if outstanding mine there were war- session of the By rental vehicle. 11:22 a.m., in- against dispatcher rants Petitioner. A Trooper Hannon learned that Enter- that Petitioner prise reported formed Hannon Petitioner to be lawful any outstanding vehicle, not have possession did warrants. but Barnes, Trooper, Another Terrell over- Hannon decided detain Petitioner until the exchange dispatch- heard the between the canine unit arrived at At the scene. Hannon, Trooper a.m., and the dispatcher er and directed 11:25 the first reached the dispatcher’s to an the entry attention canine in available unit the area. (J.A. Sign” at station’s “Read and book. a.m., At Sergeant 11:45 Turner arrived 145). and Trooper at scene assisted Hannon stop This “Read & book Sign” placing contains sticks under Petitioner’s Petitioner, intelligence driving information. from prevent As vehicle to Petitioner a.m., away. Sign” forty-two the “Read and book reflected an At 11:49 minutes entry a Department stop, Trooper Terry from Columbus Police after the initial Mik- esh, drug handler, report that Petitioner was a known the canine unit arrived at the who it transported illegal courier narcotics scene. Mikesh testified that twenty-four at between Columbus and Portsmouth. The took her minutes arrive dispatcher then relayed this information the scene due to traffic. While at the and, result, scene, Hannon as a patrol canine alerted on the dispatcher a right passenger Hannon advised the to send seam of the vehicle’s door. Thereafter, canine unit to the The dispatcher pat- scene. officers conducted a immediately attempted Chapman, passenger, to contact a canine down of for interim, Trooper weapons illegal unit the area. In the narcotics and discover- a large quantity Hannon of crack cocaine con- decided that Petitioner was ed clothing. her After free leave basеd the information cealed under search, car- Chapman from the “Read & book. When stated that she was Petitioner, a suppression hearing drugs at the and as rying asked whether result, verify placed could information in the Petitioner under he the officers (2) was in a decision that based grams than resulted more for possessing arrest on an determination of R.C. unreasonable in violation crack cocaine of presented of evidence light facts § 2925.11.

proceeding. in the State court

DISCUSSION 2254(d). § 28 U.S.C. A. Review Standard of Williams, Supreme Court stated judgment “contrary is that a state court court’s deni review a district

We law “if clearly to” established federal relief novo a for habeas de al of writ at a opposite court conclusion state arrives district court’s decision because the Supreme] Court [the to that reached the record. See solely upon based Wolfe state court Cir.2000). question a of law if the (6th 499, Brigano, 232 F.3d differently [the a than Su- decides case fact pre are findings A state court’s materially indis- Court on a set of preme] may only be correct and sumed to be 412-13, facts.” 529 U.S. tinguishable convincing evidence. rebutted clear instances, In such 120 S.Ct. 1495. 2254(e)(1). § Whether Petition 28 U.S.C. held that a federal habeas Supreme Court assis right effective er was denied may grant a writ. Id. court question “is a mixed tance of counsel that we review de novo.” law fact Moreover, Supreme Court stated (2001) Mitchell, Hunt v. 261 F.3d application” that under the “unreasonable States, 224 F.3d (citing v. United Olden clause, judgment court in an state results (6th Cir.2000)). controlling The application” clearly “unreasonable es- rule of law that was principle apply “to is law “if the state court tablished federal at the time Petitioner’s established governing legal rule identifies the correct final.” state court conviction became Supreme] Court’s decisions but [the 362, 390, 120 Taylor, 529 U.S. Williams v. unreasonably applies principle to the (2000). 146 L.Ed.2d 389 Id. facts of the case.” prisoner’s 3,May here when relevant date Yet, Supreme 120 S.Ct. 1495. Court denied Petition Ohio Court application court’s explained that state reopen the Ohio er’s motion to clearly law be established federal must Appeals’ decision. unreasonable,” a “objectively federal petition after Petitioner filed his habeas may grant habeas court not habeas relief therefore, 4,1996, the April provisions “simply because that court concludes its the Antiterrorism and Effective Death independent judgment that the relevant (“AEDPA”) Penalty apply. Act of 1996 clearly applied decision established federal 336, 320, Lindh v. 521 117 Murphy, U.S. Rather, incorrectly. erroneously law or (1997). 2059, 138 L.Ed.2d 481 Under S.Ct. application must be that also unreason- AEDPA, may grant not federal courts 410-11, Id. A able.” at 120 S.Ct. 1495. adjudicated on habeas relief for claims application of federal law is state court’s proceeding, their in a court merits state relief may unreasonable and habeas be unless that state court proceeding: if “state decision is so granted court

(1) clearly in a con- incorrect that it would be de- resulted decision to, jurists.” trary among or an unreasonable reasonable Her- involved batable (6th of, 1131, application Billy, Feder- bert v. 160 F.3d 1135 established Cir.1998) Johnson, law, al v. (quoting as determined Drinkard (5th Cir.1996)). States; 751, Court of the United 97 F.3d 769

437 Williams, Strickland, initially 689-90, must re- we 466 U.S. at Under 104 S.Ct. sure, strong pre the state court decision as we find it. 2052. To be there “a view 2254(e)(1), sumption § must that counsel’s conduct falls with 28 we Under U.S.C. range a in the wide presumption profession accord “determina- reasonable assistance; is, al tion of a factual issue made a state defendant must that, presumption overcome the court.” Our standard of review does not under the circumstances, permit speculate challenged us here as to what the action objec- ‘might be may trial court have done if an considered sound trial strate state ” 689, Id. citing gy.’ at 104 2052 expressly arguing (quoting tion S.Ct. Louisiana, fact, 91, 101, had, in can Michel v. specu- been made nor we 350 U.S. 76 158, (1955)). Thus, any, if L.Ed. proof, late to what additional S.Ct. 100 83 a been, reviewing prosecutor every have if the state court must make effort would Hensley. distorting “to attempted comply had eliminate effects of hind

sight, reconstruct the circumstances of B. Petitioner’s Assistance conduct, challenged counsel’s and to evalu Ineffective Counsel Claims ate conduct from counsel’s perspective ” Strickland, 689, time.’ 466 at U.S. Under the Sixth Amendment of 104 S.Ct. 2052. Constitution, long “[i]t United States has recognized right that the to counsel is alone, been performance Counsel’s deficient right however, to effective assistance of coun grant is insufficient relief on a Richardson, v. sel.” McMann 397 U.S. claim ineffective of counsel. assistance 14, 1441, 771 n. 90 S.Ct. 25 L.Ed.2d prong requires Strickland’s second (1970). The right to effective assis deficiency actually preju- counsel’s caused protect fun tance counsel exists “to dice to Petitioner. For Strickland’s sec- to a right damental fair trial.” Strickland prong, Petitioner must ond demonstrate 668, 684, 104 Washington, v. 466 U.S. S.Ct. that “there is a probability reasonable (1984). that, L.Ed.2d In Strick but unprofessional for counsel’s er- land, rors, Supreme Court formulated the result of the proceeding would two-pronged examining test when an inef- been different.” have Id.

fective assistance of Id. at counsel claim. “A probability prob- 2052. is a 691, 104 2052. first ability Under sufficient to undermine confidence prong, petitioner must “show that coun- Id. in the outcome.” representation fell an objective sel’s below Morrison, In Kimmelman v. standard reasonableness.” Id. at 2574, 91 L.Ed.2d 305 word, per- 104 S.Ct. 2052. counsel’s (1986), the an Supreme Court held as ex- formance must have been so deficient that Powell, ception to Stone functioning counsel was not as the “coun- 3037, (1976), L.Ed.2d 1067 that a guaranteed sel” the defendant the Sixth claim of ineffective of counsel assistance Amendment. Id. permissibly can include a claim that trial determining per- In to litigate competently whether counsel’s counsel failed an objective formance fell below an standard Fourth To issue the Amendment. reasonableness, relief, reviewing of a court “must obtain habeas the indulge hindsight, [petitioner] not in but must also evaluate stated must “[t]he perfor- prove the reasonableness of counsel’s that his Fourth Amendment claim is mance within the context of the circum- and that there is a reasonable meritorious at alleged probability stances the time of the errors.” the verdict would have an investigation for of Hensley was wanted the excludable evi- absent different been flyer robbery.” Finally, Id. the aggravated prej- actual in demonstrate order to dence and re- Hensley, a gave description prong. second under Strickland’s udice” to [police] departments quested “other The Su- 106 S.Ct. 2574. at Ber- Hensley for the St. up and hold pick explained that further preme Court Id. police” department. have nard claims Amendment Fourth Sixth different identities reflect “separate Covington December On values,” must and therefore constitutional in anoth- Department headquarters, Police Id. analyzed separately. be Cincinnati, received er suburb aloud flyer” flyer] [the and “read “wanted Trial 1. Performance Deficient change A few of the each of shift.” Id. at Strickland Counsel Under police officers familiar Covington were for Hensley periodically first Petitioner prong, and looked As to Strickland’s perfor- frequent.” trial known that his counsel’s him where “he was to contends 15, 1991, Covington of reason- a fell below standard Id. On December mance driving to a Hensley trial counsel failed officer observed police ableness because stopped contention that the middle challenge Petitioner’s vehicle 223-24, factual for the prove basis street. at 105 S.Ct. 675. state did Id. on, Sign” Hensley & information relied tо move “Read This officer instructed Petitioner, off, Hannon to detain nor con- Hensley and as drove the officer deficiency in his if counsel cite this there dispatcher did trial tacted determine on for Hens- post-hearing appeal. any outstanding briefs or direct warrants were argument is that crux of Petitioner’s Id. at Before the ley. S.Ct. 675. answered, Covington failed to a factual two prosecutor establish other dispatcher predicate relayed might Hannon’s reliance officers “that be police there “Read book robbery outstanding on information in the & an Ohio warrant necessary support Petitioner’s Hensley.” that was Id. In of his

continued detention. whether dispatcher While verified claim, upon Hensley, 469 Petitioner relies warrants, any outstanding had 232, 105 S.Ct. 675. Covington police of the drove two officers Hensley, Hensley stayed ‍‌​​​‌​​​‌​‌‌​​‌​​‌​​‌​‌​‌​‌​​‌‌‌​‌‌‌​‌​​‌​‌‌​​‌​‍two on December around areas where him. attempt a tavern in Ber- locate Id. At some armed men robbed St. an nard, Ohio, Covington a officers point, police Cincinnati suburb. Id. one of the later, days 105 S.Ct. 675. A few a St. observed a white vehicle in one of these spoke approached Bernard officer with an infor- areas and vehicle “with into pointed mant who told the officer that Thomas service revolver drawn and Hensley had Hens- getaway driven the vehicle the air.” Id. This officer instructed during robbery. ley passenger step Id. The informant and the out vehicle, a prepared shortly written statement to this effect thereafter second and, result, The sec- the St. Bernard officer officer arrived at scene. Id. “immediately door flyer’ approached passenger issued 'wanted ond officer pro- police departments other the Cincinnati and “observed the butt revolver & Id. The metropolitan flyer truding passenger’s area.” listed underneath the arrested, the robbery passenger date and location of and seat.” Id. The was Hensley was and searched the vehicle and cautioned armed and officers flyer handguns. Id. The also “that other Id. at dangerous. stated discovered two

439 225, 105 S.Ct. 675. The officers then ar- flyer who issued the possessed probable Hensley. rested Id. cause to 231, make the arrest.” Id. at 105 (emphasis S.Ct. 675 in the original). Hensley eventually was pos- indicted for instance, either Supreme Court ex a session of firearm as a convicted felon. plained that does “[i]t not turn on whether Hensley Id. suppress moved to the hand- relying those flyer on the were themselves guns search, pursuant obtained to the ar- aware of the specific facts which led their guing that his initial stop violated the colleagues to seek their assistance.” Id. at Fourth Amendment. Id. The district 231, 105 S.Ct. 675. The Supreme Court court denied Hensley’s suppress, motion to explained further that the stop must not trial, conducting after a bench be “more intrusive than would have been district court convicted Hensley. Id. This permitted the issuing department.” Id. at conviction, Court reversed the holding that 231, 105 added). S.Ct. (emphasis because Covington police un- were aware ongoing crime that led to the here, As applied Trooper Hannon flyer, they issuance of the lacked reason- relied upon information from the “Read & able to stop Hensley per- Sign” book as the Terry basis for his stop form an investigative permit- detention as Thus, of Petitioner. under Hensley, Ohio, Terry ted under issue of whether the evidence discovered (1968). S.Ct. 20 L.Ed.2d 889 Hens- during stop is admissible turns ley, 469 U.S. at 105 S.Ct. 675. The on whether the officer who provided the Supreme Court reversed. information in Sign” the “Read & book had Supreme The Court held that past for a articulable facts supporting a reasonable crime, upon reliance a flyer or bulletin suspicion that Petitioner was involved in justify identification, could “a stop to check 231, 105 criminal activity. Id. at 675. S.Ct. pose questions to the person, or to person briefly detаin the attempting here, while Considering Hensley and the facts information,” to obtain further if only but we conclude that a reasonable trial attor- the officer who flyer issued the or ney bulletin would have Hensley raised the issue at had “articulable supporting First, facts a reason- trial. Supreme Court decided able suspicion person wanted and at the time of Peti- ” ha[d] committed an offense.... Id. at suppression was, tioner’s hearing, Hensley (citations omitted). remains, established law. Sec- Supreme ond, explained that when an specific facts clearly give here rise officer objectively flyer relied or Hensley challenge. to a In Hensley, the bulletin to conduct Terry stop, “the evi- Supreme Court considered whether dence uncovered stop in the course flyer” “wanted by issued a law enforce- is admissible the police who issued the agency ment that an in- individual was if flyer possessed or bulletin a reasonable in a robbery volved can be relied upon ” suspicion justifying the stop.... Id. at agencies other law enforcement justify 233, 105 S.Ct. (emphasis added in the an investigative detention of that individu- original and in part). Similarly, added al. in Hensley The facts are almost identi- arrest, an actual Court also cal to the facts here that the information held that “when evidence is uncovered dur- from the “Read & book issued ing a search incident an arrest in reli- Department Columbus Police that Pe- bulletin, merely flyer courier, ance on a its titioner drug was a known admissibility upon by turns on whether the officers request relied Hannon to that trial record to reflect Petitioner’s investiga- an the unit and to conduct a canine raise and declined to of Petitioner. counsel considered tive detention Further, for reasons.2 Hensley strategic Here, hearing, suppression at the any reason strategic we cannot discern any evidence from the failed to offer state de- why trial сounsel would Petitioner’s from the information provided who officer raise cline to this issue. relied book that was Sign” “Read & Hannon, arresting upon by argues Hens Respondent next that Thus, to prosecution failed trooper. stops,” limited “initial but we ley is to Hensley failing present comply with police flyer in disagree. Although provided who that the officer proof Hensley justify stop, an initial used to Sign” in book had “Read & information Hensley clearly in held support a reasonable articulable facts requirement expressly applies that its in was involved that Petitioner suspicion Terry incident stops both and to searches testimony from activity. Without criminal to lawful arrests. U.S. at the information provided the officer who its that (stating, holding, after book, the record for the “Read & prin two apply remains to sets of “Ei3t not the reasonableness does stop above to the ciples described report reliance on that Trooper Hannon’s subsequent respondent Hens arrest to use the evidence to detain Petitioner or ley.”). Hensley requires We that conclude Fur- from detention. obtained Petitioner’s flyer Terry relied any police for ther, has never contend- the State of Ohio ” individual, stop and to “further detain an justifiable basis for ed that there exists a supported facts must be articulable certainly & Sign.” the “Read State has issuing from the officer show reasonable argued the nature of the basis not what that in suspicion the individual has been it made would be nor has offers activity. Accordingly, in volved criminal Thus, basis. the facts proof regarding the Respondent’s argument that is distinguishable are here stops initial lacks merit. lacking to Hensley because the evidence is ¡limited officer, provided that who show Respondent argues next that the state book, & Sign” information the “Read reasonably applied clearly court estab- had reasonable that Petitioner finding in lished federal law that Petitioner drug awas courier. received effective assistance of trial coun- Although agree Respon vigorously sel because Petitioner’s counsel we guess argued suppress dent that cannot second his motion to at the hear- Petitioner Further, nothing there in strategy, ing. Respondent trial counsel’s is cites the Ohio concedes if Petition- so 2. Even dissent that er’s counsel’s failure to do cannot be seen with Hens- er’s trial counsel had been familiar legitimate strategy.” as "a defense tactic or should)” ley, probably "he have Jackson, {and would Lyons See 299 F.3d n. 15 this "in with the raised contention connection (6th Cone, Cir.2002)(citing Bell v. J., (Nelson, suppress.” motion to dissent- (2002)) 152 L.Ed.2d 914 added). ing)(emphasis If counsel (observing guilty plea, in the context of presented have should raised the issue consider, a defense failure let counsel's “to certainly Hensley, this would demonstrate of, notify alone the client a factor that could fact, was, performance that counsel’s defi- negate plea guilty benefit of the entire Moreover, light cient under Strickland. professional range within norms” the fact the state court record does not legitimate and "can never be a defense tactic consid- reflect Petitioner’s counsel even strategy.”). presented Hensley, issue ered the Petition-

441 conclusion that Appeals’ likely prevail, factors on’ those more far from being of the information in the evidence of independent incompetence, is hall Sign” justified Trooper book mark of effective appellate advocacy.” “Read & 527, 536, Murray, Smith v. 477 suspicion. Hannon’s reasonable U.S. 2661, (1986) S.Ct. 91 L.Ed.2d 434 (quoting view, In Appeals our the Ohio Court of Jones, 751-52, 3308). 463 U.S. at 103 S.Ct. Hensley did not consider in either of its counsel, however, Appellate required is Second, the opinions. Ohio courts’ conclu- exercise professional judgment. support sion other evidence existed to Jones, U.S. 103 S.Ct. 3308. finding of reasonable for Peti- Nevertheless, “only when ignored issues independent tioner’s detention of the infor- clearly stronger are than presented, those book, mation the “Read & is a presumption will the of effective assistance separate issue from Petitioner’s claim that [appellate] counsel be overcome.” Mon attorney a reasonable trial would have (6th Edwards, zo v. 281 F.3d Hensley raised the issue under the facts Greer, Cir.2002)(quoting Gray v. 800 F.2d finding indepen- here. The Ohio courts’ (7th Cir.1986)). 644, 646 dent facts to Petitioner’s detention prejudice compo- relates to Strickland’s The Ohio Rule of Criminal Proce nent, 52(B) to whether Petitioner’s trial provides dure “[p]lain error or performance counsel’s was deficient. affecting rights may defects substantial be noticed appeal] although they [on were not Hensley’s precedential Given clear au- brought to the attention of the [lower] thority as unique as well factual simi- 52(B). Thus, court.” Ohio R.Crim. P. Pe investigative larities that exist between the appellate titioner’s counsel could have in Hensley detention and Petitioner’s de- raised the claim appeal, on de tention, we conclude a reasonable de- spite trial present counsel’s failure to attorney fense would have raised the Hensley claim to the Ohio trial court. Giv Therefore, Hensley issue. we conclude 52(B) en the wording of Ohio Rule well that Petitioner’s trial perfor- counsel’s as our conclusion that Hensley objective mance fell below the standard of applicable, we conclude that a reasonable reasonableness under Strickland. appellate counsel would have raised Hens Therefore, ley in appeal. Petitioner’s first Appellate 2. Deficient Performance of we appellate conclude that Petitioner’s Counsel Under Strickland performance objec counsel’s fell belоw As to Petitioner’s claim of inef tive standard of reasonableness counsel, appellate fective assistance of Pe Strickland. titioner appellate asserts that his counsel We must next consider whether Peti- Hensley. also failed to A raise defendant performance prejudiced tioner’s counsel’s is entitled to effective assistance of counsel Petitioner under Strickland’s second ap connection with a defendant’s first prong. peal right. Lucey, Evitts v. 469 U.S. 83 L.Ed.2d 821 Prejudice S. (1985). Yet, appellate counsel need not every argument prejudice compo

raise nonfrivolous on di As to Strickland’s Barnes, nent, appeal. rect Jones v. Petitioner must show that there “is a 745, 751-52, 103 probability 77 L.Ed.2d 987 to un [reasonable] sufficient “ (1983). sure, ‘winnowing To be out in the outcome and the dermine confidence arguments appeal focusing weaker fundamental fairness” of the trial. Strick- sum, that on shown is prejudice In 2062. land, record, counsel had if the defense this issue, mindful we are also assessing this not challenge, there would Hensley amade granted not be may relief that habeas Trooper Hannon’s facts to any be in] [our] [we] conclude[ “simply because Thus, the evi- of Petitioner. detention that the relevant judgment independent have stop from the would dence uncovered clearly estab applied court decision state evidence the inadmissible. Without been erroneously incorrect law or federal lished proba- stop, there is a substantial from the Rather, must also be application ly. not have been bility that Petitioner would Williams, unreasonable.” [objectively] This satisfies Brecht prejudice convicted. 365, 120 1495. at S.Ct. 529 U.S. 637, Abrahamson, 619, 113 507 U.S. v. testimony .the Hensley, without Under (1993) 1710, 353 123 L.Ed.2d S.Ct. the information provided who of the officer (6th Parker, F.3d 261 Cir. Skaggs v. 235 Sign” book that was from the “Read & 2000). further, detain Petitioner relied Analysis “Contrary To” a. proof could not admit the

the trial court resulted in Petitioner’s stop the from argu- Respondent’s next address We drug courier ‍‌​​​‌​​​‌​‌‌​​‌​​‌​​‌​‌​‌​‌​​‌‌‌​‌‌‌​‌​​‌​‌‌​​‌​‍informa- Clearly, the arrest. Appeals’ find- ment that the Ohio Court Sign” book was the tion the “Read & from Terry is ing independent of an basis deci- Trooper Hannon’s only justifying fact trooper’s investiga- justify sufficient to the unit that result- request the canine sum, sion In the detention of Petitioner. tive ed in Petitioner’s extended detention. apart found that Appeals Court of Ohio Further, never con- the has “Read & State Ohio the information from this book, justifiable justified basis factors the tended that there exists other detain suspicion reasonable trooper’s The has Sign.” for the “Read & State (1) Petitioner, the namely: discrepancy the nature of certainly argued what (2) “furtive papers; the rental car has it made the basis would be nor made Petitioner and his movements” regarding the basis. With- proof offers of (3) traffic companion during stop; objective out evidence to find reason- given by regard- route Petitioner illogical Petitioner’s giving able rise to suspicion (4) ing plans; his travel detention, we conclude that continued companion’s and his nervousness. admissibility bars the of the evi- dence at the scene of Petitioner’s seized The Fourth Amendment to the arrest, drugs and his com- including guarantees Constitution United States Hensley clearly held panion’s statement. right people of the to be secure “[t]he stop, admit the evidence from the effects, houses, papers, and persons, their actually police officer who issued the sei against unreasonable searches and facts flyer testify specific must as to the States, 517 zures.” Whren v. United U.S. underlying report. Hensley, U.S. 806, 1769, 810, 135 L.Ed.2d 89 116 S.Ct. 233, 105 (“Assuming police at (1996). that a Supreme Court noted objective reliance on Terry stop make a lawful, there is stop provided traffic is bulletin, we hold that evidence flyer find that a traffic viola probable cause to stop of the is uncovered the course 116 S.Ct. tion has occurred. Id. Yet, stop complet if issued the admissible who once the traffic 1769. ed, vehicle must be flyer possessed occupants a reasonable or bulletin ”). something that allowed to leave “unless suspicion justifying stop.... set forth Fourth during stop generated the traffic We these Amendment occurred jus standards because Kimmelman necessary re quires type for this of ineffective further United States v. assis tify a detention.” Cir.1995). claim, (6th Mesa, 159, 162 tance of counsel that we consider 62 F.3d underlying Fourth Amendment claims. Sokolow, United States Kimmelman, (1989), 104 L.Ed.2d 2574. stated that rea- “[t]he applica- is ... sonable-suspicion standard As to the first fact cited which only ble to those detentions Appeals, of Trooper Ohio Court Hannon brief fall being searches and sei- minutes, short conceded that within two in his of full-scale zures and which are necessitated law quiry revealed Petitioner was in law exigencies need Yet, such as the to possession ful of the rental car. be enforcement crimes, stop ongoing prevent imminent Trooper fore Hannon made the inquiry crimes, protect and to law discrepancy about the in the rental car enforcement highly charged situations.” papers, already he had decided to detain officers added). suspicion Petitioner (Emphasis requested inspec Reasonable and a canine word, totality of the circum- tion of the is based on the rental vehicle. In a record, the state court require discrepancy stances and must “articulable rea- papers the rental car particularized objective upon sons” and “a and not relied by Trooper justify Hannon to particular person for suspecting basis Thus, continued detention. we conclude activity.” ... criminal of United States v. Cortez, discrepancy pa that the of the rental car 411, 417-18, 449 101 U.S. S.Ct. (1981). pers independent was not an factor that 66 L.Ed.2d 621 supported could Hannon’s have determining In rеasonable suspicion, continued detention of Petitioner. “[fjirst, identify a court must all of the fact, i.e., relevant historical facts known to the offi- As to the second furtive search; stop movements, cer at time and and Appeals the Ohio Court second, whether, it must decide under a and passenger found his “[Petitioner] reasonableness, objective gestures appeared standard of those furtive in made give suspi- creasingly facts would rise to a reasonable nervous the detention contin as (J.A. 104-05). justifying stop probable justify Terry cion or cause to ued.” To States, point search.” v. must “be able to stop, Ornelas United 517 officer 690, 700-01, facts” that specific support U.S. 134 articulable (1996). 911 suspicion. Terry, L.Ed.2d Delaware v. 392 U.S. at Prouse, 440 U.S. 88 S.Ct. 1868. The Ohio Court of S.Ct. (1978), ges “furtive Appeals’ phrase L.Ed.2d 660 Court use of the characterization, an an upon “[t]o warned that insist neither tures” is a inde review, From our there is appropriate pendent factual basis for di- fact. particular upon objective at a automobile nor no evidence this record that rected objective trooper’s opinion upon support some other substantial and stan- would govern Appeals dard or rule to relied for exercise which Ohio Court its characterizations that Petitioner and discretion ‘would invite intrusions gestures. exhibited furtive constitutionally guaranteed rights companion based his contain nothing more substantial than inarticu- The state trial record does not companion (citing Terry, testimony late hunches....’” Id. that Petitioner his 1868). to conceal moved their bodies or arms upon the results in reliance Fur to do so any item.3 cause to reach anything or trooper’s hunches. specific and to discern ther, unable we are trooper’s support facts to articulable record, Thus, review of the upon our gest furtive made that Petitioner opinion finding of furtive Appeals’ Ohio companion ures.4 If Petitioner and/or objective supported is not gestures gestures”, “furtive engaged had facts, an factor independent and cannot be in or justified been would have troopers continued de- Trooper Hannon’s justify out of companion and his dering Petitioner only remaining tention of Petitioner. cursory pat- performing a the vehicle and by the Ohio Court factors articulated companion and his finding of Petitioner its down Appeals Pennsylva Pe- Terry. suspicion, See are Hannon had reasonable permitted 106, 111-12, nervousness Mimms, companion’s and his titioner’s nia (1977). gave re- Yet, illogical route Petitioner 330, 54 L.Ed.2d 331 plans. his travel garding here, nothing in the record there is performed Hannon reflect that nervousness, Supreme Court toAs com of Petitioner or his cursory pat-down recog- cases have also “[o]ur noted that observing their behavior dur after panion nervous, is a evasive behavior nized that fact, troopers ing stop. the traffic determining reasonable factor pertinent pat-down passen of the did conduct Wardlow, 528 U.S. Illinois v. suspicion.” alerted on ger patrol until the canine 119, 124, L.Ed.2d 570 120 S.Ct. 145 of the rental passenger added). door (2000)5 seam propo- For this (emphasis conclusory trooper’s accept sition, car. To Supreme Court cited several involving and restlessness efforts to remark of nervousness decisions evasive its the Mexico border and suspicion escape stan detection at establish the reasonable Brignoni- airports. be- United States contrary Terry and Prouse dard is scene], Mikesh, Trooper arrived I wit- Trooper [at Barnes We that when 3. note handler, at the scene and in the canine unit arrived nessed nervousness and restlessness vehicle, initially approached the she observed from that I have never witnessed ... vehicle something if "trying [as] Petitioner to hide or occupants I had been on of a vehicle since going to come out with [Petitioner was] 159). Yet, (J.A. patrol.” ner- highway at (J.A. 160). weapon, at I don't know.” cry from restlessness is a far vousness and Mikesh, however, Trooper did not arrive Further, Trooper when movements. furtive a.m., forty-two the scene until 11:49 minutes Chap- and testified that Petitioner Hannon Thus, stop. after the we conclude initial restless, he did appeared nervous and man light Trooper upon Mikesh’s arrival late Chapman not articulate what Petitioner scene, (that her observations of Petitioner support doing Trooper Hannon to were reasonably characterized as furtive could be Thus, testimony. we were to con- even if his moments), Trooper were not the basis for testimony for the state this as the basis sider of Petitioner Hannon's continued detention appellate phrase court's use of the trial and Therefore, companion. his Mik- gestures”, that this testi- "furtive we conclude cannot be considered as esh’s observation mony supported by specific and articu- is not that the Ohio Court those furtive movements opinion his facts which would lable factors, Appeals relied as one of Chapman appeared to be that Petitioner book, sup- apart from the "Read & nervous and restless. port finding that Hannon had its suspicion Peti- reasonable to further detain 12, 2000, January on 5.Wardlow was decided tioner. the final to be considered here because and is testimony regard, 4. In this Hannon’s 5,May is 2000. date of Petitioner's conviction hearing suppression at the was that "[o]nce Ponce, 873, 885, 45 We conclude that the state court deci- (“The (1975) L.Ed.2d 607 driver’s behavior sion “contrary clearly to” established relevant, may be driving as erratic or precedent obvi- because Hens- attempts ley clearly ous to evade can support requires officers police where a flyer suspicion.”); reasonable justify Florida v. Rod- used to а police officer’s riguez, reasonable suspicion U.S. for a stop of the per- (1984) (“[T]he son, L.Ed.2d 165 the state must present proof three confeder- that the police spoken ates ... had officer who furtively flyer to one issued the anoth- had er. One was twice reasonable urging overheard do so for evidence from the stop others to to be ‘get out of here.’ admissible. Respondent’s On this record, the proof state’s strange movements in attempt Hensley to evade issue was deficient. A justifiable officers aroused further sus- counsel Sokolow, would have so picion-”); 5, 8-9, argued on Petition- er’s behalf. Neither (noting S.Ct. 1581 Petitioner’s trial “[Respondent] nor appellate counsel appeared very to be cited Hensley nervous and was to ar- look- .his gue that the state ing area,” all did not meet waiting around the its eviden- but that burden, tiary required taking “one an path through Hensley. evasive an record, On this if the airport might be seeking argument to avoid a con- made, were the evidence frontation with an angry acquaintance or creditor”). stop would be with a inadmissible. “Assuming Terry make a stop objective The purpose quota of these bulletin, flyer reliance on a we hold that Supreme tions from the Court is decisions evidence uncovered in the course of “nervous, that evasive behavior” is the stop is police admissible who issued if justify standard to suspicion, reasonable the flyer or bulletin possessed a reasonable Here, nervousness or .restlessness. suspicion justifying a stop.” Hensley, 469 trooper’s perception of Petitioner and U.S. at 105 S.Ct. 675 (emphasis add- his companion objective were not facts ed). Without the fruits of the Troopers’ “nervous, evasive behavior.” As to Peti search, detention and there is a substantial route, tioner’s travel while the route made uncertainty as to whether con- Petitioner’s no sense to the trooper, the route is anot viction can stand. fact suggestive illegal conduct. Wheth addition, we believe that er considered individually or collectively, state court contrary decision was Petitioner’s cited conduct could be perfect Supreme established precedent Court be ly behavior, consistent with innocent and cause the state failed to meet its evidentia we conclude that nervousness and illogical ry by presenting proof burden that plans give travel could not rise to an “in officer who issued the “Read & had ference supporting a suspicion reasonable so, suspicion reasonable required to do activity” criminal to justify Petitioner’s Hensley. To hold otherwise would continued detention. Florida v. Royer, render meaningless. (1983) (Brennan, J., L.Ed.2d 229 concur The dissenting opinion lists several facts Thus, ring). Trooper Hannon’s by continued that were not found the Ohio Court of detention of Petitioner was Appeals unreasonable and relies upon independent its and, under the Fourth Amendment as a review of the record to its conclu- result, the Ohio courts unreasonably de sion that Petitioner’s detention rea- nied Petitioner’s motion to suppress. sonable under the Fourth Amendment. activ- looking police backward to watch the illogi- the facts of an exception of theWith Yet, the dis- Sign”, the “Read & ity staring and at the officers. our cal route and (1) Trooper include: facts view, behavior, sent’s additional by articulated this as was “highly interest- knowledge of Hannon’s Barnes, Trooper seems to be as consistent between his conversation ing telephone word, In a guilty. innocence as with with officer in Ports- and a dispatcher over and de- anyone pulled who has been (2) mouth;” compan- and his Petitioner’s time, only to length tained for a certain ar- backup behavior once suspicious ion’s (with explana- backup police arrive no see (3) rived; Hаnnon’s awareness of would, at why) as to tion from the officers (4) history; notice criminal Petitioner’s least, necessity be curious as to detective that Petitioner the Portsmouth further note that none of the backup. We (5) dangerous; and might be armed shaking, excessive stam- officers described the vehicle. patrol dog alerting on mering, attempts anything to conceal telephone conversation As to the Again, part occupant. of either vehicle a Portsmouth dispatcher between behavior that is consistent with innocent as well as notice police officer activity to establish reason- cannot suffice police department Peti Portsmouth suspicion. Royer, able 460 U.S. at armed, dangerous, the might be tioner 103 S.Ct. 1319. opinion notes that around 11:15 dissenting a.m., Trooper Hannon was informed when Hannon’s aware As Sign, dispatcher the Read & about past history, criminal ness Hannon that he would promised Trooper awareness, that this the dissent contends a detective familiar with Petitioner have factors, gave rise to coupled the other Yet, the rec call Hannon back. to detain Petitioner. reflects that the did not call ord detective conclude, however, fact, by this We a.m., Trooper Hannon back until 11:48 one itself, suspi does not create a reasonable prior drug- minute to the arrival of the currently activity cion that criminal sniffing dogs. assuming Even afoot, which is what the provided Trooper Hannon detective with Terry, requires. 392 U.S. at enough first-hand to reach the information that although past 1868. We further note (which suspicion level of reasonable is not activity factor that can be record), criminal is a apparent from the we conclude consideration, taken into in this case it that Hannon was not entitled to indefinitely waiting detain Petitioner while suspicion does not create reasonable when telephone on a call from a detective who in al considered tandem Petitioner, in was “familiar” with order to nervousness, leged unarticulated furtive acquire suspicion. sufficient reasonable route. gestures, “illogical” travel say, promise potential That is to the importantly, the record reflects that More suspicion future reasonable does not satis Trooper Hannon did not learn of Petition (and fy present continuing) the demand for past history criminal until 11:22 a.m. er’s suspicion. reasonable a.m., by or 11:23 which time Han- already non had verified that Petitioner compan As to Petitioner and his possession in of the rental car lawful arrived, backup ion’s nervousness once already detaining and had been Petitioner that dissent notes Petitioner and his com suspicion quite reasonable without panion displayed activity “constant in the vehicle” that some time. Trooper Barnes described

447 relies We find Finally, principles the dissent also that these also suspicion a dog’s apply alert the vehicle reasonable upon patrol on context reviewing exist such a court must look suspicion to conclude that reasonable the “facts and known ed to detain Petitioner. We concede circumstances to the alert not rise to officers at the is patrol dog’s only gave time the decision made to a suspicion, gave but rise to undertake detention” the suspect. also 727 probable Nigro, Accordingly, for the to then F.2d at 103. cause Yet, patrol vehicle. while we have those search Petitioner’s considered factors dissent, 11:49 dog determining did not alert the vehicle until enumerated a.m., leading up point, to this reason whether Hannon had reasonable Petitioner, suspicion did not one con to detain we suspicion primarily able exist when totality siders the of the circumstances. look those “facts and circumstances Thus, view, alert оn patrol dog’s [Trooper Hannon] our known the time” satisfy the vehicle does not the Fourth he made decision to detain Petitioner. Yet, in inquiry, independent if we to con Id. our review Amendment are able clude to detain state court suspicion totality that reasonable record and under the case, dog alert Petitioner did exist until the circumstances of this those fac dissent, ed on the vehicle. tors enumerated considered individually collectively, give or still do not context, probable Albeit cause justify rise to reasonable Peti longstanding Supreme precedent tioner’s detention. Ohio, articulated in Beck v. State U.S. 13 L.Ed.2d Nevertheless, in considering the factors (1964), the Supreme wherein Court stated dissent, upon by relied we are still that: that our is on mindful focus whether the constitutionally Whether arrest [an] [is] ‘contrary court’s to’ state “decision was whether, in turn depends upon valid application [Supreme an ‘unreasonable made, moment arrest [is] precedents, or Court] established probable to make officers cause ha[ve] whether it was ‘based an unreason- ” it—whether at that the facts moment able determination of the facts.’ Price v. knowl- circumstances within their Vincent, -, which edge they and of reason- ha[ve] (2003). 1852, 155 In this re- L.Ed.2d 877 ably trustworthy [a]re information suf- Stovall, gard, we note that under Harris v. ficient man in prudent to warrant (6th Cir.2000), where F.3d 940 a state com- believing [suspect] ha[s] reasoning, court fails to articulate its “fed- committing mitted or an offense. [is] obligated habeas courts are to conduct eral States, independent Id. of the record and (citing Brinegar v. United 338 an review 175-76, applicable U.S. 93 L.Ed. law to determine whether the (1949)). contrary also States v. court decision is to federal See United state (6th law, Nigro, unreasonably applies clearly F.2d estab- Cir.1984)(“Probable law, an been de or is based on unreasonable cause has lished light fined Court in determination of the facts of the repeatedly Supreme presented.” (citing Id. at 943 terms of the facts and circumstances evidence Aycox Lytle, at the deci 196 F.3d 1177-78 known to the officers the time Cir.1999)). (10th Yet, any independent arrest or re- sion is made to undertake an is conducted must remain defer- Brinegar, 338 175- view that search.”)(citing U.S. 1302). to the decision and ential state court’s S.Ct. (1) “full, namely discrep- review of ued detention are a de novo cannot amount to (2) car Harris, ancy papers; in Petitioner’s rental 212 F.3d at 943. the claims.” (3) route; and Peti- illogical Petitioner’s expressly preclude While Harris does ges- made furtive passenger tioner and his an conducting indepen- from federal courts increasingly nervous. appeared tures and when the state dent review of the record reasoning, evaluat- court articulates its First, consider the Ohio Court we claims, must be federal courts ing habeas Hensley to Appeals’ of failures to consider in de novo review. engage not to careful clearly application unreasonable be an n — n Price, at-, at 1852. Supreme precedents. Court established Price, Instead, federal courts are under Hensley is at core of Petitioner’s Sixth claims evaluating to habeas limited claim, Kimmelman re Amendment 2254(d).” § the lens of Id. See “through Second, we con quires its consideration. (4th Jarvis, 149, 163 also Bell v. 236 F.3d could not clude that Petitioner’s detention Cir.2000) in- (finding a distinction between justified by the facts found be dependent review of record and de pre under Court court relevant an re- independent novo review such that Sign”, & cedents. As to “Read independently ... ascertain view “does not Hensley, this information cannot be used whether, judgment, there been a its has had whether Hannon constitutional petitioner’s violation suspicion reasonable to detain Petitioner rights prior determining whether the present proof because the state failed to reasonablе.”). state court’s decision entry the officer who caused suspi the “Read & had reasonable Here, Appeals the Ohio Court of the fact of Petitioner’s cion to do so. As to clearly findings articulated its factual route, fact, illogical we conclude this even reasoning in denying challenge Petitioner’s coupled appearance when with Petitioner’s pre to his conviction. we are not While nervousness, give to be insufficient to engaging independent from in an cluded justify rise to reasonable Peti record, review the state court we are In light tioner’s continued detention. prohibited substituting our own inde conclusions, these the state court unrea pendent judgment toas what we believe sonably applied established Su the state courts could should have and/or preme precedent, requires which in reaching considered its conclusions. specific justifying suspi facts Nevertheless, independent our review of conduct, Terry, cion of criminal the state court record for clear error re 21, 88 1868. justifi veals that Trooper Hannon lacked a basis, permit of review does not effect, Our standard able factual to detain review, us in full engage scale de novo arrest Petitioner. and/or an independent but review of the state b. Application” Analy- “Unreasonable court that the critical record reflects facts

sis justify detention are here those facts Hannon identified in application” Under the “unreasonable his decision to detain Petitioner. AEDPA, compare clause of the we must fact, Q:In Mr. Joshua was not free to Ap- the facts found the Ohio Court you leave from the time that heard the conclusion, peals applicable for its to the READ AND information about the sure, Supreme precedents. Court To be SIGN. Correct? the Appeals’ express Ohio Court of factual findings that supported Petitioner’s contin- A:Correet.

449 Thus, illogical route. if even we were to independent review, undertake an this is Q: it you When was after ... when did point detention, the critical of Petitioner’s check the rental car information after because this decision lead to the subse- you made the decision that Mr. Joshua quent course of events resulting in the was not free to leave? discovery of the against evidence used Pe- A: I out Once found about the READ titioner to secure his conviction. At this information, AND SIGN that was the however, point, Trooper Hannon lacked I first time looked at the papers. rental suspicion to detain Petitioner So, Q: actually you had made the deci- probable or cause to arrest Petitioner. sion that Mr. Joshua was not free Trooper Hannon actually did the latter. you leave before looked at the rental information? From testimony, his Trooper Hannon A: Correct. lacked probable cause to arrest Petitioner. (J.A. 128,129-30). Dunaway, 215-16, 442 U.S. at 99 S.Ct. 2248. prejudiced Petitioner was by his

Under prece- Court and our counsel’s failure to raise the contention dents, testimony this is the classic formula- Hensley, because without the infor- tion for requires an arrest probable mation contained Sign,” “Read & York, Dunaway cause. See v. 442 New Trooper Hannon lacked specific objec- 200, 215-16, 2248, 99 S.Ct. 60 L.Ed.2d tive facts to justify reasonable ‍‌​​​‌​​​‌​‌‌​​‌​​‌​​‌​‌​‌​‌​​‌‌‌​‌‌‌​‌​​‌​‌‌​​‌​‍suspicion to (1979); Obasa, United States v. detain Petitioner. The exclusion of the (6th (“When Cir.1994) F.3d police Sign” proof “Read & establishes a “reason- beyond actions go checking out suspi- probability able that the result would have cious circumstances that led to the original Parker, been different.” Skaggs See stop, the detention becomes an arrest that (6th Cir.2000). F.3d 261 cause.”). supported by must be probable point, only sum, At that Troop- facts that we conclude that because Peti- er possessed, apart Hannon from the tioner had meritorious Fourth Amend- information, claim, “Read & was that Peti- ment prejudice Petitioner has shown tioner passenger appeared and his nervous due to his trial perfor- counsel’s deficient suspicious, gave and that Petitioner an mance.6 Petitioner’s appellate counsel was 6. dissenting opinion We note that the con- sonable to do so. Two Circuit Hensley challenge tends that a would have interpreted Supreme pre Courts have altered deny the state trial court’s decision to proposition cedents to that all suppress Petitioner's motion to because the occupants right aof vehicle have a to chal state trial court concluded that Petitioner lenge illegality stop deten and/or standing challenge lacked drug seized Woodrum, tion. See United States v. 202 F.3d companion. the statements and/or (1st Cir.2000) Illinois, (citing 5-6 Rakas v. Yet, Hensley expressly provides that "[a]ssum- 128, 138-39, 439 U.S. 99 S.Ct. ing police Terry stop objective make a (1978))(holding L.Ed.2d 387 that "each occu bulletin, flyer reliance aon we hold pant right challenge of a car has a evidence stop uncovered in the course propriety stop of a traffic under the Fourth flyer admissible who issued the if Amendment."). also See United States v. Er possessed suspicion justifying a reasonable win, 268, 269, (10t Cir.1989) 875 F.2d n. 2 h stop Hensley 469 U.S. at States, (citing Wong Sun v. United Hence, Hensley challenge 675. in this case 9 L.Ed.2d 441 compelled granting would have of Peti- (1963))("Even standing if defendant lacks suppress tioner motion to because the state car, challenge prove failed the search of the if initial that the officer who issued the flyer relied stop illegal, to detain Petitioner had rea- the seized contraband is sub- 450 dra, 613, 338, 348, 94 38 Hensley, 414 U.S. S.Ct. failing to raise

also ineffective (1974)). would that Petitioner L.Ed.2d 561 given our conclusion on his Fourth have meritorious been exclusionary judicial reme- rule is and that under Ohio Amendment claim “to deter future unlawful dy operates that law, appellate counsel could therеby effectuate the police conduct and Hensley appeal. issue on have raised Amendment guarantee of the Fourth issue, recognize we prejudice On and sei- against unreasonable searches Evans, 1, 3-4, that in Arizona v. 514 U.S. zures,” integrity well as to maintain the (1995), 1185, 131 L.Ed.2d 34 Calandra, 414 judicial process. of the Hensley Court discussed Supreme 348, appli- 94 613. The rule’s S.Ct. require the facts there did not held that to those “instances where cation is limited in the evidence seized violation of objectives thought remedial are most its Evans, to be excluded. Evans, efficaciously served.” 514 U.S. at exclusionary rule did held that the v. United States 11, (citing 115 S.Ct. 1185 require suppression of evidence Leon, 3405, 897, 908, 104 82 468 U.S. S.Ct. in violation of the Fourth was seized (1984)). Yet, if “the exclu- L.Ed.2d an officer relied Amendment where sionary appreciable rule does not result police record that was later determined to deterrence, ... clearly, then its use is be erroneous due to omissions of court Janis, unwarranted.” United States employees employees. office sheriff 454, 3021, 433, 428 U.S. S.Ct. 3-4, 5, 15, 1185. The U.S. at (1976). L.Ed.2d Supreme Court in Evans stated that “[t]he that the ob We conclude remedial exclusionary rule’s question whether jectives exclusionary rule are “most remedy appropriate particular is con efficaciously served” here because the evi long text has been as an issue regarded due to an unlawful deten dence was seized separate question from the whether the tion, sup have been and therefore should rights party Fourth Amendment purpose of pressed. While the historical were violated seeking to invoke the rule exclusionary police rule is deter police conduct.” Id. 115 S.Ct. 1185 misconduct, Gates, light prosecutor’s (quoting Illinois v. case, (1983)). interest in the outcome of this we 223, 103 76 L.Ed.2d 527 word, exclusionary rule also Hensley challenge conclude In a a successful prosecutorial serves to deter misconduct automatiсally compel does not the exclu comply its failure to with estab sion of evidence seized in violation of the Here, Amendment; rather, principles. Fourth “exclusion is lished constitutional objectives Hensley clearly required only if evidence from appropriate the remedial [exclusionary] thought provided are officers who the infor rule most 115 mation in the “Read & efficaciously book that served.” 514 U.S. at United States v. Calan- officers had (citing S.Ct. 1185 those challenge ject poison- standing evidence to exclusion under the 'fruit of the tioner has doctrine.”). tree' ous as fruit of the obtained from detention Sun, Wong poisonous tree. 371 U.S. at Here, given that Petitioner’s our conclusion Thus, respectfully disagree then, 83 S.Ct. 407. we illegal, Hensley, under detention was dissenting opinion’s contention that passenger evidence uncovered from the trial court's decision not have person the state would the search of her Be- inadmissible. changed if trial counsel we been Petitioner's cause conclude the detention to be unrea- Amendment, Hensley challenge. Peti- raised a sonable the Fourth by deterring involved here is well served prosecu that Petitioner was believe with Hens- activity. failing comply clearly Consistent to criminal tors from with objective reliance on a Terry stop ley, “a constitutional such principles, established bulletin, evidence we hold that the flyer or Hensley.7- ruling as The effect of our stop is in the course of the uncovered non-compliance clearly with es state’s if the who issued the admissible Supreme precedent Court is Pe tablished reasonable flyer possessed bulletin retrial or release. titioner’s Hensley, justifying stop.” suspicion (emphasis 105 S.Ct. 675 CONCLUSION original part). in the and added added inwas cir- failure here prosecutor’s The above, For the reasons set forth we Court of which the Ohio cumstances the district court’s denial of REVERSE issue bеlieved the was

Appeals petition be- habeas relief Failure the ex- implicitly apply raised. to judgment objec- the state court cause was clusionary rule under these circumstances tively unreasonable and was Petitioner clear Supreme would render the Court’s denied effective assistance of trial and ap- in Hensley meaningless. The ex- holding pellate action is RE- counsel. This clusionary rule’s here would application MANDED for further consis- proceedings to failing present prosecutors deter opinion. tent with this necessary proof by Hensley. required exclusionary rule to whether the was As CLAY, Judge, concurring. Circuit here, applied we note properly exclusionary rule and Amend- the Fourth agree I Although with the outcome gov- state designed ment are to constrain case, reached in this as well as most prosecu- This ernments. includes state majority reasoning, sepa- I opinion’s write exclusionary application of the tors. my of the rately to articulate view of some Hensley, appropriate given is rule case, why persuad- in this I am issues law, applicable violated. clearly Ohio Court Appeals’ ed that the decision Moreover, Hensley expressly on focuses in a to affirm conviction “resulted Joshua’s requisite state must proof to, contrary that was or involved decision Here, in these circumstances. introduce of, clearly application an es- unreasonable prosecu- the critical omission was the state law, Federal as determined tablished suppression failure to establish at the tor’s Supreme Court of the United States.” issued the hearing whether the officer who 2254(d)(1). § 28 U.S.C. suspicion & “Read had reasonable a law Amendment requires The Fourth so, Hensley, required do officer possess enforcement reasonable If precedent. established traffic suspicion suspect to detain at a purposes of the Fourth Amend- one of thus, if is not stop; is to constrain governments, ment state exclusionary stop, the outset of a traffic apparent rule the enforcement proof presentation opinion such dissenting note that con- citizen. If 7. We guessing judg- that we are second required, tends be that the effect were not would respect- prosecutor, we call of the state ment flyer issuance of a would constitute the mere disagree. ruling simply requires Our fully proof that an officer a reason- had sufficient prosecutors comply a constitu- state contrary activity, suspicion of criminal able necessary to rule of evidence that tional Hensley. justification or arrest a establish detain suspect. Sign. reading Berkem A fair of the record shows must release the officer 420, 439-40, proceeded that the events as follows: 468 U.S. McCarty, er v. (1984) (“[U]n- L.Ed.2d 317 Trooper stops 11:07 a.m. Hannon Josh- the provide the answers less detainee’s gives ua’s car. Joshua Hannon his him, probable cause to arrest officer with papers. driver’s license and car rental released.”). If the officer is he must be Trooper 11:10 a.m. Hannon runs a sta- but officer’s suspicious at the outset the check; dispatcher tus the informs him inquiries reasonably allay suspicion, that Sign entry. Troop- about the Read & suspect. release the officer must the requests er Hannon a canine unit. Florida, 811, 815-16, Hayes v. a.m. The calls dispatcher 11:15 Colum- (1985); 1643, 84 L.Ed.2d 705 to see if has outstand- bus Joshua Heath, States v. 259 F.3d United warrants; ing there are none. (6th Butler, Cir.2001); States v. United time, dispatcher Around this same (6th Cir.2000). 368, 375 The 223 F.3d promises Trooper Hannon that he will without may suspect officer not detain have detective “familiar” Josh- justification hopes generating legal ua Hannon Trooper call back. suspicion by observing reasonable the sus 11:17 Trooper a.m. Barnes arrives on pect’s subsequent by acquiring actions or and his сompanion the scene. Joshua subsequent information. activity exhibit “constant in the vehi- cle.” The record the instant case indicates Trooper 11:20 a.m. Hannon asks Trooper

that Hannon detained Joshua’s dispatcher to check on Joshua’s car Sign. vehicle based on the Read & Howev- papers. rental er, majority for the reasons stated papers 11:22 a.m. Joshua’s rental Sign provide the Read & not opinion, did Thus, dispatcher check out. The runs a requisite suspicion. reasonable criminal check on and trans- Joshua Trooper Hannon should have released mits the criminal results Joshua’s shortly Joshua at that time or thereafter. history Trooper Hannon. Instead, Trooper Hannon continued to de- tain while he drug- Joshua waited for the 11:25 a.m. The a ca- dispatcher reaches sniffing dogs arrive. It was unreason- nine unit.

able under the circumstances to detain Sergeant 11:45 a.m. Turner arrives for even a pending Joshua short time helps Trooper place stop Hannon drug-sniffing arrival of the dogs because at sticks around Joshua’s vehicle. point Trooper Hannon lacked a suffi- A 11:48 a.m. detective who is “familiar” cient detaining point basis him. Trooper with Joshua calls Hannon fact, dogs did not until arrive 11:49 back; he tells Hannon that a.m., forty-two some minutes after the may dangerous. Joshua be armed and stop traffic had been initiated. A deten- 11:49 a.m. A canine unit arrives. The tion of that duration without sufficient drug-sniffing dog alerts on Joshua’s legal particularly basis was unreasonable. vehicle, whereupon search drugs. the vehicle and discover intervening developments stop by scene the traffic cited the Ohio None of these permitted Trooper events Appeals by Court of described Hannon to detain over forty- Joshua this provide requisite dissent did not Certainly rea- two minute time frame. the con- suspicion sonable in lieu of paperwork the Reаd & cern about the rental car did provide eling companion because “appeared try- ... to be discrepancy paperwork per- ing conceal the fact they were by trooper did not until ceived surface traveling together” because the defendant a.m. approximately 11:18 Hannon “preceded companion] [the and occasional- already should have released Joshua ly looked at him they backward pro- 11:18 a.m. because that time concourse,” through [airport] ceeded already Hannon had detained Joshua for reasoning provided this behavior suspi- several minutes without reasonable “too slender a reed to the seizure Moreover, cion. the paperwork discrepan- case”) Ohio, in this (quoting Terry v. i.e., cy expeditiously, was resolved around 1, 27, 1868, 88 S.Ct. 20 L.Ed.2d 889 a.m., leaving twenty-seven 11:22 a minute (1968)) (internal quotation omitted); marks until gap drug-sniffing dogs time ar- 491, see also Royer, Florida v. 460 U.S. rived. (1983) 75 L.Ed.2d 229 Furthermore, none of the additional fac- (Brennan, J., concurring) (observing that by tors cited the dissent amounted to rea- leading facts the airport agents to detain suspicion. majority opinion sonable As the the defendant did not constitute reason- out, points by suspi- the time reasonable suspicion able they “perfect- because were surfaced, Trooper cion had Hannon had ly consistent with innocent behavior and detaining illegally been Joshua for sub- possibly give [could not] rise to infer- time, stantial period and thus a Fourth ence supporting suspicion reasonable already Amendment violation had occurred stated, criminal activity”). Simply turning notwithstanding any subsequent events staring around and at the police officers purportedly giving rise reasonable sus- did not create a “rational ]” inference! picion. The additional factors mentioned “reasonably warranted] the continued de- dissent, by the even when cоnsidered tention of’ companion. Joshua and his facts, tandem with the other fail to consti- Smith, United States v. 263 F.3d suspicion. tute reasonable (6th Cir.2001) (citing Terry, 392 U.S. at instance, For the dissent that al- having other Hannon’s factor — markedly from the situation where a law the that a dispatcher learned from man legitimate enforcement officer has a basis allegedly with Joshua’s name was trans- suspect particular ‍‌​​​‌​​​‌​‌‌​​‌​​‌​​‌​‌​‌​‌​​‌‌‌​‌‌‌​‌​​‌​‌‌​​‌​‍to individual of a crim- from porting drugs Portsmouth to Colum- during offense and is advised the inal simply bus—is the information from the person course of the detention that the Sign, Read & on which Hannon being investigated has a criminal record permitted rely, cannot to be based suggestive activity of the kind of criminal holding Hensley, the of United States v. situation, investigation. In that 469 U.S. here, obviously present is

which not a fur- (1985).1 L.Ed.2d 604 suspect ther detention of the in all likeli- justified. hood would be summarize, principally persuad- To I am petition ed that Joshua’s habeas should be Finally, the fact that patrol dogs the granted Sign because the Read & did ultimately alerted on Joshua’s vehicle does provide requisite the reasonable suspicion legal analysis not assist our because al justify the eventually detention which though such an ordinarily occurrence discovery led to illegal drugs, probable would furnish cause for a police justification officer to search additional for the de- drugs, a vehicle for Unit tention, Bailey, by ed States v. as described Court of 302 F.3d 659 n. 7 Ohio (6th Cir.2002), Appeals herein, subsequent discovery wholly dissent circumstances justifying probable inadequate cause— and failed to establish reason- coming long reasons, after suspicion. Joshua should have been able For these I con- released —cannot majority vitiate Joshua’s earlier cur in the opinion. reasons, majority opinion

1. The expressly as alternative does not seem to state that federal grounds disregarding for the additional fac precluded conducting are courts an inde- dissent, by tors cited that this Court is not pendent review of the record when the state permitted beyond to look facts found reasoning. Although court has articulated its opinion, citing the state court’s Harris v. Sto majority opinion’s reading might of Harris vall, (6th Cir.2000) 212 F.3d for this appropriate, necessary be I do not find it proposition. reasoning Whether the in Harris Instead, my reasoning grounds. rest on those present extends to the situation is uncertain at my reasoning I am content to base on the fact speak best. Harris seems to the situation by that the cited factors dissent and the where the state court has not articulated its Appeals Ohio Court of were insufficient to reasoning, in which case federal courts are justify Joshua’s detention. obligated to review the entire record. Harris NELSON, law, Judge A. Circuit established Federal DAVID as determined Court of dissenting. States_” the United 28 U.S.C. in alignment The stars that must be 2254(d). § before the issuance of a writ of habeas I am not persuaded of these justified can in this case include corpus be prerequisites fairly can be held to have following: all of the been met. perhaps But the clearest - 1) ground affirming Fourth the district Petitioner Joshua’s Amend- court’s denial of habeas relief is that Joshua right against ment to be secure un- flunks “prejudice” branch of the searches and seizures I Strickland test. As read state court jeop- must be found to have been so record, the conclusion that Joshua suffered happened ardized what here that prejudice no lawyers’ result of his required, the state courts were as a only failure to cite conclu- law, matter of federal to exclude the sion that could reasonably be reached. activity. evidence of criminal Joshua’s To start with the proceedings before the 2) must be found to have been Joshua court, pleas state common I note that de- denied his Amendment right Sixth timely objection fеnse counsel made a counsel, finding dependent upon his admission in evidence of the “Read & satisfying both branches of the test in Sign” bulletin on which Hannon Washington, Strickland v. relied in detaining lawyer Joshua. The 80 L.Ed.2d 674 argued that the bulletin constituted “hear- (1984): say hearsay” and that it “was never a) lawyers he must show that his verified.” Although Hensley citation to (see guilty “incompetence”

were of obviously appropriate would have been Morrison, point,1 crystal Kimmelman v. 477 U.S. that it is clear that such a (1986)) changed citation would not have the com- S.Ct. pleas deny mon court’s decision they when failed to their Josh- suppress. ua’s motion to This is so be- suppression arguments with a cita- cause the denial of the motion was based Hensley, tion to States v. United (1985), on the court’s conclusion that Mr. Joshua 105 S.Ct. 675 standing challenge lacked of search drug-laden companion conclusion —a b) he must proba- show reasonable logically could not have been affected bility that the state courts would by in If anything Hensley. the result have reached a different if result event, would in any have been same their attention had been called to there could have been prejudice. no Hensley. proceedings As to the the Ohio court 3) The state court decisions on both the I appeals, equally of believe it is clear that

admissibility of the evidence and the prejudiced by Mr. his ap- Joshua was not alleged right denial lawyer’s of to counsel pellate Hensley. failure to cite to, “contrary must have in- Echoing been or made coun- argument trial of, an application objecting volved1 unreasonable sel in to the introduction of the dissent, court-appointed edged 1. "If Aaron Joshua's trial in an earlier draft of this "he (and should) probably counsel had been familiar with the have cited would opinion Hensley," Court's as I acknowl- it....” bulletin, “strong presumption” constitutionally appellate counsel “Read & appeals Mr. Joshua told the court id., representation, effective Mr. Joshua’s for 42 minutes because had been detained Hensley issue would have to be more hear-say Hannon “had received is, view, my clearly meritorious than it dispatcher dispatcher from the required for the state court to have been who hear-say trooper had from another attorneys’ performance to find his defi- hear-say had read a document drafted cient. It does not seem to me that the (7) days by [Trooper earlier Mik- seven Hensley issue has such obvious merit. un- stating that she had heard from esh] police known sources within the Columbus Hensley requiring I not read as do may transporting that Aaron be Joshua instance, every present proof, state to cocaine between Columbus and Ports- known to a officer who the facts ” Again, basis.... it is regular mouth on flyer intelligence a wanted issues other true, Hensley— no citation to there was report upon by that is relied another offi- cite again but the failure to did holding Hensley, cer. The I essential ap- not affect the outcome. court it, peals simply finessed the unverified hear- understand is that the officer who acts issue, say holding that detention Joshua’s flyer on the need not be the facts privy to justified by could be articulable facts that matters, underlying its issuance—what read-and-sign were bulle- unrelated to purposes of determining whether a search sufficient, standing tin and that were constitutional, or seizure is is whether the alone, trooper Hannon a give basis for issuing officer had a reasonable suspecting activity. criminal That hold- activity. Hensley, of criminal See ing, holding, like the trial court’s could 232-33, 675. It does not neces- by a hardly have been affected citation sarily follow from this that the state must Hensley. Against background, this I do always put on evidence of the facts known it not believe was unreasonable for the officer, issuing regardless to the of wheth- subsequently state court of to con- appeals arresting er the officer has information prove clude that had failed to he Joshua prejudiced by lawyers’ perfor- was intelligence report outside the that lends mance. credence to it. Although prejudice the absence of totality presented of the evidence at rejection require

itself sufficient suppression hearing strongly Joshua’s sug- claim, it Joshua’s seems to me that gests relatively that his detention for the “incompetence” claim founders on the short time it took complete the officers to branch of Strickland as well. Joshua has investigation justified their could be with- argument made a colorable that his attor- neys’ presentation out the failure to cite was “unrea- additional evi- prevailing professional sonable under hearing dence. The transcript contains ... strategy.” norms and was not sound facts, following evidence of the oth- among Kimmelman, at U.S. ers: Strickland, 688-89, 2574 (citing morning —At 11:07 on the drug of the 2052). argument But that is not bust, Trooper pulled Hannon Joshua view, compelling, my rejec- so that its speeding. over for The legitimacy of appeals tion the state court of must be speeding stop considered unreasonable. Given the is uncontested. outstanding —The vehicle driven Joshua was a warrants for Joshua. red Pontiac with out-of-state Sunfire none, proved There to be but car had been plates.2 The rented Portsmouth officer with whom car con- Enterprise from the rental dispatcher spoke turned out to be produced cern. Joshua some rental familiar with Joshua. The officer papers Trooper inspec- Hannon’s promised to “have a detective [the call tion, papers but the to a pertained dispatcher] back with further informa- maroon Geo Tracker and not to the dispatcher tion.” The Troop- advised Hannon, Trooper red Pontiac. er Hannоn development of this at ap- unreasonably, dispatcher asked the a.m., proximately 11:15 during the cheek discrepancy this with Enter- radio same transmission in which he a.m., prise. having At 11:22 called reported the results of his calls to Enterprise, dispatcher advised the Mikesh, that Mr. Columbus and to trooper Joshua was entitled driving be the Pontiac. in charge officer drug dog. meantime, —In shortly after 11:10 —Trooper testimony, Hannon’s when a.m., the dispatcher had been alerted conjunction read with the dispatch- the existence the “Read & er’s, point shows that the at which the bulletin. The bulletin indicated that trooper learned about the Portsmouth receipt Mikesh was in of in- police department’s familiarity with formation —information originating promise Joshua and its to have a de- with police department of Colum- tective call preceded point back bus, Ohio—to the effect that “an Aar- which the trooper learned that the car ... transporting on Joshua was crack company problem rental had no cocaine between Columbus and Ports- driving mouth twice a week ... and that he Joshua’s the Pontiac. This parole previous drug was on ac- [for] see, timing, may as we shall have tivity....” This information was inquiry. some relevance to our promptly radioed to Hannon. —Joshua was not free to leave the scene Significantly, himself had al- Joshua course, stop, while the tele- ready trooper told the that Ports- phone calls and radio transmissions I mouth was his destination and that he taking place. have described were driving there from Columbus. During when the 10 minutes or so —Trooper again not unrea- Hannon — Trooper only Hannon was the officer sonably dispatcher to call —asked however, pas- present, Joshua and his drug-sniffing dog for a and to check normal,” senger acting “[q]uite were police Columbus and according trooper, Portsmouth to see if there were to -the “like I would hearing 2. The make and model of the vehicle were ord of the on Joshua’s motion for preliminary hearing established at a the tran- suppression of evidence. script incorporated of which was in the rec- a.m.), stopped that I after 11:22 any person had sometime dis- expect speeding violation to act.” [a] patcher history ran a criminal check dispatcher on Joshua. The testified highway —At 11:17 a.m. second state unequivocally that he transmitted the Barnes, Trooper arrived patrolman, history results of the criminal check to the arrival of the on the scene. With Trooper Hannon. unit, according to backup Trooper Hannon, occupants the behavior of the a.m., —At Trooper 11:48 while Mikesh changed dramatically: of the Pontiac way on her to the scene with her was nervous, “They extremely became drug dog, dispatcher received the Chapman both Mr. Joshua and Miss call The promised from Portsmouth. began looking over their shoulder. caller, Brewer, Sgt. a Detective con- looking Mr. was out the driv- Joshua firmed that the Portsmouth de- trying er’s side window to see behind partment was familiar with Aaron him, activity there was constant in the Joshua. Detective Brewer went on to stopped I’ve never vehicle. vehicle dispatcher might tell the that “Joshua activity where I’ve seen so much dangerous possibly be considered occupants so much concern from the weapon.” dispatcher carried a so going about what was on around them all advised units. (Emphasis sup- and behind them.” plied.) Mikesh, just —Trooper who had heard the dispatcher’s report latest over her —Trooper Barnes confirmed this ac- radio, reached the scene 11:49 a.m. count, testifying “I noticed that She saw Mr. Joshua seated there was a lot of movement Pontiac with both his hands outside vehicle.... kept looking [Joshua] the door and his head craned unсom- continually back. He keeping his eyes myself fortably over Hannon left shoulder. physically turning either around or Trooper Hannon told her that there looking through the rearview mirror.” had been a lot of movement in the When asked if Joshua’s movements car—and Mikesh observed type were “the usual of movements” more movement she approached subject made stop, of a traffic the vehicle: “I observed Mr. Joshua Trooper Barnes answered “No.” As movement,” amake sudden she testi- trooper went explain, on to fied, “and reached down underneath look, people “Most will with his hand right turn and but underneath the continually basis, non-stop on a driver’s seat.” Mikesh im- you know. Eventually, they’ll kind of mediately ordered Joshua and his down, relax and settle but that wasn’t companion get up. their hands case this instance.” When satisfied it was safe to do so, she ordered them to put their log, (cid:127) —At a time not entered in the ac- Thereafter, hands on the dash. cording dispatcher’s testimony, to the having windows of the Pontiac been probably opportunity but at his first (i.e., raised, completing after phone Trooper dog his calls Mikesh had her only eight There has been no after 11:15 a.m. This was min- sniff the vehicle. (or dog that the other contention speeding stop. utes after the Joshua had brought have been to the dog) could leave, not theretofore been free to dog car earlier than this was. course, good but there was a reason for his detention, short, very the interval was —At a.m. alerted on the dog 11:53 it was still speed- close to the time of the door, right front right seam ing infraction. at the vehicle. aggressively scratching occupants The the Pontiac were learned, When Hannon at 11:22 down, patted then Mikesh a.m., stolen, the car had not been (visibly pas- handling pregnant) Joshua should and doubtless would have senger, Ms. ten Chapman. Some depart been allowed to had trooрer not of crack cocaine were bundles found known suspicious of other facts. But by plastic bag just a secured below Ms. trooper 11:22 a.m. the had knowledge of Chapman’s enlarged abdomen. Her facts, several knowledge such and he had arrest, Joshua, and that of followed. of more soon thereafter. body Given this considerable of evi- Fact number one was that Joshua said dence, bespeaks police which excellent that he was a driving by somewhat im- throughout, compe- work I believe that a — probable route —from attorney reasonably tent Columbus to Ports- could conclude government that the had carried its bur- mouth. proof suppression hearing. den of Fact highway number two was that the respect period to the 15-minute

With information, patrol receipt was in said to a.m., 11:07 a.m. to 11:22 it is obvious that originated police have with the Columbus Trooper Hannon did not need “Read & department, that a man Joshua’s justify bulletin Joshua’s detention parole name—a man on in connection with point discrepancy from the which the drug transporting offense—was crack papers the rental was first noticed to the city cocaine from one Ohio another at which point discrepancy was re- driving identity twice a week. The of the cities is solved. Joshua was car that did him, all, belong not after and he claimed importance. drugs of critical were it. to have rented The car described reported moving be from Cleveland papers rental was not the car he was driv- Chillicothe, to Youngs- or from Toledo ing. Any police conscientious officer town, they or from Canton to Gallipohs; would have wanted to assure himself that moving reported were to be from Colum- stolen, the car had not it been and was not Portsmouth, very bus to cities named kept unreasonable for to be at the Joshua by Mr. himself. The detailed na- Joshua story being scene while his was checked intelligence ture of the from the Columbus with the car rental company. with the infor- police department, coupled Joshua,. provided independently mation precise

We do not know the time at gave grounds thus rise to articulable which Hannon first noticed the believing intelligence that the furnished in the discrepancy papers, rental but it is it accurate. probably fair to infer that was little the Columbus What drug history not have called for a aware of criminal some- policeman would Joshua’s these circumstances? dog under time after 11:22 a.m. The record does not was, history show what that but can one three was that before the Fact number reasonably dispatcher infer from the rental car com- all-clear arrived thought significant enough it to merit tell- pany, Trooper Hannon had learned of ing Hannon about it. highly interesting telephone conversation dispatcher police between his and a officer by Fact number six is that a.m. 11:48 in Portsmouth. The State of has a Ohio troopers warning were advised population people, of 11 million most of of the Portsmouth detective that Joshua strangers whom are to the Portsmouth might dangerous. be armed and And fact aware, police Trooper Hannon was —but number seven is that as it as soon was a.m., approximately 11:17 that Aaron Josh- possible a drug dog to have sniff the Ponti- ua was police known of Portsmouth. ac, dog signaled drugs that there were not in might Joshua have been known in the car. Chillicothe, Youngstown, Gallipolis, or facts, All of these I say, brought were by police very but he was known in the suppression out at the hearing. their city to which it reported had been he was believe, totality, they I were sufficient to drugs. It transporting objectively was not suggest deficiency that there was no in the unreasonable, therefore, to detain Joshua a proof ie., Hensley state’s did not — longer dispatcher little so that the could require further verification of the “Read & get reading on him from the Portsmouth Gates, Sign” bulletin. Illinois v. Cf. supposed detective who was to call the 213, 244-45, 103 S.Ct. dispatcher back. (1983). so, L.Ed.2d 527 That I being am Fact number four although is that Josh- persuaded the failure cite ua and his companion had not behaved of the suppression mo suspiciously only while there was one offi- necessarily bespoke incompetence. tion scene, they cer on the began acting this, If I am wrong however—and if I strangely when the backup arrived. The wrong my analysis- am Strickland change in behavior would be consistent —(cid:127) still Joshua would not be entitled to habeas hypothesis that Joshua was not relief if exclusionary the federal rule being stopped worried about for speeding, (made applicable to the states in v. Mapp having was not worried about his rent- Ohio, 367 U.S. checked, papers al very but was worried (1961)) L.Ed.2d 1081 would not render the trooper’s being reinforced—-an indi- guilt evidence of Joshua’s I inadmissible. cation to highway patrol Joshua that the do not believe it would. might be investigating something beyond a speeding offense and an irregularity exclusionary rule developed by papers. rental The constant movement judiciary to serve prophylactic pur- within the Pontiac would be consistent poses wrongdoing by deter those re- —to heightened both with nervousness and sponsible enforcing the law. See Ari- with activity get drugs positioned where Evans, zona they would be hard to detect if the car (1995). 131 L.Ed.2d 34 Here there was no were searched. wrongdoing at all officers evidence;

Fact number if five'—-at least the dis- who seized the their work was patcher’s memory playing highly professional was not tricks from start to finish. on him—is that Hannon was made There is no reason to suppose that initially who pro- Columbus officers MEYERS, M.D., Robert H.

vided the information the “Read & Individually guilty any wrongdo- bulletin were Partnership; Mary Meyers, and as a Partnership, M.D., Individually is ing еvery either —and there reason to as a were I suppose they not. Neither do see ntiffs-Appellants/Cross-App Plai any wrongdoing part on the ellees, prose- cutor, who, ease, in a borderline elected incur expense bringing

not to HEALTHCARE COLUMBIA/HCA police officer from Columbus to Chillicothe CORPORATION, al., et Defendants- purpose for the justifying police bulle- Appellees/Cross-Appellants. appears tin that If have been accurate. 01-6190, Nos. 01-6217. going the federal courts are to second- guess judgment this kind of call on the United Appeals, States Court of part prosecutors, of state requiring Sixth Circuit. result, exclusion of vital evidence as a I Argued: May 2008. gone

believe the courts will far have be- Decided and Aug. Filed: 2003. yond the original purpose of the exclusion- ary rule. That solely policy rule rests

considerations, all, after and I can see no policy

sound reason for excluding the evi- dence of crime under Joshua’s the circum- presented stances here. Finally, at the belaboring risk of obvious, I would reiterate that are not we reviewing the decisions of the state courts appeal.

on direct may The fact that we think the state wrong courts reached the controlling. result is not Absent “an un- application estab- law,” lished federal Congress has ‍‌​​​‌​​​‌​‌‌​​‌​​‌​​‌​‌​‌​‌​​‌‌‌​‌‌‌​‌​​‌​‌‌​​‌​‍told provision us codified at 28 U.S.C. 2254(d), § or a decision “contrary” to such law, the granting of federal habeas relief I forbidden. do not believe that the de-

cisions rendered the state courts matter now before us fail statutory

test, and I therefore believe that the dis- correctly

trict court acted in denying application My Joshua’s for the writ. col- leagues on the panel having seen the mat- differently, ter I respectfully dissent. notes 1868). though companion Joshua and his were Similarly unpersuasive grounds as for calm, initially upon the arrival backup suspicion reasonable Hannon’s they began turning staring around and purported knowledge “highly of a interest- Yet, majority opinion officers. as the ing telephone conversation between his observes, correctly the behavior described dispatcher police and a officer Ports- by Trooper Barnes might evidence little mouth” and the statement the Ports- curiosity more than mere concern mouth might detective that Joshua be the two individuals as to their surround- dangerous. armed and The information ings ever-increasing activity. and the police might that Joshua have been armed and Any interpretation of an this behavior as dangerous, apparently origin of dubious activity indication that criminal was afoot reliability, was not transmitted to amounts to little than an more “inchoate ” a.m., Trooper Hannon until 11:48 some unparticularized suspicion or -‘hunch.’ forty-one stop minutes the traffic after Georgia, Reid v. (1980) majority opinion commenced. As the cor- (per 65 L.Ed.2d 890 curiam) notes, rectly may prop- officer not (rejecting possible as a basis suspicion erly suspect hope reasonable detain a in the of receiv- airport agent’s testimony that the ing defendant and his trav- useful information in the future. persuaded improper detention without reasonable I also am not of Joshua’s criminal suspicion. Hannon’s awareness record, together considered even when that in The dissent is correct some cases nervousness, un- purported with Joshua’s properly can be gestures, “illogical” furtive articulated facts, gleaned from several considered route, justified lengthy this deten- travel concert, individually none of which would all, First of the record does not tion. give suspicion. rise to reasonable Howev- criminal his- specify the nature of Joshua’s er, stated, previously the factors cited tory, obviating any consideration of the dissent, together, even when taken do history’s probative value on habe- criminal not meet this burden. Four of these addi- Second, Trooper Hannon was as review. not tional factors did manifest themselves history informed of Joshua’s criminal point until after the well until 11:22 a.m. or 11:23 a.m. The situation Hannon should have released Joshua. The presented by this case therefore differs

Case Details

Case Name: Aaron Joshua v. Don Dewitt

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 7, 2003

Citation: 341 F.3d 430

Docket Number: 01-4118

Court Abbreviation: 6th Cir.