Aaron Joshua v. Don Dewitt

341 F.3d 430, 2003 U.S. App. LEXIS 16134, 2003 WL 21805206

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 7, 2003
• Docket: 01-4118
• Status: Published

Opinions

HAYNES, D. J., delivered the opinion of the court. CLAY, J. (pp. 451^454), delivered a separate concurring opinion. DAVID A. NELSON, J. (pp. 455-461), delivered a separate dissenting opinion.

OPINION

HAYNES, District Judge.

Petitioner Aaron Joshua appeals the district court’s order denying his petition for a writ of habeas corpus to set aside his conviction of possession of drugs by an Ohio court. Petitioner contends that he was denied effective assistance of trial and appellate counsel in that his trial and appellate counsel failed to challenge the arresting officer’s reliance upon a police flyer containing information that Petitioner was a drug courier. Petitioner asserts that despite a clearly applicable Supreme Court precedent, United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), the state failed to offer any proof that the police officer who provided the information in the police flyer had reasonable suspicion to believe that Petitioner was involved in criminal activity. We REVERSE the district court’s denial of the writ and grant the writ subject to the state’s retrial of Petitioner.

BACKGROUND

A Procedural History

On March 13, 1998, the Ross County, Ohio grand jury indicted Petitioner for one count of possession of crack cocaine in excess of 100 grams in violation of Ohio Revised Code (R.C.) § 2925.11. Count one included a separate specification under R.C. § 2941.1410 that charged Petitioner as a major drug offender. Petitioner’s trial counsel filed a motion to suppress the fruits of the search conducted by state highway troopers, which yielded 100 grams of cocaine and the passenger’s statement that implicated Petitioner’s guilt. Petitioner’s counsel asserted, in essence, that the length of the traffic stop alone violated Petitioner’s Fourth Amendment rights under the United States Constitution. The state trial court denied the motion to suppress and Petitioner entered a plea of nolo contendere. The state trial court sentenced Petitioner to ten years in prison.

Petitioner filed a timely direct appeal with the Ohio Court of Appeals, asserting four claims of error, including that the state trial court erred in denying Petitioner’s suppression motion because Petitioner’s stop was unconstitutional by virtue of its duration, i.e., forty-two minutes. The Ohio Court of Appeals affirmed the state trial court’s denial of Petitioner’s motion to suppress and Petitioner’s conviction.

Petitioner then filed an application with the Ohio Court of Appeals to reopen his direct appeal, arguing, in sum: (1) that the trial court erred because the state failed to establish the factual predicate for the dispatch that led to Petitioner’s further detention and (2) that his counsel was ineffective for failing to pursue this deficiency in the state’s case in the post-hearing briefs and on appeal. On January 11, 2000, the Ohio Court of Appeals denied Petitioner’s application to reopen, but with a statement of its reasons. In a word, the Ohio Court of Appeals concluded that Petitioner’s counsel “implicitly raised the issue of whether the dispatch justified the detention,” J.A. at 104, but did not discuss Hensley. The Ohio Court of Appeals also ruled that independent grounds existed to justify Petitioner’s detention that resulted in the discovery of the drugs. Petitioner then filed a timely appeal to the Ohio Supreme Court, contending that the Ohio Court of Appeals misconstrued or ignored Petitioner’s claim that Petitioner’s appellate counsel was ineffective. On May 3, 2000, the Ohio Supreme Court dismissed the appeal for want of a substantial constitutional question.

On July 5, 2000, Petitioner filed his petition for writ of habeas corpus in district court, asserting that both his trial and appellate counsel were ineffective for failing to challenge the factual basis of the police flyer that the arresting officer relied upon to conduct the investigative detention of Petitioner after his traffic stop. The district court denied the petition for habe-as relief, but issued a certificate of appeal-ability. In sum, the district court held that the Ohio Court of Appeals’ application of clearly established federal law was not objectively unreasonable in finding that Petitioner was not denied effective assistance of trial counsel, because there were “alternate grounds justifying [PJetitioner’s detention.” (J.A. at 172). The district court further held that the Ohio Court of Appeals’ finding that Petitioner was not denied effective assistance of appellate counsel was not objectively unreasonable, because “the issue of [P]etitioner’s detention was squarely presented for both the trial and appellate courts to review.” (J.A. at 178). The district court did not discuss Hensley.

B. Facts

The state suppression hearing transcript reflects that on March 2, 1998, at 11:07 aun.¹, Petitioner was traveling southbound on State Route 104 in a rental car when Trooper James Hannon, with the Ohio Highway Patrol, executed a traffic stop for speeding. According to Trooper Hannon, his radar revealed that Petitioner was traveling sixty-seven miles per hour in a fifty-five mile per hour speed zone. Petitioner was traveling from Columbus to Portsmouth, Ohio, and was accompanied by Gabriella Chapman and her infant child. As Trooper Hannon approached the vehicle, he noticed that Petitioner and Chapman were acting nervous and suspicious. Trooper Hannon asked Petitioner for “his license, registration and proof of insurance.” (J.A. at 150). Petitioner gave Trooper Hannon his driver’s license and rental car papers. Prior to returning to his patrol car to conduct a status check of Petitioner’s driver’s license, Trooper Han-non questioned Petitioner about his travel plans. Trooper Hannon’s suspicion increased when Petitioner described his route between Columbus and Portsmouth, because, according to Trooper Hannon, the route described by Petitioner “didn’t make any sense what so ever.” (J.A. at 151).

At 11:10 a.m., Trooper Hannon returned to his patrol car to run a status check on Petitioner’s driver’s license and to determine if there were any outstanding warrants against Petitioner. A dispatcher informed Trooper Hannon that Petitioner did not have any outstanding warrants. Another Trooper, Terrell Barnes, overheard the exchange between the dispatcher and Trooper Hannon, and directed the dispatcher’s attention to an entry in the station’s “Read and Sign” book. (J.A. at 145).

This “Read & Sign” book contains police intelligence information. As to Petitioner, the “Read and Sign” book reflected an entry from a Columbus Police Department report that Petitioner was a known drug courier who transported illegal narcotics between Columbus and Portsmouth. The dispatcher then relayed this information to Trooper Hannon and, as a result, Trooper Hannon advised the dispatcher to send a canine unit to the scene. The dispatcher attempted immediately to contact a canine unit in the area. In the interim, Trooper Hannon decided that Petitioner was not free to leave based upon the information from the “Read & Sign” book. When asked at the suppression hearing whether he could verify the information in the “Read & Sign” book, Trooper Barnes answered, “No. No.” (J.A. at 148).

At 11:15 a.m., the dispatcher called the Columbus Police Department to determine if Petitioner had any outstanding warrants, and was informed that Petitioner did not. At 11:17 a.m., Trooper Barnes arrived at the scene and, at this time, Trooper Han-non observed Petitioner and Chapman being nervous and restless. After he was informed that Petitioner was a known drug courier, Trooper Hannon examined the rental car papers and discovered that the rental car papers did not match the vehicle that Petitioner occupied. At 11:20 a.m., Trooper Hannon asked the dispatcher to contact Enterprise rental car company to determine if Petitioner were in lawful possession of the rental vehicle. By 11:22 a.m., Trooper Hannon learned that Enterprise reported Petitioner to be in lawful possession of the vehicle, but Trooper Hannon decided to detain Petitioner until the canine unit arrived at the scene. At 11:25 a.m., the dispatcher reached the first available canine unit in the area.

At 11:45 a.m., Sergeant Turner arrived at the scene and assisted Trooper Hannon in placing stop sticks under Petitioner’s vehicle to prevent Petitioner from driving away. At 11:49 a.m., forty-two minutes after the initial stop, Trooper Terry Mik-esh, the canine unit handler, arrived at the scene. Trooper Mikesh testified that it took her twenty-four minutes to arrive at the scene due to traffic. While at the scene, the patrol canine alerted on the right seam of the vehicle’s passenger door. Thereafter, the officers conducted a pat-down of Chapman, the passenger, for weapons and illegal narcotics and discovered a large quantity of crack cocaine concealed under her clothing. After the search, Chapman stated that she was carrying the drugs for Petitioner, and as a result, the officers placed Petitioner under arrest for possessing more than 100 grams of crack cocaine in violation of R.C. § 2925.11.

DISCUSSION

A. Standard of Review

We review a district court’s denial of a writ for habeas relief de novo because the district court’s decision was based solely upon the record. See Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir.2000). A state court’s findings of fact are presumed to be correct and may only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Whether Petitioner was denied his right to effective assistance of counsel “is a mixed question of law and fact that we review de novo.” Hunt v. Mitchell, 261 F.3d 575, 580 (2001) (citing Olden v. United States, 224 F.3d 561, 565 (6th Cir.2000)). The controlling principle is “to apply a rule of law that was clearly established at the time Petitioner’s state court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The relevant date here is May 3, 2000, when the Ohio Supreme Court denied Petitioner’s motion to reopen the Ohio Court of Appeals’ decision.

Petitioner filed his habeas petition after April 4,1996, and therefore, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) apply. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, federal courts may not grant habeas relief for claims adjudicated on their merits in a state court proceeding, unless that state court proceeding:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

In Williams, the Supreme Court stated that a state court judgment is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court on a set of materially indistinguishable facts.” 529 U.S. at 412-13, 120 S.Ct. 1495. In such instances, the Supreme Court held that a federal habeas court may grant a writ. Id.

Moreover, the Supreme Court stated that under the “unreasonable application” clause, a state court judgment results in an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal rule from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Yet, the Supreme Court explained that a state court’s application of clearly established federal law must be “objectively unreasonable,” and a federal habeas court may not grant habeas relief “simply because that court concludes in its independent judgment that the relevant decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410-11, 120 S.Ct. 1495. A state court’s application of federal law is unreasonable and habeas relief may be granted if the “state court decision is so clearly incorrect that it would not be debatable among reasonable jurists.” Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996)).

Under Williams, we must initially review the state court decision as we find it. Under 28 U.S.C. § 2254(e)(1), we must accord a presumption to any “determination of a factual issue made by a state court.” Our standard of review does not permit us to speculate here as to what the state trial court may have done if an objection expressly citing and arguing Hensley had, in fact, been made nor can we speculate as to what the additional proof, if any, would have been, if the state prosecutor had attempted to comply with Hensley.

B. Petitioner’s Ineffective Assistance of Counsel Claims

Under the Sixth Amendment of the United States Constitution, “[i]t has long been recognized that the right to counsel is the right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The right to effective assistance of counsel exists “to protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court formulated a two-pronged test when examining an ineffective assistance of counsel claim. Id. at 691, 104 S.Ct. 2052. Under the first prong, a petitioner must “show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 687, 104 S.Ct. 2052. In a word, counsel’s performance must have been so deficient that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Id.

In determining whether counsel’s performance fell below an objective standard of reasonableness, a reviewing court “must not indulge in hindsight, but must evaluate the reasonableness of counsel’s performance within the context of the circumstances at the time of the alleged errors.” Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052. To be sure, there is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Thus, a reviewing court must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Counsel’s deficient performance alone, however, is insufficient to grant relief on a claim for ineffective assistance of counsel. Strickland’s second prong requires that counsel’s deficiency actually caused prejudice to Petitioner. For Strickland’s second prong, Petitioner must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

In Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the Supreme Court held as an exception to Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), that a claim of ineffective assistance of counsel can permissibly include a claim that trial counsel failed to litigate competently an issue under the Fourth Amendment. To obtain habeas relief, the Supreme Court stated that “[t]he [petitioner] must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice” under Strickland’s second prong. 477 U.S. at 375, 106 S.Ct. 2574. The Supreme Court further explained that the Fourth and Sixth Amendment claims have “separate identities and reflect different constitutional values,” and therefore must be analyzed separately. Id.

1. Deficient Performance of Trial Counsel Under Strickland

As to Strickland’s first prong, Petitioner contends that his trial counsel’s performance fell below the standard of reasonableness because trial counsel failed to challenge Petitioner’s contention that the state did not prove the factual basis for the “Read & Sign” information relied upon by Trooper Hannon to detain Petitioner, nor did trial counsel cite this deficiency in his post-hearing briefs or on direct appeal. The crux of Petitioner’s argument is that the prosecutor failed to establish a factual predicate for Trooper Hannon’s reliance on information in the “Read & Sign” book that was necessary to support Petitioner’s continued detention. In support of his claim, Petitioner relies upon Hensley, 469 U.S. at 232, 105 S.Ct. 675.

In Hensley, on December 4, 1981, two armed men robbed a tavern in St. Bernard, Ohio, a Cincinnati suburb. Id. at 223, 105 S.Ct. 675. A few days later, a St. Bernard police officer spoke with an informant who told the officer that Thomas Hensley had driven the getaway vehicle during the robbery. Id. The informant prepared a written statement to this effect and, as a result, the St. Bernard officer “immediately issued a 'wanted flyer’ to other police departments in the Cincinnati metropolitan area.” Id. The flyer listed the date and location of the robbery and cautioned that Hensley was armed and dangerous. Id. The flyer also stated “that Hensley was wanted for investigation of an aggravated robbery.” Id. Finally, the flyer gave a description of Hensley, and requested “other [police] departments to pick up and hold Hensley for the St. Bernard police” department. Id.

On December 10, 1991, the Covington Police Department headquarters, in another suburb of Cincinnati, received the “wanted flyer” and “read [the flyer] aloud at each change of shift.” Id. A few of the Covington police officers were familiar with Hensley and looked periodically for him where “he was known to frequent.” Id. On December 15, 1991, a Covington police officer observed Hensley driving a vehicle that was stopped in the middle of the street. Id. at 223-24, 105 S.Ct. 675. This officer instructed Hensley to move on, and as Hensley drove off, the officer contacted the dispatcher to determine if there were any outstanding warrants for Hensley. Id. at 224, 105 S.Ct. 675. Before the dispatcher answered, two other Covington police officers relayed “that there might be an Ohio robbery warrant outstanding on Hensley.” Id.

While the dispatcher verified whether Hensley had any outstanding warrants, two of the Covington police officers drove around in areas where Hensley stayed in an attempt to locate him. Id. At some point, one of the Covington police officers observed a white vehicle in one of these areas and approached the vehicle “with his service revolver drawn and pointed into the air.” Id. This officer instructed Hensley and the passenger to step out of the vehicle, and shortly thereafter a second officer arrived at the scene. Id. The second officer approached the passenger door and “observed the butt of & revolver protruding from underneath the passenger’s seat.” Id. The passenger was arrested, and the officers searched the vehicle and discovered two other handguns. Id. at , 105 S.Ct. 675. The officers then arrested Hensley. Id.

Hensley was eventually indicted for possession of a firearm as a convicted felon. Id. Hensley moved to suppress the handguns obtained pursuant to the search, arguing that his initial stop violated the Fourth Amendment. Id. The district court denied Hensley’s motion to suppress, and after conducting a bench trial, the district court convicted Hensley. Id. This Court reversed the conviction, holding that because the Covington police were unaware of the ongoing crime that led to the issuance of the flyer, they lacked reasonable suspicion to stop Hensley and perform an investigative detention as permitted under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Hensley, 469 U.S. at 224, 105 S.Ct. 675. The Supreme Court reversed.

The Supreme Court held that for a past crime, reliance upon a flyer or bulletin could justify “a stop to check identification, to pose questions to the person, or to detain the person briefly while attempting to obtain further information,” but only if the officer who issued the flyer or bulletin had “articulable facts supporting a reasonable suspicion that the person wanted ha[d] committed an offense.... ” Id. at 232, 105 S.Ct. 675 (citations omitted). The Supreme Court explained that when an officer objectively relied upon a flyer or bulletin to conduct a Terry stop, “the evidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying the stop.... ” Id. at 233, 105 S.Ct. 675 (emphasis added in the original and added in part). Similarly, for an actual arrest, the Supreme Court also held that “when evidence is uncovered during a search incident to an arrest in reliance merely on a flyer or bulletin, its admissibility turns on whether the officers who issued the flyer possessed probable cause to make the arrest.” Id. at 231, 105 S.Ct. 675 (emphasis in the original). In either instance, the Supreme Court explained that “[i]t does not turn on whether those relying on the flyer were themselves aware of the specific facts which led their colleagues to seek their assistance.” Id. at 231, 105 S.Ct. 675. The Supreme Court further explained that the stop must not be “more intrusive than would have been permitted the issuing department.” Id. at 231, 105 S.Ct. 675 (emphasis added).

As applied here, Trooper Hannon relied upon information from the “Read & Sign” book as the basis for his Terry stop of Petitioner. Thus, under Hensley, the issue of whether the evidence discovered during Petitioner’s stop is admissible turns on whether the officer who provided the information in the “Read & Sign” book had articulable facts supporting a reasonable suspicion that Petitioner was involved in criminal activity. Id. at 231, 105 S.Ct. 675.

Considering Hensley and the facts here, we conclude that a reasonable trial attorney would have raised the Hensley issue at trial. First, the Supreme Court decided Hensley in 1985, and at the time of Petitioner’s suppression hearing, Hensley was, and remains, clearly established law. Second, the specific facts here clearly give rise to a Hensley challenge. In Hensley, the Supreme Court considered whether a “wanted flyer” issued by a law enforcement agency that an individual was involved in a robbery can be relied upon by other law enforcement agencies to justify an investigative detention of that individual. The facts in Hensley are almost identical to the facts here in that the information from the “Read & Sign” book issued by the Columbus Police Department that Petitioner was a known drug courier, was relied upon by Trooper Hannon to request a canine unit and to conduct an investigative detention of Petitioner.

Here, at the suppression hearing, the state failed to offer any evidence from the officer who provided the information from the “Read & Sign” book that was relied upon by Trooper Hannon, the arresting trooper. Thus, the prosecution failed to comply with Hensley by failing to present proof that the officer who provided the information in the “Read & Sign” book had articulable facts to support a reasonable suspicion that Petitioner was involved in criminal activity. Without testimony from the officer who provided the information for the “Read & Sign” book, the record does not support the reasonableness of Trooper Hannon’s reliance on that report to detain Petitioner or to use the evidence obtained from Petitioner’s detention. Further, the State of Ohio has never contended that there exists a justifiable basis for the “Read & Sign.” The State has certainly not argued what the nature of the basis would be nor has it made any offers of proof regarding the basis. Thus, the facts here are clearly distinguishable from Hensley because the evidence is lacking to show that the officer, who provided the information for the “Read & Sign” book, had reasonable suspicion that Petitioner was a drug courier.

Although we agree with Respondent that Petitioner cannot second guess trial counsel’s strategy, there is nothing in the record to reflect that Petitioner’s trial counsel considered and declined to raise Hensley for strategic reasons.² Further, we cannot discern any strategic reason why Petitioner’s trial counsel would decline to raise this issue.

Respondent next argues that Hensley is limited to “initial stops,” but we disagree. Although the police flyer in Hensley was used to justify an initial stop, the Supreme Court in Hensley clearly held that its requirement expressly applies to both Terry stops and to searches incident to lawful arrests. 469 U.S. at 231, 105 S.Ct. 675 (stating, after its holding, that “Ei3t remains to apply the two sets of principles described above to the stop and subsequent arrest of respondent Hensley.”). We conclude that Hensley requires any police flyer relied upon for a Terry stop and to “further detain ” an individual, must be supported by articulable facts from the issuing officer to show reasonable suspicion that the individual has been involved in criminal activity. Accordingly, Respondent’s argument that Hensley is ¡limited to initial stops lacks merit.

Respondent next argues that the state court reasonably applied clearly established federal law in finding that Petitioner received effective assistance of trial counsel because Petitioner’s counsel vigorously argued his motion to suppress at the hearing. Further, Respondent cites the Ohio Court of Appeals’ conclusion that factors independent of the information in the “Read & Sign” book justified Trooper Hannon’s reasonable suspicion.

In our view, the Ohio Court of Appeals did not consider Hensley in either of its opinions. Second, the Ohio courts’ conclusion that other evidence existed to support a finding of reasonable suspicion for Petitioner’s detention independent of the information from the “Read & Sign” book, is a separate issue from Petitioner’s claim that a reasonable trial attorney would have raised the Hensley issue under the facts here. The Ohio courts’ finding of independent facts to support Petitioner’s detention relates to Strickland’s prejudice component, not to whether Petitioner’s trial counsel’s performance was deficient.

Given Hensley’s clear precedential authority as well as the unique factual similarities that exist between the investigative detention in Hensley and Petitioner’s detention, we conclude that a reasonable defense attorney would have raised the Hensley issue. Therefore, we conclude that Petitioner’s trial counsel’s performance fell below the objective standard of reasonableness under Strickland.

2. Deficient Performance of Appellate Counsel Under Strickland

As to Petitioner’s claim of ineffective assistance of appellate counsel, Petitioner asserts that his appellate counsel also failed to raise Hensley. A defendant is entitled to effective assistance of counsel in connection with a defendant’s first appeal of right. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Yet, appellate counsel need not raise every nonfrivolous argument on direct appeal. Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). To be sure, “ ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Jones, 463 U.S. at 751-52, 103 S.Ct. 3308). Appellate counsel, however, is required to exercise reasonable professional judgment. Jones, 463 U.S. at 753, 103 S.Ct. 3308. Nevertheless, “only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of [appellate] counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir.2002)(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986)).

The Ohio Rule of Criminal Procedure 52(B) provides that “[p]lain error or defects affecting substantial rights may be noticed [on appeal] although they were not brought to the attention of the [lower] court.” Ohio R.Crim. P. 52(B). Thus, Petitioner’s appellate counsel could have raised the Hensley claim on appeal, despite trial counsel’s failure to present the Hensley claim to the Ohio trial court. Given the wording of Ohio Rule 52(B) as well as our conclusion that Hensley is clearly applicable, we conclude that a reasonable appellate counsel would have raised Hensley in Petitioner’s first appeal. Therefore, we conclude that Petitioner’s appellate counsel’s performance fell below the objective standard of reasonableness under Strickland.

We must next consider whether Petitioner’s counsel’s performance prejudiced Petitioner under Strickland’s second prong.

S. Prejudice

As to Strickland’s prejudice component, Petitioner must show that there “is a [reasonable] probability sufficient to undermine confidence in the outcome and the fundamental fairness” of the trial. Strickland, 466 U.S. at 694, 104 S.Ct. 2062. In assessing this issue, we are also mindful that habeas relief may not be granted “simply because [we] conclude[ ] in [our] independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be [objectively] unreasonable.” Williams, 529 U.S. at 365, 120 S.Ct. 1495.

Under Hensley, without .the testimony of the officer who provided the information from the “Read & Sign” book that was relied upon to detain Petitioner further, the trial court could not admit the proof from the stop that resulted in Petitioner’s arrest. Clearly, the drug courier information from the “Read & Sign” book was the only fact justifying Trooper Hannon’s decision to request the canine unit that resulted in Petitioner’s extended detention. Further, the State of Ohio has never contended that there exists a justifiable basis for the “Read & Sign.” The State has certainly not argued what the nature of the basis would be nor has it made any offers of proof regarding the basis. Without the objective evidence to find reasonable suspicion giving rise to Petitioner’s continued detention, we conclude that Hensley bars the admissibility of the evidence seized at the scene of Petitioner’s arrest, including the drugs and his companion’s statement. Hensley clearly held that to admit the evidence from the stop, the police officer who actually issued the flyer must testify as to the specific facts underlying the report. Hensley, 469 U.S. at 233, 105 S.Ct. 675 (“Assuming the police make a Terry stop in objective reliance on a flyer or bulletin, we hold that evidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop.... ”).

In sum, the prejudice shown is that on this record, if the defense counsel had made a Hensley challenge, there would not be any facts to support Trooper Hannon’s detention of Petitioner. Thus, the evidence uncovered from the stop would have been inadmissible. Without the evidence from the stop, there is a substantial probability that Petitioner would not have been convicted. This prejudice satisfies Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) and Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000).

a. “Contrary To” Analysis

We next address Respondent’s argument that the Ohio Court of Appeals’ finding of an independent basis under Terry is sufficient to justify the trooper’s investigative detention of Petitioner. In sum, the Ohio Court of Appeals found that apart from the information from this “Read & Sign” book, other factors justified the trooper’s reasonable suspicion to detain Petitioner, namely: (1) the discrepancy in the rental car papers; (2) the “furtive movements” made by Petitioner and his companion during the traffic stop; (3) the illogical route given by Petitioner regarding his travel plans; and (4) Petitioner’s and his companion’s nervousness.

The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The Supreme Court noted that a traffic stop is lawful, provided there is probable cause to find that a traffic violation has occurred. Id. at 810, 116 S.Ct. 1769. Yet, once the traffic stop is completed, the occupants of the vehicle must be allowed to leave “unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention.” United States v. Mesa, 62 F.3d 159, 162 (6th Cir.1995).

In United States v. Sokolow, 490 U.S. 1, 12, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the Supreme Court stated that “[t]he reasonable-suspicion standard is ... applicable only to those brief detentions which fall short of being full-scale searches and seizures and which are necessitated by law enforcement exigencies such as the need to stop ongoing crimes, to prevent imminent crimes, and to protect law enforcement officers in highly charged situations.” (Emphasis added). Reasonable suspicion is based on the totality of the circumstances and must require “articulable reasons” and “a particularized and objective basis for suspecting the particular person ... of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

In determining reasonable suspicion, “[fjirst, a court must identify all of the relevant historical facts known to the officer at the time of the stop and search; and second, it must decide whether, under a standard of objective reasonableness, those facts would give rise to a reasonable suspicion justifying a stop or probable cause to search.” Ornelas v. United States, 517 U.S. 690, 700-01, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1978), the Supreme Court warned that “[t]o insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion ‘would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches....’” Id. (citing Terry, 392 U.S. at 22, 88 S.Ct. 1868).

We set forth these Fourth Amendment standards because Kimmelman clearly requires for this type of ineffective assistance of counsel claim, that we consider the underlying Fourth Amendment claims. Kimmelman, 477 U.S. at 375, 106 S.Ct. 2574.

As to the first fact cited by the Ohio Court of Appeals, Trooper Hannon conceded that within two minutes, his inquiry revealed that Petitioner was in lawful possession of the rental car. Yet, before Trooper Hannon made the inquiry about the discrepancy in the rental car papers, he had already decided to detain Petitioner and requested a canine inspection of the rental vehicle. In a word, from the state court record, the discrepancy in the rental car papers was not relied upon by Trooper Hannon to justify Petitioner’s continued detention. Thus, we conclude that the discrepancy of the rental car papers was not an independent factor that could have supported Trooper Hannon’s continued detention of Petitioner.

As to the second fact, i.e., furtive movements, the Ohio Court of Appeals found that “[Petitioner] and his passenger made furtive gestures and appeared increasingly nervous as the detention continued.” (J.A. at 104-05). To justify a Terry stop, the officer must “be able to point to specific and articulable facts” that support reasonable suspicion. Terry, 392 U.S. at 21, 88 S.Ct. 1868. The Ohio Court of Appeals’ use of the phrase “furtive gestures” is a characterization, not an independent fact. From our review, there is no objective evidence in this record that would support the trooper’s opinion upon which the Ohio Court of Appeals relied for its characterizations that Petitioner and his companion exhibited furtive gestures. The state trial record does not contain testimony that Petitioner or his companion moved their bodies or arms to conceal anything or to reach for any item.³ Further, we are unable to discern specific and articulable facts to support the trooper’s opinion that Petitioner made furtive gestures.⁴ If Petitioner and/or his companion had engaged in any “furtive gestures”, the troopers would have been justified in ordering Petitioner and his companion out of the vehicle and performing a cursory pat-down of Petitioner and his companion as permitted under Terry. See Pennsylvania v. Mimms, 434 U.S. 106, 111-12, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Yet, here, there is nothing in the record to reflect that Trooper Hannon performed a cursory pat-down of Petitioner or his companion after observing their behavior during the traffic stop. In fact, the troopers did not conduct a pat-down of the passenger until the canine patrol alerted on the seam of the passenger door of the rental car. To accept the trooper’s conclusory remark of nervousness and restlessness to establish the reasonable suspicion standard is contrary to Terry and Prouse because to do so results in reliance upon the trooper’s hunches.

Thus, upon our review of the record, the Ohio Court of Appeals’ finding of furtive gestures is not supported by objective facts, and cannot be an independent factor to justify Trooper Hannon’s continued detention of Petitioner. The only remaining factors articulated by the Ohio Court of Appeals to support its finding that Trooper Hannon had reasonable suspicion, are Petitioner’s and his companion’s nervousness and the illogical route Petitioner gave regarding his travel plans.

As to nervousness, the Supreme Court noted that “[o]ur cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)⁵ (emphasis added). For this proposition, the Supreme Court cited several of its decisions involving evasive efforts to escape detection at the Mexico border and airports. United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (“The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.”); Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) (“[T]he three confederates ... had spoken furtively to one another. One was twice overheard urging the others to ‘get out of here.’ Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion-”); Sokolow, 490 U.S. at 5, 8-9, 109 S.Ct. 1581 (noting that “[Respondent] appeared to be very nervous and was looking all around the waiting area,” but that “one taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor”).

The purpose of these quotations from the Supreme Court decisions is that “nervous, evasive behavior” is the standard to justify reasonable suspicion, not nervousness or .restlessness. Here, the trooper’s perception of Petitioner and his companion were not objective facts of “nervous, evasive behavior.” As to Petitioner’s travel route, while the route made no sense to the trooper, the route is not a fact suggestive of illegal conduct. Whether considered individually or collectively, Petitioner’s cited conduct could be perfectly consistent with innocent behavior, and we conclude that nervousness and illogical travel plans could not give rise to an “inference supporting a reasonable suspicion of criminal activity” to justify Petitioner’s continued detention. Florida v. Royer, 460 U.S. 491, 512, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (Brennan, J., concurring). Thus, Trooper Hannon’s continued detention of Petitioner was unreasonable under the Fourth Amendment and, as a result, the Ohio courts unreasonably denied Petitioner’s motion to suppress.

We conclude that the state court decision was “contrary to” clearly established Supreme Court precedent because Hensley clearly requires that where a police flyer is used to justify a police officer’s reasonable suspicion for a stop of the person, the state must present proof that the police officer who issued the flyer had reasonable suspicion to do so for evidence from the stop to be admissible. On this record, the state’s proof on the Hensley issue was clearly deficient. A reasonable counsel would have so argued on Petitioner’s behalf. Neither Petitioner’s trial nor .his appellate counsel cited Hensley to argue that the state did not meet its eviden-tiary burden, as required under Hensley. On this record, if the Hensley argument were made, the evidence from Petitioner’s stop would be inadmissible. “Assuming the police make a Terry stop in objective reliance on a flyer or bulletin, we hold that evidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop.” Hensley, 469 U.S. at 233, 105 S.Ct. 675 (emphasis added). Without the fruits of the Troopers’ detention and search, there is a substantial uncertainty as to whether Petitioner’s conviction can stand.

In addition, we believe that the state court decision was contrary to clearly established Supreme Court precedent because the state failed to meet its evidentiary burden by presenting proof that the officer who issued the “Read & Sign” had reasonable suspicion to do so, as required under Hensley. To hold otherwise would render Hensley meaningless.

The dissenting opinion lists several facts that were not found by the Ohio Court of Appeals and relies upon its independent review of the record to support its conclusion that Petitioner’s detention was reasonable under the Fourth Amendment. With the exception of the facts of an illogical route and the “Read & Sign”, the dissent’s additional facts include: (1) Trooper Hannon’s knowledge of a “highly interesting telephone conversation between his dispatcher and a police officer in Portsmouth;” (2) Petitioner’s and his companion’s suspicious behavior once backup arrived; (3) Trooper Hannon’s awareness of Petitioner’s criminal history; (4) notice by the Portsmouth detective that Petitioner might be armed and dangerous; and (5) the patrol dog alerting on the vehicle.

As to the telephone conversation between the dispatcher and a Portsmouth police officer as well as notice by the Portsmouth police department that Petitioner might be armed, and dangerous, the dissenting opinion notes that around 11:15 a.m., when Trooper Hannon was informed about the Read & Sign, the dispatcher promised Trooper Hannon that he would have a detective familiar with Petitioner call Trooper Hannon back. Yet, the record reflects that the detective did not call Trooper Hannon back until 11:48 a.m., one minute prior to the arrival of the drug-sniffing dogs. Even assuming that the detective provided Trooper Hannon with enough first-hand information to reach the level of reasonable suspicion (which is not apparent from the record), we conclude that Trooper Hannon was not entitled to detain Petitioner indefinitely while waiting on a telephone call from a detective who was “familiar” with Petitioner, in order to acquire sufficient reasonable suspicion. That is to say, the promise of potential future reasonable suspicion does not satisfy the demand for present (and continuing) reasonable suspicion.

As to Petitioner and his companion’s nervousness once backup arrived, the dissent notes that Petitioner and his companion displayed “constant activity in the vehicle” that Trooper Barnes described as looking backward to watch the police activity and staring at the officers. Yet, in our view, this behavior, as was articulated by Trooper Barnes, seems to be as consistent with innocence as with guilty. In a word, anyone who has been pulled over and detained for a certain length of time, only to see backup police arrive (with no explanation from the officers as to why) would, at the least, be curious as to the necessity for backup. We further note that none of the officers described excessive shaking, stammering, or attempts to conceal anything on the part of either vehicle occupant. Again, behavior that is consistent with innocent activity cannot suffice to establish reasonable suspicion. Royer, 460 U.S. at 512, 103 S.Ct. 1319.

As to Trooper Hannon’s awareness of Petitioner’s past criminal history, the dissent contends that this awareness, coupled with the other factors, gave rise to reasonable suspicion to detain Petitioner. We conclude, however, that this fact, by itself, does not create a reasonable suspicion that criminal activity is currently afoot, which is what the Supreme Court requires. Terry, 392 U.S. at 30, 88 S.Ct. 1868. We further note that although past criminal activity is a factor that can be taken into consideration, in this case it does not create reasonable suspicion when considered in tandem with Petitioner’s alleged nervousness, unarticulated furtive gestures, and “illogical” travel route. More importantly, the record reflects that Trooper Hannon did not learn of Petitioner’s past criminal history until 11:22 a.m. or 11:23 a.m., by which time Trooper Han-non had already verified that Petitioner was in lawful possession of the rental car and had already been detaining Petitioner without reasonable suspicion for quite some time.

Finally, the dissent also relies upon the patrol dog’s alert on the vehicle to conclude that reasonable suspicion existed to detain Petitioner. We concede that the patrol dog’s alert not only gave rise to reasonable suspicion, but also gave rise to probable cause for the police to then search Petitioner’s vehicle. Yet, the patrol dog did not alert on the vehicle until 11:49 a.m., and leading up to this point, reasonable suspicion did not exist when one considers the totality of the circumstances. Thus, in our view, the patrol dog’s alert on the vehicle does not satisfy the Fourth Amendment inquiry, if we are able to conclude that reasonable suspicion to detain Petitioner did not exist until the dog alerted on the vehicle.

Albeit in a probable cause context, a longstanding Supreme Court precedent is articulated in Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), wherein the Supreme Court stated that:

Whether [an] arrest [is] constitutionally valid depends in turn upon whether, at the moment the arrest [is] made, the officers ha[ve] probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they ha[ve] reasonably trustworthy information [a]re sufficient to warrant a prudent man in believing that the [suspect] ha[s] committed or [is] committing an offense.

Id. (citing Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). See also United States v. Nigro, 727 F.2d 100, 103 (6th Cir.1984)(“Probable cause has been defined repeatedly by the Supreme Court in terms of the facts and circumstances known to the officers at the time the decision is made to undertake an arrest or search.”)(citing Brinegar, 338 U.S. at 175-76, 69 S.Ct. 1302).

We find that these principles also apply in a reasonable suspicion context such that a reviewing court must look to the “facts and circumstances known to the officers at the time the decision is made to undertake a detention” of the suspect. Nigro, 727 F.2d at 103. Accordingly, while we have considered those factors enumerated by the dissent, in determining whether Trooper Hannon had reasonable suspicion to detain Petitioner, we primarily look to those “facts and circumstances known to [Trooper Hannon] at the time” he made the decision to detain Petitioner. Id. Yet, in our independent review of the state court record and under the totality of the circumstances of this case, those factors enumerated by the dissent, considered individually or collectively, still do not give rise to reasonable suspicion to justify Petitioner’s detention.

Nevertheless, in considering the factors relied upon by the dissent, we are still mindful that our focus is on whether the state court’s “decision was ‘contrary to’ or an ‘unreasonable application of [Supreme Court] clearly established precedents, or whether it was ‘based upon an unreasonable determination of the facts.’ ” Price v. Vincent, 538 U.S. -, 123 S.Ct. 1848, 1852, 155 L.Ed.2d 877 (2003). In this regard, we note that under Harris v. Stovall, 212 F.3d 940 (6th Cir.2000), where a state court fails to articulate its reasoning, “federal habeas courts are obligated to conduct an independent review of the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented.” Id. at 943 (citing Aycox v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir.1999)). Yet, any independent review that is conducted must remain deferential to the state court’s decision and cannot amount to a “full, de novo review of the claims.” Harris, 212 F.3d at 943. While Harris does not expressly preclude federal courts from conducting an independent review of the record when the state court articulates its reasoning, in evaluating habeas claims, federal courts must be careful not to engage in a de novo review. Price, ■ — ■ U.S. at-, 123 S.Ct. at 1852. Instead, under Price, federal courts are limited to evaluating habeas claims “through the lens of § 2254(d).” Id. See also Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir.2000) (finding a distinction between independent review of the record and a de novo review such that an independent review “does not ... independently ascertain whether, in its judgment, there has been a violation of the petitioner’s constitutional rights prior to determining whether the state court’s decision was reasonable.”).

Here, the Ohio Court of Appeals clearly articulated its factual findings and reasoning in denying Petitioner’s challenge to his conviction. While we are not precluded from engaging in an independent review of the state court record, we are prohibited from substituting our own independent judgment as to what we believe the state courts could and/or should have considered in reaching its conclusions. Nevertheless, our independent review of the state court record for clear error reveals that Trooper Hannon lacked a justifiable factual basis, in effect, to detain and/or arrest Petitioner.

b. “Unreasonable Application” Analysis

Under the “unreasonable application” clause of the AEDPA, we must compare the facts found by the Ohio Court of Appeals for its conclusion, to the applicable Supreme Court precedents. To be sure, the Ohio Court of Appeals’ express factual findings that supported Petitioner’s continued detention are namely (1) the discrepancy in Petitioner’s rental car papers; (2) Petitioner’s illogical route; and (3) Petitioner and his passenger made furtive gestures and appeared increasingly nervous.

First, we consider the Ohio Court of Appeals’ failures to consider Hensley to be an unreasonable application of clearly established Supreme Court precedents. Hensley is at the core of Petitioner’s Sixth Amendment claim, and Kimmelman requires its consideration. Second, we conclude that Petitioner’s detention could not be justified by the facts found by that court under relevant Supreme Court precedents. As to the “Read & Sign”, under Hensley, this information cannot be used to support whether Trooper Hannon had reasonable suspicion to detain Petitioner because the state failed to present proof that the officer who caused the entry of the “Read & Sign” had reasonable suspicion to do so. As to the fact of Petitioner’s illogical route, we conclude this fact, even when coupled with Petitioner’s appearance of nervousness, to be insufficient to give rise to reasonable suspicion to justify Petitioner’s continued detention. In light of these conclusions, the state court unreasonably applied clearly established Supreme Court precedent, which requires specific facts justifying reasonable suspicion of criminal conduct, Terry, 392 U.S. at 21, 88 S.Ct. 1868.

Our standard of review does not permit us to engage in a full scale de novo review, but an independent review of the state court record reflects that the critical facts to justify Petitioner’s detention here are those facts Trooper Hannon identified in his decision to detain Petitioner.

Q:In fact, Mr. Joshua was not free to leave from the time that you heard the information about the READ AND SIGN. Correct?

A:Correet.

Q: When was it after ... when did you check the rental car information after you made the decision that Mr. Joshua was not free to leave?

A: Once I found out about the READ AND SIGN information, that was the first time I looked at the rental papers. Q: So, actually you had made the decision that Mr. Joshua was not free to leave before you looked at the rental information?

A: Correct.

(J.A. at 128,129-30).

Under Supreme Court and our precedents, this testimony is the classic formulation for an arrest that requires probable cause. See Dunaway v. New York, 442 U.S. 200, 215-16, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); United States v. Obasa, 15 F.3d 603, 607 (6th Cir.1994) (“When police actions go beyond checking out the suspicious circumstances that led to the original stop, the detention becomes an arrest that must be supported by probable cause.”).

At that point, the only facts that Trooper Hannon possessed, apart from the “Read & Sign” information, was that Petitioner and his passenger appeared nervous and suspicious, and that Petitioner gave an illogical route. Thus, even if we were to undertake an independent review, this is the critical point of Petitioner’s detention, because this decision lead to the subsequent course of events resulting in the discovery of the evidence used against Petitioner to secure his conviction. At this point, however, Trooper Hannon lacked reasonable suspicion to detain Petitioner or probable cause to arrest Petitioner. Trooper Hannon actually did the latter.

From his testimony, Trooper Hannon lacked probable cause to arrest Petitioner. Dunaway, 442 U.S. at 215-16, 99 S.Ct. 2248. Petitioner was prejudiced by his counsel’s failure to raise the contention under Hensley, because without the information contained in the “Read & Sign,” Trooper Hannon lacked specific and objective facts to justify reasonable suspicion to detain Petitioner. The exclusion of the “Read & Sign” proof establishes a “reasonable probability that the result would have been different.” See Skaggs v. Parker, 235 F.3d 261 (6th Cir.2000).

In sum, we conclude that because Petitioner had a meritorious Fourth Amendment claim, Petitioner has shown prejudice due to his trial counsel’s deficient performance.⁶ Petitioner’s appellate counsel was also ineffective for failing to raise Hensley, given our conclusion that Petitioner would have been meritorious on his Fourth Amendment claim and that under Ohio law, Petitioner’s appellate counsel could have raised the Hensley issue on appeal.

On the prejudice issue, we recognize that in Arizona v. Evans, 514 U.S. 1, 3-4, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), the Supreme Court discussed Hensley and held that the facts there did not require the evidence seized in violation of Hensley to be excluded. In Evans, the Supreme Court held that the exclusionary rule did not require the suppression of evidence that was seized in violation of the Fourth Amendment where an officer relied upon a police record that was later determined to be erroneous due to omissions of court employees or sheriff office employees. 514 U.S. at 3-4, 5, 15, 115 S.Ct. 1185. The Supreme Court in Evans stated that “[t]he question whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Id. at 10, 115 S.Ct. 1185 (quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In a word, a successful Hensley challenge does not automatically compel the exclusion of evidence seized in violation of the Fourth Amendment; rather, “exclusion is appropriate only if the remedial objectives of the [exclusionary] rule are thought most efficaciously served.” 514 U.S. at 14, 115 S.Ct. 1185 (citing United States v. Calan-dra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)).

The exclusionary rule is a judicial remedy that operates “to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures,” as well as to maintain the integrity of the judicial process. Calandra, 414 U.S. at 348, 94 S.Ct. 613. The rule’s application is limited to those “instances where its remedial objectives are thought most efficaciously served.” Evans, 514 U.S. at 11, 115 S.Ct. 1185 (citing United States v. Leon, 468 U.S. 897, 908, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Yet, if “the exclusionary rule does not result in appreciable deterrence, then clearly, its use ... is unwarranted.” United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976).

We conclude that the remedial objectives of the exclusionary rule are “most efficaciously served” here because the evidence was seized due to an unlawful detention, and therefore should have been suppressed. While the historical purpose of the exclusionary rule is to deter police misconduct, in light of the prosecutor’s interest in the outcome of this case, we conclude that the exclusionary rule also serves to deter prosecutorial misconduct in its failure to comply with clearly established constitutional principles. Here, Hensley clearly required evidence from the police officers who provided the information in the “Read & Sign” book that those officers had reasonable suspicion to believe that Petitioner was involved in criminal activity. Consistent with Hensley, “a Terry stop in objective reliance on a flyer or bulletin, we hold that the evidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying the stop.” Hensley, 469 U.S. at 233, 105 S.Ct. 675 (emphasis added in the original and added in part). The prosecutor’s failure here was in circumstances in which the Ohio Court of Appeals believed the Hensley issue was implicitly raised. Failure to apply the exclusionary rule under these circumstances would render the Supreme Court’s clear holding in Hensley meaningless. The exclusionary rule’s application here would deter prosecutors from failing to present the necessary proof required by Hensley.

As to whether the exclusionary rule was properly applied here, we note that the exclusionary rule and the Fourth Amendment are designed to constrain state governments. This includes state prosecutors. The application of the exclusionary rule is appropriate given that Hensley, clearly applicable law, was violated. Moreover, Hensley focuses expressly on the requisite proof that the state must introduce in these circumstances. Here, the critical omission was the state prosecutor’s failure to establish at the suppression hearing whether the officer who issued the “Read & Sign” had reasonable suspicion to do so, as required under Hensley, clearly established Supreme Court precedent. If one of the purposes of the Fourth Amendment is to constrain state governments, the enforcement of the exclusionary rule here is well served by deterring prosecutors from failing to comply with clearly established constitutional principles, such as Hensley.7- The effect of our ruling on the state’s non-compliance with clearly established Supreme Court precedent is Petitioner’s retrial or release.

CONCLUSION

For the reasons set forth above, we REVERSE the district court’s denial of Petitioner’s petition for habeas relief because the state court judgment was objectively unreasonable and Petitioner was denied effective assistance of trial and appellate counsel. This action is REMANDED for further proceedings consistent with this opinion.

1 . Due to a videotape of Petitioner's detention and arrest, the precise timing of events was preserved.

2 . Even the dissent concedes that if Petitioner’s trial counsel had been familiar with Hensley, "he probably would {and should)” have raised this contention "in connection with the motion to suppress.” (Nelson, J., dissenting)(emphasis added). If Petitioner’s counsel should have raised the issue presented in Hensley, this would certainly demonstrate that counsel’s performance was, in fact, deficient under Strickland. Moreover, in light of the fact that the state court record does not reflect that Petitioner’s counsel even considered the issue presented in Hensley, Petitioner’s counsel’s failure to do so cannot be seen as "a legitimate defense tactic or strategy.” See Lyons v. Jackson, 299 F.3d 588, 598, n. 15 (6th Cir.2002)(citing Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)) (observing in the context of a guilty plea, that a defense counsel's failure “to consider, let alone notify the client of, a factor that could negate the entire benefit of the guilty plea is not within the range of professional norms” and "can never be a legitimate defense tactic or strategy.”).

3 . We note that when Trooper Mikesh, the canine unit handler, arrived at the scene and initially approached the vehicle, she observed Petitioner "trying to hide something or [as] if [Petitioner was] going to come out with a weapon, I don't know.” (J.A. at 160). Trooper Mikesh, however, did not arrive at the scene until 11:49 a.m., forty-two minutes after the initial stop. Thus, we conclude that in light of Trooper Mikesh’s late arrival upon the scene, her observations of Petitioner (that could be reasonably characterized as furtive moments), were not the basis for Trooper Hannon's continued detention of Petitioner and his companion. Therefore, Trooper Mik-esh’s observation cannot be considered as those furtive movements that the Ohio Court of Appeals relied upon as one of the factors, apart from the "Read & Sign” book, to support its finding that Trooper Hannon had reasonable suspicion to further detain Petitioner.

4 . In this regard, Trooper Hannon’s testimony at the suppression hearing was that "[o]nce Trooper Barnes arrived [at the scene], I witnessed nervousness and restlessness in the vehicle that I have never witnessed ... from occupants of a vehicle since I had been on the highway patrol.” (J.A. at 159). Yet, nervousness and restlessness is a far cry from furtive movements. Further, when Trooper Hannon testified that Petitioner and Chapman appeared nervous and restless, he did not articulate what Petitioner and Chapman were doing for Trooper Hannon to support his testimony. Thus, even if we were to consider this testimony as the basis for the state trial and appellate court's use of the phrase "furtive gestures”, we conclude that this testimony is not supported by specific and articu-lable facts which would support his opinion that Petitioner and Chapman appeared to be nervous and restless.

5 .Wardlow was decided on January 12, 2000, and is to be considered here because the final date of Petitioner's conviction is May 5, 2000.

6 . We note that the dissenting opinion contends that a Hensley challenge would not have altered the state trial court’s decision to deny Petitioner's motion to suppress because the state trial court concluded that Petitioner lacked standing to challenge the drug seized from and/or the statements by his companion. Yet, Hensley expressly provides that "[a]ssum-ing the police make a Terry stop in objective reliance on a flyer or bulletin, we hold that the evidence uncovered in the course of the stop is admissible if the police who issued the flyer possessed a reasonable suspicion justifying the stop Hensley 469 U.S. at 233, 105 S.Ct. 675. Hence, a Hensley challenge in this case would have compelled the granting of Petitioner motion to suppress because the state failed to prove that the officer who issued the flyer relied upon to detain Petitioner had reasonable suspicion to do so. Two Circuit Courts have interpreted Supreme Court precedents to support the proposition that all occupants of a vehicle have a right to challenge the illegality of the stop and/or detention. See United States v. Woodrum, 202 F.3d 1, 5-6 (1st Cir.2000) (citing Rakas v. Illinois, 439 U.S. 128, 138-39, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978))(holding that "each occupant of a car has a right to challenge the propriety of a traffic stop under the Fourth Amendment."). See also United States v. Erwin, 875 F.2d 268, 269, n. 2 (10t h Cir.1989) (citing Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963))("Even if defendant lacks standing to challenge the search of the car, if the initial stop was illegal, the seized contraband is subject to exclusion under the 'fruit of the poisonous tree' doctrine.”).

Here, given our conclusion that Petitioner’s detention was illegal, then, under Hensley, the evidence uncovered from the passenger and the search of her person is inadmissible. Because we conclude the detention to be unreasonable under the Fourth Amendment, Petitioner has standing to challenge any evidence obtained from that detention as fruit of the poisonous tree. Wong Sun, 371 U.S. at 484, 83 S.Ct. 407. Thus, we respectfully disagree with the dissenting opinion’s contention that the state trial court's decision would not have been changed if Petitioner's trial counsel raised a Hensley challenge.

7 . We note that the dissenting opinion contends that we are second guessing the judgment call of the state prosecutor, we respectfully disagree. Our ruling simply requires state prosecutors to comply with a constitutional rule of evidence that is necessary to establish the justification to detain or arrest a citizen. If the presentation of such proof were not required, the effect would be that the mere issuance of a flyer would constitute sufficient proof that an officer had a reasonable suspicion of criminal activity, contrary to Hensley.