Joshua v. DeWitt

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

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Joshua v. DeWitt No. 01-4118 ELECTRONIC CITATION: 2003 FED App. 0276P (6th Cir.) File Name: 03a0276p.06 O F F I C E O F T H E A T T O RN E Y G E N E R A L, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee. ON BRIEF: Siobhan R. Clovis, David H. UNITED STATES COURT OF APPEALS Bodiker, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE FOR THE SIXTH CIRCUIT ATTORNEY GENERAL, CORRECTIONS LITIGATION _________________ SECTION, Columbus, Ohio, for Appellee.

AARON JOSHUA, X HAYNES, D. J., delivered the opinion of the court. CLAY, Petitioner-Appellant, - J. (pp. 35-40), delivered a separate concurring opinion. - NELSON, J. (pp. 41-51), delivered a separate dissenting - No. 01-4118 opinion. v. - > _________________ , DON DE WITT, - Respondent-Appellee. - OPINION _________________ N Appeal from the United States District Court HAYNES, District Judge. Petitioner Aaron Joshua appeals for the Southern District of Ohio at Columbus. the district court’s order denying his petition for a writ of No. 00-00763—George C. Smith, District Judge. habeas corpus to set aside his conviction of possession of drugs by an Ohio court. Petitioner contends that he was Argued: January 28, 2003 denied effective assistance of trial and appellate counsel in that his trial and appellate counsel failed to challenge the Decided and Filed: August 7, 2003 arresting officer’s reliance upon a police flyer containing information that Petitioner was a drug courier. Petitioner Before: NELSON and CLAY, Circuit Judges; HAYNES, asserts that despite a clearly applicable Supreme Court District Judge.* precedent, United States v. Hensley, 469 U.S. 221 (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 COUNSEL activity. We REVERSE the district court’s denial of the writ and grant the writ subject to the state’s retrial of Petitioner. ARGUED: Siobhan R. Clovis, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. M. Scott Criss,

* The Honorable William J. Haynes, Jr., United States District Judge for the Middle District of Tennessee, sitting by designation.

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BACKGROUND detention," J.A. at 104, but did not discuss Hensley. The Ohio Court of Appeals also ruled that independent grounds A. Procedural History existed to justify Petitioner’s detention that resulted in the discovery of the drugs. Petitioner then filed a timely appeal On March 13, 1998, the Ross County, Ohio grand jury to the Ohio Supreme Court, contending that the Ohio Court indicted Petitioner for one count of possession of crack of Appeals misconstrued or ignored Petitioner’s claim that cocaine in excess of 100 grams in violation of Ohio Revised Petitioner’s appellate counsel was ineffective. On May 3, Code (R.C.) § 2925.11. Count one included a separate 2000, the Ohio Supreme Court dismissed the appeal for want specification under R.C. § 2941.1410 that charged Petitioner of a substantial constitutional question. as a major drug offender. Petitioner’s trial counsel filed a motion to suppress the fruits of the search conducted by state On July 5, 2000, Petitioner filed his petition for writ of highway troopers, which yielded 100 grams of cocaine and habeas corpus in district court, asserting that both his trial and the passenger’s statement that implicated Petitioner’s guilt. appellate counsel were ineffective for failing to challenge the Petitioner’s counsel asserted, in essence, that the length of the factual basis of the police flyer that the arresting officer relied traffic stop alone violated Petitioner’s Fourth Amendment upon to conduct the investigative detention of Petitioner after rights under the United States Constitution. The state trial his traffic stop. The district court denied the petition for court denied the motion to suppress and Petitioner entered a habeas relief, but issued a certificate of appealability. In sum, plea of nolo contendere. The state trial court sentenced the district court held that the Ohio Court of Appeals’ Petitioner to ten years in prison. application of clearly established federal law was not objectively unreasonable in finding that Petitioner was not Petitioner filed a timely direct appeal with the Ohio Court denied effective assistance of trial counsel, because there of Appeals, asserting four claims of error, including that the were "alternate grounds justifying [P]etitioner’s detention." state trial court erred in denying Petitioner’s suppression (J.A. at 172). The district court further held that the Ohio motion because Petitioner’s stop was unconstitutional by Court of Appeals’ finding that Petitioner was not denied virtue of its duration, i.e., forty-two minutes. The Ohio Court effective assistance of appellate counsel was not objectively of Appeals affirmed the state trial court’s denial of unreasonable, because "the issue of [P]etitioner’s detention Petitioner’s motion to suppress and Petitioner’s conviction. was squarely presented for both the trial and appellate courts to review." (J.A. at 173). The district court did not discuss Petitioner then filed an application with the Ohio Court of Hensley. Appeals to reopen his direct appeal, arguing, in sum: (1) that the trial court erred because the state failed to establish the B. Facts factual predicate for the dispatch that led to Petitioner’s further detention and (2) that his counsel was ineffective for The state suppression hearing transcript reflects that on failing to pursue this deficiency in the state’s case in the post- March 2, 1998, at 11:07 a.m.1, Petitioner was traveling hearing briefs and on appeal. On January 11, 2000, the Ohio southbound on State Route 104 in a rental car when Trooper 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 1 raised the issue of whether the dispatch justified the Due to a videotape of Petitioner’s detention and arrest, the precise timing of events was preserved. No. 01-4118 Joshua v. DeWitt 5 6 Joshua v. DeWitt No. 01-4118

James Hannon, with the Ohio Highway Patrol, executed a to leave based upon the information from the "Read & Sign" traffic stop for speeding. According to Trooper Hannon, his book. When asked at the suppression hearing whether he radar revealed that Petitioner was traveling sixty-seven miles could verify the information in the "Read & Sign" book, per hour in a fifty-five mile per hour speed zone. Petitioner Trooper Barnes answered, "No. No." (J.A. at 148). was traveling from Columbus to Portsmouth, Ohio, and was accompanied by Gabriella Chapman and her infant child. As At 11:15 a.m., the dispatcher called the Columbus Police Trooper Hannon approached the vehicle, he noticed that Department to determine if Petitioner had any outstanding Petitioner and Chapman were acting nervous and suspicious. warrants, and was informed that Petitioner did not. At 11:17 Trooper Hannon asked Petitioner for "his license, registration a.m., Trooper Barnes arrived at the scene and, at this time, and proof of insurance." (J.A. at 150). Petitioner gave Trooper Hannon observed Petitioner and Chapman being Trooper Hannon his driver’s license and rental car papers. nervous and restless. After he was informed that Petitioner Prior to returning to his patrol car to conduct a status check of was a known drug courier, Trooper Hannon examined the Petitioner’s driver’s license, Trooper Hannon questioned rental car papers and discovered that the rental car papers did Petitioner about his travel plans. Trooper Hannon’s suspicion not match the vehicle that Petitioner occupied. At 11:20 a.m., increased when Petitioner described his route between Trooper Hannon asked the dispatcher to contact Enterprise Columbus and Portsmouth, because, according to Trooper rental car company to determine if Petitioner were in lawful Hannon, the route described by Petitioner "didn’t make any possession of the rental vehicle. By 11:22 a.m., Trooper sense what so ever." (J.A. at 151). Hannon learned that Enterprise reported Petitioner to be in lawful possession of the vehicle, but Trooper Hannon decided At 11:10 a.m., Trooper Hannon returned to his patrol car to to detain Petitioner until the canine unit arrived at the scene. run a status check on Petitioner’s driver’s license and to At 11:25 a.m., the dispatcher reached the first available determine if there were any outstanding warrants against canine unit in the area. Petitioner. A dispatcher informed Trooper Hannon that Petitioner did not have any outstanding warrants. Another At 11:45 a.m., Sergeant Turner arrived at the scene and Trooper, Terrell Barnes, overheard the exchange between the assisted Trooper Hannon in placing stop sticks under dispatcher and Trooper Hannon, and directed the dispatcher’s Petitioner’s vehicle to prevent Petitioner from driving away. attention to an entry in the station’s "Read and Sign" book. At 11:49 a.m., forty-two minutes after the initial stop, (J.A. at 145). Trooper Terry Mikesh, the canine unit handler, arrived at the scene. Trooper Mikesh testified that it took her twenty-four This "Read & Sign" book contains police intelligence minutes to arrive at the scene due to traffic. While at the information. As to Petitioner, the "Read and Sign" book scene, the patrol canine alerted on the right seam of the reflected an entry from a Columbus Police Department report vehicle’s passenger door. Thereafter, the officers conducted that Petitioner was a known drug courier who transported a pat-down of Chapman, the passenger, for weapons and illegal narcotics between Columbus and Portsmouth. The illegal narcotics and discovered a large quantity of crack dispatcher then relayed this information to Trooper Hannon cocaine concealed under her clothing. After the search, and, as a result, Trooper Hannon advised the dispatcher to Chapman stated that she was carrying the drugs for Petitioner, send a canine unit to the scene. The dispatcher attempted and as a result, the officers placed Petitioner under arrest for immediately to contact a canine unit in the area. In the possessing more than 100 grams of crack cocaine in violation interim, Trooper Hannon decided that Petitioner was not free of R.C. § 2925.11. No. 01-4118 Joshua v. DeWitt 7 8 Joshua v. DeWitt No. 01-4118

DISCUSSION In Williams, the Supreme Court stated that a state court judgment is "contrary to" clearly established federal law "if A. Standard of Review the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state We review a district court’s denial of a writ for habeas court decides a case differently than [the Supreme] Court on relief de novo because the district court’s decision was based a set of materially indistinguishable facts." 529 U.S. at 412- solely upon the record. See Wolfe v. Brigano, 232 F.3d 499, 13. In such instances, the Supreme Court held that a federal 501 (6th Cir. 2001). A state court’s findings of fact are habeas court may grant a writ. Id. presumed to be correct and may only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Whether Moreover, the Supreme Court stated that under the Petitioner was denied his right to effective assistance of "unreasonable application" clause, a state court judgment counsel "is a mixed question of law and fact that we review results in an "unreasonable application" of clearly established de novo." Hunt v. Mitchell, 261 F.3d 575, 580 (2001) (citing federal law "if the state court identifies the correct governing Olden v. United States, 224 F.3d 561, 565 (6th Cir. 2000)). legal rule from [the Supreme] Court’s decisions but The controlling principle is "to apply a rule of law that was unreasonably applies that principle to the facts of the clearly established at the time Petitioner’s state court prisoner’s case." Id. at 413. Yet, the Supreme Court conviction became final." Williams v. Taylor, 529 U.S. 362, explained that a state court’s application of clearly established 390 (2000). The relevant date here is May 3, 2000, when the federal law must be "objectively unreasonable," and a federal Ohio Supreme Court denied Petitioner’s motion to reopen the habeas court may not grant habeas relief "simply because that Ohio Court of Appeals’ decision. court concludes in its independent judgment that the relevant decision applied clearly established federal law erroneously Petitioner filed his habeas petition after April 4, 1996, and or incorrectly. Rather, that application must also be therefore, the provisions of the Antiterrorism and Effective unreasonable." Id. at 410-11. A state court’s application of Death Penalty Act of 1996 ("AEDPA") apply. Lindh v. federal law is unreasonable and habeas relief may be granted Murphy, 521 U.S. 320, 336 (1997). Under the AEDPA, if the "state court decision is so clearly incorrect that it would federal courts may not grant habeas relief for claims not be debatable among reasonable jurists." Herbert v. Billy, adjudicated on their merits in a state court proceeding, unless 160 F.3d 1131, 1135 (6th Cir. 1998) (quoting Drinkard v. that state court proceeding: Johnson, 97 F.3d 751, 769 (5th Cir. 1996)). (1) resulted in a decision that was contrary to, or Under Williams, we must initially review the state court involved an unreasonable application of, clearly decision as we find it. Under 28 U.S.C. § 2254(e)(1), we established Federal law, as determined by the Supreme must accord a presumption to any "determination of a factual Court of the United States; or 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 (2) resulted in a decision that was based on an have done if an objection expressly citing and arguing unreasonable determination of the facts in light of the Hensley had, in fact, been made nor can we speculate as to evidence presented in the State court proceeding. what the additional proof, if any, would have been, if the state prosecutor had attempted to comply with Hensley. 28 U.S.C. § 2254(d). No. 01-4118 Joshua v. DeWitt 9 10 Joshua v. DeWitt No. 01-4118

B. Petitioner’s Ineffective Assistance of Counsel Claims "there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have Under the Sixth Amendment of the United States been different." Id. at 694. "A reasonable probability is a Constitution, "[i]t has long been recognized that the right to probability sufficient to undermine confidence in the counsel is the right to effective assistance of counsel." outcome." Id. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). The right to effective assistance of counsel exists "to protect the In Kimmelman v. Morrison, 477 U.S. 365, 375 (1986), the fundamental right to a fair trial." Strickland v. Washington, Supreme Court held as an exception to Stone v. Powell, 428 466 U.S. 668, 684 (1984). In Strickland, the Supreme Court U.S. 465 (1976), that a claim of ineffective assistance of formulated a two-pronged test when examining an ineffective counsel can permissibly include a claim that trial counsel assistance of counsel claim. Id. at 691. Under the first prong, failed to litigate competently an issue under the Fourth a petitioner must "show that counsel’s representation fell Amendment. To obtain habeas relief, the Supreme Court below an objective standard of reasonableness." Id. at 687. stated that "[t]he [petitioner] must also prove that his Fourth In a word, counsel’s performance must have been so deficient Amendment claim is meritorious and that there is a that counsel was not functioning as the "counsel" guaranteed reasonable probability that the verdict would have been the defendant by the Sixth Amendment. Id. different absent the excludable evidence in order to demonstrate actual prejudice" under Strickland’s second In determining whether counsel’s performance fell below prong. 477 U.S. at 375. The Supreme Court further an objective standard of reasonableness, a reviewing court explained that the Fourth and Sixth Amendment claims have "must not indulge in hindsight, but must evaluate the "separate identities and reflect different constitutional values," reasonableness of counsel’s performance within the context and therefore must be analyzed separately. Id. of the circumstances at the time of the alleged errors." Strickland, 466 U.S. at 689-90. To be sure, there is "a strong 1. Deficient Performance of Trial Counsel Under presumption that counsel's conduct falls within the wide range Strickland of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the As to Strickland’s first prong, Petitioner contends that his circumstances, the challenged action ‘might be considered trial counsel’s performance fell below the standard of sound trial strategy.’" Id. at 689 (quoting Michel v. Louisiana, reasonableness because trial counsel failed to challenge 350 U.S. 91, 101 (1955)). Thus, a reviewing court must make Petitioner’s contention that the state did not prove the factual every effort "to eliminate the distorting effects of hindsight, basis for the "Read & Sign" information relied upon by to reconstruct the circumstances of counsel's challenged Trooper Hannon to detain Petitioner, nor did trial counsel cite conduct, and to evaluate the conduct from counsel's this deficiency in his post-hearing briefs or on direct appeal. perspective at the time.’" Strickland, 466 U.S. at 689. The crux of Petitioner’s argument is that the prosecutor failed to establish a factual predicate for Trooper Hannon’s reliance Counsel’s deficient performance alone, however, is on information in the "Read & Sign" book that was necessary insufficient to grant relief on a claim for ineffective assistance to support Petitioner’s continued detention. In support of his of counsel. Strickland’s second prong requires that counsel’s claim, Petitioner relies upon Hensley, 469 U.S. at 232. deficiency actually caused prejudice to Petitioner. For Strickland’s second prong, Petitioner must demonstrate that No. 01-4118 Joshua v. DeWitt 11 12 Joshua v. DeWitt No. 01-4118

In Hensley, on December 4, 1981, two armed men robbed a second officer arrived at the scene. Id. The second officer a tavern in St. Bernard, Ohio, a Cincinnati suburb. Id. at 223. approached the passenger door and "observed the butt of a A few days later, a St. Bernard police officer spoke with an revolver protruding from underneath the passenger’s seat." informant who told the officer that Thomas Hensley had Id. The passenger was arrested, and the officers searched the driven the getaway vehicle during the robbery. Id. The vehicle and discovered two other handguns. Id. at 225. The informant prepared a written statement to this effect and, as officers then arrested Hensley. Id. a result, the St. Bernard officer "immediately issued a ‘wanted flyer’ to other police departments in the Cincinnati Hensley was eventually indicted for possession of a firearm metropolitan area." Id. The flyer listed the date and location as a convicted felon. Id. Hensley moved to suppress the of the robbery and cautioned that Hensley was armed and handguns obtained pursuant to the search, arguing that his dangerous. Id. The flyer also stated "that Hensley was initial stop violated the Fourth Amendment. Id. The district wanted for investigation of an aggravated robbery." Id. court denied Hensley’s motion to suppress, and after Finally, the flyer gave a description of Hensley, and requested conducting a bench trial, the district court convicted Hensley. "other [police] departments to pick up and hold Hensley for Id. This Court reversed the conviction, holding that because the St. Bernard police" department. Id. the Covington police were unaware of the ongoing crime that led to the issuance of the flyer, they lacked reasonable On December 10, 1991, the Covington Police Department suspicion to stop Hensley and perform an investigative headquarters, in another suburb of Cincinnati, received the detention as permitted under Terry v. Ohio, 392 U.S. 1 "wanted flyer" and "read [the flyer] aloud at each change of (1968). Hensley, 469 U.S. at 224. The Supreme Court shift." Id. A few of the Covington police officers were reversed. familiar with Hensley and looked periodically for him where "he was known to frequent." Id. On December 15, 1991, a The Supreme Court held that for a past crime, reliance upon Covington police officer observed Hensley driving a vehicle a flyer or bulletin could justify "a stop to check identification, that was stopped in the middle of the street. Id. at 223-24. to pose questions to the person, or to detain the person briefly This officer instructed Hensley to move on, and as Hensley while attempting to obtain further information," but only if drove off, the officer contacted the dispatcher to determine if the officer who issued the flyer or bulletin had "articulable there were any outstanding warrants for Hensley. Id. at 224. facts supporting a reasonable suspicion that the person wanted Before the dispatcher answered, two other Covington police ha[d] committed an offense . . . ." Id. at 232 (citations officers relayed "that there might be an Ohio robbery warrant omitted). The Supreme Court explained that when an officer outstanding on Hensley." Id. objectively relied upon a flyer or bulletin to conduct a Terry stop, "the evidence uncovered in the course of the stop is While the dispatcher verified whether Hensley had any admissible if the police who issued the flyer or bulletin outstanding warrants, two of the Covington police officers possessed a reasonable suspicion justifying the stop . . . ." Id. drove around in areas where Hensley stayed in an attempt to at 233 (emphasis added in the original and added in part). locate him. Id. At some point, one of the Covington police Similarly, for an actual arrest, the Supreme Court also held officers observed a white vehicle in one of these areas and that "when evidence is uncovered during a search incident to approached the vehicle "with his service revolver drawn and an arrest in reliance merely on a flyer or bulletin, its pointed into the air." Id. This officer instructed Hensley and admissibility turns on whether the officers who issued the the passenger to step out of the vehicle, and shortly thereafter flyer possessed probable cause to make the arrest." Id. at 231 No. 01-4118 Joshua v. DeWitt 13 14 Joshua v. DeWitt No. 01-4118

(emphasis in the original). In either instance, the Supreme officer who provided the information in the "Read & Sign" Court explained that "[i]t does not turn on whether those book had articulable facts to support a reasonable suspicion relying on the flyer were themselves aware of the specific that Petitioner was involved in criminal activity. Without facts which led their colleagues to seek their assistance." Id. testimony from the officer who provided the information for at 231. The Supreme Court further explained that the stop the "Read & Sign" book, the record does not support the must not be "more intrusive than would have been permitted reasonableness of Trooper Hannon’s reliance on that report to the issuing department." Id. at 231 (emphasis added). detain Petitioner or to use the evidence obtained from Petitioner’s detention. Further, the State of Ohio has never As applied here, Trooper Hannon relied upon information contended that there exists a justifiable basis for the "Read & from the "Read & Sign" book as the basis for his Terry stop Sign." The State has certainly not argued what the nature of of Petitioner. Thus, under Hensley, the issue of whether the the basis would be nor has it made any offers of proof evidence discovered during Petitioner’s stop is admissible regarding the basis. Thus, the facts here are clearly turns on whether the officer who provided the information in distinguishable from Hensley because the evidence is lacking the "Read & Sign" book had articulable facts supporting a to show that the officer, who provided the information for the reasonable suspicion that Petitioner was involved in criminal "Read & Sign" book, had reasonable suspicion that Petitioner activity. Id. at 231. was a drug courier. Considering Hensley and the facts here, we conclude that Although we agree with Respondent that Petitioner cannot a reasonable trial attorney would have raised the Hensley second guess trial counsel’s strategy, there is nothing in the issue at trial. First, the Supreme Court decided Hensley in record to reflect that Petitioner’s trial counsel considered and 1985, and at the time of Petitioner’s suppression hearing, declined to raise Hensley for strategic reasons.2 Further, we Hensley was, and remains, clearly established law. Second, cannot discern any strategic reason why Petitioner’s trial the specific facts here clearly give rise to a Hensley challenge. counsel would decline to raise this issue. 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 2 that individual. The facts in Hensley are almost identical to Even the dissent concedes that if Petitioner’s trial counsel had been familiar with Hensley, "he p robably wo uld (and shou ld)" have raised this the facts here in that the information from the "Read & Sign" contention "in connection with the motion to suppress." (N elson, J., book issued by the Columbus Police Department that dissenting)(em phasis added). If P etitioner’s counsel should have raised Petitioner was a known drug courier, was relied upon by the issue presented in Hensley, this would certainly demonstrate that Trooper Hannon to request a canine unit and to conduct an counsel’s performance was, in fact, deficient under Strickland. Moreover, investigative detention of Petitioner. 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 canno t be see n as “a legitimate Here, at the suppression hearing, the state failed to offer defense tactic or strategy.” See Lyons v. Jackson, 299 F.3d 588, 598, n.15 any evidence from the officer who provided the information (6th Cir. 20 02)(citing Bell v. Cone, 535 U.S. 685 (2002)) (observing in from the "Read & Sign" book that was relied upon by Trooper the context of a guilty plea, that a defense counsel’s failure “to consider, Hannon, the arresting trooper. Thus, the prosecution failed to let alone notify the client of, a factor that could negate the entire bene fit comply with Hensley by failing to present proof that the of the guilty plea is not within the range of professional norms” and “can never be a legitimate defense tactic or strategy.”). No. 01-4118 Joshua v. DeWitt 15 16 Joshua v. DeWitt No. 01-4118

Respondent next argues that Hensley is limited to "initial that a reasonable defense attorney would have raised the stops," but we disagree. Although the police flyer in Hensley Hensley issue. Therefore, we conclude that Petitioner’s trial was used to justify an initial stop, the Supreme Court in counsel’s performance fell below the objective standard of Hensley clearly held that its requirement expressly applies to reasonableness under Strickland. both Terry stops and to searches incident to lawful arrests. 469 U.S. at 231 (stating, after its holding, that “[i]t remains to 2. Deficient Performance of Appellate Counsel Under apply the two sets of principles described above to the stop Strickland and subsequent arrest of respondent Hensley.”). We conclude that Hensley requires any police flyer relied upon for a Terry As to Petitioner’s claim of ineffective assistance of stop and to "further detain" an individual, must be supported appellate counsel, Petitioner asserts that his appellate counsel by articulable facts from the issuing officer to show also failed to raise Hensley. A defendant is entitled to reasonable suspicion that the individual has been involved in effective assistance of counsel in connection with a criminal activity. Accordingly, Respondent’s argument that defendant’s first appeal of right. Evitts v. Lucey, 469 U.S. Hensley is limited to initial stops lacks merit. 387, 396 (1985). Yet, appellate counsel need not raise every nonfrivolous argument on direct appeal. Jones v. Barnes, 463 Respondent next argues that the state court reasonably U.S. 745, 751-52 (1983). To be sure, "‘winnowing out applied clearly established federal law in finding that weaker arguments on appeal and focusing on’ those more Petitioner received effective assistance of trial counsel likely to prevail, far from being evidence of incompetence, is because Petitioner’s counsel vigorously argued his motion to the hallmark of effective appellate advocacy." Smith v. suppress at the hearing. Further, Respondent cites the Ohio Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S. Court of Appeals’ conclusion that factors independent of the at 751-52). Appellate counsel, however, is required to information in the "Read & Sign" book justified Trooper exercise reasonable professional judgment. Jones, 463 U.S. Hannon’s reasonable suspicion. at 753. Nevertheless, "only when ignored issues are clearly stronger than those presented, will the presumption of In our view, the Ohio Court of Appeals did not consider effective assistance of [appellate] counsel be overcome." Hensley in either of its opinions. Second, the Ohio courts’ Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002)(quoting conclusion that other evidence existed to support a finding of Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). reasonable suspicion for Petitioner’s detention independent of the information from the "Read & Sign" book, is a separate The Ohio Rule of Criminal Procedure 52(B) provides that issue from Petitioner’s claim that a reasonable trial attorney "[p]lain error or defects affecting substantial rights may be would have raised the Hensley issue under the facts here. The noticed [on appeal] although they were not brought to the Ohio courts’ finding of independent facts to support attention of the [lower] court." Ohio R. Crim. P. 52(B). Petitioner’s detention relates to Strickland’s prejudice Thus, Petitioner’s appellate counsel could have raised the component, not to whether Petitioner’s trial counsel’s Hensley claim on appeal, despite trial counsel’s failure to performance was deficient. present the Hensley claim to the Ohio trial court. Given the wording of Ohio Rule 52(B) as well as our conclusion that Given Hensley’s clear precedential authority as well as the Hensley is clearly applicable, we conclude that a reasonable unique factual similarities that exist between the investigative appellate counsel would have raised Hensley in Petitioner’s detention in Hensley and Petitioner’s detention, we conclude first appeal. Therefore, we conclude that Petitioner’s No. 01-4118 Joshua v. DeWitt 17 18 Joshua v. DeWitt No. 01-4118

appellate counsel’s performance fell below the objective 233 (“Assuming the police make a Terry stop in objective standard of reasonableness under Strickland. reliance on a flyer or bulletin, we hold that evidence uncovered in the course of the stop is admissible if the police We must next consider whether Petitioner’s counsel’s who issued the flyer or bulletin possessed a reasonable performance prejudiced Petitioner under Strickland’s second suspicion justifying a stop . . . ."). prong. In sum, the prejudice shown is that on this record, if the 3. Prejudice defense counsel had made a Hensley challenge, there would not be any facts to support Trooper Hannon’s detention of As to Strickland’s prejudice component, Petitioner must Petitioner. Thus, the evidence uncovered from the stop would show that there "is a [reasonable] probability sufficient to have been inadmissible. Without the evidence from the stop, undermine confidence in the outcome and the fundamental there is a substantial probability that Petitioner would not fairness" of the trial. Strickland, 466 U.S. at 694. In have been convicted. This prejudice satisfies Brecht v. assessing this issue, we are also mindful that habeas relief Abrahamson, 507 U.S. 619, 637 (1993) and Skaggs v. Parker, may not be granted "simply because [we] conclude[] in [our] 235 F.3d 261 (6th Cir. 2000). independent judgment that the relevant state court decision applied clearly established federal law erroneously or a. “Contrary To” Analysis incorrectly. Rather, that application must also be [objectively] unreasonable." Williams, 529 U.S. at 365. We next address Respondent’s argument that the Ohio Court of Appeals’ finding of an independent basis under Under Hensley, without the testimony of the officer who Terry is sufficient to justify the trooper’s investigative provided the information from the "Read & Sign" book that detention of Petitioner. In sum, the Ohio Court of Appeals was relied upon to detain Petitioner further, the trial court found that apart from the information from this "Read & could not admit the proof from the stop that resulted in Sign" book, other factors justified the trooper’s reasonable Petitioner’s arrest. Clearly, the drug courier information from suspicion to detain Petitioner, namely: (1) the discrepancy in the "Read & Sign" book was the only fact justifying Trooper the rental car papers; (2) the "furtive movements" made by Hannon’s decision to request the canine unit that resulted in Petitioner and his companion during the traffic stop; (3) the Petitioner’s extended detention. Further, the State of Ohio illogical route given by Petitioner regarding his travel plans; has never contended that there exists a justifiable basis for the and (4) Petitioner’s and his companion’s nervousness. "Read & Sign." The State has certainly not argued what the nature of the basis would be nor has it made any offers of The Fourth Amendment to the United States Constitution proof regarding the basis. Without the objective evidence to guarantees “[t]he right of the people to be secure in their find reasonable suspicion giving rise to Petitioner’s continued persons, houses, papers, and effects, against unreasonable detention, we conclude that Hensley bars the admissibility of searches and seizures." Whren v. United States, 517 U.S. 806, the evidence seized at the scene of Petitioner’s arrest, 810 (1996). The Supreme Court noted that a traffic stop is including the drugs and his companion’s statement. Hensley lawful, provided there is probable cause to find that a traffic clearly held that to admit the evidence from the stop, the violation has occurred. Id. at 810. Yet, once the traffic stop police officer who actually issued the flyer must testify as to is completed, the occupants of the vehicle must be allowed to the specific facts underlying the report. Hensley, 469 U.S. at leave “unless something that occurred during the traffic stop No. 01-4118 Joshua v. DeWitt 19 20 Joshua v. DeWitt No. 01-4118

generated the necessary reasonable suspicion to justify a As to the first fact cited by the Ohio Court of Appeals, further detention." United States v. Mesa, 62 F.3d 159, 162 Trooper Hannon conceded that within two minutes, his (6th Cir. 1995). inquiry revealed that Petitioner was in lawful possession of the rental car. Yet, before Trooper Hannon made the inquiry In United States v. Sokolow, 490 U.S. 11, 12 (1989), the about the discrepancy in the rental car papers, he had already Supreme Court stated that "[t]he reasonable-suspicion decided to detain Petitioner and requested a canine inspection standard is . . . applicable only to those brief detentions which of the rental vehicle. In a word, from the state court record, fall short of being full-scale searches and seizures and which the discrepancy in the rental car papers was not relied upon by are necessitated by law enforcement exigencies such as the Trooper Hannon to justify Petitioner’s continued detention. need to stop ongoing crimes, to prevent imminent crimes, and Thus, we conclude that the discrepancy of the rental car to protect law enforcement officers in highly charged papers was not an independent factor that could have situations.” (Emphasis added). Reasonable suspicion is supported Trooper Hannon’s continued detention of based on the totality of the circumstances and must require Petitioner. "articulable reasons" and "a particularized and objective basis for suspecting the particular person . . . of criminal activity." As to the second fact, i.e., furtive movements, the Ohio United States v. Cortez, 449 U.S. 411, 417-18 (1981). Court of Appeals found that "[Petitioner] and his passenger made furtive gestures and appeared increasingly nervous as In determining reasonable suspicion, "[f]irst, a court must the detention continued." (J.A. at 104-05). To justify a Terry identify all of the relevant historical facts known to the officer stop, the officer must "be able to point to specific and at the time of the stop and search; and second, it must decide articulable facts" that support reasonable suspicion. Terry, whether, under a standard of objective reasonableness, those 392 U.S. at 21. The Ohio Court of Appeals’ use of the phrase facts would give rise to a reasonable suspicion justifying a "furtive gestures" is a characterization, not an independent stop or probable cause to search." Ornelas v. United States, fact. From our review, there is no objective evidence in this 517 U.S. 690, 700-01 (1996). In Delaware v. Prouse, 440 record that would support the trooper’s opinion upon which U.S. 648, 661 (1978), the Supreme Court warned that "[t]o the Ohio Court of Appeals relied for its characterizations that insist neither upon an appropriate factual basis for suspicion Petitioner and his companion exhibited furtive gestures. The directed at a particular automobile nor upon some other state trial record does not contain testimony that Petitioner or substantial and objective standard or rule to govern the his companion moved their bodies or arms to conceal exercise of discretion ‘would invite intrusions upon anything or to reach for any item.3 Further, we are unable to constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . ." Id. (citing Terry, 392 U.S. at 22). 3 W e note that when Trooper M ikesh, the canine unit handler, arrived We set forth these Fourth Amendment standards because at the scene and initially approached the vehicle, she observed Petitioner "trying to hide something or [as] if [Petitioner was] going to come out Kimmelman clearly requires for this type of ineffective with a weap on, I don’t know." (J.A. at 160). Trooper M ikesh, however, assistance of counsel claim, that we consider the underlying did not arrive at the scene until 11:49 a.m., forty-two minutes after the Fourth Amendment claims. Kimmelman, 477 U.S. at 375. initial stop. Thus, we conclude that in light of T rooper M ikesh’s late arrival upon the scene, her observations of Petitioner (that could be reasonably characterized as furtive mo ments), were not the b asis for Trooper Hannon’s continued detention of Petitioner and his companion. No. 01-4118 Joshua v. DeWitt 21 22 Joshua v. DeWitt No. 01-4118

discern specific and articulable facts to support the trooper’s Trooper Hannon’s continued detention of Petitioner. The opinion that Petitioner made furtive gestures.4 If Petitioner only remaining factors articulated by the Ohio Court of and/or his companion had engaged in any "furtive gestures", Appeals to support its finding that Trooper Hannon had the troopers would have been justified in ordering Petitioner reasonable suspicion, are Petitioner’s and his companion’s and his companion out of the vehicle and performing a nervousness and the illogical route Petitioner gave regarding cursory pat-down of Petitioner and his companion as his travel plans. permitted under Terry. See Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1977). Yet, here, there is nothing in the record As to nervousness, the Supreme Court noted that "[o]ur to reflect that Trooper Hannon performed a cursory pat-down cases have also recognized that nervous, evasive behavior is of Petitioner or his companion after observing their behavior a pertinent factor in determining reasonable suspicion.” during the traffic stop. In fact, the troopers did not conduct a Illinois v. Wardlow, 528 U.S. 119, 124 (2000)5 (emphasis pat-down of the passenger until the canine patrol alerted on added). For this proposition, the Supreme Court cited several the seam of the passenger door of the rental car. To accept of its decisions involving evasive efforts to escape detection the trooper’s conclusory remark of nervousness and at the Mexico border and airports. United States v. Brignoni- restlessness to establish the reasonable suspicion standard is Ponce, 422 U.S. 875, 885 (1975) ("The driver’s behavior may contrary to Terry and Prouse because to do so results in be relevant, as erratic driving or obvious attempts to evade reliance upon the trooper’s hunches. officers can support a reasonable suspicion."); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) ("[T]he three confederates Thus, upon our review of the record, the Ohio Court of . . . had spoken furtively to one another. One was twice Appeals’ finding of furtive gestures is not supported by overheard urging the others to ‘get out of here.’ Respondent’s objective facts, and cannot be an independent factor to justify strange movements in his attempt to evade the officers aroused further justifiable suspicion . . . ."); Sokolow, 490 U.S. at 5, 8-9 (noting that "[Respondent] appeared to be very nervous and was looking all around the waiting area," but that Therefore, Trooper M ikesh’s observation cannot be considered as those "one taking an evasive path through an airport might be furtive movements that the Ohio Court of Appeals relied upon as one of seeking to avoid a confrontation with an angry acquaintance the factors, apart from the "Read & Sign" boo k, to sup port its finding that Troo per Hannon had reasonable suspicion to further detain Petitioner. or with a creditor"). 4 In this regard, Trooper Hannon’s testimony at the suppression The purpose of these quotations from the Supreme Court hearing was that "[o]nce Trooper B arnes arrived [at the scene], I decisions is that "nervous, evasive behavior" is the standard witnessed nervousness and restlessness in the vehicle that I have never to justify reasonable suspicion, not nervousness or witnessed . . . from occupan ts of a ve hicle since I had been on the restlessness. Here, the trooper’s perception of Petitioner and highway patrol." (J.A. at 15 9). Yet, nervo usness and restlessness is a far his companion were not objective facts of "nervous, evasive cry from furtive movements. Further, when Trooper Hannon testified that Petitioner and Chapman appeared nervous and restless, he did not behavior." As to Petitioner’s travel route, while the route articulate what Petitioner and Chapman were doing for Trooper Hannon made no sense to the trooper, the route is not a fact suggestive to supp ort his testim ony. T hus, eve n if we were to consider this testimony as the basis for the state trial and app ellate court’s use of the phrase "furtive gestures", we conclude that this testimony is not supported by 5 specific and articulable facts which would support his opinion that Wardlow was decided on January 12, 2000, and is to be considered Petitioner and Chapman ap peared to be nervo us and restless. here because the final date of Petitioner’s conviction is May 5, 2000. No. 01-4118 Joshua v. DeWitt 23 24 Joshua v. DeWitt No. 01-4118

of illegal conduct. Whether considered individually or Hensley. To hold otherwise would render Hensley collectively, Petitioner’s cited conduct could be perfectly meaningless. consistent with innocent behavior, and we conclude that nervousness and illogical travel plans could not give rise to an The dissenting opinion lists several facts that were not "inference supporting a reasonable suspicion of criminal found by the Ohio Court of Appeals and relies upon its activity" to justify Petitioner’s continued detention. Florida independent review of the record to support its conclusion v. Royer, 460 U.S. 491, 512 (1983) (Brennan, J., concurring). that Petitioner’s detention was reasonable under the Fourth Thus, Trooper Hannon’s continued detention of Petitioner Amendment. With the exception of the facts of an illogical was unreasonable under the Fourth Amendment and, as a route and the "Read & Sign, the dissent’s additional facts result, the Ohio courts unreasonably denied Petitioner’s include: (1) Trooper Hannon’s knowledge of a "highly motion to suppress. interesting telephone conversation between his dispatcher and a police officer in Portsmouth;" (2) Petitioner’s and his We conclude that the state court decision was "contrary to" companion’s suspicious behavior once backup arrived; clearly established Supreme Court precedent because Hensley (3) Trooper Hannon’s awareness of Petitioner’s criminal clearly requires that where a police flyer is used to justify a history; (4) notice by the Portsmouth detective that Petitioner police officer’s reasonable suspicion for a stop of the person, might be armed and dangerous; and (5) the patrol dog alerting the state must present proof that the police officer who issued on the vehicle. the flyer had reasonable suspicion to do so for evidence from the stop to be admissible. On this record, the state’s proof on As to the telephone conversation between the dispatcher the Hensley issue was clearly deficient. A reasonable counsel and a Portsmouth police officer as well as notice by the would have so argued on Petitioner’s behalf. Neither Portsmouth police department that Petitioner might be armed Petitioner’s trial nor his appellate counsel cited Hensley to and dangerous, the dissenting opinion notes that around 11:15 argue that the state did not meet its evidentiary burden, as a.m., when Trooper Hannon was informed about the Read & required under Hensley. On this record, if the Hensley Sign, the dispatcher promised Trooper Hannon that he would argument were made, the evidence from Petitioner’s stop have a detective familiar with Petitioner call Trooper Hannon would be inadmissible. "Assuming the police make a Terry back. Yet, the record reflects that the detective did not call stop in objective reliance on a flyer or bulletin, we hold that Trooper Hannon back until 11:48 a.m., one minute prior to evidence uncovered in the course of the stop is admissible if the arrival of the drug-sniffing dogs. Even assuming that the the police who issued the flyer or bulletin possessed a detective provided Trooper Hannon with enough first-hand reasonable suspicion justifying a stop." Hensley, 469 U.S. at information to reach the level of reasonable suspicion (which 233 (emphasis added). Without the fruits of the Troopers’ is not apparent from the record), we conclude that Trooper detention and search, there is a substantial uncertainty as to Hannon was not entitled to detain Petitioner indefinitely while whether Petitioner’s conviction can stand. waiting on a telephone call from a detective who was “familiar” with Petitioner, in order to acquire sufficient In addition, we believe that the state court decision was reasonable suspicion. That is to say, the promise of potential contrary to clearly established Supreme Court precedent future reasonable suspicion does not satisfy the demand for because the state failed to meet its evidentiary burden by present (and continuing) reasonable suspicion. presenting proof that the officer who issued the "Read & Sign" had reasonable suspicion to do so, as required under No. 01-4118 Joshua v. DeWitt 25 26 Joshua v. DeWitt No. 01-4118

As to Petitioner and his companion’s nervousness once only gave rise to reasonable suspicion, but also gave rise to backup arrived, the dissent notes that Petitioner and his probable cause for the police to then search Petitioner’s companion displayed “constant activity in the vehicle” that vehicle. Yet, the patrol dog did not alert on the vehicle until Trooper Barnes described as looking backward to watch the 11:49 a.m., and leading up to this point, reasonable suspicion police activity and staring at the officers. Yet, in our view, did not exist when one considers the totality of the this behavior, as was articulated by Trooper Barnes, seems to circumstances. Thus, in our view, the patrol dog’s alert on be as consistent with innocence as with guilty. In a word, the vehicle does not satisfy the Fourth Amendment inquiry, anyone who has been pulled over and detained for a certain if we are able to conclude that reasonable suspicion to detain length of time, only to see backup police arrive (with no Petitioner did not exist until the dog alerted on the vehicle. explanation from the officers as to why) would, at the least, be curious as to the necessity for backup. We further note Albeit in a probable cause context, a longstanding Supreme that none of the officers described excessive shaking, Court precedent is articulated in Beck v. State of Ohio, 379 stammering, or attempts to conceal anything on the part of U.S. 89, 91 (1964), wherein the Supreme Court stated that: either vehicle occupant. Again, behavior that is consistent with innocent activity cannot suffice to establish reasonable Whether [an] arrest [is] constitutionally valid depends in suspicion. Royer, 460 U.S. at 512. turn upon whether, at the moment the arrest [is] made, the officers ha[ve] probable cause to make it- -whether at As to Trooper Hannon’s awareness of Petitioner’s past that moment the facts and circumstances within their criminal history, the dissent contends that this awareness, knowledge and of which they ha[ve] reasonably coupled with the other factors, gave rise to reasonable trustworthy information [a]re sufficient to warrant a suspicion to detain Petitioner. We conclude, however, that prudent man in believing that the [suspect] ha[s] this fact, by itself, does not create a reasonable suspicion that committed or [is] committing an offense. criminal activity is currently afoot, which is what the Supreme Court requires. Terry, 392 U.S. at 30. We further Id. (citing Brinegar v. United States, 338 U.S. 160, 175-76 note that although past criminal activity is a factor that can be (1949). See also United States v. Nigro, 727 F.2d 100, 103 taken into consideration, in this case it does not create (6th Cir. 1984)(“Probable cause has been defined repeatedly reasonable suspicion when considered in tandem with by the Supreme Court in terms of the facts and circumstances Petitioner’s alleged nervousness, unarticulated furtive known to the officers at the time the decision is made to gestures, and “illogical” travel route. More importantly, the undertake an arrest or search.”)(citing Brinegar, 338 U.S. at record reflects that Trooper Hannon did not learn of 175-76). Petitioner’s past criminal history until 11:22 a.m. or 11:23 a.m., by which time Trooper Hannon had already verified that We find that these principles also apply in a reasonable Petitioner was in lawful possession of the rental car and had suspicion context such that a reviewing court must look to the already been detaining Petitioner without reasonable “facts and circumstances known to the officers at the time the suspicion for quite some time. decision is made to undertake a detention” of the suspect. Nigro, 727 F.2d 103. Accordingly, while we have considered Finally, the dissent also relies upon the patrol dog’s alert on those factors enumerated by the dissent, in determining the vehicle to conclude that reasonable suspicion existed to whether Trooper Hannon had reasonable suspicion to detain detain Petitioner. We concede that the patrol dog’s alert not Petitioner, we primarily look to those “facts and No. 01-4118 Joshua v. DeWitt 27 28 Joshua v. DeWitt No. 01-4118

circumstances known to [Trooper Hannon] at the time” he constitutional rights prior to determining whether the state made the decision to detain Petitioner. Id. Yet, in our court's decision was reasonable.”). independent review of the state court record and under the totality of the circumstances of this case, those factors Here, the Ohio Court of Appeals clearly articulated its enumerated by the dissent, considered individually or factual findings and reasoning in denying Petitioner’s collectively, still do not give rise to reasonable suspicion to challenge to his conviction. While we are not precluded from justify Petitioner’s detention. engaging in an independent review of the state court record, we are prohibited from substituting our own independent Nevertheless, in considering the factors relied upon by the judgment as to what we believe the state courts could and/or dissent, we are still mindful that our focus is on whether the should have considered in reaching its conclusions. state court’s “decision was ‘contrary to’ or an ‘unreasonable Nevertheless, our independent review of the state court record application of’ [Supreme Court] clearly established for clear error reveals that Trooper Hannon lacked a precedents, or whether it was ‘based upon an unreasonable justifiable factual basis, in effect, to detain and/or arrest determination of the facts.’” Price v. Vincent, 538 U.S. ___, Petitioner. 123 S.Ct. 1848, 1852 (2003). In this regard, we note that under Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000), where b. “Unreasonable Application” Analysis a state court fails to articulate its reasoning, “federal habeas courts are obligated to conduct an independent review of the Under the "unreasonable application" clause of the record and applicable law to determine whether the state court AEDPA, we must compare the facts found by the Ohio Court decision is contrary to federal law, unreasonably applies of Appeals for its conclusion, to the applicable Supreme clearly established law, or is based on an unreasonable Court precedents. To be sure, the Ohio Court of Appeals’ determination of the facts in light of the evidence presented.” express factual findings that supported Petitioner’s continued Id. at 943 (citing Aycox v. Lytle, 196 F.3d 1174, 177-78 (10th detention are namely (1) the discrepancy in Petitioner’s rental Cir. 1999). Yet, any independent review that is conducted car papers; (2) Petitioner’s illogical route; and (3) Petitioner must remain deferential to the state court’s decision and and his passenger made furtive gestures and appeared cannot amount to a “full, de novo review of the claims.” increasingly nervous. Harris, 940 F.3d at 943. While Harris does not expressly preclude federal courts from conducting an independent First, we consider the Ohio Court of Appeals’ failures to review of the record when the state court articulates its consider Hensley to be an unreasonable application of clearly reasoning, in evaluating habeas claims, federal courts must be established Supreme Court precedents. Hensley is at the core careful not to engage in a de novo review. Price, 123 S.Ct. at of Petitioner’s Sixth Amendment claim, and Kimmelman 1852. Instead, under Prince, federal courts are limited to requires its consideration. Second, we conclude that evaluating habeas claims “through the lens of § 2254(d).” Id. Petitioner’s detention could not be justified by the facts found See also Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) by that court under relevant Supreme Court precedents. As to (finding a distinction between independent review of the the "Read & Sign", under Hensley, this information cannot be record and a de novo review such that an independent review used to support whether Trooper Hannon had reasonable “does not . . . independently ascertain whether, in its suspicion to detain Petitioner because the state failed to judgment, there has been a violation of the petitioner's present proof that the officer who caused the entry of the "Read & Sign" had reasonable suspicion to do so. As to the No. 01-4118 Joshua v. DeWitt 29 30 Joshua v. DeWitt No. 01-4118

fact of Petitioner’s illogical route, we conclude this fact, even Under Supreme Court and our precedents, this testimony is when coupled with Petitioner’s appearance of nervousness, to the classic formulation for an arrest that requires probable be insufficient to give rise to reasonable suspicion to justify cause. See Dunaway v. New York, 442 U.S. 200, 215-16 Petitioner’s continued detention. In light of these (1979); United States v. Obasa, 15 F.3d 603, 607 (6 th Cir. conclusions, the state court unreasonably applied clearly 1994) ("When police actions go beyond checking out the established Supreme Court precedent, which requires specific suspicious circumstances that led to the original stop, the facts justifying reasonable suspicion of criminal conduct, detention becomes an arrest that must be supported by Terry, 392 U.S. at 21. probable cause."). Our standard of review does not permit us to engage in a At that point, the only facts that Trooper Hannon possessed, full scale de novo review, but an independent review of the apart from the "Read & Sign" information, was that Petitioner state court record reflects that the critical facts to justify and his passenger appeared nervous and suspicious, and that Petitioner’s detention here are those facts Trooper Hannon Petitioner gave an illogical route. Thus, even if we were to identified in his decision to detain Petitioner. undertake an independent review, this is the critical point of Petitioner’s detention, because this decision lead to the Q: In fact, Mr. Joshua was not free to leave from the subsequent course of events resulting in the discovery of the time that you heard the information about the READ evidence used against Petitioner to secure his conviction. At AND SIGN. Correct? this point, however, Trooper Hannon lacked reasonable suspicion to detain Petitioner or probable cause to arrest A: Correct. 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. Petitioner Q: When was it after . . . when did you check the rental was prejudiced by his counsel’s failure to raise the contention car information after you made the decision that Mr. under Hensley, because without the information contained in Joshua was not free to leave? the "Read & Sign," Trooper Hannon lacked specific and objective facts to justify reasonable suspicion to detain A: Once I found out about the READ AND SIGN Petitioner. The exclusion of the "Read & Sign" proof information, that was the first time I looked at the establishes a "reasonable probability that the result would rental papers. have been different." See Skaggs v. Parker, 235 F.3d 261 Q: So, actually you had made the decision that Mr. (6th Cir. 2000). Joshua was not free to leave before you looked at the In sum, we conclude that because Petitioner had a rental information? meritorious Fourth Amendment claim, Petitioner has shown A: Correct. (J.A. at 128, 129-30). No. 01-4118 Joshua v. DeWitt 31 32 Joshua v. DeWitt No. 01-4118

prejudice due to his trial counsel’s deficient performance.6 Hensley and held that the facts there did not require the Petitioner’s appellate counsel was also ineffective for failing evidence seized in violation of Hensley to be excluded. In to raise Hensley, given our conclusion that Petitioner would Evans, the Supreme Court held that the exclusionary rule did have been meritorious on his Fourth Amendment claim and not require the suppression of evidence that was seized in that under Ohio law, Petitioner’s appellate counsel could have violation of the Fourth Amendment where an officer relied raised the Hensley issue on appeal. upon a police record that was later determined to be erroneous due to omissions of court employees or sheriff office On the prejudice issue, we recognize that in Arizona v. employees. 514 U.S. at 3-4, 5, 15. The Supreme Court in Evans, 514 U.S. 1, 3-4 (1995), the Supreme Court discussed 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 6 W e note that the dissenting opinion contends that a Hensley the Fourth Amendment rights of the party seeking to invoke challenge would not have altered the state trial court’s decision to deny the rule were violated by police conduct." Id. at 10 (quoting Petitioner’s motion to suppress because the state trial court concluded that Illinois v . Gates, 462 U.S. 213, 223 (1983)). In a word, a Petitioner lacked standing to challenge the drug seized from and/or the successful Hensley challenge does not automatically compel statements by his co mpa nion. Y et, Hensley expressly provides that the exclusion of evidence seized in violation of the Fourth “[a]ssuming the police make a Terry stop in objective reliance on a flyer Amendment; rather, "exclusion is appropriate only if the or bulletin, we hold that the evidence uncovered in the course of the stop is adm issible if the police who issued the flyer po ssessed a reasona ble remedial objectives of the [exclusionary] rule are thought suspicion justifying th e stop . . . .” Hensley 469 U.S. at 233 . Hence, a most efficaciously served." 514 U.S. at 14 (citing United Hensley challenge in this ca se would have co mpe lled the granting of States v. Calandra, 414 U.S. 338, 348 (1974)). Petitioner motio n to sup press beca use the state failed to prove that the officer who issu ed the flyer relied upon to de tain Pe titioner had The exclusionary rule is a judicial remedy that operates "to reaso nable suspicion to do so. Two Circuit Courts have interpreted Supreme Court precedents to support the proposition that all occupants of deter future unlawful police conduct and thereby effectuate a vehicle have a right to challenge the illegality of the stop and/or the guarantee of the Fourth Amendment against unreasonable detention. See United States v. Woodrum, 202 F.3d 1, 5-6 (1st Cir. 2002) searches and seizures," as well as to maintain the integrity of (citing Rakas v. Illinois, 439 U.S. 128, 138-39 (19 78))(holding that “each the judicial process. Calandra, 414 U.S. at 348. The rule’s occupant of a car has a right to cha llenge the propriety of a traffic stop application is limited to those "instances where its remedial under the Fourth Amendment.”). See also U nited States v. Erw in, 875 objectives are thought most efficaciously served." Evans, 514 F.2d 268, 269 , n.2 (10t h Cir. 1989) (citing Wong Sun v. United States, 371 U.S. 471, 484 (1963))(“Even if defendant lacks standing to challenge U.S. at 11 (citing United States v. Leon, 468 U.S. 897, 908 the search of the car, if the initial stop was illegal, the seized contraband (1984)). Yet, if "the exclusionary rule does not result in is subject to exclusion under the ‘fruit of the poisonous tree’ doctrine.”). appreciable deterrence, then clearly, its use . . . is unwarranted." United States v. Janis, 428 U.S. 433, 454 Here, given o ur conclusion that Petitioner’s detention wa s illegal, (1976). 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 Amendm ent, Petitioner has standing We conclude that the remedial objectives of the to challenge any e vidence ob tained from that detention as fruit of the exclusionary rule are "most efficaciously served" here poisonous tree. Wong Sun, 371 U.S. at 484 . Thus, we respectfully because the evidence was seized due to an unlawful detention, disagree with the dissenting opinion’s co ntention that the state trial court’s and therefore should have been suppressed. While the decision would not have been changed if Petitioner’s trial counsel raised a Hensley challenge. historical purpose of the exclusionary rule is to deter police No. 01-4118 Joshua v. DeWitt 33 34 Joshua v. DeWitt No. 01-4118

misconduct, in light of the prosecutor’s interest in the Hensley.7 The effect of our ruling on the state’s non- outcome of this case, we conclude that the exclusionary rule compliance with clearly established Supreme Court precedent also serves to deter prosecutorial misconduct in its failure to is Petitioner’s retrial or release. comply with clearly established constitutional principles. Here, Hensley clearly required evidence from the police CONCLUSION officers who provided the information in the "Read & Sign" book that those officers had reasonable suspicion to believe For the reasons set forth above, we REVERSE the district that Petitioner was involved in criminal activity. Consistent court’s denial of Petitioner’s petition for habeas relief because with Hensley, "a Terry stop in objective reliance on a flyer or the state court judgment was objectively unreasonable and bulletin, we hold that the evidence uncovered in the course of Petitioner was denied effective assistance of trial and the stop is admissible if the police who issued the flyer or appellate counsel. This action is REMANDED for further bulletin possessed a reasonable suspicion justifying the stop." proceedings consistent with this opinion. Hensley, 469 U.S. at 233 (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, 7 W e note that the dissenting opinion contends that we are second clearly established Supreme Court precedent. If one of the guessing the judgment call of the state pro secuto r, we respectfully purposes of the Fourth Amendment is to constrain state disagree. Our ruling simply requires state prosecutors to comply with a governments, the enforcement of the exclusionary rule here constitutional rule of evidence that is necessary to establish the is well served by deterring prosecutors from failing to comply justification to detain or arrest a citizen. If the presentation of such proof with clearly established constitutional principles, such as were not required, the effect would be that the mere issuance of a flyer would constitute sufficient p roof that an officer had a reaso nable suspicion of criminal activity, contrary to Hensley. No. 01-4118 Joshua v. DeWitt 35 36 Joshua v. DeWitt No. 01-4118

___________________ drug-sniffing dogs to arrive. It was unreasonable under the circumstances to detain Joshua for even a short time pending CONCURRENCE the arrival of the drug-sniffing dogs because at that point ___________________ Trooper Hannon lacked a sufficient basis for detaining him. In point of fact, the dogs did not arrive until 11:49 a.m., some CLAY, Circuit Judge, concurring. Although I agree with forty-two minutes after the traffic stop had been initiated. A the outcome reached in this case, as well as most of the detention of that duration without a sufficient legal basis was majority opinion’s reasoning, I write separately to articulate particularly unreasonable. my view of some of the issues in this case, and why I am persuaded that the Ohio Court of Appeals’ decision to affirm The intervening developments at the scene of the traffic Joshua’s conviction “resulted in a decision that was contrary stop cited by the Ohio Court of Appeals and described by the to, or involved an unreasonable application of, clearly dissent did not provide the requisite reasonable suspicion in established Federal law, as determined by the Supreme Court lieu of the Read & Sign. A fair reading of the record shows of the United States.” 28 U.S.C. § 2254(d)(1). that the events proceeded as follows:

The Fourth Amendment requires a law enforcement officer 11:07 a.m. Trooper Hannon stops Joshua’s car. Joshua gives to possess reasonable suspicion to detain a suspect at a traffic Hannon his driver’s license and car rental papers. stop; thus, if reasonable suspicion is not apparent at the outset of a traffic stop, the officer must release the suspect. 11:10 a.m. Trooper Hannon runs a status check; the Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984) dispatcher informs him about the Read & Sign (“[U]nless the detainee’s answers provide the officer with entry. Trooper Hannon requests a canine unit. probable cause to arrest him, he must be released.”). If the officer is suspicious at the outset but the officer’s inquiries 11:15 a.m. The dispatcher calls Columbus to see if Joshua reasonably allay that suspicion, the officer must release the has any outstanding warrants; there are none. suspect. Hayes v. Florida, 470 U.S. 811, 815-16 (1985); Around this same time, the dispatcher promises United States v. Heath, 259 F.3d 522, 531 (6th Cir. 2001); Trooper Hannon that he will have a detective United States v. Butler, 223 F.3d 368, 375 (6th Cir. 2000). “familiar” with Joshua call Trooper Hannon back. The officer may not detain a suspect without legal justification in hopes of generating reasonable suspicion by 11:17 a.m. Trooper Barnes arrives on the scene. Joshua and observing the suspect’s subsequent actions or by acquiring his companion exhibit “constant activity in the subsequent information. vehicle.”

The record in the instant case indicates that Trooper 11:20 a.m. Trooper Hannon asks the dispatcher to check on Hannon detained Joshua’s vehicle based on the Read & Sign. Joshua’s car rental papers. However, for the reasons stated in the majority opinion, the 11:22 a.m. Joshua’s rental papers check out. The dispatcher Read & Sign did not provide the requisite reasonable runs a criminal check on Joshua and transmits the suspicion. Thus, Trooper Hannon should have released results of Joshua’s criminal history to Trooper Joshua at that time or shortly thereafter. Instead, Trooper Hannon. Hannon continued to detain Joshua while he waited for the No. 01-4118 Joshua v. DeWitt 37 38 Joshua v. DeWitt No. 01-4118

11:25 a.m. The dispatcher reaches a canine unit. they began turning around and staring at the officers. Yet, as the majority opinion correctly observes, the behavior 11:45 a.m. Sergeant Turner arrives and helps Trooper described by Trooper Barnes might evidence little more than Hannon place stop sticks around Joshua’s vehicle. mere curiosity or concern by the two individuals as to their surroundings and the ever-increasing police activity. Any 11:48 a.m. A detective who is “familiar” with Joshua calls interpretation of this behavior as an indication that criminal Trooper Hannon back; he tells Trooper Hannon activity was afoot amounts to little more than an “inchoate that Joshua may be armed and dangerous. and unparticularized suspicion or ‘hunch.’” Reid v. Georgia, 448 U.S. 438, 441 (1980) (per curiam) (rejecting as a possible 11:49 a.m. A canine unit arrives. The drug-sniffing dog basis for reasonable suspicion the airport agent’s testimony alerts on Joshua’s vehicle, whereupon the police that the defendant and his traveling companion “appeared . . . search the vehicle and discover drugs. to be trying to conceal the fact that they were traveling together” because the defendant “preceded [the companion] None of these events permitted Trooper Hannon to detain and occasionally looked backward at him as they proceeded Joshua over this forty-two minute time frame. Certainly the through the [airport] concourse,” and reasoning that this concern about the rental car paperwork did not provide behavior provided “too slender a reed to support the seizure reasonable suspicion because the discrepancy in the in this case”) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)) paperwork perceived by the trooper did not surface until (internal quotation marks omitted); see also Florida v. Royer, approximately 11:18 a.m. Trooper Hannon should already 460 U.S. 491, 512 (1983) (Brennan, J., concurring) have released Joshua by 11:18 a.m. because by that time (observing that facts leading the airport agents to detain the Trooper Hannon had already detained Joshua for several defendant did not constitute reasonable suspicion because minutes without reasonable suspicion. Moreover, the they were “perfectly consistent with innocent behavior and paperwork discrepancy was resolved expeditiously, i.e., [could not] possibly give rise to any inference supporting a around 11:22 a.m., leaving a twenty-seven minute time gap reasonable suspicion of criminal activity”). Simply stated, until the drug-sniffing dogs arrived. turning around and staring at the police officers did not create Furthermore, none of the additional factors cited by the a “rational inference[]” that “reasonably warrant[ed] the dissent amounted to reasonable suspicion. As the majority continued detention of” Joshua and his companion. United opinion points out, by the time reasonable suspicion had States v. Smith, 263 F.3d 571, 588 (6th Cir. 2001) (citing surfaced, Trooper Hannon had been detaining Joshua illegally Terry, 392 U.S. at 21). for a substantial period of time, and thus a Fourth Similarly unpersuasive as grounds for reasonable suspicion Amendment violation had already occurred notwithstanding is Trooper Hannon’s purported knowledge of a “highly any subsequent events purportedly giving rise to reasonable interesting telephone conversation between his dispatcher and suspicion. The additional factors mentioned by the dissent, a police officer in Portsmouth” and the statement by the even when considered in tandem with the other facts, fail to Portsmouth detective that Joshua might be armed and constitute reasonable suspicion. dangerous. The information that Joshua might have been For instance, the dissent notes that although Joshua and his armed and dangerous, apparently of dubious origin and companion were initially calm, upon the arrival of backup reliability, was not transmitted to Trooper Hannon until 11:48 a.m., some forty-one minutes after the traffic stop No. 01-4118 Joshua v. DeWitt 39 40 Joshua v. DeWitt No. 01-4118

commenced. As the majority opinion correctly notes, a police Hannon should have released Joshua. The other officer may not properly detain a suspect in the hope of factor–Trooper Hannon’s having learned from the dispatcher receiving useful information in the future. that a man with Joshua’s name was allegedly transporting drugs from Portsmouth to Columbus–is simply the I also am not persuaded that Trooper Hannon’s awareness information from the Read & Sign, on which Trooper Hannon of Joshua’s criminal record, even when considered together cannot be permitted to rely, based upon the holding of United with Joshua’s purported nervousness, unarticulated furtive States v. Hensley, 469 U.S. 221, 233 (1985).1 gestures, and “illogical” travel route, justified this lengthy detention. First of all, the record does not specify the nature To summarize, I am principally persuaded that Joshua’s of Joshua’s criminal history, obviating any consideration of habeas petition should be granted because the Read & Sign the criminal history’s probative value on habeas review. did not provide the requisite reasonable suspicion to justify Second, Trooper Hannon was not informed of Joshua’s the detention which eventually led to the discovery of the criminal history until 11:22 a.m. or 11:23 a.m. The situation illegal drugs, and the additional justification for the detention, presented by this case therefore differs markedly from the as described by the Ohio Court of Appeals and the dissent situation where a law enforcement officer has a legitimate herein, was wholly inadequate and failed to establish basis to suspect a particular individual of a criminal offense reasonable suspicion. For these reasons, I concur in the and is advised during the course of the detention that the majority opinion. person being investigated has a criminal record suggestive of the kind of criminal activity under investigation. In that situation, which is obviously not present here, a further detention of the suspect in all likelihood would be justified. Finally, the fact that the patrol dogs ultimately alerted on Joshua’s vehicle does not assist our legal analysis because although such an occurrence ordinarily would furnish probable cause for a police officer to search a vehicle for drugs, United States v. Bailey, 302 F.3d 652, 659 n.7 (6th Cir. 1 2002), the subsequent discovery of circumstances justifying The majo rity opinion reasons, as alternative grounds for disregarding the additiona l factors cited by the dissent, that this Court is probable cause–coming long after Joshua should have been not permitted to look beyond the facts found in the state court’s opinion, released–cannot vitiate Joshua’s earlier improper detention citing Ha rris v. Stovall, 212 F.3d 940, 943 (6th C ir. 200 0) for this without reasonable suspicion. proposition. W hether the reasoning in Ha rris extends to the present situation is uncertain at be st. Ha rris seems to speak to the situation where The dissent is correct that in some cases reasonable the state court has not articulated its reasoning, in which case federal suspicion can properly be gleaned from several facts, courts are obligated to review the entire record. Ha rris does not see m to expressly state that federal courts are precluded from conducting an considered in concert, none of which individually would give independent review of the record when the state court ha s articulated its rise to reasonable suspicion. However, as previously stated, reasoning. Althou gh the m ajority opinio n’s read ing of Ha rris might be the factors cited in the dissent, even when taken together, do appropriate, I do not find it necessary to rest my reasoning on those not meet this burden. Four of these additional factors did not ground s. Instead, I am content to base my reasoning on the fact that the manifest themselves until well after the point that Trooper factors cited by the dissent and the Ohio Court of Appeals were insufficient to justify Joshua’s detention. No. 01-4118 Joshua v. DeWitt 41 42 Joshua v. DeWitt No. 01-4118

_____________ I am not persuaded that any of these prerequisites can fairly be held to have been met. But perhaps the clearest ground for DISSENT affirming the district court’s denial of habeas relief is that _____________ Joshua flunks the “prejudice” branch of the Strickland test. As I read the state court record, the conclusion that Joshua DAVID A. NELSON, Circuit Judge dissenting. The stars suffered no prejudice as a result of his lawyers’ failure to cite that must be in alignment before the issuance of a writ of Hensley is the only conclusion that could reasonably be habeas corpus can be justified in this case include all of the reached. following: To start with the proceedings before the state common 1) Petitioner Joshua’s Fourth Amendment right to be pleas court, I note that defense counsel made a timely secure against unreasonable searches and seizures must objection to the admission in evidence of the “Read & Sign” be found to have been so jeopardized by what bulletin on which Trooper Hannon relied in detaining Joshua. happened here that the state courts were required, as a The lawyer argued that the bulletin constituted “hearsay on matter of federal law, to exclude the evidence of hearsay” and that it “was never verified.” Although a citation Joshua’s criminal activity. to Hensley would obviously have been appropriate at that point,1 it is crystal clear that such a citation would not have 2) Joshua must be found to have been denied his Sixth changed the common pleas court’s decision to deny Joshua’s Amendment right to counsel, a finding dependent upon motion to suppress. This is so because the denial of the his satisfying both branches of the test in Strickland v. motion was based on the court’s conclusion that Mr. Joshua Washington, 466 U.S. 668 (1984): lacked standing to challenge the search of his drug-laden companion – a conclusion that could not logically have been a) he must show that his lawyers were guilty of affected by anything in Hensley. If the result would have “incompetence” (see Kimmelman v. Morrison, been the same in any event, there could have been no 447 U.S. 365, 382 (1986)) when they failed to prejudice. support their suppression arguments with a citation to United States v. Hensley, 469 U.S. 21 As to the proceedings in the Ohio court of appeals, I believe (1985), and it is equally clear that Mr. Joshua was not prejudiced by his appellate lawyer’s failure to cite Hensley. Echoing the b) he must show a reasonable probability that the argument made by trial counsel in objecting to the state courts would have reached a different result introduction of the “Read & Sign” bulletin, appellate counsel if their attention had been called to Hensley. told the court of appeals that Mr. Joshua had been detained for 42 minutes because Trooper Hannon “had received hear- 3) The state court decisions on both the admissibility of the evidence and the alleged denial of right to counsel must have been “contrary to, or involved an unreasonable application of, clearly established 1 “If Aaron Joshua’s court-appointed trial counsel had been familiar Federal law, as determined by the Supreme Court of with the Supreme Co urt’s opinion in Hensley,” as I acknowledged in an the United States . . . .” 28 U.S.C. § 2254(d). earlier draft of this dissent, “he probably would (and should) have cited it . . . .” No. 01-4118 Joshua v. DeWitt 43 44 Joshua v. DeWitt No. 01-4118

say from the dispatcher that the dispatcher had hear-say from upon by another officer. The essential holding of Hensley, as another trooper who had read a hear-say document drafted I understand it, is that the officer who acts on the flyer need seven (7) days earlier by [Trooper Mikesh] stating that she not be privy to the facts underlying its issuance – what had heard from unknown sources within the Columbus police matters, for purposes of determining whether a search or that Aaron Joshua may be transporting cocaine between seizure is constitutional, is whether the issuing officer had a Columbus and Portsmouth on a regular basis . . . .” Again, it reasonable suspicion of criminal activity. See Hensley, 469 is true, there was no citation to Hensley – but again the U.S. at 232-33. It does not necessarily follow from this that failure to cite Hensley did not affect the outcome. The court the state must always put on evidence of the facts known to of appeals simply finessed the unverified hearsay issue, the issuing officer, regardless of whether the arresting officer holding that Joshua’s detention could be justified by has information outside the intelligence report that lends articulable facts that were unrelated to the read-and-sign credence to it. bulletin and that were sufficient, standing alone, to give trooper Hannon a basis for suspecting criminal activity. That The totality of the evidence presented at Joshua’s holding, like the trial court’s holding, could hardly have been suppression hearing strongly suggests that his detention for affected by a citation to Hensley. Against this background, I the relatively short time it took the officers to complete their do not believe it was unreasonable for the state court of investigation could be justified without the presentation of appeals subsequently to conclude that Joshua had failed to any additional evidence. The hearing transcript contains prove he was prejudiced by his lawyers’ performance. evidence of the following facts, among others:

Although the absence of prejudice is in itself sufficient to – At 11:07 on the morning of the drug bust, Trooper require rejection of Joshua’s claim, it seems to me that the Hannon pulled Joshua over for speeding. The legitimacy claim founders on the “incompetence” branch of Strickland as of the speeding stop is uncontested. well. Joshua has made a colorable argument that his attorneys’ failure to cite Hensley was “unreasonable under – The vehicle driven by Joshua was a red Pontiac Sunfire prevailing professional norms and . . . was not sound with out-of-state plates.2 The car had been rented from strategy.” Kimmelman, 477 U.S. at 381 (citing Strickland, the Enterprise car rental concern. Joshua produced some 466 U.S. at 688-89). But that argument is not so compelling, rental papers for Trooper Hannon’s inspection, but the in my view, that its rejection by the state court of appeals papers pertained to a maroon Geo Tracker and not to the must be considered unreasonable. Given the “strong red Pontiac. Trooper Hannon, not unreasonably, asked presumption” of constitutionally effective representation, id., the dispatcher to check this discrepancy with Enterprise. Mr. Joshua’s Hensley issue would have to be more clearly At 11:22 a.m., having called Enterprise, the dispatcher meritorious than it is, in my view, for the state court to have advised the trooper that Mr. Joshua was entitled to be been required to find his attorneys’ performance deficient. It driving the Pontiac. does not seem to me that the Hensley issue has such obvious merit. I do not read Hensley as requiring the state to present proof, 2 in every instance, of the facts known to a police officer who The make and model of the vehicle were established at a preliminary hearing the transcript of which was incorporated in the record of the issues a wanted flyer or other intelligence report that is relied hearing on Joshua’s motion for suppression of evidence. No. 01-4118 Joshua v. DeWitt 45 46 Joshua v. DeWitt No. 01-4118

– In the meantime, shortly after 11:10 a.m., the dispatcher minutes or so when Trooper Hannon was the only officer had been alerted to the existence of the “Read & Sign” present, however, Joshua and his passenger were acting bulletin. The bulletin indicated that Trooper Mikesh was “[q]uite normal,” according to the trooper, “like I would in receipt of information – information originating with expect any person that I had stopped for [a] speeding the police department of Columbus, Ohio – to the effect violation to act.” that “an Aaron Joshua . . . was transporting crack cocaine between Columbus and Portsmouth twice a week . . . and – At 11:17 a.m. a second state highway patrolman, Trooper that he was on parole [for] previous drug activity . . . .” Barnes, arrived on the scene. With the arrival of the This information was promptly radioed to Trooper backup unit, according to Trooper Hannon, the behavior Hannon. Significantly, Joshua himself had already told of the occupants of the Pontiac changed dramatically: the trooper that Portsmouth was his destination and that he was driving there from Columbus. “They became extremely nervous, both Mr. Joshua and Miss Chapman began looking over – Trooper Hannon – again not unreasonably – asked the their shoulder. Mr. Joshua was looking out the dispatcher to call for a drug-sniffing dog and to check driver’s side window trying to see behind him, with the police in Columbus and Portsmouth to see if there was constant activity in the vehicle. I’ve there were any outstanding warrants for Joshua. There never stopped a vehicle where I’ve seen so proved to be none, but the Portsmouth police officer with much activity and so much concern from the whom the dispatcher spoke turned out to be familiar with occupants about what was going on around Joshua. The officer promised to “have a detective call them and behind them.” (Emphasis supplied.) [the dispatcher] back with further information.” The dispatcher advised Trooper Hannon of this development – Trooper Barnes confirmed this account, testifying that “I at approximately 11:15 a.m., during the same radio noticed that there was a lot of movement in the vehicle transmission in which he reported the results of his calls . . . . [Joshua] kept looking back. He was continually to Columbus and to Trooper Mikesh, the officer in keeping his eyes on myself and Trooper Hannon by charge of the drug dog. either physically turning around or looking through the rearview mirror.” When asked if Joshua’s movements – Trooper Hannon’s testimony, when read in conjunction were “the usual type of movements” made by the subject with the dispatcher’s, shows that the point at which the of a traffic stop, Trooper Barnes answered “No.” As the trooper learned about the Portsmouth police department’s trooper went on to explain, familiarity with Joshua and its promise to have a detective call back preceded the point at which the “Most people will turn and look, but not trooper learned that the car rental company had no continually on a non-stop basis, you know. problem with Joshua’s driving the Pontiac. This timing, Eventually, they’ll kind of relax and settle as we shall see, may have some relevance to our inquiry. down, but that wasn’t the case in this instance.”

– Joshua was not free to leave the scene of the stop, of – At a time not entered in the log, according to the course, while the telephone calls and radio transmissions dispatcher’s testimony, but probably at his first I have described were taking place. During the 10 opportunity after completing his phone calls (i.e., No. 01-4118 Joshua v. DeWitt 47 48 Joshua v. DeWitt No. 01-4118

sometime after 11:22 a.m.), the dispatcher ran a criminal Ms. Chapman’s enlarged abdomen. Her arrest, and that history check on Joshua. The dispatcher testified of Joshua, followed. unequivocally that he transmitted the results of the criminal history check to Trooper Hannon. Given this considerable body of evidence, which bespeaks excellent police work throughout, I believe that a competent – At 11:48 a.m., while Trooper Mikesh was on her way to attorney could reasonably conclude that the government had the scene with her drug dog, the dispatcher received the carried its burden of proof at the suppression hearing. With promised call from Portsmouth. The caller, a Detective respect to the 15-minute period from 11:07 a.m. to 11:22 Sgt. Brewer, confirmed that the Portsmouth police a.m., it is obvious that Trooper Hannon did not need the department was familiar with Aaron Joshua. Detective “Read & Sign” bulletin to justify Joshua’s detention from the Brewer went on to tell the dispatcher that “Joshua might point at which the discrepancy in the rental papers was first be considered dangerous and possibly carried a weapon.” noticed to the point at which the discrepancy was resolved. The dispatcher so advised all units. Joshua was driving a car that did not belong to him, after all, and he claimed to have rented it. The car described in his – Trooper Mikesh, who had just heard the dispatcher’s rental papers was not the car he was driving. Any latest report over her radio, reached the scene at 11:49 conscientious police officer would have wanted to assure a.m. She saw Mr. Joshua seated in the Pontiac with both himself that the car had not been stolen, and it was not his hands outside the door and his head craned unreasonable for Joshua to be kept at the scene while his uncomfortably over his left shoulder. Trooper Hannon story was being checked with the car rental company. told her that there had been a lot of movement in the car – and Trooper Mikesh observed more movement as she We do not know the precise time at which Trooper Hannon approached the vehicle: “I observed Mr. Joshua make a first noticed the discrepancy in the rental papers, but it is sudden movement,” she testified, “and reached down probably fair to infer that it was a little after 11:15 a.m. This underneath with his right hand underneath the driver’s was only eight minutes after the speeding stop. Joshua had seat.” Trooper Mikesh immediately ordered Joshua and not theretofore been free to leave, of course, but there was a his companion to get their hands up. When satisfied that good reason for his detention, the interval was very short, and it was safe to do so, she ordered them to put their hands it was still close to the time of the speeding infraction. on the dash. Thereafter, the windows of the Pontiac having been raised, Trooper Mikesh had her dog sniff the When Trooper Hannon learned, at 11:22 a.m., that the car vehicle. There has been no contention that the dog (or had not been stolen, Joshua should and doubtless would have any other dog) could have been brought to the car earlier been allowed to depart had the trooper not known of other than this dog was. suspicious facts. But by 11:22 a.m. the trooper had knowledge of several such facts, and he had knowledge of – At 11:53 a.m. the dog alerted on the right seam of the more soon thereafter. right front door, aggressively scratching at the vehicle. The occupants of the Pontiac were then patted down, Fact number one was that Joshua said that he was driving Trooper Mikesh handling the (visibly pregnant) – by a somewhat improbable route – from Columbus to passenger, Ms. Chapman. Some ten bundles of crack Portsmouth. cocaine were found in a plastic bag secured just below No. 01-4118 Joshua v. DeWitt 49 50 Joshua v. DeWitt No. 01-4118

Fact number two was that the highway patrol was in receipt about being stopped for speeding, and was not worried about of information, said to have originated with the Columbus having his rental papers checked, but was very worried by the police department, that a man with Joshua’s name – a man on trooper’s being reinforced – an indication to Joshua that the parole in connection with a drug offense – was transporting highway patrol might be investigating something beyond a crack cocaine from one Ohio city to another twice a week. speeding offense and an irregularity in rental papers. The The identity of the cities is of critical importance. The drugs constant movement within the Pontiac would be consistent were not reported to be moving from Cleveland to both with heightened nervousness and with activity to get Chillicothe, or from Toledo to Youngstown, or from Canton drugs positioned where they would be hard to detect if the car to Gallipolis; they were reported to be moving from were searched. Columbus to Portsmouth, the very cities named by Mr. Joshua himself. The detailed nature of the intelligence from Fact number five – at least if the dispatcher’s memory was the Columbus police department, coupled with the not playing tricks on him – is that Trooper Hannon was made information provided independently by Joshua, thus gave rise aware of Joshua’s criminal history sometime after 11:22 a.m. to articulable grounds for believing that the intelligence The record does not show what that history was, but one can furnished by the Columbus police was accurate. What reasonably infer that the dispatcher thought it significant policeman would not have called for a drug dog under these enough to merit telling Trooper Hannon about it. circumstances? Fact number six is that by 11:48 a.m. the troopers were Fact number three was that before the all-clear arrived from advised of the warning of the Portsmouth detective that the rental car company, Trooper Hannon had learned of a Joshua might be armed and dangerous. And fact number highly interesting telephone conversation between his seven is that as soon as it was possible to have a drug dog dispatcher and a police officer in Portsmouth. The State of sniff the Pontiac, the dog signaled that there were drugs in the Ohio has a population of 11 million people, most of whom are car. strangers to the Portsmouth police – but Trooper Hannon was aware, at approximately 11:17 a.m., that Aaron Joshua was All of these facts, as I say, were brought out at the known to the police of Portsmouth. Joshua might not have suppression hearing. In their totality, I believe, they were been known in Chillicothe, or Youngstown, or Gallipolis, but sufficient to suggest that there was no deficiency in the he was known by the police in the very city to which it had state’s proof – i.e., that Hensley did not require further been reported he was transporting drugs. It was not verification of the “Read & Sign” bulletin. Cf. Illinois v. objectively unreasonable, therefore, to detain Joshua a little Gates, 462 U.S. 213, 244-45 (1983). That being so, I am not longer so that the dispatcher could get a reading on him from persuaded that the failure to cite Hensley in support of the the Portsmouth detective who was supposed to call the suppression motion necessarily bespoke incompetence. dispatcher back. If I am wrong in this, however – and if I am wrong in my Fact number four is that although Joshua and his Strickland analysis – Joshua would still not be entitled to companion had not behaved suspiciously while there was habeas relief if the federal exclusionary rule (made applicable only one officer on the scene, they began acting strangely to the states in Mapp v. Ohio, 367 U.S. 643 (1961)) would when the backup arrived. The change in behavior would be not render the evidence of Joshua’s guilt inadmissible. I do consistent with the hypothesis that Joshua was not worried not believe it would. No. 01-4118 Joshua v. DeWitt 51

The exclusionary rule was developed by the judiciary to serve prophylactic purposes – to deter wrongdoing by those responsible for enforcing the law. See Arizona v. Evans, 514 U.S. 1 (1995). Here there was no wrongdoing at all by the police officers who seized the evidence; their work was highly professional from start to finish. There is no reason to suppose that the Columbus police officers who initially provided the information in the “Read & Sign” bulletin were guilty of any wrongdoing either – and there is every reason to suppose they were not. Neither do I see any wrongdoing on the part of the prosecutor, who, in a borderline case, elected not to incur the expense of bringing a police officer from Columbus to Chillicothe for the purpose of justifying a police bulletin that appears to have been accurate. If the federal courts are going to second-guess this kind of judgment call on the part of state prosecutors, requiring the exclusion of vital evidence as a result, I believe the courts will have gone far beyond the original purpose of the exclusionary rule. That rule rests solely on policy considerations, after all, and I can see no sound policy reason for excluding the evidence of Joshua’s crime under the circumstances presented here. Finally, at the risk of belaboring the obvious, I would reiterate that we are not reviewing the decisions of the state courts on direct appeal. The fact that we may think the state courts reached the wrong result is not controlling. Absent “an unreasonable application of clearly established federal law,” as Congress has told us in the provision codified at 28 U.S.C. § 2254(d), or a decision “contrary” to such law, the granting of federal habeas relief is forbidden. I do not believe that the decisions rendered by the state courts in the matter now before us fail the statutory test, and I therefore believe that the district court acted correctly in denying Joshua’s application for the writ. My colleagues on the panel having seen the matter differently, I respectfully dissent.