Court Tells Cops That A Driver Not Laughing At An Officer’s Terrible Joke Is Not Reasonable Suspicion

The list of things law enforcement officers consider reasonably suspicious could fill a decent-sized book. Pretty much anything anyone does or says when being accosted by an officer is usually deemed to be indicative of illegal activity.

It’s not just cops. It’s the courts, too. A list of things considered to be “reasonably suspicious” enough to justify warrantless searches compiled by Radley Balko back in 2014 shows there’s no winning when it comes to law enforcement officers and their “training and expertise.”

• Being the first person off a plane
• Being the last person off a plane
• Someone authorities believe has tried to blend in to the middle of exiting passengers
• Booking a nonstop flight
• Booking a flight with a layover
• Traveling alone
• Traveling with a companion
• People who appear nervous
• People who appear “too calm“
• Merely flying to or from a city known to be a major thoroughfare in the drug pipeline

That’s on top of the list that opened that 2014 Techdirt post, which contained a list of things Amtrak security officers consider to be “suspicious” — a list that includes being too calm, being too nervous, being ahead of passengers when boarding, being behind passengers when boarding, buying tickets with cash, or carrying “too little” luggage.

Another list (one used by officers during traffic stops) claimed any of the following could be considered suspicious behavior: smoking cigarettes, carrying currency, eye contact, single keys, GPS use, “older car recently registered,” overly cooperative, and that all-time favorite, “Other.”

Also included on that “reasonable suspicion” checklist used by the Virginia State Police: “Fake smile/laughter.”

That brings us to this case, highlighted by FourthAmendment.com. Virginia state troopers think you’re suspicious if you laugh too much. Philadelphia police officers think you’re suspicious if you laugh too little.

The suppression order [PDF] begins with a traffic stop. Edward Holloway was pulled over by Philadelphia PD officers John Smart and Danielle Foreman while driving in a “high crime area” because his windows were allegedly “excessively tinted.”

While pulled over, the officers noticed Holloway kept making calls on his phone. Holloway testified he was calling his employer to inform them he would possibly be late. He was asked for his ID, registration, and proof of insurance. He provided all of this, but running a records check showed Holloway’s registration was expired and his insurance had been cancelled. The officers decided to impound the vehicle.

While waiting for the tow truck, Officer Smart decided to engage in some exploratory conversation, leading off with this:

While Defendant sat in the vehicle, Officer Smart asked Defendant a question to the effect of whether there were any “guns, drugs, cats, sharks, or weapons” in the vehicle.

Uh huh. That was the lead off. Then this happened:

Officer Smart testified that he asks such a question at vehicle stops to “read people’s body language and their demeanor.” Officer Smart further testified that after he asked this question, Defendant “was breathing heavily,” “would not make eye contact,” “was reaching toward the passenger’s seat multiple times,” “was reaching towards the center console multiple times,” “looked at the center console two or three different times,” and “placed his right hand resting on top of the plastic panel by the shifter column center console.” Based on Defendant’s “nervous behavior and movements” alone, Officer Smart ordered Defendant to get out of the car.

Holloway was frisked, resulting in the discovery of Percoset, which Holloway claimed was legally prescribed. Then Officer Smart began his “inventory” of the vehicle prior to its towing — something that apparently involved pulling the top off the center console gear shift area, which led to the discovery of illegal drugs and a handgun.

Holloway moved to suppress this evidence, saying this search of his car and the frisk of his body weren’t supported by reasonable suspicion or probable cause. The government begged to differ. Lawyers paid for with tax dollars actually made this argument in court:

The Government argues that reasonable suspicion arose because Defendant did not laugh in response to Officer Smart’s question of whether there were any “guns, drugs, cats, sharks, or weapons” in the car, and instead “immediately started breathing heavily, looked toward the shifter column, and avoided eye contact.”

Well, frisk the court, I guess, because it’s not laughing either.

The Court finds that Officer Smart did not have reasonable suspicion to frisk Defendant or Defendant’s vehicle. “Nervous, evasive behavior” is just one factor considered in a “reasonable suspicion determination [which] must be based on commonsense judgments and inferences about human behavior.” Officer Smart testified that he regularly asks individuals the question concerning “firearms, drugs, cats, dogs, alligators, and weapons” at vehicle stops because it “helps [him] read people’s body language and their demeanor.” He further testified that he was trained by other officers to infer that an individual who does not laugh at such a question is nervous about either firearms or narcotics and that he typically receives a “laughing response” to that question. […]

The Court does not find that laughing at a law enforcement officer while being questioned about drugs and weapons would be an appropriate response. Moreover, failing to laugh at a bizarre question while being questioned about drugs and weapons does not create reasonable suspicion to remove an individual from a car after a traffic violation.

And there it is: the deafening silence that drowns out the desperation rimshot. And while it wasn’t the government’s only argument, it was its worst argument. But the rest weren’t much better. It argued the defendant was not actually on his way to work so he couldn’t have been nervous about being late for work. It argued that he shouldn’t have been nervous when officers patted him down if he did, as he asserted, have a prescription for the pills the officers found on his person.

And the court says the stuff found in the car (following the prying open of the center console gear shift casing by Officer Smart) would not have been “inevitably discovered” during an pre-tow inventory search. Inventory searches detail everything that isn’t in a locked or closed area. A shift stick encasement is generally not the sort of thing cops open up when performing a perfunctory inventory search.

But it bears repeating that the initial assertion by the government was that failing to laugh at something most people would only very charitably describe as a joke is suspicious behavior. And that argument is so terrible and so incredibly convenient one wonders if the government would have made the same argument if Holloway had laughed and told the court laughing at such a stupid question was just as suspicious as not laughing at it. Given the “reasonable suspicion” assertions we’ve already discussed here at Techdirt, it would be completely in law enforcement character to claim opposite reactions to the same stimulus equally suspicious.