The Arizona Court of Appeals ruled last week that asserting one's constitutional rights does not give police sufficient cause for detention and search. The ruling treated a January 8, 2008 incident in which Alvin J. Sweeney was pulled over for allegedly following a car too closely. Arizona state police Officer Mace Craft claimed that he had timed the gap between Sweeney's car and the vehicle in front of him at 0.88 seconds. Sweeney had a Canadian driver's license and was driving a rental car with the appropriate paperwork. This, and Sweeney's nervousness, aroused Craft's suspicion.

Craft directed Sweeney out of the car and began an interrogation about where the man was headed and what he was doing in Arizona. Sweeney said he drove from New York to find a vintage Camaro, but Craft did not believe anyone could drive so far just to buy a car. Craft wrote Sweeney a warning ticket, told him to have a safe trip, but then asked for permission to search the rental car.

"No, you can't, 'cause I don't think it's in (the law), is it?" Sweeney responded.

Craft asked asked if he could have a drug dog sniff the car. Sweeney again said no and began walking away. Craft grabbed Sweeney and said he was being detained. Craft then proceeded to have the dog perform a search of the car, eventually finding a bag filled with cocaine in the trunk. The court considered whether the police officer was justified in initiating the search.

Although the court found little credibility in the precise 0.88 second timing for the following-too-closely allegation, the evidence appeared sufficient for the initial traffic stop. After Officer Craft presented the warning citation, however, the situation became less clear.

"Officer Craft used physical force to detain appellant when he grabbed his arm and ordered him to stand in front of the patrol car," Presiding Judge Peter B. Swann wrote. "There was nothing consensual about the encounter at the time it occurred... the continued detention of appellant after he declined to allow the search was an additional seizure under the Fourth Amendment... The Fourth Amendment requires that an officer have some minimal, objective justification for the detention."

The court found no evidence on the dashcam video of the incident of Sweeney's hands shaking or the other signs of nervousness that Craft cited in his testimony. The court also considered much of the evidence provided to be irrelevant.

"Considered in the aggregate, these factors did not give rise to objective reasonable suspicion of anything," Swann wrote. "A reasonably prudent person's suspicions would not be raised after observing a foreign national driving a clean, deodorized rental car with an atlas on the passenger seat, who upon being stopped and questioned outside in the three-degree weather by the police, failed to articulate with specificity the places he had visited while staying in an unfamiliar city. A holding to the contrary would subject nearly everyone to a continued, intrusive detention following a routine traffic stop."

The court emphasized the importance of the ruling police from making up after-the-fact reasons to find a criminal guilty. To do otherwise would endanger the entire public, the court explained.

"We might overlook the objective circumstances revealed by the recording and instead marvel at the acuity of Officer Craft's instincts in identifying appellant as a likely drug courier on such innocuous facts," Swann wrote. "But were we to engage in such tautological reasoning, we would render the Fourth Amendment a nullity -- the objective (not instinctive) reasonable suspicion must exist before the detention, and the ultimate discovery of contraband cannot retroactively justify an otherwise unwarranted detention... the invocation of one's constitutional rights cannot constitute a circumstance that gives rise to reasonable suspicion. If the mere refusal of consent itself constituted reasonable suspicion, nothing would prevent warrantless searches of random individuals, because either the grant or refusal of consent would eventually justify the searches."

The court threw out the evidence against Sweeney as illegally obtained. A copy of the decision is available in a 90k PDF at the source link below.