           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.

                                   1
No. 01-4118                             Joshua v. DeWitt        3    4        Joshua v. DeWitt                                No. 01-4118

                       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.
