Ohio Dui - Cleveland Attorney Avery H. Fromet » Constitutional Issues – Illegal Searches

Is an Involuntary Blood Draw Constitutional

afromet — Sat, 04 Jun 2011 12:39:22 +0000

A long national debate continues regarding the right of government to forcibly draw blood. The debate centers around the government’s right to invade a person’s body in a search of evidence of the commission of a crime. Obviously, constitutionalists say that the forcible invasion of a person’s body is per se unconstitutional. On the other side is law enforcement that argues such an intrusion in the name of crime prevention is minimally invasive and, therefore, not a violation of the right to be free from illegal searches and seizures.

A recent of Ohio case demonstrates a further swing toward law enforcement. The case, State v. Capehart, 2011 Ohio 2602, involved the arrest of an individual subsequent to a tractor accident. The officer who came to assist observed a number of characteristics of alcohol impairment – glassy eyes, slurred speech, a smell of alcohol – along with several beer can found around the vicinity of the accident.

The defendant was taken to the hospital where he was read the rights set forth on the back of Form 2255 (consequences of his failure to take a chemical test). The defendant agreed to submit to a blood test and a BAC of .31 was found.
During the subsequent prosecution of his case, the defendant filed a motion to suppress which was denied by the court stating the defendant had volunteered to take the test and, therefore, it was not an illegal search and seizure.

But, the court did not stop there. Uncharacteristically, the court went on in its opinion to render its opinion regarding a scenario wherein a defendant had not volunteered to take a blood test. The court, in analyzing such a scenario stated:
“…certain situations, such as where there is imminent danger that evidence will be lost or destroyed if a search is not conducted immediately, “present exigent circumstances that justify a warrantless search.” State v. Moore, 90 Ohio St.3d 47, 52, 2000 Ohio 10, 734 N.E.2d 804; State v. Christopher, Clermont App. No. CA2009-08-041, 2010 Ohio 1816, ¶32. The United States Supreme Court in Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L. Ed. 2d 908, determined that a warrantless seizure of a blood sample for purposes of testing an individual’s alcohol level could be justified based on exigent circumstances resulting from the evanescent nature of the evidence, i.e., the fact that the level of alcohol in blood dissipates over time. In so holding, the Supreme Court set forth certain criteria to be used in determining if such an intrusion violates the Fourth Amendment: (1) the government must have a “clear indication” that incriminating evidence will be found; (2) there must be a search warrant or exigent circumstances, such as the imminent destruction of evidence, to excuse the warrant requirement; and (3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner. Id. at 770-772; Christopher at ¶32; State v. Troyer, Wayne App. No. 02-CA-0022, 2003 Ohio 536, ¶14. In a recent case similar to the one before us, this court had occasion to consider a warrantless seizure of a blood sample and found it to be justified under Schmerber. State v. Palmieri, Butler App. No. CA2009-12-294, 2010 Ohio 5667.”

“In the present case, based on appellant’s bloodshot eyes, slurred speech, odor of alcoholic beverage on his person, beer cans nearby, and statements admitting to the consumption of beer, the officer had probable cause to believe appellant had been driving under the influence of alcohol, and therefore, there existed a clear indication that a blood-alcohol test would reveal incriminating evidence. See State v. Woods (Sept. 9, 1991), Butler App. No. CA90-07-125, 6-9, 1991 Ohio App. LEXIS 4210; see, also, State v. Hessel, Warren App. No. CA2009-03-031, 2009 Ohio 4935, ¶23; State v. Henry, Preble App. No. CA2008-05-008, 2009 Ohio 10, ¶44-45; State v. Hill, Coshocton App. No. 2008-CA-0011, 2009 Ohio 2468, ¶21.”

“Furthermore, exigent circumstances justified the warrantless search. See Woods at 11, 1991 Ohio App. LEXIS 4210; Troyer at ¶27-28. These include the rapid rate at which alcohol diminishes in the blood and the time that had already passed since appellant drove his tractor into the ditch. Such circumstances indicate there was an imminent danger that the evidence would be lost if the blood sample was not drawn immediately.”

“Finally, because the blood sample was drawn by trained medical personnel using medically acceptable procedures, it is clear that the method used to extract the evidence was reasonable and performed in a reasonable manner. Cf. State v. Starnes (1970), 21 Ohio St.2d 38, 43, 254 N.E.2d 675 (finding the Supreme Court’s holding in Schmerber authorized the administration, over the objection of the accused, of the tests specified in R.C. 4511.191).”

In conclusion, the court said, “…we find the warrantless search and seizure of appellant’s blood for purposes of testing his alcohol level did not violate appellant’s Fourth Amendment rights and was justified regardless of consent under the principles outlined by the Supreme Court in Schmerber.”

So, will this case embolden law enforcement to order blood draws when a defendant is taken to the hospital? Will law enforcement transport a defendant to a hospital and order hospital personnel to strap that person down and forcibly take a blood draw? One can only hope that reasonable minds will prevail. But, only time will tell!

The Constitutionality of Mandated Blood Draws

afromet — Fri, 04 Feb 2011 14:24:04 +0000

One of the more controversial aspects of the amendments made to Ohio OVI laws is the provision giving the police the right to use “reasonable means” to ensure the suspect’s submission to mandatory blood draw as set forth in. R.C. 4511.191(A)(5)(b). While most police departments are loathe to use force on any suspect to impose a mandatory blood draws, the controversy continues. The issue to most legal scholars pertains to the constitutionality of such provisions.

The Ninth District Court of Appeals (Summit County) has weighed in with a comprehensive review of these provisions. The case, State v. Slates, 2011 Ohio 295, involved a blood draw pursuant to an OVI arrest.

The court started with a restatement of the law, “R.C. 4511.191(A)(5)(b) authorizes the police to employ whatever reasonable means are necessary to ensure that a person suspected of operating under the influence, and who would be required to be sentenced as repeat offender, submit to a blood alcohol test.”

Having restated the law, the court’s analysis ensued by defining the boundaries of a persons right against illegal searches an seizures. Per the court’s synopsis, “The Fourth Amendment to the United States Constitution provides in part that the right of the people to be secure in their persons against unreasonable searches and seizures, shall not be violated. The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of reasonableness upon the exercise of discretion by government officials, including law enforcement agents, in order to safeguard the privacy and security of individuals against arbitrary invasions. Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against the promotion of legitimate governmental interests.”

What intrusions are permitted? “The Fourth Amendment does not constrain against all intrusions but, rather, only those intrusions which are not justified by the circumstances or which are executed in an improper manner. Three criteria have been set forth to determine the reasonableness of an intrusive search: (1) the government must have a clear indication, rather than a mere chance, that incriminating evidence will be found; (2) there must be a search warrant or exigent circumstances, such as the imminent destruction of evidence; and (3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner.”

Having established the criteria, the court went on to an analysis of the facts in this case and its application. Regarding the first prong, the stated, “The first prong may be satisfied where the State has established probable cause for the arrest.” Since there was uncontroverted evidence of probable cause for the arrest, the court was satisfied that the first requirement was fulfilled.

Regarding the second prong, the court said, “After the suspect’s refusal to submit to the chemical test, the suspect must necessarily be transported to a location where a physician, registered nurse, or other enumerated qualified professional is available to draw the blood. Accordingly, the police will never have the entire three-hour period in which to obtain a warrant. Moreover, depending on the time of the alleged violation, there most likely would not be enough time to secure a warrant to allow for the blood draw within three hours….Regarding exigent circumstances underlying the drawing of blood for purposes of chemical analysis in operating a vehicle while under the influence of alcohol cases, the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Accordingly, time is of the essence where evidence of the charged offense may diminish or be lost completely. In addition, the reasonableness of the intrusion is supported by the legitimate government interest in public safety. The legislature recognizes the inherent danger posed by repeat offenders as evidenced by the elevated offense levels and the allowance for the imposition of harsher penalties for repeated violations of R.C. 4511.19. Accordingly, the legitimate interest in protecting the public from harm bolsters the reasonable nature of a warrantless blood draw.”

Therefore, according to the Ninth Appellate District, mandatory blood draws for multiple offenders in constitutional. But, as this writer has observed, the controversy regarding these provision are merely an academic debate as most, if not all, police departments refuse to enforce these provisions.

Under What Circumstances Can a Driver Be Required to Exit Their Automobile

afromet — Thu, 03 Feb 2011 14:34:16 +0000

For those who follow my blog, they are familiar with the term “Probable Cause.” This is the term used by most legal scholars to identify the totality of evidence necessary to take certain actions relating to a criminal act. In prior blogs I’ve described the evidence necessary to have probable cause to stop a vehicle and the probable cause necessary to perform field sobriety test. One critical step has not been discussed – the evidence necessary to demand a driver exit their vehicle.

A recent 11th District Court of Appeals (Portage County) case discusses this critical step in the OVI arrest sequence. The case, State v. Wiesenbach, 2011 Ohio 402, involved a stop where the driver had no front license plate. The officer noticed a strong odor of alcohol emanating from the vehicle. The officer also noticed the drivers eyes were “slightly red and glassy.” Upon questioning, the driver did admit having an alcoholic beverage a few hours prior to the traffic stop. The driver was placed in the rear seat of the officer’s patrol car while the officer attempted “to pinpoint the source of the alcohol odor.” Subsequently, the officer asked the driver to exit the patrol car and field sobriety tests were performed. Based upon the officer’s observations, the defendant was arrested for OVI.

Wiesenbach filed a Motion to Suppress, contending, among other arguments, that there was no reasonable cause to stop or detain him, that there was no probable cause to conduct an arrest for OVI, and that the field sobriety tests were not administered properly. After a hearing on the motion, the court found that, based upon the odor of alcohol, the bloodshot, glassy eyes, the time of night, and Wiesenbach’s statements about drinking alcohol earlier, Ganley had “probable cause” to ask the Defendant to take the field sobriety tests. Additionally, the court held that officer administered the sobriety tests in substantial compliance with NHTSA standards and thus there was probable cause to arrest Wiesenbach for OVI. The court overruled Wiesenbach’s motion.

The Defendant first argued that Ganley did not have sufficient reasonable suspicion that Wiesenbach was impaired to detain him for a full OVI investigation. Wiesenbach also asserted that under State v. Evans (1998), 127 Ohio App.3d 56, 711 N.E.2d 761, he should not have been detained for a full OVI investigation because his case did not involve many of the factors to be considered to determine whether reasonable suspicion existed, listed in Evans.

In Evans, the court set forth a non-exclusive list of factors to be considered when determining whether reasonable suspicion exists to conduct field sobriety tests. This list includes the following factors:

“(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or more significantly, on the suspect’s person or breath; (8) the intensity of that odor, as described by the officer (‘very strong,’ ‘strong,’ ‘moderate,’ ‘slight,’ etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given. All these factors, together with the officer’s previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably.” Evans, 127 Ohio App.3d at 63, fn. 2.

But having verified that some of these factors existed, what level of evidence is necessary to require the driver to exit the vehicle. The simple answer is none. As stated by the court, “[o]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures[;] … it is proper for an officer to order a driver to exit a lawfully stopped vehicle, even if there was no reasonable suspicion of criminal activity.’” State v. Wojewodka, 11th Dist. No. 2009-P-0029, 2010 Ohio 973, at ¶14, citing State v. Lett, 11th Dist. No. 2008-T-0116, 2009 Ohio 2796, at ¶¶17-18, quoting Pennsylvania v. Mimms (1977), 434 U.S. 106, 111, 98 S. Ct. 330, 54 L. Ed. 2d 331. “[T]he order to step out of the vehicle is not a stop separate and distinct from the original traffic stop.” State v. Evans, 67 Ohio St.3d 405, 408, 1993-Ohio-186, 618 N.E.2d 162. ”‘Unlike an investigatory stop, where the police officer involved must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion,” Terry [v. Ohio (1968), 392 U.S. 1,] 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889, a Mimms order does not have to be justified by any constitutional quantum of suspicion.” Lett, 2009 Ohio 2796, at ¶20, citing Evans, 67 Ohio St.3d at 408.

In other words, a driver’s Fourth Amendment rights against illegal searches and seizures are not violated once a police office finds probable cause to stop the vehicle and determines that field sobriety tests are warranted.

Probable Cause to Stop – Suspended License

afromet — Wed, 08 Dec 2010 20:12:53 +0000

A recent Third Appellate District Court case further evidences Ohio courts’ continuing efforts to expand the right of police officers to stop a vehicle although the reasons for the stop may stretch the exceptions against an illegal search and seizure under the Fourth Amendment of the United States Constitution.

The case, State v. Jenkins, 2010 Ohio 5943, involved the stop of a driver by a Marysville, Ohio police officer after the officer found that the driver’s license of the driver was under suspension by way of a license check. The defendant was driving on a Sunday at 6:18 pm. The officer testified that the vehicle was traveling at a speed of 10 mph over the seed limit. The defendant was not cited for speed but in checking the license plate through the LEADS database it was discovered that the owner had limited driving privileges. The driver of the vehicle matched the general description of the owner. The officer stopped the vehicle and discovered that the defendant was, in fact, the owner and his license was suspended, save the limited privileges given to him.

Subsequently, the defendant filed a motion to suppress citing his fourth amendment rights against unreasonable searches and seizures. The defendant claimed the officer had insufficient articuable facts that would warrant his top as the defendant was not cited for any underlying criminal or traffic violation.

The court, in its opinion, stated, …for a law enforcement officer to conduct a warrantless search, he must possess probable cause, which means that “‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” State v. Carlson (1995), 102 Ohio App.3d 585, 600, 657 N.E.2d 591, quoting Illinois v. Gates (1983), 462 U.S. 213, 214, 103 S. Ct. 2317, 76 L. Ed. 2d 527. However, even where probable cause is lacking, it is well-established that a law enforcement officer may temporarily detain an individual where he has a reasonable articulable suspicion that the individual is engaging in criminal activity. State v. Bobo (1988), 37 Ohio St.3d 177, 179, 524 N.E.2d 489, citing Terry, 392 U.S. at 21.”

The court went on, “Reasonable articulable suspicion is “‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.’” Stephenson, 2004 Ohio 5102, at P16, quoting Bobo, 37 Ohio St.3d at 178. In forming reasonable articulable suspicion, law enforcement officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” United States v. Arvizu (2002), 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740, quoting United States v. Cortez (1981), 449 U.S. 411, 417-418, 101 S. Ct. 690, 66 L. Ed. 2d 621. Further, an officer who witnesses a traffic violation possesses probable cause, and a reasonable articulable suspicion, to conduct a traffic stop. Id. Stephenson, 2004 Ohio 5102, at P17.”

The court cited the case of State v. Mack, 9th Dist. No. 24328, 2009 Ohio 1056 in its attempt to hone in on the specific factual jurisprudence. That case cited two elements justifying that stop: that the drivers’ suspended license combined with the fact that the stop took place at 2:00 a.m. demonstrated the officer had a reasonable articulable suspicion for an investigatory stop of the vehicle. In summary, “[a] police officer has a constitutionally legitimate basis to stop a vehicle when: 1) the officer learns that the registered owner of the vehicle has a suspended license with limited driving privileges; and 2) both the late hour when the driver is operating the vehicle and the location from which the vehicle is driven provide a reasonable inference that the driver may not be operating the vehicle within the scope of his limited driving privileges,” State v. Elliott, 4th Dist. No. 08CA50, 2009 Ohio 6006.

In justifying the lower court’s denial of the defendant’s motion to suppress, the appellate court came to the following conclusions in its resolution of the time differential (2:00 am v. 6:18 pm):

“…we find applicable the more general findings of Elliott concerning the relevancy of the hour during which the driver is operating his vehicle, and the location from which the vehicle is driven. Here, Officer Bartholomew testified that he observed Jenkins operating his vehicle at 6:18 p.m. on a Sunday evening; that he learned through dispatch that Jenkins’ license was suspended, but that he had limited driving privileges; that Jenkins had a passenger in his vehicle; and, that Jenkins was traveling away from his address. We find that, from the totality of these circumstances, Officer Bartholomew had a reasonable articulable suspicion that Jenkins may not have been driving within his limited privileges and was permitted to stop the vehicle to investigate further.”

This writer is having a difficult time understanding the court’s reasoning. First the court cites the acute differences between the present case and the Elliot and Mack cases and then summarily agrees with the officer’s right to stop the defendant even though the facts are starkly different.

Arrest Required Prior to Any Chemical Test Being Ordered

afromet — Tue, 17 Aug 2010 14:01:52 +0000

A recent 5th Appellate District case addresses the issue of procedural abnormalities in the prosecution of per se violations. In the case, State v. Whitt, 2010 Ohio 3761, the defendant was involved in a one vehicle accident. The defendant was transported to the hospital prior to the OHP trooper arriving at the scene. The trooper subsequently went to the hospital to interview the defendant regarding the accident.

After being read his Miranda Rights, the defendant declined to answer any questions about the accident. The trooper read and showed the defendant a copy of the Ohio Bureau of Motor Vehicles Form 2255, the so-called implied consent form. The defendant was advised that he would receive a ninety (90) day suspension of his driver’s license if the chemical test to determine the amount of alcohol in defendant’s bloodstream came back with a positive test result, but a one year suspension if he refused to submit to the test. The reader will note, the defendant was never placed under arrest during this sequence of events.

The defendant testified that he submitted to the blood test because he was advised that he would have his license suspended for one year if he refused. The trooper then cited the defendant for OVI. The defendant file a motion to suppress for citing the following reasons:

1. He was not arrested for ovi as required prior to requesting a chemical test. And

2. He was advised improperly regarding the consequences of his refusal to take a chemical test.

The lower court denied his motion and the defendant appealed.

The appellate court agreed with the defendant saying, “…Ohio Bureau of Motor Vehicles Form 2255 includes the provision that an officer must read to the alleged offender a passage that specifically states that the offender is under arrest. Revised Code § 4511.191 provides: “(A) Any person who operates a vehicle upon a highway or any public or private property used by the public for vehicular travel or parking…shall be deemed to have given consent to a chemical test or tests of the person’s blood…for the purpose of determining the alcohol…content of the person’s blood…if arrested for operating a vehicle while under the influence of alcohol…or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine,” State v. Kirschner, 2001 Ohio 1915.

The court went on to cite State v. Rice (1998), 717 N.E.2d 351, saying “The language of R.C. 4511.191 specifically provides that an arrest is necessary, and, throughout the additional sections accompanying this statute, reference is repeatedly made to “the person under arrest” and the “arresting officer.”

Therefore, the court concluded the defendant must be placed under arrest prior to any chemical test being requested.

A recent 5th Appellate District case addresses the issue of procedural abnormalities in the prosecution of per se violations. In the case, State v. Whitt, 2010 Ohio 3761, the defendant was involved in a one vehicle accident. The defendant was transported to the hospital prior to the OHP trooper arriving at the scene. The trooper subsequently went to the hospital to interview the defendant regarding the accident.
After being read his Miranda Rights, the defendant declined to answer any questions about the accident. The trooper read and showed the defendant a copy of the Ohio Bureau of Motor Vehicles Form 2255, the so-called implied consent form. The defendant was advised that he would receive a ninety (90) day suspension of his driver’s license if the chemical test to determine the amount of alcohol in defendant’s bloodstream came back with a positive test result, but a one year suspension if he refused to submit to the test. The reader will note, the defendant was never placed under arrest during this sequence of events.
The defendant testified that he submitted to the blood test because he was advised that he would have his license suspended for one year if he refused. The trooper then cited the defendant for OVI. The defendant file a motion to suppress for citing the following reasons:
1. He was not arrested for ovi as required prior to requesting a chemical test. And2. He was advised improperly regarding the consequences of his refusal to take a chemical test.
The lower court denied his motion and the defendant appealed.
The appellate court agreed with the defendant saying, “…Ohio Bureau of Motor Vehicles Form 2255 includes the provision that an officer must read to the alleged offender a passage that specifically states that the offender is under arrest. Revised Code § 4511.191 provides: “(A) Any person who operates a vehicle upon a highway or any public or private property used by the public for vehicular travel or parking…shall be deemed to have given consent to a chemical test or tests of the person’s blood…for the purpose of determining the alcohol…content of the person’s blood…if arrested for operating a vehicle while under the influence of alcohol…or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine,” State v. Kirschner, 2001 Ohio 1915.
The court went on to cite State v. Rice (1998), 717 N.E.2d 351, saying “The language of R.C. 4511.191 specifically provides that an arrest is necessary, and, throughout the additional sections accompanying this statute, reference is repeatedly made to “the person under arrest” and the “arresting officer.”
Therefore, the court concluded the defendant must be placed under arrest prior to any chemical test being requested.

Searches Incident to Arrest

afromet — Fri, 19 Mar 2010 11:00:00 +0000

The Gant decision may be a bit afield of the issue of DUI, but it is important that anyone being arrested for a traffic offense be aware of their rights against illegal searches. To summarize Gant, the US Supreme Court limited an arresting officer’s right to search the vehicle when 1) the occupants are outside the vehicle and no longer have access to the vehicle and 2) there is no indication that the search was initiated to preserve evidence of the offense for which the offender was arrested.

A recent Ohio decision used the Gant decision in determining an officer’s right to search even if the subject of the arrest was other than a traffic violation. The case, State v. Gilbert, 184 Ohio App.3d 642 involved the arrest of the driver and his passengers. The automobile was stopped for a traffic offense. A warrant search found that the driver was driving under a suspended license and the front-seat passenger had an outstanding warrant for robbery. All three occupants were vacated from the car and the arresting officer proceeded to make a search of the vehicle.

The syllabus stated the following:

“Police may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

The court’s opinion expanded on this point by stating:

“…the search is not justified under either branch of the standard established in Gant. When the search occurred…and all occupants of the car had been removed and were under police control. Thus, at the time of the search, no occupant had access to, or was within reaching distance of, the vehicle’s passenger compartment. There is also no indication that the search was initiated to discover evidence relevant either to the crime that had been committed by the driver, or the crime for which there was an outstanding warrant to arrest the front-seat passenger. A passenger in the front seat had also been arrested on an outstanding warrant for robbery, but there is no indication that the officers were searching for evidence relevant to that crime, or that evidence was likely to be present relevant to that crime, which would have occurred some time in the past, since a warrant had been issued.”

A major debate is raging in Ohio relative to the right of an officer to search the vehicle after an arrest as a result of the Gant decision. The Gilbert case, I believe, further defines the limits of a police office’s right to search a vehicle for ANY reason. It appears Gilbert estops the officer from conducting an “inventory” search subsequent to arrest. Unless the search can be justified in furtherance of a search to accumulate evidence of the crime for which the accused is being charged, a search warrant must be obtained prior to any search.

Expansion of an Investigatory Stop Violates Individual’s Right Against Illegal Searches and Seizures

afromet — Wed, 23 Dec 2009 09:06:00 +0000

A recent Ohio case demonstrates the illegality of an expanded investigatory stop. As any reader of this blog knows, a police officer may stop a vehicle for a brief investigatory stop if that officer has probable cause to believe the vehicle is engaged in or is about to engage in some criminal act or traffic violation. The Forth Amendment to the United States Constitution protects against unreasonable searches and seizures. A “Seizure” occurs when an office restrains an individual’s freedom for an investigatory stop.

But, short of being able to point to specific and articuable facts, which , under the totality of the circumstances, warrant a reasonable belief that criminal behavior has occurred or is imminent, the officer can not seize the individual or expand the investigation.

In the case of State v. Brown, 183 Ohio App.3d 337, the court stopped an officer’s “fishing expedition.” In that case, the defendant was stopped for following too close, a minor traffic violation. The police officer than began asking irrelevant questions unrelated to the purpose of the stop. Questions included the specific reasons for the defendant’s travel, details of the reasons given, and whether they were carrying drugs or large amounts of cash.

The court stated, “The scope of a detention, to be consistent with Fourth Amendment protections, must be carefully tailored to its underlying justification and last no longer than is necessary to effectuate the purpose of the stop. The lawfulness of an initial stop will not support, under the Fourth Amendment, a fishing expedition for evidence of a crime.”

The Woods County Appellate Court went on to say, “When conducting the stop of a motor vehicle for a traffic violation, an officer may detain the vehicle for a time sufficient to investigate the reasonable, articuable suspicion for which the vehicle was initially stopped…”

The reader is cautioned that if the car itself is seized in the event of a OVI arrest, for instance, the police could initiate a legal inventory search of the vehicle and, if contraband is found, could charge the driver accordingly.

But, for an ordinary traffic stop, the officer can not go any further than the initial investigation of the traffic violation. Individuals should be aware that the officer is not permitted to go beyond the scope of their initial traffic investigation and are under no obligation to respond to any questions that go beyond the scope of the traffic investigation.

They Can’t Arrest Me. I was in My Home.

afromet — Tue, 30 Jun 2009 18:40:00 +0000

Ordinarily, a person’s Fourth and Fourteenth Amendment rights against illegal searches and seizures applies to one’s home. The police are not permitted to enter a person’s home without a warrant. By extension, entering an unattached garage, in most instances, is considered part of the home and, once again a warrantless search and subsequent arrest is not permitted. By extension, any evidence obtained is subject to suppression.

This principle applies to DUI/OVI arrests. Normally, a police officer is not permitted to enter one’s home to arrest that person for this offense. Nor can the officer enter the garage for the same reason.

Of course there are exceptions to this rule. A recent Ohio case, State v. Lake, outlines one of those exceptions. In the case, the Defendant was observed violating several traffic laws and proceeded to drive his vehicle into his garage. The Defendant argued in his suppression motion that he was illegally arrested because he was in his garage at the time of the arrest and the police were not permitted to enter his garage without a warrant. The trial court overruled the Defendant’s motion and he was eventually found guilty. The Defendant appealed the court’s ruling stating his Fourth and Fourteenth Amendment rights were violated by the police coming onto his property to effectuate his arrest.

The Seventh District Court of Appeals (Columbiana County) took exception to the Defendant’s argument. The Court held that the “hot pursuit” entry exception applied. They then stated that a defendant cannot defeat an arrest which has been set in motion in a public place by the escape to a private place, reiterating U.S. v. Watson, a 1976 U. S. Supreme Court case on point. In 2002, the Ohio Supreme Court extended this principle to misdemeanors, see Middletown v. Flinchum.

The court reasoned that since the officers observed at least two traffic violations, they had probable cause to stop the Defendant and pursue the Defendant into his “home” to effectuate an arrest.

So the next time you opine that a policeman can not arrest you when you are in your own home, you may want to think about the fact pattern cited in this post.

Recent Court Decisions Expand and Detract Defendant’s Rights

afromet — Wed, 10 Jun 2009 06:50:00 +0000

Recent U.S. Supreme Court decisions have resulted in major shifts in police power, thus expanding a defendant’s right, on one hand, while reducing those rights on the other.

In the recent case of Arizona v. Gant, the defendant, Gant, was stopped by the police for Driving under Suspension. His driving privileges had been suspended by the state for a previous violation of Arizona’s traffic laws. Gant was removed from the vehicle and placed in the officer’s police cruiser. The officer then searched the defendant’s vehicle and found rock cocaine in the defendant’s jacket pocket. The defendant was subsequently charged with the drug office in addition to his traffic violation. While the court failed to characterize the search as such, the search was conducted pursuant to a police policy to do so prior to towing the vehicle after an arrest – commonly referred to as an “inventory” search.

The court in its decision stated,

“Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.”

Because the court did not use the term “inventory search,” a debate has raged among many academics, prosecutors and defendants as to the court’s intent. Nonetheless, the U.S. Supreme Court has narrowed the right of police to search a vehicle incident to a traffic stop.

In the second case, the court has actually reversed a prior decision of the court regarding the interrogation of arrestees. Previously, the law stated that police may not initiate questioning of a defendant who has a lawyer or has asked for one unless that attorney is present. The rule applied even if the Defendant agreed to speak to authorities without their attorney.

This opinion has been overturned. In Montejo v. Louisiana, the U.S. Supreme Court’s opinion stated, “It would be completely unjustified to presume that a defendant’s consent to police-initiated interrogation was involuntary or coerced simply because he had previously been appointed a lawyer.”

Therefore, it appears the court has shifted the burden to the defendant to show that the defendant was somehow coerced into speaking with the police without the benefit of counsel. Previously, the police could not even ask the defendant who had an attorney if he wanted to talk. Now, this protection was been overruled and the police can initiate questioning of the defendant, even if the defendant is represented by counsel and it will be the defendant’s burden to seek suppression based upon coercion, threat, or other unconstitutional procedures by the police.

How do these cases impact on a DUI arrest? Previously, if one is stopped and the police find probable cause to arrest for DUI, the police then initiated an inventory search ostensibly to safeguard valuables of the Defendant when the car was being towed. If any contraband was found (drugs, open containers, guns, etc.) the Defendant then could be charged with additional offenses, some that may be major crimes. The court has put an end to this type of search when a defendant is being arrested for a non-contraband offense such as a traffic violation such as DUI.

The impact of the other case impacts on voluntary statements made by a defendant while in custody. Let us assume the defendant tells the arresting officer they do not wish to speak without the benefit of counsel. Previously, the questioning had to stop. Now, this is no longer true. Using the Montejo opinion, the police can initiate questioning unless the defendant continues to insist on his right to counsel and deeps quiet. So, it is vitally important that defendant keeps their wits about them and does not respond to the police questioning. Remember, it is the defendant’s word against the police officer’s word as to the circumstances surrounding a given interrogation, and the tendency is to side with the police officer.