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.
Archive for the ‘Constitutional Issues – Illegal Searches’ Category
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.
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.
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.
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 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.