Those who are regular readers of this blog are very familiar with the case of State v. Homan, 89 Ohio St.3d 421, 732 N.E.2d 952. The case was a landmark as it precipitated a change in Ohio law regarding the level of compliance necessary to accept field sobriety tests (FSTs) into evidence. The case was also important as The Ohio Supreme Court ruled that probable cause to arrest may be based on other “extrinsic” evidence notwithstanding the admissibility of FSTs. While the case set forth a standard for the admissibility of FSTs (strict compliance with the standards of the NHTSA manual - subsequently reduced to substantial compliance by statute), the court also stated that probable cause to arrest exists even if FSTs are inadmissible if the arresting officer can point to other evidence of insobriety. A perfect example of the application of Homan was set forth in Fifth Appellate District case of State v. Harlan, 2011 Ohio 6884. The defendant was stopped for failure to stay within marked lanes. The officer observed the defendant weaving back and forth several times crossing the center and side lines of the road. Upon investigation, the officer observed a strong odor of alcohol coming from the defendant’s person. The defendant admitted coming from a bar where she had consumed “a couple of “shots.” The officer performed a Horizontal Gaze Nystagmus test and found sufficient clues to warrant the arrest of the defendant. The defendant filed a motion to suppress. The motion stated that the officer failed to administer the HGN test in substantial compliance with NHTSA standards. Additionally, the defendant claimed that without the results of the HGN test, the officer was without probable cause to arrest the defendant. The court began its discussion by agreeing that the state failed to produce sufficient evidence to show that the officer substantially complied with NHTSA standards and suppressed the HGN test. But the court went further to state that the officer had sufficient other evidence to produce probable cause for the arrest. The court pointed to the fact that the traffic violation by the defendant was more than a de minimus violation. In addition, the officer stated that a strong odor of alcohol was emanating from the defendant and, further, the defendant’s admission to having two “shots” and coming from a bar just prior to the stop. The court concluded these facts produced sufficient extrinsic evidence for probable cause to arrest, Homan, Supra.
Archive for the ‘Constitutional Issues – Probable Cause’ Category
Readers of this blog should be familiar with several articles I’ve written regarding probable cause to arrest. Basically the term is defined as follows: “Probable cause to arrest without a warrant exists where, based on the totality of the circumstances, an officer possesses sufficient information to cause a reasonable and prudent person to believe that a suspect is committing or has committed a criminal offense, Texas v. Brown (1983), 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L. Ed. 2d 502; Illinois v. Gates (1983), 462 U.S. 213, 230-232, 103 S.Ct. 2317, 76 L. Ed. 2d 527. But what if the alleged offender is less than 21. According to the First Appellate District (Hamilton County), probable cause to arrest requires less evidence of impairment. In the case, State v. Carroll, 2008 Ohio 6832, the defendant, who was 18, was stopped for speeding. While addressing the defendant, the officer smelled alcohol on the defendant’s breath, and observed that his eyes were glassy and bloodshot. The defendant admitted consuming beers earlier. The officer had the defendant exit his vehicle and perform field sobriety tests. The defendant passed all three tests. The lower court granted the defendant’s motion to suppress stating that the officer lacked probable cause to arrest the defendant as there was no evidence of impairment. The appellate court argued impairment is not relevant and reversed and remanded the case. The court’s analysis of the case began with a citation of R.C. 4511.19(B)(3) which prohibits anyone under 21 years old from driving with a blood alcohol content (BAC) of.02 or higher, “regardless of actual impairment.” The court went on to say “Field sobriety tests can reveal physical impairment that sometimes accompanies a higher BAC...In determining what constitutes probable cause to arrest for an underage driving under the influence of alcohol (DUI) offense, an officer must look for less obvious indicators of alcohol consumption when assessing an underage drinking driver because these indicators are naturally more subtle than the indicators in a per se offense with a higher prohibited blood alcohol content level. Common sense can and should play a role in an arresting officer's probable-cause determination in an underage DUI case, given that the prohibited per se limit is so minimal. However, an officer should not look for "slight indicators of impairment" when deciding whether to arrest for a violation of R.C. 4511.19(B)(3), since impairment is not at issue.” Therefore, the fact that the defendant passed all three field sobriety tests was irrelevant. The appellate court quoted the lower court and, in relevant part, found that 18-year-old had been speeding, that he had smelled of alcohol, that he had glassy and bloodshot eyes, and that he had admitted to drinking a couple of beers a few hours earlier. Under the circumstances, the court found that the office had probable cause to arrest the defendant therefore, stating that the results of field sobriety tests has no relevance in determining probable cause to arrest a minor for OVI.
If you’ve continued to read this blog you are aware that police officers may stop a vehicle if the officer has a reasonable suspicion, based on specific and articulable facts that criminal behavior (including a traffic violation) has occurred or is imminent. In the past, I’ve discussed what occurs if an officer does not see a violation, but relies solely on a dispatch received from an independent informant.
A recent Eleventh Appellate District case further defines the evidence necessary when relying solely on an informant. The case, State v. Wagner, 2011 Ohio 772, involved a police officer who was off duty relying upon a restaurant manager’s claim that a customer at his drive-up window “was drunk.” The off-duty police officer contacted his department who dispatched an officer to the scene who stopped the customer just as he was exiting the parking lot. Neither he nor the off-duty police officer saw any indicia of a traffic violation. Citing a lack of probable cause, the defendant filed a motion to suppress that was denied by the lower court. Defendant appealed.
In its analysis, the court stated, “Where an officer making an investigative stop relies solely upon a police dispatch, the State of Ohio must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity. The admissibility of the evidence uncovered during such a stop does not rest upon whether the officers relying upon a dispatch or flyer were themselves aware of the specific facts which led their colleagues to seek their assistance. It turns instead upon whether the officers who issued the flyer or dispatch possessed reasonable suspicion to make the stop. If the dispatch has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment.”
The court went on, “When an officer making an investigative stop relies solely upon a police dispatch, the State of Ohio must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity…When determining the validity of such an informant’s tip, a court should consider whether the tip itself has sufficient indicia of reliability to justify the investigative stop by considering the informant’s veracity, reliability, and basis of knowledge.”
In conclusion, the court said, “A citizen informant’s statement that a suspect was “drunk,” without more, does not provide reasonable suspicion. An informant must give some details providing reasonable suspicion of drunk driving.”
Therefore, an informant’s declaration that someone is “drunk” does not warrant a stop by an officer relying solely on the statement of an informant unless that informant can identify some indicia of drunk driving, i.e. “He was weaving when he left the parking lot.”
A recent Fifth Appellate District (Morrow County) case is indicative of the standard used by courts when determining the “amount” of probable cause a police office needs to stop a vehicle.
The case State of Ohio v. David Hatfield, 2011 Ohio 597; 2011 Ohio App. LEXIS 506, involved the unusual case of an individual who was driving his vehicle down the middle of the road. The road was only 19 feet wide and had no dividing lines indicating lanes of traffic. After the stop, the officer determined that the defendant was driving under the influence and the defendant was placed under arrest.For various reasons, it was determined that, in fact, the defendant was not violating any state or local law. As a result, the case was dismissed by the lower court stating that because the defendant was not violating any law, the officer did not have probable cause to stop him.
The appellate court disagreed and reinstated the case. The court, in its opinion, set forth the standard for determining probable cause. The court stated the standard is an “objective” standard not a “subjective” one. In its opinion the court said, “The question as to whether a traffic stop violates the Fourth Amendment to the United States Constitution requires an objective assessment of a police officer’s actions in light of the facts and circumstances then known to the officer…Even if the purpose of a traffic stop is pretextual, so long as there is an articulable reasonable suspicion or probable cause to stop the vehicle for a traffic violation, the stop is justified.”
In conclusion, the court said, “The objective of a suppression hearing is not to determine whether or not the defendant violated the statute. That is a matter left to the trier of fact at trial. It is the role of a trial court in a suppression hearing to determine whether there was sufficient evidence of the officer having reasonable and articulable suspicion to effectuate a traffic stop and then whether there was probable cause to arrest the defendant for the charges.”
What does all this mean? All the police officer needs is a good faith belief that a traffic violation is occurring to stop and detain the defendant. Even if the underlying cause for the stop is proven to be unsustainable, the officer need only have sufficient articuable facts to believe that a traffic violation is occurring to stop the vehicle and investigate. But, if there is insufficient facts before the officer to objectively determine a violation, there is insufficient probable cause to stop the vehicle.
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.