Ohio Dui - Cleveland Attorney Avery H. Fromet » Constitutional Issues – Probable Cause

Probable Cause to Arrest for OVI May Be Predicated on Other than Field Sobriety Tests

afromet — Thu, 05 Jan 2012 16:50:46 +0000

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.

Probable Cause to Arrest for Underage Drinking

afromet — Sat, 26 Nov 2011 16:48:49 +0000

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.

A Stop Based Upon an Informant is Further Defined

afromet — Thu, 24 Feb 2011 16:43:10 +0000

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.”

Probable Cause is an “Objective” Standard

afromet — Mon, 14 Feb 2011 20:11:27 +0000

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.

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 – An Objective or Subjective Standard?

afromet — Tue, 14 Dec 2010 16:06:42 +0000

The term “Probable Cause” has been an elusive term ever since the days of Terry. At that time, the US Supreme Court stated that a person was the subject of an illegal search and seizure (stop) unless the arresting authority had justifiable articuable facts to conclude that a person was engaged in or about to engage in an illegal activity. Universally, this definition was characterized as “probable cause.”

But, this elusive term has been the subject of thousands of interpretations based upon the totality of the evidence presented the officer at the time. When applied to OVI, probable cause was elegantly defined in Cincinnati v. Bryant, 1st Dist. No. X, 2010 Ohio 4474, at P15, quoting State v. Homan, 89 Ohio St.3d 421, 427, 2000 Ohio 212, 732 N.E.2d 952 as follows: ”…[t]he legal standard for determining whether a law enforcement officer had probable cause to arrest an individual for OVI is whether, ‘at the moment of the arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence.’ ” This is an objective standard, not a subjective one, State v. Deters (1998), 128 Ohio App.3d 329, 333, 714 N.E.2d 972.

“Subjective” is defined as “characteristic of or belonging to reality as perceived rather than as independent of mind.” In other words, taking all the evidence into account, what is the officer’s opinion or perception of what is occurring.

“Objective” is defined as “relating to or existing as an object of thought without consideration of independent existence…” In other words, taking all the evidence into account, what is actually happening notwithstanding the officer’s personal interpretation.

Allow me to give an example. Joe Citizen is taking a midnight stroll down Main Street looking at the lovely Christmas decorations in each store window. Some are so elaborate that he idles at some of the store windows admiring the display’s intricacy. At the same time, Officer Jones is patrolling Mail Street and notices Joe Citizen walking down the street looking through store windows and dawdling at some. Based upon his years of experience it is Officer Jones’ opinion that criminals use this technique to case a prospective place to rob. He stops Mr. Jones to ask questions and, not being satisfied with Mr. Citizen’s answers, places him into custody.

In this example, the arrest was predicated on the officer’s past experience and perceptions not on objective facts indicating that Joe Citizen was engaged in or about to engage in some illegal act. Therefore, there was insufficient probable cause to support the arrest.

Lets use an OVI example. Joe Citizen just left a party where he had a glass of wine and, on his way home, is driving slowly down the street admiring the Christmas decoration on various homes in his neighborhood. While doing so, he happens to drive onto the center line once. Officer Jones is patrolling the neighborhood and happens to see Mr. Citizen drive onto the center line. The officer’s years of experience tell him that OVI offenders tend to cross the center line, so he stops Joe Citizen’s car. As Mr. Citizens lowers his car window, Officer Jones smells a slight odor of alcohol. Based upon his preconceived perceptions, Officer Jones arrests Joe Citizen for OVI. If you’ve read my prior blogs you will not there was insufficient articuable facts that would warrant probable cause to arrest Joe Citizen. Officer Jones’ subjective opinions and perceptions can not be the basis for probable cause. Once again, there were insufficient objective facts to warrant the arrest.

Objective facts are the standard not subjective opinions or perceptions. An officer’s arrest must be based upon sufficient articuable FACTS, not just the officer’s opinion.

Evidentiary level Much Less for Probable Cause

afromet — Fri, 03 Sep 2010 17:57:54 +0000

A recent case from the Fourth Appellate District of Ohio is interesting as it succinctly outlines the necessary elements necessary for an arrest for a DUI or OVI. The case, State v. Chevalier, 2010 Ohio 4096, arose from the defendant arrest for OVI.

The defendant was stopped for going 43mph over the seed limit. When speaking with the defendant, the offices immediately suspected that the defendant was driving under the influence. According to the officers, Chevalier spoke “unnaturally” slow, and her demeanor was “strange.” The defendant admitted having one drink. The deputies asked the defendant to exit the vehicle and perform the three standard field sobriety tests – HGN, walk and turn and one-leg stand. According to the officers she failed all three tests. She was placed under arrest and transported to the local to the local sheriffs’s department where she submitted to a breathalyzer test. The test result was .159.

The defendant filed a motion to suppress claiming the deputies lacked probable cause to arrest her. Chevalier did not contest that there was indicia of alcohol consumption. Instead, she argued there was no probable cause for her arrest because in addition to indicia of alcohol consumption there must also be evidence of impaired driving or impaired coordination.

In its opinion the court stated:

“The standard for determining whether the police have probable cause to arrest an individual for DUI is whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source, of facts and circumstances sufficient to cause a prudent person to believe that the suspect was driving under the influence.” State v. Brungs, 4th Dist. No. 05CA18, 2005 Ohio 5776, at P25, citing State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952, 2000 Ohio 212. To make this determination, the trial court should consider the totality of facts and circumstances surrounding the arrest. Brungs at P25. Homan, citing State v. Miller (1997), 117 Ohio App.3d 750, 761, 691 N.E.2d 703; State v. Brandenburg (1987), 41 Ohio App.3d 109, 534 N.E.2d 906.

“Furthermore, if an arrest is based upon R.C. 4511.19(A)(1), an officer must observe indicia of both alcohol consumption and impaired driving or coordination before there will be probable cause for an arrest.” State v. Coates, 4th Dist. No. 01CA21, 2002 Ohio 2160, at *6.

First, the court pointed to her driving 43 mph over the speed limit. In addition, the court the described the defendant’s failure to take instruction during the field sobriety tests, her lack of coordination, impaired speech, and her inability to complete some tests.

As the court stated, in determining probable cause to arrest the court will look at the “…totality of the facts and circumstances surrounding the arrest.” The reader is cautioned that the evidentiary level for probable cause is much less than the level necessary for conviction. The police need only show “sufficient information, derived from a reasonably trustworthy source, of facts and circumstances sufficient to cause a prudent person to believe that the suspect was driving under the influence.”

Traffic Stops and Probable Cause

afromet — Mon, 30 Nov 2009 11:57:00 +0000

On November 20 I had the honor to participate in the 2009 OVI Update seminar presented by the Ohio State Bar Association. One of the participants in the seminar was the Honorable Jennifer Weiler, Judge of The Garfield Heights, Ohio Municipal Court and co-author of “Ohio Driving Under the Influence Law,” a publication of Thompson-West Publishing. Judge Weiler’s topic was “Motions to Suppress in Operating a Vehicle Under the Influence Cases.” This blog is a discussion of the judge’s excellent presentation regarding traffic stops and their constitutionality.

There are two types of traffic stops and different constitutional standards apply to each. These traffic stops are characterized as the “non-investigatory” traffic stop and the other the “investigatory” traffic stop.

Non-Investigatory Traffic Stop

The most common stop is the non-investigatory traffic stop. It occurs when an officer observes a violation of the traffic code. Upon observing the violation, the officer stops the driver to issue a citation.

This type of stop requires probable cause, that is, a reasonable ground for belief of guilt, which is provided when the officer witnesses the traffic violation, State v. Downs, 2004 Ohio 3003, State v. Moeller, 2000 WL 1577287. De minimus violations can form a sufficient basis for this type of stop owing to the fact that the officer personally observed the violation.

This does not mean that the stop can be pretextual – an alleged violation for the purpose of stopping the driver when no actual violation occurred, ie. Low tire pressure, spider crack in the windshield, gas tank cap open. But, as long as a legitimate basis for the stop exists, the subjective intent or motivation of the officer does not invalidate the stop, Whren v. United States, 517 U.S. 806. The stop can be pre-textual as long as there is some violation that the officer observes or believes he observes.

Investigatory Traffic Stop

The second type of traffic stop is an investigatory traffic stop. It has been referred to as “the motorized equivalent of a Terry Stop,” State v. Downs, 2004 Ohio 3003. This stop permits the officer to stop the vehicle is the officer has reasonable suspicion based on specific, articuable facts than an offense has been or is being committed, State v. Slider, 2008 Ohio 2318., State v. Downs, Supra.

In this type of stop the officer does not necessarily see a specific violation but does have sufficient reason to believe a criminal act has occurred or is occurring and the officer seeks to confirm or refute his or her suspicion, State v. Moeller, Supra. Reasonable suspicion is a lesser standard than that of reasonable cause required to make an arrest.

This type of stop is predicated upon informant’s tips, 911 calls, or random plate checks. The reader is directed to prior blogs regarding the discussion of informant’s tips as a basis for a traffic stop.

In summary, where the officer personally observes a traffic violation (a non-investigatory stop), he may stop the vehicle. Where the officer does not personally observe the traffic violation (an investigatory stop), the officer must point to specific articuable facts that an offense has occurred or is occurring.

The Observations of the Informant Must be Placed on the Record to Justify a Stop

afromet — Wed, 11 Nov 2009 04:52:00 +0000

If you’ve been a reader of this blog, I’ve discussed the justification for a traffic stop based upon the observations of an informant. A recent Third Appellant District Court case further defines the information necessary to justify the stop.

In this case, State v. Fields, 2009 Ohio 5909, an informant called police dispatch to inform them of a suspected drunk driver. The defendant filed a motion to suppress claiming the police officer had insufficient cause to stop the Defendant. At the motion hearing, the state called the informant who testified as follows:

Q Did you have an opportunity to make a 911 call on November 28th, 2008, around 6 o’clock in the event?

A Yes.

Q And where were you at when you made that call?

A I was heading south on South Sandusky.

Q And is that in the City of Upper Sandusky?

A Yes. Hm-hmm.

Q Wyandot County, Ohio?

A Yeah.

Q Could you describe what you observed?

At no time did the informant testify as to his personal observations of the defendant at the time of the incident. In addition, the officer’s testimony failed to illustrate that he or the dispatcher were aware of the details of the informant’s personal observations.

In its analysis, the court cited State v. Bailey, 2008 Ohio 2254. In that case the arresting officer testified that he had received a dispatch that another police department had received a call of a “possible drunk driver” and that one of the officers at the other department had witnessed the same vehicle speeding. The arresting officer located the vehicle and pulled it over after observing the vehicle’s failure to signal. Neither the other police officer who had observed the vehicle’s speeding nor the dispatcher who had received the citizen’s phone call testified at the hearing. In addition, the citizen informant who had made the original call to the other police department testified extensively to his personal observations of the defendant’s erratic driving. However, there was no testimony demonstrating what, if any, information the eyewitness had relayed to the other police department’s dispatcher concerning the defendant’s erratic behavior. Since the State had failed to demonstrate that the law-enforcement community as a whole possessed facts constituting probable cause to arrest.

In its conclusion, the court stated, “there is an absence of evidence demonstrating that someone in the law enforcement community knew specific facts that would support reasonable, articulable suspicion of criminal activity. The State failed to demonstrate that [the informant’s] personal observations were relayed to the dispatcher, thereby allowing [the arresting officer] to solely rely on the dispatch to justify his investigative stop of [the informant]. Furthermore, [the officer’s] testimony, considered alone, fails to demonstrate reasonable, articulable suspicion of criminal activity. While we acknowledge that there is evidence that a law enforcement officer…eventually talked to [the informant] at the scene, this did not occur until after [the arresting officer] had already approached Fields to make the detention and investigation.

Therefore, this court held that the state must place the following on the record in support of a stop based upon the observations of an informant:

1. The observations of the informant, and

2. That these observations were communicated to the arresting officer, and

3. The observations will support reasonable, articuable suspicion of criminal activity..

For evidentiary purposes, the court will not allow the trier of fact to draw an inference based solely on conclusary statements of a dispatcher. To do otherwise would permit the trier of fact to draw and inference on an inference which would violate the Rules of Evidence.

Reasonable Suspicion and Investigatory Detention

afromet — Tue, 22 Sep 2009 10:41:00 +0000

If you’ve read this blog you’ve heard the terms “Reasonable Suspicion” and “Investigatory Detention” many times. Both terms are used in defining a police officer’s right to stop, investigate and detain an individual for a possible OVI or other criminal matter. As I’ve explained, each court reviews the totality of the evidence presented to determine whether the officer had the right to stop individual and investigate further. The court will further determine when the investigatory stop turns into an investigatory detention for purposes of a giving the individual their Miranda warnings.

A recent Ohio court set forth, what I feel, are very good definitions for these terms. The definitions are very descriptive of the criteria needed to justify the stop, investigation and detention. The case is State v. Chadwell, 2009 Ohio 1630, 2009 Ohio App. LEXIS 1344.

The case involved a non-OVI arrest for drug possession and trafficking. Although the case does not involve an OVI arrest, it does articulate these terms well. In its synopsis, the court defines the terms as follows:

“Reasonable suspicion”justifying an investigatory stop entails some minimal level of objective justification for making a stop — that is, something more than an inchoate and unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause,” State v. Jones, 70 Ohio App.3d 554

“An appellate court determines the existence of “reasonable and articulable suspicion” by evaluating the totality of the circumstances, considering those circumstances through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.”

“An investigatory detention occurs when, by means of physical force or show of authority, a reasonable person would have believed that he was not free to leave or was compelled to respond to questions.”

Therefore, it is important to note when an officer does stop a driver he need not observe sufficient evidence for probable cause but merely a reasonable suspicion that the individual was driving under the influence, probable cause being a higher level of evidence than reasonable suspicion.

But once a reasonable person would believe they are not free to leave or are compelled to respond to questioning, they are now being detained necessitating that the officer outline their constitutional rights against self incrimination.