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.

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.”

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.

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.

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.

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.

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.