If you are a reader of this blog, I’m sure you’ve read the statement “reasonable and articuable suspicion” in the context of an OVI stop. As enumerated in many of my blogs, an officer must justify his request that a driver exit their vehicle and submit to field sobriety by having a reasonable and articuable suspicion that the individual is driving under the influence. This is done by the introduction of facts that, in summary, would lead the reasonable officer to such a conclusion.

In the past, I stated that the smell of alcohol and a de minimus traffic violation is insufficient (see “When Can I be Asked to Take Field Sobriety Tests?”). The courts have struggled with this question, taking each matter on a case by case basis with the officer testifying to his initial observations. The court then makes the determination, based on the officer’s testimony, whether those observations reach the level of reasonable and articuable suspicion.

Now one court has identified what factors it will look at in determining this question. In the case of State v. Foster, 2009 Ohio 4764, the Fifth Appellate District (Tuscarawas County), has listed 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.

The court concludes with the following: “All of 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. No single factor is determinative.”

While the determination made by this court of appeals is limited to the jurisdiction of that court, I believe the list of factors used by this court is an excellent list of criteria when determining reasonable and articuable suspicion.

In passed blogs I’ve discussed the term “probable cause” as it relates to an initial stop and ultimate arrest. In both instances these discussions involved information gathered solely by observations of the arresting officers. But, what if the officer does not personally observe the driver? Can a stop be initiated based upon information provided by an informant?

The simple answer is yes. A recent Stark County Court of Appeals opinion contains an excellent discussion of the topic. In the case, State v. Yoder, a citizen observed the defendant urinating in the parking lot of a restaurant and then stagger to the driver’s side of the defendant’s vehicle. The informant called 1-800-GRABDUI, providing his name, contact information, and the current location of driver. The informant gave the dispatcher a description of and the license plate number of the defendant’s vehicle. The caller further stated he observed the defendant having trouble walking to his vehicle and staggering badly, prior to driving the vehicle. The informant followed the defendant’s vehicle to the parking lot of a car wash, and waited for the police to respond. The officers waited for the defendant to exit the car wash and stopped the vehicle as it exited the car wash.

The officer approached the driver’s side of the vehicle and asked for the defendant’s driver’s license. At the time, the officer smelled a strong odor of alcohol and noted the defendant was “thick tongued.” The defendant was asked to exit the vehicle and to perform standard field sobriety tests and was subsequently charged with OVI. Prior to trial, the defendant filed a motion to suppress claiming the officer illegally stopped him having not personally observed indicia of the violations for which he was charged.

In its opinion, the court stated, “An investigative stop does not violate the Fourth Amendment to the United States Constitution if the police have reasonable suspicion the person stopped is, or is about to be, engaged in criminal activity…Reasonable suspicion can arise from information that is less reliable than that required to show probable cause…But it requires something more than an “inchoate and unparticularized suspicion or ‘hunch’…The Fourth Amendment requires at least a minimal level of objective justification for making the stop.”

“Where the information possessed by the police before the stop was solely from an informant’s tip, the determination of reasonable suspicion will be limited to an examination of the weight to be given the tip and the reliability of the tip. Courts have generally identified three classes of informants: the anonymous informant, the known informant from the criminal world who has provided previous reliable tips, and the identified citizen informant. An identified citizen informant may be highly reliable, and therefore a strong showing as to other indicia of reliability may be unnecessary.

The defendant argued that the officer had no personal knowledge which would lead him to believe that the defendant was violating the law; that the officers failed to personally observe any evidence of a traffic violation that would justify the stop.

The court quoted Adams v. Williams, a US Supreme Court Case in stating, “A tip which standing alone would lack sufficient indicia of reliability may establish reasonable suspicion to make an investigatory stop if it is sufficiently corroborated through independent police work.”

In applying this jurisprudence the court found that the informant’s information was “trustworthy and due significant weight.” Reciting the facts, the court stated the informant had identified himself, making him a known informant subjecting his observations to high reliability that the officers could rely upon.

As such, the appellate court upheld the lower court’s denial of the defendant’s motion to suppress.

Therefore, the answer to the questions is yes. A driver may be the subject of an investigatory stop based upon information provided by an information supplied by an informant provided that information is reliable.

Many clients have asked about the legality of sobriety checkpoints – stops where police are permitted to randomly check motorists for OVI. Sobriety checkpoints have long been scrutinized under the Fourth Amendment’s prohibition unreasonable searches. This debate is basically characterized as the right to privacy v. public safety. In other words, is the “limited” intrusion caused by such a checkpoint arise to an invasion of privacy.

The Ohio Supreme Court in State v. Goines adopted a four-part test espoused by the US Supreme Court. The court stated a vehicle may be stopped when all of the following factors are present:

1. A checkpoint or roadblock location is selected for its safety and visibility to oncoming motorists, and

2. The police provide adequate advance warning signs, illuminated at night, timely informing approaching motorists of the nature of the impending intrusion, and

3. There are uniformed officers and official vehicles in sufficient quantity and visibility to show the police power of the community, and

4. There is a predetermination by policy-making administrative officers of the roadblock location, time and procedures to be employed, pursuant to carefully formulated standards and neutral criteria.

Using this criteria, the majority of states, including Ohio, permit sobriety checkpoints.

The National Highway Transportation and Safety Administration (NHTSA) has produced a booklet entitled “Saturation Patrols & Sobriety Checkpoints Guide” In its guide some of NHTSA’s guidelines include:

1. The use of a minimum 10-12 uniformed police officers. Law enforcement agencies should assign a sworn, uniformed officer to supervise the planning of a sobriety checkpoint. This officer needs to be highly knowledgeable of the state’s sobriety checkpoint rules and regulations.

2. In selecting the location, identify locations with a high incidence of impaired driving related crashes or fatalities. Be sure the public and officer’s safety can be of utmost priority. There must be room for proper ingress and ingress. The location must be highly visible.

3. Warning devices and signals must be located at such a distance as to give motorists adequate time to stop. Warning devices should comply with the Manual of Uniform Traffic Control Devices (MUTCD).

The Ohio Highway Patrol has written a summary of its own procedures. These include:

1. The first and perhaps the most important requirement for the establishment of a sobriety checkpoint is that the site of the check must have a long term history of alcohol-related crashes and/or incidents of impaired driving.

2. About a week before the checkpoint is conducted, public notice is given that the checkpoint will be established. It is only necessary to provide a general date, time, and location for the event.

3. About an hour or two in advance of the establishment of the checkpoint, the officer who will be in charge of the operation conducts a briefing with the police officers who will operate the various elements of the checkpoint. At this briefing, the officer-in-charge will give an overview of the operation of the checkpoint, provide each checkpoint officer a clearly defined set of operational objectives, and emphasize all the procedures needed to make the checkpoint as safe and efficient as possible.

3. Large, highly reflectorized signs are set on the side of the road well in advance of the actual checkpoint. Fully marked police vehicles are situated at these signs on the approach to the checkpoint. A second “Sobriety Checkpoint Ahead Sign” is placed at the beginning of the lane of traffic cones, fusees, and other devices that mark the boundaries of the checkpoint itself. The area is illuminated by portable lights, flares and the emergency lights of several police cars which are situated on the berm to provide additional protection for the zone.

The OSHP guidelines also discuss the necessity of using qualified personnel to conduct field sobriety tests and the use of portable breathalyzer devices. The complete summary can be found at http://statepatrol.ohio.gov/sobcheck.stm.

In summary, both the US Supreme Court and Ohio Supreme Court have authorized the use of sobriety checkpoints as long as stringent rules are followed to safeguard the constitutional rights and safety of citizens. Both NHTSA and the Ohio Highway Patrol have published guidelines to be used by law enforcement agencies wishing to use such checkpoints. Variations from the recommended procedures outlined by NHTSA and the OHP can lead to suppression of any evidence procured during the checkpoint.

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.