Opinion
No. 93-TR-C-9585M.
Decided November 5, 1993.
Ronald P. Forsthoefel, Loudonville Village Solicitor, for plaintiff.
Weldon, Huston Keyser and David D. Carto, for defendant.
This court is to determine whether a motion to suppress evidence obtained by a police officer following the stopping of a car should be granted.
Officer Briscoe, a patrolman from the village of Loudonville with nineteen years' experience, received word by his patrol car radio that the dispatcher had received an anonymous tip that a "pot party" was taking place behind Beano's Tavern. Briscoe was told to look for a dark-colored car with four occupants. Briscoe drove to the rear of Beano's and saw a dark-colored car with three occupants leaving the tavern and one person walking toward the rear door of Beano's. Briscoe, in his cruiser, followed the dark-colored car a short distance, observing no improper action. There was nothing suspicious about the operation of the dark-colored automobile. It was September 3, 1993 and dark.
After following the car a short distance, Patrolman Briscoe activated his overhead lights and stopped the defendant, Ora M. Brinegar, Jr., who was driving the dark-colored car. Patrolman Briscoe asked the defendant to get out of the car, and after some field sobriety tests, determined that the defendant was intoxicated.
Officer Briscoe testified that he did not arrest the defendant until after he had asked him to get out of his car, "patted him down" and given the field sobriety tests. The officer testified that the defendant was not permitted to leave, but that he was not under arrest.
This court, in a moderate-size county in the state of Ohio, heard 47,507 cases in 1992 (see Ohio Courts Summary, 1992). Almost daily the question is raised: "Is the evidence obtained after the arrest admissible or should it be suppressed?"
What is meant by "arrest"? Black's Law Dictionary (6 Ed. 1990) discusses the word at length, but begins with "to deprive a person of his liberty by legal authority." The dictionary goes on to cite Commonwealth v. Brown (1974), 230 Pa. Super. 214, 218, 326 A.2d 906, 907 as follows:
"All that is required [for an `arrest'] is some act by the officer which indicates his intention to detain or to take a person into custody, thereby subjecting that person to the actual control and will of the officer. No formal declaration of arrest is required."
The Fourth Amendment to the Constitution of the United States, adopted in 1791, states as follows:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized."
It was during these times that freedom of the individual from government interference developed:
"* * * William Pitt expressed it best in a speech in Parliament in 1763, when he declaimed: `The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter[.]'"
L.W. Levy, The Original Intent and the Framers' Constitution (1988), at 222.
The Fourteenth Amendment to the Constitution of the United States, adopted in 1868, provides in part as follows:
"* * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within this jurisdiction the equal protection of the laws."
Section 14, Article I of the Ohio Constitution provides as follows:
"The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized."
R.C. 2935.03 provides in part as follows:
"(A) A * * * municipal police officer * * * shall arrest and detain, until a warrant can be obtained, a person found violating * * * a law of this state * * *."
The leading case on arrest and search is Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The Terry case involved a police officer with thirty-nine years' experience becoming suspicious of Terry and two companions as they walked back and forth in front of a store. The officer stopped Terry and his companions, searched them and found weapons, and the issue was whether the property seized, i.e., the weapons, could be used as evidence in the case against Terry and his friends. The Supreme Court decided that the arrest and subsequent search were proper and the evidence was admitted.
The issue before the Supreme Court in the Terry case was whether the admission of the revolver in evidence violated the petitioner's rights under the Fourth Amendment.
The following are quotes and comments from the Supreme Court's opinion in Terry:
"Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. * * * A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence * * *." Id. at 13, 88 S.Ct. at 1875, 20 L.Ed.2d at 901.
Again, the court continues in the Terry case to recognize the fact that its decision on excluding evidence does not control the officer in his search, whether it is reasonable or unreasonable. It is possible that the police have no interest in prosecuting, so they proceed with their search with some other goal in mind.
Terry goes on to state:
"The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial." (Footnote deleted.) Id. at 14-15, 88 S.Ct. at 1876, 20 L.Ed.2d at 902.
Chief Justice Warren continued:
"* * * And of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate." (Emphasis added.) Id. at 15, 88 S.Ct. at 1876-1877, 20 L.Ed.2d at 902.
The court spoke of the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security:
"And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Fn. 18 deleted.) Id. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.
Fn. 18 states in part:
"This demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence. See Beck v. Ohio, 379 U.S. 89, 96-97 [ 85 S.Ct. 223, 228-229, 13 L.Ed.2d 142, 147-148] (1964)[.]"
The court continued in Terry:
"And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate? * * * And simple `"good faith on the part of the arresting officer is not enough."'" Id., 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.
Chief Justice Warren summed up the majority by stating,
"Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous," id. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911, he may make the arrest and the search.
Justice Harlan, in his concurring opinion, stated:
"* * * Since the question in this and most cases is whether evidence produced by a frisk is admissible, the problem is to determine what makes a frisk reasonable." Id. at 31, 88 S.Ct. at 1885, 20 L.Ed.2d at 912.
Justice Harlan continued:
"Officer McFadden's right to interrupt Terry's freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime." Id. at 34, 88 S.Ct. at 1886, 20 L.Ed.2d at 913.
The dissent by Justice Douglas is based upon his view that if the policeman had gone before a magistrate and attempted to get a warrant to search Terry and his buddies, he would have been unsuccessful, because the magistrate could not have found that there was probable cause. Justice Douglas then went on to state:
"We hold today that the police have greater authority to make a `seizure' and conduct a `search' than a judge has to authorize such action." Id. at 36, 88 S.Ct. at 1887, 20 L.Ed.2d at 914.
The reason the court has reviewed the Terry case as thoroughly as it has is that it is the granddaddy of all the later opinions that have been spewed out of the various Ohio courts on this subject.
A recent Ohio case that reviews the law rather thoroughly is State v. Ramsey (Sept. 20, 1990), Franklin App. Nos. 89AP-1298 and 89AP-1299, unreported, 1990 WL 135867. The Ramsey case was a typical DWI case. The court treated Ramsey's motion as a motion to suppress.
The arresting officer in the Ramsey case had received a radio dispatch that described in great detail the vehicle operated, including the license number of that vehicle and the name and address of the person who had called in the information. The arresting officer observed Ramsey's vehicle, which matched the license plate and description, and followed Ramsey for approximately a quarter of a mile. Ramsey committed no traffic violations while being followed. The officer pulled in behind Ramsey when Ramsey stopped at his mobile home, turned on his flashing lights, and approached Ramsey as Ramsey exited his vehicle. The officer then found Ramsey to be intoxicated. Ramsey maintained that the officer lacked a reasonable suspicion to detain him.
The Ramsey court gives a rather complete review of the pertinent cases on arrest and states in part:
"While an arrest may only be made upon a showing of probable cause, Beck v. Ohio (1964), 379 U.S. 89 [ 85 S.Ct. 223, 13 L.Ed.2d 142], an investigative stop, although still a seizure under the Fourth Amendment, may be made on less than probable cause. United States v. Brignoni-Ponce (1975), 422 U.S. 873, 881 [ 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607, 616]. In such cases, the Supreme Court has balanced the nature and extent of the detention against society's interest in law enforcement. United States v. Place (1983), 462 U.S. 696, 703 [ 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110, 118].
"Nevertheless, to meet the Fourth Amendment's central test of reasonableness, an investigatory stop must be supported by `* * * a reasonable and articulable suspicion that the person seized is engaged in criminal activity.' Reid v. Georgia (1980), 448 U.S. 438, 440 [ 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890, 894]. Such a stop is proper when `* * * specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' Terry, supra, [392 U.S.] at 21 [ 88 S.Ct. at 1880, 20 L.Ed.2d at 906]. The police must have a reasonable suspicion that the particular individual being stopped is or was engaged in criminal activity. United States v. Cortez (1981), 449 U.S. 411, 418 [ 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629]."
The Ramsey case continues by stating that once the defendant has raised the issue, the burden shifts to the state to prove that the stop was supported by reasonable suspicion. Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889.
The Ramsey case raises the question as to whether an anonymous tip is as valuable as a tipster who left his name and address, and concludes, generally, that there is very little difference between the reliability of the two types of tips.
The Ramsey court held that 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. The court held that it is clear that the simple corroborating of neutral details describing the suspect or other conditions existing at the time of the tip, without more, will not produce reasonable suspicion for an investigatory stop.
The court in Ramsey held that the tip, even though it was in great detail, including the license number and an accurate description of the automobile and the name and address of the tipster, was not sufficient, in and of itself, to warrant a forcible stop of Ramsey.
The Ramsey court held that the tip was certainly sufficient to warrant further investigation, but that "[w]hen that investigation proved fruitless, * * * [the officer] nevertheless proceeded to stop the defendant. The simple fact that the officer's personal observations failed to confirm the caller's allegation of drunk driving adequately demonstrates that their suspicion was not reasonable."
The motion to suppress was granted in Ramsey.
There is a series of other Ohio cases on the subject that we will review briefly:
1. In State v. Greel (Nov. 26, 1986), Wayne App. No. 2183, unreported, 1986 WL 13873, a tip from a CB reported a car was "all over the roadway." A trooper followed the car for approximately thirty to sixty seconds, but did not observe any erratic driving. Following the arrest, the trooper perceived a strong smell of alcohol and arrested Greel for DWI. The court held that the state has an important interest in keeping drunk driver's off the road and "the officer required only a momentary stop based on the tip." The court found that the arrest was proper and the evidence was admissible.
2. In Fairborn v. Adamson (Nov. 17, 1987), Greene App. No. 87-CA-13, unreported, 1987 WL 20264, there was the usual motion to suppress the evidence in the DWI case. This case was complicated a bit because there was also a charge filed of improper transportation of firearms.
In this one, the tipster was the wife of the defendant. There had been a domestic dispute and the wife of the defendant, Donald R. Adamson, called the police. The officer did not find Adamson driving erratically, and Adamson was pulled over, solely as the result of the information broadcasted over the police radio. Adamson was given the field sobriety test and did admirably. He tested .274.
The Court of Appeals for Greene County, in the Adamson case, said that it adopted the majority view that an average citizen who reports criminal activity stands on different grounds than a police informer. I am not sure that I agree that that is the majority view.
The Adamson case found that the wife reported that she witnessed the defendant commit criminal activity. Thus, her information was presumed to be reliable and, based upon that information, the police had articulable suspicion to stop the defendant and arrest him after administering the field sobriety test.
We cannot tell whether the arrest in the Adamson case took place before or after the administration of the field sobriety test. It would appear that the arrest took place when the defendant was stopped.
3. The case of State v. Stacy (1983), 9 Ohio App.3d 55, 9 OBR 74, 458 N.E.2d 403, factually is a bizarre case in that the defendant was observed weaving back and forth, and then was chased by various officers. He eluded the officers momentarily. They found his car parked in the driveway of a friend. Later, he was arrested with that friend, while riding as a passenger in the friend's pickup truck. Stacy was found drunk. The question was whether he could be arrested an hour and a half after the erratic driving.
The Stacy court found that an officer cannot arrest a person for a motor vehicle misdemeanor offense based on hearsay evidence alone; rather, the officer must actually see the offense being committed.
The Stacy court held that there is nothing in the law to indicate that the suspect must be arrested at the time the officer sees the offense being committed. The court further held that an arrest within one and one-half hours after the offense has been committed is permitted under R.C. 2935.03(A).
The Stacy court, in this court's opinion, was incorrect in saying that the surrounding circumstances concerning the arrest include admission of the defendant. It is the court's feeling that the admissions of the defendant took place after the arrest, and thus could not be used as a basis, or even a partial basis, to justify the actual arrest.
4. In the case of the State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271, the defendant was indicted for carrying a concealed weapon. In Andrews, the defendant actually ran into the police officer and stopped completely when the officer shined a light in the man's face. The officer conducted a search and found the defendant was carrying a gun. The question, once again, was whether the arrest was proper.
The Andrews court found that the stop was proper taking into consideration all of the circumstances. The stop took place in an area high in drug activity, violence and weapon-related crimes. The area's reputation for criminal activity is an "articulable" fact which is a part of the entire picture, a totality of circumstances surrounding the stop to investigate suspicious behavior. State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489.
Justice Wright stated in his dissent in Andrews that "[a] citizen's Fourth Amendment rights are the same regardless of his residence, station in life or where he happens to be when he encounters a police officer." Id., 57 Ohio St.3d at 89, 565 N.E.2d at 1275.
It is interesting to note that Justice Wright views the factual situation differently than does the majority. If the Supreme Court cannot agree as to what facts would warrant a reasonable search, how can a police officer?
There are many cases where the police officer makes the stop based upon a tip. Sometimes the tip is anonymous, sometimes the tipster gives his or her name and address.
Reliance on a radio bulletin is only appropriate, however, when the police issuing the bulletin possess reasonable suspicion to justify the stop. United States v. Hensley (1985), 469 U.S. 221, 233, 105 S.Ct. 675, 682, 83 L.Ed.2d 604, 615, and State v. Holmes (1985), 28 Ohio App.3d 12, 28 OBR 21, 501 N.E.2d 629.
5. Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, held that informants' tips, while they vary greatly in their value and their reliability, may in certain cases produce reasonable suspicion. The court noted that one simple rule would not cover every situation. In Adams, the tip was received from a known informant and details of the tip could be immediately verified.
6. Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, applied a totality-of-the-circumstances test to anonymous tips.
7. In Alabama v. White (1990), 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301, anonymous tips and a description of the defendant's car concerning the delivery of cocaine were present. The court held "something more" is needed for an arrest. An anonymous tip must be corroborated. Also, the burden of persuasion shifts to the state following the filing of the motion to suppress.
8. In State v. Campbell (1990), 68 Ohio App.3d 688, 589 N.E.2d 452, an anonymous tip was not sufficiently corroborated.
9. In State v. Eppinger (1991), 74 Ohio App.3d 503, 599 N.E.2d 709, complaints about drug sales did not give sufficient authority to stop and frisk. This case further states that discovery of contraband following an unlawful stop and search does not justify the initial intrusion or the subsequent arrest.
10. In State v. Fields (Sept. 10, 1992), Crawford App. No. 3-92-13, unreported, 1992 WL 224531, a stop was reasonable where a deputy sheriff heard a radio bulletin advising that a citizen reported a possible drunk driver.
11. In State v. Hakeem (1990), 61 Ohio App.3d 187, 572 N.E.2d 236, an officer's initial investigative stop of the defendant's vehicle based upon the police radio broadcast of a robbery suspect was proper.
12. In State v. Poling (Feb. 21, 1992), Hocking App. No. 91CA5, unreported, 1992 WL 38447, a stop was proper based upon a voyeurism complaint of a private citizen; there was no evidence of bad driving.
13. State v. Carstensen (Dec. 18, 1991), Miami App. No. 91-CA-13, unreported, 1991 WL 270665, involved the radio report of a drunk driver, followed by a second report. An officer observed no evidence of erratic driving. The court held the stop was reasonable.
A summation of the law above recited would indicate that an officer must have something more than a brief report by radio that an offense is in the process of being committed. The officer must observe something on his own or be furnished details that can be corroborated. The courts have not made a differentiation between the reported commission of a felony and the reported commission of a misdemeanor. As a practical matter, I think the courts have made a distinction, and permitted the officer more latitude, where the report to the officer is that a felony has been or is in the process of being committed.
The most recent Ohio case on the subject is State v. English (1993), 85 Ohio App.3d 471, 620 N.E.2d 125. The motion to suppress evidence of English's gun was overruled by the trial court and sustained by the court of appeals. Again, a tip was received from a lady who gave her address. The trial court characterized the caller as anonymous. The state contended the address furnished by the lady should place her in the status of a known informant. The Court of Appeals for Montgomery County believed the police were furnished sufficient basis for an "investigative stop":
"There is no bright-line test for determining whether an informant's information is sufficiently reliable to furnish a basis for an investigative stop. See Adams [ v. Williams (1972)], supra, 407 U.S. [143] at 147, 92 S.Ct. [1921] at 1923, 32 L.Ed.2d [612] at 617-618."
The English court felt the caller furnished the police sufficient information to enable the police to identify her and locate her should her information have proven to be false. " In this close case," the court felt the motion should be overruled.
The use of the term "investigatory stop" would be better left with the police officer rather than the courts. The Constitution certainly does not contemplate an "investigatory" anything.
Perhaps the courts that rely on "investigatory" are trying to say that an arrest that is "investigatory" is reasonable, not "unreasonable," as this word is used in the Fourth Amendment. We disagree.
Of the forty-seven some thousand cases involving an arrest that were heard in the Ashland Municipal Court last year, a very high percentage, perhaps as high as ninety-five percent, involve the officer's observation of the defendant's actions immediately prior to the arrest. In that small percentage where the officer observes no improper conduct by the defendant and relies on information supplied from another source the information obtained following an arrest is probably inadmissible. A few of the courts, such as Stacy mentioned above, permit the officer to bootstrap his actual arrest by saying it is proper because the officer may use the fact that he found that an offense was committed due to the admissions of the defendant. Stacy states:
"Rather, in order to arrest for a misdemeanor, the word `found' means that the officer must actually see the offense being committed or from the surrounding circumstances, including admissions by the defendant, be able to reasonably conclude that an offense has been committed." (Emphasis added.) 9 Ohio App.3d at 57, 9 OBR at 75, 458 N.E.2d at 405.
That certainly does not appear to this court to be the law of Ohio. The question of whether the arrest is proper must be determined by facts that precede the arrest, not what was discovered after the arrest. The arrest takes place when the person to be charged is stopped or prevented from going his way with impunity. One certainly cannot just drive away with a patrol car parked behind one with its lights flashing, and an officer in uniform with a gun alighting from that patrol car.
Officer Briscoe was a competent policeman and a straightforward witness who had to make a decision at night, on the spot, in a difficult situation. The court, in the full light of day, in an air-conditioned, quiet office, with more than ample legal decisions surrounding, has finally concluded and does find that the anonymous tip about a "pot party" behind Beano's, taking place in a dark-colored car, is not sufficient to justify the defendant's arrest.
The motion for suppression is GRANTED.
So ordered.
Judgment Entry — Decided Nov. 15, 1993.
JAMES E. NELSON, Judge.
This matter came on for status conference on November 12, 1993, and this court, per the Opinion and Judgment Order made by Acting Judge Hugh I. Troth and filed herein on November 5, 1993, having granted defendant's motion to suppress upon the grounds that the stop of defendant's vehicle was unlawful and in derogation of defendant's constitutional rights, thereby suppressing and excluding from admission any and all evidence obtained as a result of the stop and upon which the charges herein are based, it is hereby
ORDERED, ADJUDGED AND DECREED, that the charges against defendant herein be, and hereby are, dismissed and the defendant is discharged. All motor vehicle operating privileges are hereby ordered restored to defendant and his vehicle may be returned to him forthwith, all without cost to defendant.
IT IS SO ORDERED.