Wednesday, March 09, 2011

DUI Appeal of the Day - Report of 'Drunk' Insufficient for Stop

In State of Ohio v. Wagner, Slip Copy, 2011 WL 598433 (Ohio App. 11 Dist.), 2011 -Ohio- 772, the defendant appealed the denial of his motion to suppress. There, a Taco Bell employee named Michael Stumpf had reported that a driver at the drive-thru was "drunk." based upon this report, Lt. Altamore saw the car as it exited the drive thru and made a wide turn onto the street. Altomare stated that he informed Officer Schlosser of this wide turn at some point but that he could not remember if he informed Schlosser or dispatch of the turn before Schlosser committed the stop of the vehicle or if he told Schlosser later, while Schlosser was writing his report of the incident. Altomare also testified that he did not actually witness Wagner face to face and therefore did not observe any behavior that indicated to him whether Wagner was intoxicated.
The appeals court stated the applicable law as follows:

“Where an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity.” Weisner, 87 Ohio St.3d 295, at paragraph one of the syllabus. “The United States Supreme Court has reasoned, then, that 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.” Id. at 297, citing United States v. Hensley (1985), 469 U.S. 221, 231 (emphasis sic). 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.” Hensley, 469 U.S. at 232
In finding the stop illegal, the court pointed out the following:

An officer typically has sufficient justification to effectuate a stop based on a violation such as travelling left of center, as occurred in this case. However, the failure of the state to prove that Schlosser either personally witnessed the traffic violation or that Altomare conveyed this information to Schlosser via dispatch prior to Wagner being stopped, prevents the stop from being valid.
The appeals court also considered whether the original complaint by the Taco Bell employee, standing alone, was sufficient to stop the vehicle. They concluded that it was not:

“A citizen-informant who is the victim of or witness to a crime is presumed reliable.” State v. Livengood, 11th Dist. No.2002-L-044, 2003-Ohio-1208, at ¶ 11 (citation omitted). When determining the validity of such an informant's tip, we 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.” Weisner, 87 Ohio St.3d at 299.
Stumpf was a Taco Bell employee who relayed information that he believed Wagner was drunk to Lieutenant Altomare. Because Stumpf is a citizen-informant, we presume that he was generally reliable. However, we must also consider whether the information relayed by Stumpf to Altomare, and ultimately to Schlosser, had sufficient indicia of reliability and a basis of knowledge that would justify a stop of Wagner's vehicle.
Altomare, the only witness to testify at the suppression hearing, stated that Stumpf informed him that Wagner, who was at the drive-thru window, was “drunk.” Altomare did not testify as to any other statements made by Stumpf, or explain any additional details as to why Stumpf believed Wagner was drunk. Additionally, Altomare never observed Wagner face to face on that night and had no personal knowledge of whether Wagner was drunk. Upon receiving information only that Wagner was “drunk,” Altomare informed dispatch of a possible drunk driver.
A citizen informant's statement that the suspect was “drunk,” without more, does not provide reasonable suspicion. An informant must give some details providing reasonable suspicion of drunk driving. See State v. Brant, 10th Dist. No. 01AP-342, 2001-Ohio-3994, 2001 Ohio App. LEXIS 5263, at *8-9 (where a tip given by a citizen indicated that the suspect “was honking his horn for ten minutes, his shirt was on backwards and inside out and his speech was very slow,” and the citizen did not indicate that he “witnessed any traffic violations, unlawful behavior, or evidence of impaired driving,” there was not reasonable suspicion of OVI to stop the suspect); State v. Morgan, 11th Dist. No.2008-P-0098, 2009-Ohio-2795, at ¶ 22 (the odor of alcohol, strange behavior, and comments made about not being sober provided reasonable suspicion for a stop to be conducted).

Editors Note: This case is a good example of the legal principle, followed in many states, that a conclusory report of "drunk driving" standing alone, fails to contain specific and articulable facts to support the stop of a vehicle.

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