DUI Law - Illinois Dismisses Illegal DUI Stop from Anonymous Call

Congratulations goes out to Earl Vergara, NCDD member and Illinois attorney who handled this matter on appeal. In People of Illinois v. Smulik, --- N.E.2d ----, 2012 IL App (2d) 110110, 2012 WL 34367 (Ill.App. 2 Dist.) the police received a call of "a possible DUI with complainant following." The police located the vehicle that fit the description parked in a gas station. The police pulled behind the vehicle, but the officer believed she did not block in the defendant's car. After speaking with defendant, Johnson spoke with the complainant, who had followed defendant to the gas station. The complainant told Johnson that she had seen defendant drinking wine and vodka. The trial court found that a seizure had nevertheless occurred, and that the seizure was unsupported by reasonable suspicion. 

The appellate court affirmed the motion to quash arrest, writing:

“A particular encounter constitutes a seizure for fourth amendment purposes when, considering all the surrounding circumstances, the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise end the encounter. [Citation.] Additionally, either the police must use physical force or the defendant must submit to the assertion of police authority.” Village of Mundelein v. Minx, 352 Ill.App.3d 216, 219 (2004).

 In City of Highland Park v. Lee, 291 Ill.App.3d 48 (1997), we held that, when a police officer activates his or her emergency lights to curb a vehicle, a reasonable person in the driver's position would not feel free to decline the encounter with the officer. Id. at 54. In Minx we extended the rule to cases such as this one, where, with his or her vehicle's emergency lights activated, a police officer pulls up behind a parked vehicle. Minx, 352 Ill.App.3d at 220; see also Lawson v. State, 707 A.2d 947, 951 (Md.Ct.Spec.App.1998) (“Few, if any, reasonable citizens, while parked, would simply drive away and assume that the police, in turning on the emergency flashers, would be communicating something other than for them to remain.”). When Johnson pulled in behind defendant's vehicle with her own vehicle's emergency lights activated, defendant made no attempt to drive off. He therefore submitted to the encounter and was seized at that point. Minx, 352 Ill.App.3d at 220 (“when [the defendant] noticed the emergency lights, he submitted to them and did not leave”).

Applying the above law to the facts of this case, the court stated:

"At the point at which the seizure occurred, Johnson had no personal knowledge of any facts suggesting that defendant was committing or was about to commit a crime. In Linley, we summarized the general principles that apply when a Terry stop is based on facts not personally known to the officer who effects the stop. We observed:

“An investigatory stop need not be based on personal observations by the officer conducting the stop (or by those officers whose knowledge is imputed to the officer conducting the stop). [Citation.] A stop may also be based on information received from members of the public. [Citation.] However, the informant's tip must bear “ ‘some indicia of reliability’ “ in order to justify the stop. [Citation.] ‘[A] reviewing court should consider the informant's veracity, reliability, and basis of knowledge.’ [Citation.] Whether a tip is sufficient to support a stop is not determined according to any rigid test but rather depends on the totality of the circumstances. [Citation.]

"The nature of the informant is relevant. All other things being equal, information from a concerned citizen is ordinarily considered more credible than a tip from an informant who provides information for payment or other personal gain. [Citation.] Another significant factor in determining the reliability of a tip received from a member of the public is whether, prior to conducting a Terry stop, the officer is aware of facts tending to corroborate the tip. [Citation.] This court has observed that ‘[c]orroboration is especially important when the informant is anonymous [citation] and is even more important when the anonymous tip is given by telephone rather than in person.’ [Citation.] There is authority, however, that a tip conveyed via an emergency telephone number—a 911 call for instance—should not be considered ‘truly anonymous,’ even if the caller does not specifically identify himself or herself. [Citation.] The rationale is that such a caller is likely aware that, because the authorities often record emergency calls and have the means to instantly determine the telephone number from which a call was placed, they may therefore be able to determine the caller's identity. That an informant has placed his or her anonymity at risk may be considered in assessing the reliability of the tip. [Citations.]” Linley, 388 Ill.App.3d at 750–51.

Concluding that the stop was illegal, the court concluded:

"Here the stop was based on a tip received from an informant .FN2 The tip was conveyed to Johnson by a dispatcher; it does not appear that Johnson spoke with the informant until after initiating the Terry stop by parking her police car, with its emergency lights activated, behind defendant's vehicle. Accordingly, only the information relayed by the dispatcher to Johnson is germane to the question of whether the stop was supported by a reasonable suspicion that defendant had committed or was about to commit a crime. What Johnson knew based on the dispatch was that the informant had observed an individual drinking at an establishment called Redstone. The informant thought that the subject of the tip was “drunk,” and she was “concerned about him driving.” The subject was driving a silver Jeep, and the informant, who was following him, advised police of the vehicle's location and license plate number. There is no evidence that the informant provided her name or that she contacted the police through an emergency number. Thus the tip must be treated as an anonymous one, and its reliability hinges on the existence of corroborative details observed by the police. In this regard, the evidence falls short."

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DWI Laws - Texas Dismisses Case Based on Illegal Stop

In State of Texas v. Kerwick, --- S.W.3d ----, 2011 WL 5247890 (Tex.App.-Fort Worth) Officer Jeffrey J. Bradford was dispatched to a bar on North Main Street in Fort Worth in response to a call about several people fighting in front of the bar. When Officer Bradford arrived at the bar, several people were standing outside in front of the bar. Officer Bradford made contact with the person he believed to be the person who had called the police. The person was the owner of a damaged vehicle. That person pointed to a vehicle parked on the street across from the bar and said, “There they are right there. There they are, there they are.” Officer Bradford walked over to the vehicle as it started moving northbound on the street and stopped the vehicle by yelling at the driver, ordering her to stop. Officer Bradford testified that he “believed that they—at that point they were involved in an offense.”

In affirming the granting of a motion to suppress, the appeals court wrote:

"In short, the record before us simply contains no facts to enable either the trial court or this court to objectively evaluate either Officer Bradford's belief that the person who said, “There they are right there. There they are, there they are,” was the person who had called the police or his belief that Appellee was “involved in an offense ... [—a]n assault, criminal mischief, or both.” No facts exist in the record to enable the trial court or this court to assess whether either of these beliefs by Officer Bradford were objectively reasonable. See Ford, 158 S.W.3d at 493. Without specific, articulable facts, a court has no means of assessing whether an officer's opinion is objectively reasonable. Id. Without specific, articuable facts, a detention cannot be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular seizure in light of the particular circumstances. Id. And when such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. Id. Allowing a police officer's opinion to suffice in specific facts' stead eviscerates Terry's reasonable suspicion protection. Id."

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DUI Appeal - 10th Circuit Discusses Informant Stop and PC for DUI Arrest

In U.S. v. Chavez, --- F.3d ----, 2011 WL 4925884 (C.A.10 (N.M.)), the Defendant–Appellant Christopher Roy Chavez was arrested during a traffic stop for driving while intoxicated (“DWI”). After his arrest, the police impounded the vehicle he was driving. They subsequently obtained a warrant to search the vehicle for illegal contraband. During the ensuing search, officers found approximately one-third of a pound of cocaine. Mr. Chavez was indicted for one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U .S.C. § 841(b)(1)(C). He filed a motion to suppress the cocaine, arguing it was obtained in violation of the Fourth Amendment. The facts were as follows:


On April 11, 2008, at approximately 2 a.m., a dispatcher at the Alamogordo, New Mexico Police Department received a 911 call from a Wal–Mart employee (the “caller” or “employee”) reporting a disturbance in the store's parking lot. The caller stated that the individuals causing the disturbance were located in or around a white Cadillac and a black pickup truck, and that the driver of the Cadillac was potentially intoxicated. The caller provided the dispatcher with license plate numbers for the Cadillac and black pickup truck. The dispatcher sent Officers David McColley and Kenneth Funk to the parking lot.

Approximately three minutes after dispatch received the 911 call, Officer McColley arrived at the parking lot. He saw an individual standing outside of the Wal–Mart's doors, pointing in the direction of a white Cadillac and a black pickup truck.


Officer McColley stopped the Cadillac, exited his vehicle, and approached the Cadillac's driver. He explained to the driver that he had received a report of a disturbance in the parking lot. The driver, Christopher Roy Chavez, denied causing a disturbance and stated that his passenger had been shopping in the Wal–Mart. Officer McColley observed that Mr. Chavez's eyes were bloodshot and watery, and he detected an odor of alcohol emanating from Mr. Chavez. He asked Mr. Chavez if he had been drinking; Mr. Chavez stated he had not.


While Officer McColley was talking to Mr. Chavez, Officer Funk arrived at the parking lot. He was immediately flagged down by the man standing outside of the Wal–Mart. The man identified himself as the employee who placed the 911 call. The employee told Officer Funk that he observed the Cadillac pull into a parking space immediately adjacent to the black pickup truck. He further stated that he had watched the driver of the truck get into the passenger side of the Cadillac. Finally, he stated that he saw the driver of the Cadillac urinating in the parking lot and that a few minutes later he saw the occupants of the Cadillac throw Taco Bell wrappers and shot-sized liquor bottles into the parking lot. After speaking with the caller, Officer Funk drove his patrol car to where Officer McColley had stopped Mr. Chavez.

As Officer Funk arrived at the scene of the stop, Officer McColley asked Mr. Chavez to step out of the Cadillac and to give him his driver's license and proof of insurance. Mr. Chavez did not have a copy of his driver's license, but provided a New Mexico identification card containing his name. He told Officer McColley that the Cadillac belonged to a friend named David Aguirre. Officer McColley asked why the Cadillac's title stated that it was owned by a man named Manuel Renterria. Mr. Chavez was unable to provide a clear answer.

Officer McColley again asked Mr. Chavez if he had been drinking. This time Mr. Chavez stated he had consumed a couple of beers. Officer McColley conducted three field sobriety tests on Mr. Chavez. Based on his observations during the tests, Officer McColley “was certain that Mr. Chavez was intoxicated.” United States v. Chavez, No. 09–3086RB, Order Denying Motion to Suppress, at 6 (D.N .M. Nov. 17, 2009) (“Chavez I”).

After conferring with Officer Funk, Officer McColley asked Mr. Chavez to identify the passenger in the Cadillac. Mr. Chavez stated that the passenger's name was John, but was unable to provide John's exact address. Officer McColley then asked Mr. Chavez if he had any contraband in the Cadillac. Mr. Chavez responded, “[N]o, you can look around.” Id. As Officer McColley spoke to Mr. Chavez, police dispatchers informed him that Mr. Chavez's driver's license had expired. Upon learning this information, Officer McColley informed Mr. Chavez that he was “very close” and a “half a second” from arresting him. Id. at 7. Throughout this encounter, Mr. Chavez appeared agitated and nervous and his speech was slurred.

Approximately twenty minutes after the stop began, Officer McColley asked Mr. Chavez if he would consent to a search of the Cadillac. Mr. Chavez declined, stating he was not the owner of the vehicle and that he did not want to be responsible for it. Officer McColley informed Mr. Chavez that he could consent to a search of the vehicle because he was driving it. Mr. Chavez responded that the officers had already searched the vehicle with their flashlights. Officer McColley asked Mr. Chavez if he needed to call a dog to conduct a search. Mr. Chavez responded, “[I]f that's what they needed to do.” Id. at 8. At that point, Mr. Chavez appeared nervous and accused the officers of harassing him. Officer McColley again warned Mr. Chavez that he was very close to getting arrested for DWI.

Twenty-seven minutes after initiating the stop, Officer McColley radioed dispatch and requested that a drug-sniffing canine be sent to the scene. Officer McColley informed Mr. Chavez that he had initially stopped him because he was drinking and that he had called a drug dog because he suspected there might be “more” in the Cadillac. Id. at 9. Mr. Chavez stated that he was not worried because the Cadillac was not his vehicle. While he waited for the canine to arrive, Officer McColley continued questioning Mr. Chavez about the ownership of the vehicle and his whereabouts before the stop.

Approximately fifty minutes after Officer McColley stopped Mr. Chavez, a drug-sniffing canine arrived at the parking lot. The dog did not detect any odors of illegal contraband outside of the Cadillac. An officer asked Mr. Chavez if the dog could search the passenger compartment of the vehicle. Mr. Chavez stated that “it was okay to run the dog inside the vehicle.” Id. at 11. While inside the passenger compartment, the dog alerted to a seam in the backseat. The officers showed Mr. Chavez the location where the dog had alerted and asked him for permission to search it. Mr. Chavez stated that “it was fine.” Id. The officers searched the backseat and found no contraband.


The officers then asked Mr. Chavez for consent to search the Cadillac's trunk. Mr. Chavez became increasingly hostile and argumentative and refused to give his consent. Officer McColley placed Mr. Chavez under arrest for DWI.


After Mr. Chavez was arrested, officers drove the Cadillac to the police station and stored the vehicle in a controlled bay. The next morning, officers conducted an exterior search of the Cadillac using a drug-sniffing dog. The dog alerted to the trunk of the vehicle, and the officers obtained a warrant to search that area. During the ensuing search, officers found approximately one-third of a pound of cocaine and one-third of a pound of marijuana in the Cadillac's trunk.


The district court denied the motion. Mr. Chavez entered a conditional guilty plea. Mr. Chavez challenged the district court's denial of his motion to suppress on four grounds. He first argues the police lacked reasonable suspicion to stop him. Second, he contends the police lacked probable cause to arrest him for DWI. Third, he claims the scope of his detention was unreasonable. Fourth, he asserts the consent he gave to search the Cadillac “was insufficient to attenuate the illegal stop and detention.”

The appeals court discussed the law regarding the validity of the stop as follows:


"The Supreme Court has recognized that “there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.” Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (quotation omitted). Whether a tip provides reasonable suspicion to make a traffic stop is case-specific. Although no single factor is dispositive, relevant factors include: (1) whether the informant lacked “true anonymity” (i.e., whether the police knew some details about the informant or had means to discover them); (2) whether the informant reported contemporaneous, firsthand knowledge; (3) whether the informant provided detailed information about the events observed; (4) the informant's stated motivation for reporting the information; and (5) whether the police were able to corroborate information provided by the informant. See, e.g., United States v. Copening, 506 F.3d 1241, 1247 (10th Cir.2007) (considering these factors and concluding that information from an informant was sufficiently reliable to establish reasonable suspicion); United States v. Brown, 496 F.3d 1070, 1078–79 (10th Cir.2007) (same).

Holding that the stop was lawful, the court wrote:

"All of these factors were present in this case. First, although the caller did not provide dispatchers with his name, he told them he was a Wal–Mart employee at a specific Wal–Mart store and thereby provided the police with information to discover his identity. Second, he stated he had witnessed the events in the parking lot firsthand. Third, he provided the dispatchers with detailed information about the events he witnessed, including the model of each vehicle involved in the disturbance and each vehicle's license plate number. Fourth, he explained he was calling to report a disturbance in his employer's parking lot, which explained his motivation for reporting the incident to police. Finally, Officer McColley verified some of the information provided by the caller—including that there was a black pickup truck and a white Cadillac in the parking lot—before stopping Mr. Chavez. Based on these circumstances, we hold that the caller's tip bore “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” See J.L., 529 U.S. at 270 (quotation omitted)."

Regarding probable cause to arrest for DWI, Mr. Chavez argued that “after 20 minutes without arresting [him] for DWI, the officers changed the detention from a ‘disturbance’ investigation into a drug investigation.” Aplt. Br., at 21. He contends this extended detention constituted an illegal arrest. The court responded as follows:

Mr. Chavez is correct that “[i]f a police-citizen encounter exceeds the limits of a Terry stop, the detention becomes an arrest that must be supported by probable cause.” Rodriguez–Rodriguez, 550 F.3d at 1227 (quotations omitted). Here, however, we need not determine whether Officer McColley expanded the scope of the stop twenty minutes after he initiated it because we conclude he had probable cause to arrest Mr. Chavez for DWI within nine minutes of initiating the stop.

* * *

Although probable cause to arrest is not necessary to justify the extension of an investigative detention, it is sufficient. See Rodriguez–Rodriguez, 550 F.3d at 1226. Accordingly, even if Officer McColley extended the scope of the initial traffic stop by detaining Mr. Chavez while waiting for a drug dog to arrive, such an extension would not violate the Fourth Amendment if Officer McColley had probable cause to arrest Mr. Chavez. See id.; see also United States v. Sturgis, 238 F.3d 956, 959 (8th Cir.2001) (“Because the agents could have arrested [the defendant], they didn't violate the Constitution by detaining [the defendant] for two hours while awaiting the arrival of the canine unit.”); cf. United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir.1998) (“[D]etention of the driver at the scene to accomplish a canine sniff is generally reasonable where the driver is already under lawful arrest.”).

* * *

The district court concluded that “[w]ithin nine minutes of [initiating] the stop, Officer McColley had probable cause to arrest Mr. Chavez for [DWI].” Chavez I, at 18–19. The court based this conclusion on several factual findings. First, immediately upon contacting Mr. Chavez, “Officer McColley observed that Mr. Chavez's eyes were bloodshot and watery and he detected the odor of alcohol emanating from Mr. Chavez.” Id. at 3. Second, Mr. Chavez admitted to Officer McColley that “he had a couple of beers” prior to the stop. Id. at 5. Third, Officer McColley performed three field sobriety tests on Mr. Chavez and was “certain that Mr. Chavez was intoxicated” based on his observations during the tests. Id. at 6, 18.

We agree with the district court that, based on the totality of the circumstances, these facts provided probable cause for Officer McColley to arrest Mr. Chavez for DWI. See, e.g., Schmerber v. California, 384 U.S. 757, 768–69, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (probable cause to arrest existed when driver's breath smelled from alcohol and the driver's eyes were bloodshot, watery, and glassy); Wilder v. Turner, 490 F.3d 810, 815 (10th Cir.2007) (holding that an officer had probable cause to arrest a driver for DUI where the officer “observed several indicia of [the driver's] alcohol consumption[,] including a moderate odor of alcohol, pinkish and watery eyes, a flushed face, unusually slow and deliberate speech, and slow hand movements” and the driver “refused to participate in a field sobriety test”); see also Sherbrooke v. City of Pelican Rapids, 577 F.3d 984, 987–88 (8th Cir.2009) (holding that an officer had probable cause to arrest for DWI after he detected alcohol on the driver's breath, the driver admitted to drinking, and the driver failed one of three field sobriety tests)."

The court also ruled against the defendant on the remaining issues, and the defendants conviction was affirmed in total.

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DUI Appeal -Oregon DUII Cracked Windshield Stop Challenged

In State of Oregon v. Elmore, --- P.3d ----, 2011 WL 891677 (Or.App.) the defendant entered a conditional plea of guilty reserving the right to appeal the denial of his motion to suppress challenging the stop of his car. At the motion to suppress, the following facts and testimony was adduced:

On the morning of June 4, 2007, Deputy Cochran saw defendant driving his vehicle on a highway. Cochran testified that he noticed “a large crack in the windshield, which is a violation of statute, and so I pulled him over for that.” Defendant testified that the crack “starts * * * on the driver's side four inches up from the bottom of the windshield. And then it progressively goes to the passenger side heading down towards the bottom of the windshield.” According to defendant, the crack was “18 inches to two feet” long. When Cochran was asked how “a crack like that [would] obstruct the vision either into or out of the vehicle,” he testified:

“[I]t depends. Some people drive around with big spiderwebs, that wasn't what this case was, you know, that would be more apparent. But anything as simple as one line, it may be in your direction of vision, it may be on the side of the window where you're looking through as you're turning or something like that. Another problem is because I had a cracked windshield with just one line that was cracked from a baseball game, is that cracked windshield will act like, sometimes like a prism with that crack and you get cracked glass and when the sunlight shines through it it will, you know, glint and glare off of that crack which is distracting.”

The applicable Oregon statute prohibits driving a vehicle when the windshield is obstructed by “any material that prohibits or impairs the ability to see into or out of the vehicle * * *. This subsection applies to any sign, poster, one-way glass, adhesive film, glaze application or other material if the material prohibits or impairs the ability to see into or out of the vehicle.”

At the suppression hearing, defendant's attorney argued that, under that statute, a crack is not a “material that prohibits or impairs the ability to see into or out of the vehicle.” On appeal, the court agreed:

“Material,” in the context of ORS 815.220(2), unambiguously connotes something that has physical substance for two reasons. First, a physical substance is something that, in the terms of the statute, may be “ upon any vehicle window.” ORS 815.220(2) (emphasis added). Second, the statute itself refers to particular items that constitute “material”- viz., “any sign, poster, one-way glass, adhesive film, glaze application”-all of which are things of physical substance. Id.

Applying that construction to this case, we readily conclude that a crack is not a “material.” As defendant posits, “a crack is not a tangible or physical object separate from the window itself. It does not have its own substance beyond pure window glass.” Here, the deputy stopped defendant because he saw a crack in defendant's windshield. Accordingly, because the facts, as the deputy actually perceived them, did not satisfy the elements of ORS 815.220(2), he lacked objective probable cause to stop defendant.

On appeal, the State also tried to argue that, even if the officer's reliance on that statute was wrong, there were alternative statutes that justified the stop. Refusing to allow the alternative bases, the appeals court said:

"[W]e decline to address the state's alternative contention. The state's argument in the trial court focused exclusively on ORS 815.220-that is, the state did not point to any of the statutes that it now raises on appeal. Had the state attempted to rely on those statutes in the trial court, defendant might well have developed the record differently. See Tiffin, 202 Or.App. at 202 (declining to address the state's alternative “argument that the stop was lawful based on the officers' reasonable suspicion that defendant was driving under the influence because the state did not make that argument to the trial court”; reasoning that, “[h]ad the state done so, defendant might have developed a different record below”).

NOTE: this appeal is good for 2 reasons - the interpretation of the statute was not bent to support the stop itself, and the State was prohibited from its last-ditch attempt to argue alternative means for the stop that were not raised at a time when the defense could have argued against them. It is nice to see a court enforcing appropriate rules of procedure even-handedly.


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DUI Appeal - Texas DWI Failure to Signal Lane Change

In Brown v. State of Texas, Not Reported in S.W.3d, 2011 WL 915087 (Tex.App.-Beaumont) the defendant was stopped after entering a right-hand turn only lane, and then changing his mind and re-entering a through lane without signaling. On appeal, the issue was whether the failure to signal the movement was illegal. The Texas vehicle code states that “[a]n operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.” Brown argued that no signal was required when he moved from the right-turn-only lane back to the left lane on his side of the road. Brown relied on Mahaffey v. State, 316 S.W.3d 633 (Tex.Crim.App.2010) and Trahan v. State, 16 S.W.3d 146 (Tex. App .-Beaumont 2000, no pet.). In Trahan, the driver failed to signal his exit from the freeway. The Court concluded there was no evidence that Trahan ‘ “turned” ‘ or changed lanes in order to exit the freeway, and there was no basis for the traffic stop. In Mahaffey, two lanes on Mahaffey's side of the road merged into a single lane. A sign on the road said ‘ “Lane Ends-Merge Left[.]” ‘The officer stopped Mahaffey for failing to signal when he merged into the single lane. Id. The Court found there was no “turn” and Mahaffey was “simply following the ‘direct course’ of the road and of the traffic on that winding road.”

The appeals court herein found that the stop was proper, and the failure to use a signal was illegal. "Without a signal, Brown then crossed the solid white line between the two lanes and made a lane change from the right-turn-only lane back into the left lane." Hence, the movement constituted a 'change of lanes' that in the court's opinion required use of a turn signal.

Although this defendant lost, the case itself contained helpful precedent for defense counsel.


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DUI Appeal of the Day (DAD)- The Defense of Coercion

In Hines v. State of Georgia, --- S.E.2d ----, 2011 WL 782248 (Ga.App.), the police officer Brooks was sent to Buffalo's restaurant in Dublin in response to a call about a fight in progress in the restaurant parking lot. The defendant was seen “[w]hen "backing out in a hurry and he was leaving the parking lot in a big hurry”; and that he was going “[m]uch faster” than normal for a parking lot. Brooks estimated the truck's speed to be at least 25 mph as it exited the lot. In light of the report Brooks had received about a fight in progress, Brooks concluded from his knowledge, training, and experience that the driver of the pick-up truck was involved in the fight and was trying to flee the scene. Brooks pulled his police car in front of the pick-up truck and stopped it in order to question the driver about whether he was involved in the fight. The defendant claimed coercion, because he was trying to avoid a fight in the parking lot. The jury found against the defendant.

First, the appeals court found that there was a reasonable suspicion to stop the defendant's car. The defendant argued that the evidence was insufficient to sustain his convictions because he presented evidence of coercion. Under Georgia law, a person cannot be guilty of any crime, except murder, “if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” But “[t]he danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act.” Coercion is an affirmative defense, but it is a defense “only if the person coerced has no reasonable way, other than committing the crime, to escape the threat of harm.” The state has the burden to disprove coercion beyond a reasonable doubt.

The court found that the jury verdict against the defendant, in spite of the coercion defense, was not improper:

"On cross-examination, Hines admitted that he was not coerced into driving the car away from the restaurant. Hines testified that an employee of the restaurant asked him to leave; that he drove away to avoid a fight; that he had three or four beers before driving the truck; that he had a cell phone in his possession but he did not attempt to call 911, nor did he ask the Buffalo's employees to call a cab for him; and that the person who was trying to fight him was in the parking lot but was not armed."

NOTE: Although the defense here lost, the case supports the proposition that the defense of coercion IS applicable to a DUI case.

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DUI Appeal of the Day - When Car Mistakenly Pulls Over There is No Illegal Stop and Seizure

In State of Kansas v. Reiss, --- P.3d ----, 2010 WL 5129859 (Kan.App.), Rex Reiss had the misfortune to be driving one of two vehicles directly behind a blue pickup that had no lights. When an officer pulled behind the three vehicles to stop the one with no lights on, Reiss stopped directly behind the blue pickup. When the officer pulled his car right behind Reiss (there was no room between Reiss' truck and the blue pickup), Reiss immediately got out of the truck and began walking toward the police car, vehemently questioning what he'd done wrong. The officer then directed Reiss to go back to his car. When the officer finally approached, the interaction led to a drunk driving arrest. The district court held that Reiss had not been seized, even when the officer ordered Reiss back to his truck, because the officer was merely taking normal steps that a reasonable and cautious officer would take for safety when a single officer was on hand and more than one vehicle had stopped.

The Kansas court of Appeals discussed the law of search and seizure:

"In a voluntary encounter between a citizen and a police officer, the officer is free to ask questions even in the absence of any suspicion the citizen is up to no good. See State v. McGinnis, 290 Kan. 547, 552-53, 233 P.3d 246 (2010). But to stop a person traveling on the roadway, even briefly for the purpose of investigation (an “investigatory detention”), the officer must have reasonable suspicion that something's amiss, meaning an objective and specific basis for believing that the person being detained is involved in criminal activity. See State v. Pollman, 286 Kan. 881, Syl. ¶¶ 3-5, 190 P.3d 234 (2008). And to arrest someone, the officer must meet an even higher standard: probable cause, which exists when a person of reasonable caution could conclude from the known facts that an offense has been or is being committed. State v. Fewell, 286 Kan. 370, Syl. & 4, 184 P .3d 903 (2008); Barriger, 239 P.3d at 1291."

Whether a person inadvertently stopped by police has been seized was a matter of first impression for Kansas. That issue, however, had been discussed extensively in a recent decision of the United States Court of Appeals for the Ninth Circuit, United States v. Al Nasser, 555 F.3d 722, 725-32 (9th Cir.2009). The Ninth Circuit concluded that a driver was not seized-and therefore no Fourth Amendment violation had occurred-when the driver stopped his vehicle because of police activity but the officers did not intend for that driver to stop. 555 F.3d at 731-32. The defendant in Reiss continued to argue that whether or not he was seized when he first pulled over, the encounter became a seizure when Officer Ritter ordered Reiss to return to his truck. The appeals court herein agreed with Reiss on this point:

"A seizure occurs when there is a show of authority by the officer that would communicate to a reasonable person that he or she is not free to leave and that person submits to the show of authority. Brendlin v. California, 551 U.S. 249, 254-55, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); State v. Morris, 276 Kan. 11, Syl. ¶ 5, 72 P.3d 570 (2003). Officer Ritter's forceful commands led Reiss to return to his truck. Because Reiss was clearly seized at that point and no incriminating evidence was obtained before then, we need not determine whether he had been seized when he initially pulled over, even though the officer hadn't intended to stop him."

In finding the seizure reasonable, the Kansas court stated as follows:

"Ritter said he was “concerned on what [Reiss'] purpose was” when Reiss approached the officer, and this caused the officer to proceed cautiously. When Ritter approached Reiss' truck, Ritter asked why Reiss had gotten out of his truck and for identification rather than simply telling Reiss he was free to leave. On these facts, however, we see nothing unreasonable about that. Given the aggressive approach Reiss had taken at the scene, Ritter was properly concerned about his safety and asking for identification in this circumstance was itself only a minimal intrusion. See Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v.. Diaz-Castaneda, 494 F.3d 1146, 1153 (9th Cir.), cert. denied 552 U.S. 1031 (2007).

Sometimes the fish jumps into the boat. Such was the case for Rex Reiss.


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DUI Appeal of the Day (DAD) - Unwitnessed violations, Touching Lines, Turn Signal Issues make Bad Stop

In State of Missouri v. Loyd, --- S.W.3d ----, 2010 WL 5150173 (Mo.App. W.D.) the defendant driver exited a casino parking lot, turning right onto the roadway, allegedly without first using a turn signal. On appeal, the court found that a turn signal was not required when turning from private property onto a public highway. Finding that the 'rules of the road' only applied to vehicles on a public roadway, the court also construed the turn signal statute as only requiring signaling when the approach to the turn (where the duty to signal begins) is also on a public roadway. NOTE: most state statutes on turn signals are similar in this regard - does anyone use a turn signal when exiting their driveway?
The State also tried to argue that the defendant violated another law when he turned into the center lane instead of the nearest lane. A videotape confirmed the event. However, the appeals court rejected this incident as a basis for the stop, because:




We need not be detained by this issue because the State concedes on appeal, as it must, that the officer testified at the hearing that he was unaware of this alleged traffic violation until after he reviewed the dash cam video of the incident, which the officer did not review until after he had detained and arrested Loyd. “ ‘Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that a suspect has committed an offense.’ “ State v. Clayton, 995 S.W.2d 468, 477 (Mo. banc 1999) (quoting State v. Tokar, 918 S.W.3d 753, 757 (Mo. Banc 1996)). “Whether there is probable cause to arrest depends on the information in the officers' possession prior to the arrest.” Id .
The above appellate court position is certainly valuable, as many other state courts might uphold stops based on unwitnessed violations., so long as they are on videotape.
The State also tried to support the stop based upon the driver's touching of the center line:
At the suppression hearing, the officer testified that prior to pulling over the vehicle, he observed Loyd's car driving “with its right wheels on the center line as it went around the corner.” The dash cam video supports that Loyd's tires did touch, but not cross, the white stripes dividing the lanes. This Court has previously held that such a minor deviation does not provide the police probable cause to detain the driver in order to cite him for a traffic violation. “[T]here is extensive case law from numerous jurisdictions holding that slightly crossing over the fog line once or twice for a moment does not, in and of itself, justify a traffic stop.” State v. Abeln, 136 S.W.3d 803, 810, n. 7 (Mo.App.W.D.2004) (citations omitted); see also State v. Mendoza, 75 S.W.3d 842, 845-46 (Mo.App.S.D.2002) (holding that driving “onto but not over the left yellow line” did not “justify the issuance of a warning,” and therefore finding that the police “lacked probable cause or reasonable suspicion to stop Mendoza's vehicle”).


Also of interest in this case is the discussion regarding the correct procedure for preserving error when a motion to suppress is denied:



While Loyd argued his motion to suppress immediately prior to the beginning of trial, it is not disputed that he failed to preserve his claim in this regard at trial through an appropriate objection. “Absent an objection at trial to the admission of the evidence challenged in the motion, the issue is not preserved for appellate review.”



Many states have similar requirements. As a result of Loyd's failure to preserve the error, he had to appeal under a more onerous ground - the plain error rule. Although in this case the defense was ultimately successful on appeal, at trial defense counsel should always renew the objection to admission of evidence based upon a denial of a motion to suppress.



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DUI Appeal of the Day (DAD) - Suicidal Stop Reversed

In State of Ohio v. Dunn, Slip Copy, 2010 WL 5452112 (Ohio App. 2 Dist.), 2010 -Ohio- 6340, a police officer received a dispatch notice that there was a suicidal male driving a tow truck and that he was planning to kill himself when he arrived at certain location. The dispatcher gave Appellant's name as the driver and mentioned that he had a weapon. The dispatcher noted that the vehicle was a “big rig” tow truck displaying the name “Sandy's” towing company. Officer Brazel spotted the tow truck and called for backup assistance before initiating a traffic stop. Butler Township police arrived and the two officers signaled for Appellant to pull over. After stopping the rig, Appellant immediately exited the vehicle and was visibly upset and crying. The officers saw Appellant holding a cell phone, but did not observe any weapon. The officers drew their weapons, patted Appellant down and handcuffed him. They did not find any weapon on his person other than a small pocketknife. As Officer Brazel was walking back to his police cruiser, Appellant stated: “[I]t's in the glove box.” The officer asked him if he was referring to the gun, and Appellant said “yes.” Butler Township Sergeant Stanley checked the glove compartment and found a loaded weapon, and he confiscated and secured the weapon. Neither officer had explained the Miranda rights in any fashion to Appellant during or after these events. Officer Brazel drove Appellant to Good Samaritan Hospital to be involuntarily committed. During the drive, Appellant told the officer that he had been having problems with his wife and that he intended to shoot himself after he dropped off his tow truck.
The defendant filed a motion to suppress, alleging that the stop was unlawful. The trial court denied the motion. The trial court determined that the police were acting in response to an emergency and found that the need to protect or preserve life provided the exigent reasonable circumstances to justify the traffic stop.

The trial court also found that the police officers did not engage in custodial interrogation, and therefore, Appellant's voluntary comments made during the traffic stop should not be suppressed. The defendant was convicted and this appeal ensued. The defense argued on appeal that, because the arrest was based on a police dispatch bulletin, the state was required to establish the factual basis of the bulletin at the suppression hearing. The appeals court agreed, stating that the dispatcher did not testify at the hearing, and the record was completely devoid of any evidence to show that the dispatcher had a reasonable basis to issue the dispatcher's bulletin. The appellate court stated that "because there was no factual basis established for the traffic stop, all evidence deriving from the stop should have been suppressed." The court further elaborated:

In the instant case, there is nothing in Officer Brazel's testimony to establish the basis for the dispatcher's bulletin that led to Appellant's traffic stop. Although the parties mention in their appellate briefs that Appellant's wife was the informant, and it is possible that all of the parties understood this to be the case, the record is completely silent to this fact at the suppression hearing. Officer Brazel testified that he did not know who the informant was at the time and had no direct conversation with the informant. (Tr., p. 19.) In fact, there is no information about the informant contained anywhere within the transcript of the suppression hearing. Nothing in Officer Brazel's testimony explains what precipitated the dispatcher to send a report that Appellant was suicidal and had a gun in the vehicle. Because Officer Brazel was the only person who testified at the suppression hearing, and the officer supplied absolutely no testimony relative to the information, we must conclude that the state did not fulfill its burden to establish that the police dispatcher had a reasonable basis to send the bulletin which led to the traffic stop.

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