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“That Lady is Drunk!” – Ohio Supreme Court Addresses Reasonable Suspicion in State v. Tidwell

In State v. Tidwell, the Ohio Supreme Court issued an opinion on when a police officer may stop a vehicle on suspicion of drunk driving.

The police officer in this case was completing an accident report for an unrelated matter in a gas station parking lot in Warren County, Ohio, when he heard an unidentified man in the gas station doorway shout “Hey, you need to stop that vehicle. That lady is drunk,” and point towards black SUV that was backing out of a parking space.

According to the officer, the black SUV was moving at an “unusually slow speed” and the driver had a “blank expression” on her face, which he testified is a sign of impairment. The officer stopped the car. After speaking with the driver, Tidwell, for about five minutes, The officer asked Tidwell to perform field sobriety tests, which she did. After the tests, the officer arrested Tidwell for operating a vehicle under the influence.   

The trial court granted a defense motion to suppress, finding that the officer did not have the reasonable suspicion required under the Fourth Amendment to justify stopping Tidwell’s car. The Court of Appeals affirmed. The Ohio Supreme Court accepted jurisdiction, and reversed, holding that the stop was justified under the Fourth Amendment.

In reaching this decision, the Court held that the unidentified informant, the man who told the officer “that lady is drunk,” was sufficiently reliable under the circumstances.

The Court relied on two U.S. Supreme Court cases dealing with the reliability of informants: Florida v. J.S., and Navarette v. California.

In the J.S. case, police “received an anonymous telephone call providing a bare-bones tip that a young black man standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” The anonymous tipster did not explain how they knew he had a gun or provide any other information to corroborate the tip. Police went to the bus stop in question, found an individual matching the tipster’s description, and searched his person, revealing that he did in fact have a gun. The U.S. Supreme Court held that this uncorroborated, anonymous tip lacked sufficient reliability to justify the stop and search under the Fourth Amendment, stating:

An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

By contrast, in Navarette, a 911 caller “reported that a silver pickup truck traveling south at a particular mile marker had run the caller off the roadway.” The caller gave the suspect truck’s license number. Police pulled the truck over shortly thereafter. They smelled marijuana and searched the truck, discovering 30 pounds of marijuana in the truck bed. Here, the U.S. Supreme Court held that the tip, though anonymous, was sufficiently reliable under the Fourth Amendment to justify the stop. The Court found that the report of dangerous driving was made immediately after the dangerous driving occurred, making it similar to a “present-sense impression,” or “excited utterance,” two well-established exceptions to the evidentiary rule against hearsay.

The Ohio Supreme Court faced the challenge of deciding how to categorize the informant in this case. As the court noted, informants generally fall into one of three categories: (1) anonymous informant, (2) known informant (someone from the criminal world who has provided previous reliable tips), and (3) identified citizen informant.

 At oral argument, the State argued that the tipster in this case was not anonymous, because he spoke to the police officer in person, rather than by 911 call like the tipsters in both J.L. and Navarette. Unlike anonymous sources, tips from identified citizens informants are generally considered reliable. The Defense countered this argument, stating that a direct line of sight on a police officer does not transform an anonymous source into an identified citizen informant. The Court held that the informant did not fit either category, stating, “He resembled an identified citizen informant in some respects by having initiated face-to-face communication with Sergeant Illanz, but he also resembled an anonymous informant in that his identity was unknown.”

The Court held that the stop was reasonable, regardless of how they categorized the informant. The Court considered these factors important in establishing the reasonableness of the stop:

  • The informant initiated face-to-face contact with the officer,
  • The tip was about a possible crime currently in progress,
  • The tip was communicated contemporaneously with the crime’s occurrence,
  • The officer observed unusually slow driving and a blank stare,
  • The officer observed the suspect driving toward a busy road, creating a public-safety concern.

The Court concluded its summary of these factors by stating, “it was reasonable under the totality of the circumstances for him to approach the vehicle in this public area and briefly detain its driver in order to make a most basic inquiry as to whether an immediate danger to public safety existed.”

Here are my concerns with this decision as a criminal defense attorney:

  1. This decision may tempt lower courts in similar cases to avoid the difficulties of wrangling with the three categories of informants and choose the much simpler route of relying on the public safety concerns raised by the Tidwell court to justify traffic stops.
  2. This opinion states that “an informant’s tip that a drunk person is starting her car and about to drive away concerns observable and well-recognized behavior that does not necessarily require details and/or predictive information.” The Court seems to be saying that if the informant said the defendant was drunk, it must be because he saw her acting drunkenly, and his assessment that she was drunk must be reliable. This would have been akin to the U.S. Supreme Court in Florida v. J.L. concluding that if the tipster reported that the suspect had a gun, it must be because she saw a gun. Surely, guns are just as “observable” and “well-recognized” as intoxication, if not more so.
  3. The Court relied on slow driving in a parking lot and a “blank stare” as indicia of intoxication. A “blank stare,” is something so subjective, and not easily defined that any future officer could put a reference to a “blank stare” in a police report to justify a stop, and this statement would be difficult to challenge.

Still, given the very fact-specific nature of this case, it remains to be seen what impact Tidwell will have on future cases.

Read the opinion here.

Watch the oral argument here.  

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