By Robert G. Walton Esq. and Danielle Muster, his law clerk.
On June 24, 2021, Supreme Court of Ohio decided State v. Tidwell, Slip Opinion No. 2021-Ohio-2072, which stemmed from a motion to suppress in an OVI case. Early in the opinion the Court stated that the principal issue was whether a police officer had reasonable suspicion to briefly detain Sherry Tidwell in order to confirm or dispel an unidentified witness’s assertion that she was operating a motor vehicle while intoxicated. However, the Court ultimately decided the issue of reasonable suspicion based on the information provided by the tipster and the officer’s observations, i.e. the totality of the circumstances. Justice Donnelly wrote the opinion, in which the Court held that based on the totality of the circumstances then confronting the officer, his investigatory stop of Tidwell was reasonable and thus did not violate the Fourth Amendment.
In this post we seek to make it clear that the Court did not decide the issue based solely on the information provided by the tipster. Secondly, we review the information upon which the Court found reasonable suspicion. Thirdly, we provide some ideas to assist practitioners in their preparation of cross examination in similar cases, through the lens of the known facts in Tidwell.
On Saturday, November 11, 2017 at 8:00 p.m. OSHP Sgt. Illanz was investigating a two-car accident on a road heavily traveled at night. He directed the drivers who were involved in the accident to a Speedway parking lot to complete the accident report. A man standing in the doorway to the Speedway store yelled to Sgt. Illanz: “Hey, you need to stop that vehicle. That lady is drunk.” The man then directed Sgt. Illanz’s attention to an SUV that was backing out of a parking space. Sgt. Illanz saw the driver back out of its parking space at an unusually slow speed and then slowly drive forward toward the road, which was still busy with heavy traffic. At that time, Sgt. Illanz saw that the driver of the SUV had a blank stare on her face. Sgt. Illanz said he knew from his training and experience that a blank stare may indicate impairment. 30 seconds after the man yelled from the door of the Speedway, Sgt. Illanz walked in front of Tidwell’s car and gestured for her to stop, which she did.
The Hamilton County Municipal Court granted Tidwell’s Motion to Suppress and on appeal the First District affirmed. It held that Sgt. Illanz lacked reasonable suspicion to stop the car because the unidentified man’s anonymous tip lacked sufficient indicia of reliability and there was no evidence that Tidwell drove erratically prior to the stop.
The Ohio Supreme Court accepted jurisdiction over this proposition of law:
Simple face-to-face contact between an unnamed citizen and a police officer may be enough to remove the citizen from the category of “anonymous” and consider him a “citizen informant,” whose tip merits a high degree of credibility and value, rendering the tip sufficient to withstand a Fourth Amendment challenge without independent police corroboration.
As alluded to earlier in this post, later in the opinion the Court stated that the specific issue in this case was whether the information then available to Sgt. Illanz gave him reasonable suspicion to initiate a brief investigatory stop. It went on the clarify that the information included what Sgt. Illanz learned from the tipster and his independent observations.
The Court began its analysis by stating that a police officer may lawfully make an investigatory stop, including a traffic stop, of a person if the officer has reasonable suspicion to believe that the person is or is about to be engaged in criminal activity. Navarette v. California, 572 U.S. 393, 396 (2014). Reasonable suspicion for a Terry stop “is dependent upon both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 325 (1990). “Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture…that must be taken into account when evaluating whether there is reasonable suspicion.” Id., quoting United States v. Cortez, 449 U.S. 411, 417 (1981). Further, police officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273 (2002), quoting Cortez at 418.
The Court then discussed the information provided by the tipster. The unidentified Speedway customer (tipster) yelled “Hey, you need to stop that vehicle. That lady is drunk.”
Next, the Court discussed the categories of informants. As relevant to this case, there are either identified citizen informants or anonymous informants. Maumee v. Weisner, 87 Ohio St.3d 295 (1999). In Weisner, a motorist called the police and gave a “blow by blow account” of the driving of the car in front of him, which he said was weaving all over the road. He also described the car and fully identified himself. The police caught up to the incident. They did not see any unlawful driving but stopped the car on the basis of the tip relayed by the dispatcher. The Supreme Court said when the information known to the police before the stop comes solely from a tip, the determination of reasonable suspicion will be limited to an examination of the weight and reliability due to that tip. “The appropriate analysis…is whether the tip has sufficient indicia of reliability to justify the stop.” Id. In Weisner, the Court concluded that the identified citizen tipster’s information possessed a greater indicia of reliability than that of an anonymous tipster. The Weisner Court emphasized that the categorization of the informant does not itself determine the outcome but is just one element in the totality of the circumstances. In Weisner the informant’s credibility was enhanced because he identified himself and provided an eyewitness account of the suspect’s dangerous driving. “When we took all of the facts into consideration…the tip…merits a high degree of credibility and value…” which rendered the stop sufficient to withstand the Fourth Amendment challenge without independent police corroboration. Id.
The Tidwell Court then considered how to categorize the Speedway customer’s tip. After a comparison of relevant cases, the Court declined to force the customer into one of the categories. Instead, it determined the reasonableness of this stop by considering the totality of the circumstances known to Sgt. Illanz prior to the stop, together with reasonable inferences that could be drawn from the circumstances. The information that was available to him prior to the stop was what he was told and what he observed up until he walked up to Ms. Tidwell’s car. The Court concluded the stop was reasonable based on the follow five factors:
First, the Court stated that it was significant that the Speedway customer, even though unidentified, initiated the face-to-face contact with Sgt. Illanz. This allowed the officer to personally observe the informant’s demeanor and evaluate his veracity. Further, the informant’s identity could potentially be learned and subject him to legal peril if he made a false report.
Second, the Court compared the facts of the case to Weisner because the informant’s tip was about a possible crime that was then occurring- operating a motor vehicle while intoxicated. The Speedway customer yelled to Sgt. Illanz to stop a specific vehicle because he believed the woman driving it was drunk. The Court stated that the informant’s suggested knowledge of Tidwell’s present condition and anticipated response from the officer gave the tip some further indicia of reliability.
Third, because the tip was communicated contemporaneously with the alleged crime’s occurrence, the Court found there to be no apparent cause to question the informant’s motive. The Court stressed that the informant’s contemporaneous report gave the tip a further degree of trustworthiness.
Fourth, the Court stated that Sgt. Illanz’s observation of Tidwell’s blank stare tended to corroborate the informant’s report that Tidwell was intoxicated. Although the Court acknowledged that a motorist’s blank stare could be due to any number of innocent noncriminal circumstances, it wrote that with Sgt. Illanz’s training, the observation lent credence to the Speedway customer’s report.
Fifth, Sgt. Illanz effectuated the investigatory stop only after he watched the driver with a blank stare drive at an usually slow speed (as she was pulling out of the parking space and pulling toward a busy road). The Court found that given the information then available to Sgt. Illanz, 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.
In conclusion, the Court concluded that since Sgt. Illanz received a report from a citizen about an alleged crime in progress, and made his own limited corroborating observation of Tidwell before detaining her, that under the totality of the circumstances, the stop was reasonable.
As to ideas for cross examination as to whether law enforcement had reasonable suspicion as of the moment that Ms. Tidwell was detained, based on the totality of the circumstances, consider the following:
- The customer did not provide any facts in support of his statement that Ms. Tidwell was drunk. It is a bare bones conclusion.
- Illanz had very little time to “size up” the customer- he would not have known if the customer was drunk, stoned, out of his mind or recently rejected by Ms. Tidwell.
- Illanz did not smell an odor of alcohol coming from Ms. Tidwell, hear her speak in a slurred manner, observe her eyes to be bloodshot or see her display poor balance or coordination, nor did the customer tell Sgt. Illanz that he smelled, heard or saw any of those things.
- Tidwell was not observed to be driving erratically before she pulled into the Speedway parking lot, nor was there any evidence that she did not park appropriately in her space.
- The road adjacent to the Speedway was busy with traffic on a Saturday night at 8 p.m. The Speedway parking lot was probably just as busy.
- Pulling slowly out of a parking space at Speedway on Saturday night at 8 p.m., shows better judgment, mental acuity and clearness of thought then pulling out quickly.
- Tidwell did not almost cause an accident as she carefully pulled away from the parking space.
- There is no reliable source of training or education which states that a blank stare is a sign of alcohol and/or drug impairment. More importantly the officer had very little time to observe any kind of stare and he purportedly did so when it was dark, without the aid of a flashlight, from an unknown distance from Ms. Tidwell and there might have been obstructions to his view.
These areas might have been explored on cross in Tidwell but there is no reference in the opinion of the Court. Either way, they are meant to stimulate creativity and diligence on the part of defense counsel.