DUS Requires Movement

Posted on October 6, 2022 by Robert Walton, Esq.

Many years ago there was not a statutory definition of operate and court decisions broadly interpreted the meaning of the word in OVI and DUS cases to include being in a position to move a car with the keys in the ignition.

About 20 years ago the legislature enacted a physical control statute and added a definition of the word operate under R.C. 4511.01 (HHH). It defined operate as to cause or have caused movement of a vehicle.  Thus, for purposes of R.C. Chapter 4511 it became clear that movement (past or present) while under the influence was required to prove OVI.

At the same time the legislature enacted the definition of operate applicable to OVI and enacted the physical control statute, it created R.C. Chapter 4510.  That Chapter includes various DUS offenses, including driving under an OVI suspension in violation of R.C. 4510.14.

Unfortunately, the aforementioned definition of operate was limited to R.C. Chapters 4511 and 4513, and Chapter 4510 did not define operate.

Along came Ms. Wilson in State v. Wilson, 2022-Ohio-3202.  She and some friends got thrown out of a party.  They decided to sleep in a car parked nearby.  Ms. Wilson was drunk and under an OVI suspension.  The police came by and saw the car running but parked, Ms. Wilson in the driver’s seat, and the occupants asleep.  There was no evidence that she had moved the car (while under the influence).  Ms. Wilson was cited for driving under an OVI suspension under R.C. 4510.14 and convicted.

The First District Court of Appeals reversed, and the state appealed to the Supreme Court of Ohio.  As stated by the Supreme Court, Wilson’s offense prohibits a person “from operating any motor vehicle upon the public roads or highways within this this state during the period of the suspension.”  The Court concluded that the statutory definition of operate applicable to OVI superseded the older Court supplied definitions.  It determined that the statute was persuasive to require movement of the vehicle for the offense of driving under an OVI suspension.  It affirmed the Court of Appeals.

 

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Providing a Good Defense – Obtaining Discovery and Public Records

Posted on August 23, 2022 by Robert Walton, Esq.

One of the things Phil Korey taught me is perseverance in investigating a criminal case.  A part of that is making full use of Crim. R. 16, due process, the Public Records Act and our intuition.

Crim R. 16. It’s always good to review what must be provided by the state in response to a demand for discovery in a criminal case.  First, the items must be material to the preparation of a defense or intended use by the state as evidence at trial or obtained from or belong to the defendant.  Second, the items must be within the possession of, or reasonably available to the state.  Third, the items subject to discovery are:  written or recorded statements by the defendant (and co-defendant), including police summaries; criminal records of the defendant (or co-defendant) and the record of prior convictions that could be admissible under Evid. R. 609 of a state’s witness; laboratory or hospital reports, books, papers, documents, photos, tangible objects, buildings or places; results of physical or mental exams, experiments or scientific tests; any evidence favorable to the defendant and material to guilt or punishment; all reports from law enforcement agents; written or recorded statements by a state’s witness; the witness list; and the report of an expert witness.

Due Process – Prosecutor’s Duty to Provide Exculpatory Evidence. Exculpatory evidence falls into two broad categories: (1) Evidence which tends to negate guilt or create doubt; and (2) evidence which impeaches a government witness.  See Kyles v. Whitley, 514 U.S. 419 (1995) and United States v. Bagley, 473 U.S. 667 (1985).

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Under Rule 3.8(d) of the Rules of Professional Conduct, a prosecutor is also ethically obligated “…to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense….”  A prosecutor’s obligation to disclose exculpatory evidence extends to “…a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”  Kyles, at 437.  Thus, “it is not in my file” does not justify a failure to disclose exculpatory evidence.

Public Records Request Can be Made in a Pending Criminal Case.   In State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956, the Supreme Court of Ohio made it clear that its prior decisions do not bar an accused from obtaining public records that are otherwise available to the public.  In its Syllabus the Court elaborated that R.C. 149.43 (the Ohio Public Records Act) provides an independent basis for obtaining information potentially relevant to a criminal proceeding, and Crim. R. 16 does not preclude an accused from obtaining public records from law enforcement agencies.

In State ex rel. Myers v. Meyers, et al., Slip Opinion No. 22-1915, the Supreme Court of Ohio considered the scope of an incident report under the Public Records Act.  Specifically, it addressed the issue of whether an incident report (which is a public record) is limited to the form that police officers fill out in order to report an incident or whether it also includes contemporaneous reports created by the investigating officers that document their observations (narrative) and the statements of witnesses at the scene.

In Meyers, a local newspaper made public records requests for incident reports in “open investigations.”  The Chillicothe police denied the requests, stating that the information sought was exempt from the definition of a public record as “specific investigatory work product.”  As explained by the police chief, a supplemental narrative contains the personal notes of an investigating officer regarding the incident, summarize witness and victim interviews, and evaluates the alleged offense.  According to the chief, as long as the investigation into a case is open, the Department considers the supplemental narratives investigatory work product exempt from the Public Records Act.

The Supreme Court noted that in a prior decision it found “offense and incident reports” are not specific investigatory work product and must be released as public records.  The Court stated the most important factor in determining whether supplemental narratives are part of an incident report is “timing,” including the initial observations by the officers and initial witness statements taken at the physical location close to the time the incident occurred.   The Court held “…that when a police department maintains both incident report form and investigatory work product as part of the same overall investigatory record, Officers’ reports that contain their observations at the time that they are responding to an incident, along with initial witness statements taken at the time of the incident or immediately thereafter, are incident-report information that is a public record and may not be withheld from disclosure as “specific investigatory work product”….”

Summary.  The preferred method of obtaining discovery is Crim. R. 16.  The state must go beyond what is in its file to learn of exculpatory evidence and disclose such evidence if discovered.  The Public Records Act can be utilized in a pending criminal case as an independent basis for obtaining information relevant to a criminal proceeding.  Crim. R. 16 does not preclude an accused from obtaining public records from law enforcement agencies.  If intuition, instincts and experience lead us to believe that information helpful to the defense exists beyond what has been provided in discovery, perseverance will help us to obtain it.

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The Community Caretaking Doctrine and Fourth Amendment Reasonableness

Posted on March 16, 2022 by Robert Walton, Esq.

A car is parked on the shoulder of a freeway late at night. It is not impeding traffic and nobody has called the police about the car. It does not appear to be damaged and there are not any people standing outside of it. The weather is good.

A police officer pulls off to the berm and parks behind the car. She activates her overhead lights, gets out of her cruiser, and walks toward the driver’s side window. She does not have any reasonable suspicion that the driver has broken any law. She has not seen or been made aware of any signs of distress or need for assistance but it is late and dark.

Has a seizure (investigatory detention) occurred? If so, was it justified under the Fourth Amendment? It is important to know because moments later the officer sees evidence of drug possession and drug trafficking in plain view and evidence of intoxication on the part of the driver.

The driver is arrested and charged with OVI and drug offenses. He moves to suppress the evidence of the drugs and all other evidence arising out of the stop. His ground is that the stop occurred when the police officer pulled up behind him and activated her lights, and it was effected without reasonable suspicion of any crime and absent any other exception to the warrant requirement.

The Fourth Amendment – Seizure

” The right of the people to be secure in their persons…against unreasonable … seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…”

Our Constitution forbids only unreasonable seizures. A determination of whether a seizure is reasonable requires balancing the public interest in conducting the seizure against a person’s right to be free from arbitrary intrusions by the police. Terry v. Ohio, 392 US 1 (1968).

Further, a person is considered seized “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” In evaluating those circumstances, the critical inquiry is whether the officer, “by means of physical force or a show of authority, ” has restrained a citizen’s freedom of movement. United States v. Mendenhall, 446 US 544 (1980)

The issue of whether a person has been seized is distinct from whether that seizure is reasonable. The fact that a seizure might be deemed reasonable pursuant to an exception to the warrant requirement does not mean a seizure did not occur. For example, a consensual encounter is not a seizure so it does not have to meet any test of reasonableness. On the other hand, implicit in any community caretaking case is the fact that there was a seizure within the meaning of the Fourth Amendment.

Emergency lights on police cars serve important safety purposes, including ensuring that the police car is visible to traffic and signaling to a stopped motorist that it is a police officer who is approaching, as opposed to Ted Bundy.

But the realities of life, particularly the relationship between ordinary people and law enforcement, cannot allow us to pretend that a reasonable person would not interpret the activation of overhead lights on a police car as a signal that he or she is not free to leave. For those who like to pretend, consider R.C. 2921.331. That section makes it a crime to fail to comply with any lawful order or direction of any officer invested with authority to direct, control, or regulate traffic. It also makes criminal operating a car so as to willfully flee a police officer after receiving a visible or audible signal from the officer to bring the person’s car to a stop. The fact that drivers risk being charged with a misdemeanor or a felony if they incorrectly assume that they are free to leave after a police car pulls behind them with its emergency lights activated supports the conclusion that a reasonable person in the driver’s shoes would not feel free to leave. The activation of those lights under the above circumstances is a show of authority that would indicate to a reasonable person he or she was not free to leave.

Since the driver in the example was seized and subjected to an investigative detention unsupported by any reasonable suspicion of criminal activity, it must then be determined whether it was otherwise justified under the Fourth Amendment.

Community Caretaking Doctrine

The United States Supreme Court has recognized a community caretaking exception to the warrant requirement. Cady v Dombrowski, 413 US 433 (1973). Sometimes it is invoked under the names of emergency aid or public servant exceptions.

Under circumstances such as those contained in the example, most courts would apply a reasonableness test. That requires a police officer to point to specific and articulable facts which led him or her to believe that assistance was necessary, and an objective assessment by a court as to whether the officer’s belief was reasonable. This test accommodates the interests underlying the exception while simultaneously protecting a person’s right to be free from unreasonable seizures.

There are many reasons why a driver might pull to the side of a highway. The driver might need to look at a map, answer or make a phone call, send a text, pick something up, clean up a spill, locate something in a purse or wallet, retrieve something from the glove box, or enter an address into the car’s navigation system. Irrespective of the time of day, pulling to the side of the road to perform any of these activities is encouraged as a distraction while driving might be catastrophic.

In addition to the reasonableness requirement, police caretaking activity must be independent from the detection, investigation and acquisition of criminal evidence. Finally, even if the caretaking activity is justified the action of the police must be tailored to rendering assistance to mitigating the peril, and further action will be evaluated by determining whether it was justified by a reasonable belief of criminal activity.

Seizure Not Justified Under Community Caretaking Doctrine

Based on the example the officer will likely be unable to articulate specific and objective facts that would reasonably suggest the driver needed assistance. The officer did not receive a report of a motorist in need of help, and did not observe anything that suggested a problem with the driver’s car. Moreover, it was dark, but the weather was not inclement, and the driver had not activated the hazard lights or otherwise signaled any need for help.

Conclusion

The driver was seized and subjected to an investigative detention.  The seizure was not justified under the community caretaking (public servant) exception to the warrant requirement.

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Digital Evidence Center at Garfield Heights Municipal Court

Posted on February 24, 2022 by Judge Deborah J. Nicastro

The frustration of discovery delays has driven me to implement a web-based digital evidence center for the Garfield Heights Municipal Court.  Discovery in criminal and traffic cases is one process that did not improve with remote hearings. Even with email exchange, I frequently have to continue cases for completion of discovery.  With ten law enforcement agencies and eight municipalities, the evidence retention and exchange systems are varied and sometimes burdensome to both prosecutors and defense counsel.

The Case Center

A central, web-based evidence portal operated by the Court provides rapid access to all evidence for all attorneys, defendants, witnesses, judges and even jurors.  We are now using Thomson Reuters Case Center (formerly Caselines) court wide.  Thomson Reuters is the Westlaw people.

The Process

The process is simple.  When a defense attorney files a discovery request pursuant to Ohio Criminal Rule 16, court staff opens a case in Case Center.

Case Center automatically emails the law enforcement agency, prosecutor and defense attorney a notice that the case is open.  The law enforcement agency or prosecutor uploads the requested evidence.  The defense attorney automatically receives an email notice that the case is updated.  The prosecutor can mark the evidence “for counsel only” pursuant to Rule 16(F).  The filing of the discovery demand triggers the reciprocal discovery provisions in Rule 16.

The defense attorney can view the evidence, share it and download it.  The prosecutor can do the same for witnesses and victim advocates. Attorneys can use the share feature of Zoom or Teams to review the evidence with clients and witnesses.

Benefit to the Court

The burden on the court of viewing and storing evidence is diminished substantially.  In a hearing or trial, I can access the case just like the attorneys and view it on Zoom for remote trials and display it for the whole courtroom on digital monitors from a laptop for in person trials.  We do not need a tech person in the courtroom or on Zoom. Our IT administrator does not have to test flash drives for viruses or check DVDs in advance to determine if they are operable on our equipment.  The Clerk does not have to store the DVDs or flash drives.  Case Center is contractually obligated to comply with the Court’s record retention schedule even if we discontinue the service.  Case Center is compliant with FBI security protocols.

Discovery Conflicts

Case Center is a repository for evidence only is not a platform for filing motions related to discovery or non-disclosure certifications.  All motions and other pleadings must still be filed with the Clerk of Court.

Trial Use

Trial attorneys can control the order of submission of the exhibits in Case Center and annotate all evidence with notes not viewable to the trier of fact.  I can make my own private notes also.  There are many other trial features for but few cases go to trial in municipal court. The main benefit for us is reduction in discovery delays and storage and retention of evidence actually used for a trial or hearing.  I have a jury trial next week where the attorneys will be using Case Center. We will see how they manage.

Expanding to All Court Users

I have tested Case Center with Maple Heights cases for several months and found it incredibly easy and fast.  The police respond within hours, not days or weeks, by uploading digital evidence.  Most cases are resolved at the first pretrial if the defense attorney files the discovery request timely. We included Brecksville and Independence several weeks ago and we are expanding its use to Garfield Heights this week.  We will extend this service to self-represented litigants soon.  When all municipalities are successfully on-board, we will extend the service to civil litigants as recommended by the Ohio Supreme Court’s Improving Court Operations Using Remote Technology (iCOURT) Task Force on which I served.

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Reasonable Suspicion to Make a Traffic Stop Based on a Tip and an Officer’s Observations

Posted on September 9, 2021 by Robert Walton, Esq.

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.

<span class="entry-utility-prep entry-utility-prep-cat-links">Posted in</span> OVI, Search & Seizure, Traffic | Comments Off on Reasonable Suspicion to Make a Traffic Stop Based on a Tip and an Officer’s Observations