Can a Driver be Stopped Based upon Information Acquired from an Informant?

In passed blogs I’ve discussed the term “probable cause” as it relates to an initial stop and ultimate arrest. In both instances these discussions involved information gathered solely by observations of the arresting officers. But, what if the officer does not personally observe the driver? Can a stop be initiated based upon information provided by an informant?

The simple answer is yes. A recent Stark County Court of Appeals opinion contains an excellent discussion of the topic. In the case, State v. Yoder, a citizen observed the defendant urinating in the parking lot of a restaurant and then stagger to the driver’s side of the defendant’s vehicle. The informant called 1-800-GRABDUI, providing his name, contact information, and the current location of driver. The informant gave the dispatcher a description of and the license plate number of the defendant’s vehicle. The caller further stated he observed the defendant having trouble walking to his vehicle and staggering badly, prior to driving the vehicle. The informant followed the defendant’s vehicle to the parking lot of a car wash, and waited for the police to respond. The officers waited for the defendant to exit the car wash and stopped the vehicle as it exited the car wash.

The officer approached the driver’s side of the vehicle and asked for the defendant’s driver’s license. At the time, the officer smelled a strong odor of alcohol and noted the defendant was “thick tongued.” The defendant was asked to exit the vehicle and to perform standard field sobriety tests and was subsequently charged with OVI. Prior to trial, the defendant filed a motion to suppress claiming the officer illegally stopped him having not personally observed indicia of the violations for which he was charged.

In its opinion, the court stated, “An investigative stop does not violate the Fourth Amendment to the United States Constitution if the police have reasonable suspicion the person stopped is, or is about to be, engaged in criminal activity...Reasonable suspicion can arise from information that is less reliable than that required to show probable cause...But it requires something more than an "inchoate and unparticularized suspicion or 'hunch'...The Fourth Amendment requires at least a minimal level of objective justification for making the stop.”

“Where the information possessed by the police before the stop was solely from an informant's tip, the determination of reasonable suspicion will be limited to an examination of the weight to be given the tip and the reliability of the tip. Courts have generally identified three classes of informants: the anonymous informant, the known informant from the criminal world who has provided previous reliable tips, and the identified citizen informant. An identified citizen informant may be highly reliable, and therefore a strong showing as to other indicia of reliability may be unnecessary.

The defendant argued that the officer had no personal knowledge which would lead him to believe that the defendant was violating the law; that the officers failed to personally observe any evidence of a traffic violation that would justify the stop.

The court quoted Adams v. Williams, a US Supreme Court Case in stating, “A tip which standing alone would lack sufficient indicia of reliability may establish reasonable suspicion to make an investigatory stop if it is sufficiently corroborated through independent police work.”

In applying this jurisprudence the court found that the informant’s information was “trustworthy and due significant weight.” Reciting the facts, the court stated the informant had identified himself, making him a known informant subjecting his observations to high reliability that the officers could rely upon.

As such, the appellate court upheld the lower court’s denial of the defendant’s motion to suppress.

Therefore, the answer to the questions is yes. A driver may be the subject of an investigatory stop based upon information provided by an information supplied by an informant provided that information is reliable.

(While this case does articulate this topic well, this writer does question the court’s failure to address the issue of the officer’s failure to see some indicia of evidence of erratic driving or other traffic violation that would justify a stop. The facts set froth in the court’s synopsis of the case fails to indicate whether the informant or the officers observed evidence of any underlying traffic violation. One can only speculate that, perhaps, the defendant failed to set forth this issue in his motion to suppress.)

Are Sobriety Checkpoints Legal?

Many clients have asked about the legality of sobriety checkpoints - stops where police are permitted to randomly check motorists for OVI. Sobriety checkpoints have long been scrutinized under the Fourth Amendment’s prohibition unreasonable searches. This debate is basically characterized as the right to privacy v. public safety. In other words, is the “limited” intrusion caused by such a checkpoint arise to an invasion of privacy.

The Ohio Supreme Court in State v. Goines adopted a four-part test espoused by the US Supreme Court. The court stated a vehicle may be stopped when all of the following factors are present:

1. A checkpoint or roadblock location is selected for its safety and visibility to oncoming motorists, and

2. The police provide adequate advance warning signs, illuminated at night, timely informing approaching motorists of the nature of the impending intrusion, and

3. There are uniformed officers and official vehicles in sufficient quantity and visibility to show the police power of the community, and

4. There is a predetermination by policy-making administrative officers of the roadblock location, time and procedures to be employed, pursuant to carefully formulated standards and neutral criteria.

Using this criteria, the majority of states, including Ohio, permit sobriety checkpoints.

The National Highway Transportation and Safety Administration (NHTSA) has produced a booklet entitled “Saturation Patrols & Sobriety Checkpoints Guide” In its guide some of NHTSA’s guidelines include:

1. The use of a minimum 10-12 uniformed police officers. Law enforcement agencies should assign a sworn, uniformed officer to supervise the planning of a sobriety checkpoint. This officer needs to be highly knowledgeable of the state’s sobriety checkpoint rules and regulations.

2. In selecting the location, identify locations with a high incidence of impaired driving related crashes or fatalities. Be sure the public and officer’s safety can be of utmost priority. There must be room for proper ingress and ingress. The location must be highly visible.

3. Warning devices and signals must be located at such a distance as to give motorists adequate time to stop. Warning devices should comply with the Manual of Uniform Traffic Control Devices (MUTCD).

The Ohio Highway Patrol has written a summary of its own procedures. These include:

1. The first and perhaps the most important requirement for the establishment of a sobriety checkpoint is that the site of the check must have a long term history of alcohol-related crashes and/or incidents of impaired driving.

2. About a week before the checkpoint is conducted, public notice is given that the checkpoint will be established. It is only necessary to provide a general date, time, and location for the event.

3. About an hour or two in advance of the establishment of the checkpoint, the officer who will be in charge of the operation conducts a briefing with the police officers who will operate the various elements of the checkpoint. At this briefing, the officer-in-charge will give an overview of the operation of the checkpoint, provide each checkpoint officer a clearly defined set of operational objectives, and emphasize all the procedures needed to make the checkpoint as safe and efficient as possible.

3. Large, highly reflectorized signs are set on the side of the road well in advance of the actual checkpoint. Fully marked police vehicles are situated at these signs on the approach to the checkpoint. A second "Sobriety Checkpoint Ahead Sign" is placed at the beginning of the lane of traffic cones, fusees, and other devices that mark the boundaries of the checkpoint itself. The area is illuminated by portable lights, flares and the emergency lights of several police cars which are situated on the berm to provide additional protection for the zone.

The OSHP guidelines also discuss the necessity of using qualified personnel to conduct field sobriety tests and the use of portable breathalyzer devices. The complete summary can be found at http://statepatrol.ohio.gov/sobcheck.stm.

In summary, both the US Supreme Court and Ohio Supreme Court have authorized the use of sobriety checkpoints as long as stringent rules are followed to safeguard the constitutional rights and safety of citizens. Both NHTSA and the Ohio Highway Patrol have published guidelines to be used by law enforcement agencies wishing to use such checkpoints. Variations from the recommended procedures outlined by NHTSA and the OHP can lead to suppression of any evidence procured during the checkpoint.

When Can I be Asked to Take Field Sobriety Tests?

When a motorist is stopped and the officer is suspicious of alcohol use, the suspect is normally asked to vacate the vehicle and asked to perform tests to determine physical dexterity and metal awareness. These tests are called field sobriety tests. They normally consist of a horizontal gaze nystagmus test, a “walk-and turn” test, and a “one-legged” test. If the officer observes a certain number of “clues” the officer then may determine there is probable cause to arrest the suspect for OVI.

But many of my clients want to know what level of evidence is necessary for the officer to demand these tests. In other words, when they are stopped for some underlying traffic violation, what needs to be observed and how certain must the officer be before they can demand these tests?

Recently, the Fifth District Court of Appeal, Fairfield County, wrote an excellent opinion on the subject. In the case, State v. Strope, the Defendant was stopped for a headlight violation. While addressing the Defendant, the officer smelled a strong odor of alcohol on the Defendant’s person and observed his eyes were red and glassy. The officer asked the Defendant to vacate the vehicle and perform field sobriety tests. After observing sufficient clues, the officer arrested the Defendant for OVI. Prior to trial the Defendant filed a Motion to Suppress, arguing, in part, that the officer “...lacked reasonable suspicion to conduct field sobriety testing.”

In its opinion, the court stated,

“It is well-established that an officer may not request a motorist to perform field sobriety tests unless that request is independently justified by reasonable suspicion based upon articulable facts that the motorist is intoxicated... Reasonable suspicion is something more than an inchoate or unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. A court will analyze the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold.”

The court went on to say:

"Where a non-investigatory stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication, such as an admission of having consumed alcohol, reasonable suspicion exists."

The Defendant went on to argue that based upon the above that the officer had insufficient articuable facts to rise to the level of reasonable suspicion. The Defendant cited the case of State v. Spillers. In that case, the court opined:

“...a de minimus traffic violation, slight odor of alcohol and admission to having consumed a couple drinks was insufficient to justify the performance of field sobriety tests.”

The Fifth Appellate District disagreed with the Defendant’s argument stating that in the cited case only a “slight” smell or alcohol was observed while in the present case a “strong” smell was noted.

Based on the above, it appears an officer can ask you to perform field sobriety tests if:

1. The officer first observes a traffic or equipment violation justifying a stop and

2. The officer observes multiple indicators of alcohol use.

Substantial v. Strict Compliance

Recently, in response to the outcry from law enforcement resulting from the Ohio Supreme Court’s decision in State v. Homan, O.R.C. 4511.19(D)(4)(b) was enacted lowering the standard for the admission of field sobriety tests from strict compliance to substantial compliance. Just as the terms imply, “strict” compliance is a much higher standard that “substantial” compliance.

In the Homan case, the Ohio Supreme Court mandated that Ohio law enforcement officers must strictly comply with the standards set forth by the NHTSA standards for the administration of field sobriety tests (FSTs). Due to lobbying by many law enforcement agencies and other anti-DUI advocates, the legislature passed the above-cited statute lowering the standard to substantial compliance.

But, what is the difference between the two? In State v. McNamara, 124 Ohio App. 3d 706 the Ohio Supreme Court stated the appellate court must ... independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” In other words, the determination of whether the officer “substantially” complied with the NHTSA manual should be determined on a case by case basis. Since the statute is relatively new, the jurisprudence interpreting this standard, thus far, is scarce.

An example of this type of analysis is set forth in the recent case of State v. Davis. The case was the typical case wherein the Defendant was charged with DUI after the arresting officer had administered FSTs in the filed, determined that there was probable cause to arrest the Defendant, and the Defendant was ultimately charged with DUI. The Defendant filed his Motion to Suppress claiming the officer failed to substantially comply with the edicts of the NHTSA manual. The lower court determined the officer substantially complied with the NHTSA manual and overruled the motion.

The appellate court sustained the finding of the lower court after independently analyzing the evidence presented in the lower court. The court, in its analysis, stated that if strict compliance was still the standard, it may have determined the case differently, but, since the standard is the lower standard it determined, in this case only, that the substantial compliance standard was met.

Specificity in Suppression Motions Vitally Important in the Defense of DUI/OVI Cases

A recent Ohio court of appeals case illustrates the importance of specificity in preparing any motion to suppress. The case, State v. Fink, is an exceptional well written opinion the explains Ohio law regarding the requirement that Defendants must state specifically the facts and law the supports their request to have certain evidence suppressed.

In the case, the Defendant was involved in a one vehicle accident. The offices smelled alcohol on his breath and noticed his speech was “lethargic and kind of slow.” As a result, the officers asked the Defendant to perform certain field sobriety tests. At the conclusion of the tests, the Defendant was charged with driving under the influence along with other charges that are not relevant to this discussion.

The Defendant filed a motion to suppress all field sobriety tests. The state said “...the defendant, in filing a motion to suppress in a criminal proceeding, must "state with particularity the grounds upon which it is made and shall set forth the relief or order sought...This requires the defendant, in order to be entitled to a hearing on his motion to suppress, to state the motion's legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided...Once the defendant satisfies this initial burden, thereby providing notice of the issues to be determined at the suppression hearing, the burden then shifts to the state to show the requisite level of compliance with the applicable testing standards.”

The issue arises when the Defendant merely states his ground in general terms. To quote the court, “The extent of the state's burden of proof establishing compliance with the applicable standards "only extends to the level with which the defendant takes issue with the legality of the test...As a result, where the defendant's motion to suppress merely raises issues in general terms and is not sufficiently specific, the state's burden to show compliance is slight and it need only "present general testimony that there was compliance."

While the Defendant may set forth the specific issues in cross-examination of the officer, his failure to specifically state the issue nor cross examine the officer on that issue severely lessons the burden on the prosecution.

As the court stated, “...this court has repeatedly been faced with OVI cases where the defendant files a boilerplate motion to suppress that merely contains a laundry list of virtually every fathomable defect that could occur in the collection of evidence...Appellant's motion lists the evidence he seeks to have suppressed, including field sobriety tests and observations of the police officer, and is followed by a number of vague grounds upon which the motion is based, 4 including the general claim that "the tests were not administered in substantial compliance with the testing standards in effect at the time the tests were administered." These stated grounds, although sufficient to place the state and the court on notice that he challenged the administration of the field sobriety tests in general, fail to provide anything more than the same vague language that we have considered insufficient to raise the state's slight burden previously...In addition, appellant's accompanying "Memorandum in Support" is nearly entirely comprised of boilerplate language that does nothing more than relay legal concepts, only some of which were applicable, and provides only one paragraph evidencing the specific facts of the case.

“Further, although the necessary factual basis can be obtained during cross-examination at the motion hearing, appellant failed to do so in this case... After reviewing the record, appellant failed to ask specific questions during his cross-examination to support his claim that the NHTSA standards were not followed. Instead, appellant's cross-examination, which spans a total of four pages, merely consists of generalized questions regarding the road conditions observed and listed on the incident report, the arresting officer's observations during the administration of the field sobriety tests, and whether he was familiar with the NHTSA manual. As a result, we find appellant's questioning also failed to provide any factual basis with sufficient particularity to raise the state's slight burden of proof”

This case is testimony to the fact that a Defendant MUST state in sufficient detail the law and facts that support his motion to suppress, and in examining the police officer MUST produce evidence with particularity regarding the basis of his motion.

What is a “Per Se” Violation?

Ordinarily the typical DUI/OVI ticket consists of three violations - the underlining cause for the stop, ie., speeding, assured clear distance, weaving, etc., driving under the influence (see my prior post), and a violation of what is called a “per se” violation for failing a chemical test such as a breathalyzer, blood or urine test.

Black’s law dictionary defines “pre se” as “taken alone...unconnected with other matters.” In the context of OVI/DUI law, the term has come to mean without further physical evidence.

In the typical per se violation, the accused is consuming a volume of alcohol above the legal limit. These limits vary depending upon the type of test given - breath, urine or blood. These are considered scientific tests and Ohio’s DUI laws specifically states if you are driving a vehicle (see an explanation of “driving” in my prior blog) with a prohibitive level of alcohol in your breath, blood or urine, then you can be found guilty without producing any physical evidence that is required of an OVI prosecution (again, see my prior blog).

The admissibility of the results of these tests are dependant upon the arresting agency’s and testing organization’s compliance with the edicts of the Ohio Administrative Code (OAC) and The Ohio Department of Health.

Most breathalyzers and testing procedures are supported by the OAC and, therefore, the burden is upon the arrestee to bring to the court’s attention any anomaly regarding these procedures. Once the anomaly is brought to the court’s attention by way of a Motion to Suppress, the burden then shifts to the prosecution to prove that, in fact, the agency and/or testing organization substantially complied with the OAC and Ohio Department of Health. If the compliance with the procedural standards is less than substantial, the court will suppress the results of the test.

If the court is satisfied that the agency’s procedure was in substantial compliance and if the testing device and procedures are in compliance, then the results of the test are admissible.

Once again, and as I emphasized in prior blogs, the necessity of a trained attorney, who knows the law, to review the agency’s procedures is required if one is to expect their attorney to comply with the due diligence necessary to truly study and find any deviation from proper procedures.

What is “Driving Under the Influence?”

Many of those reading my blog are non-professionals seeking information about their charges. A number of inquiries ask what do the police need to prove. So, I will attempt to explain, in general terms, what the police need to prove. Note, the following is merely a general overview and should not be sued as a basis for one’s defense without consulting an attorney.

Generally, the law requires that the charging agency to prove, beyond a reasonable doubt, that the Defendant’s intake of alcohol or drugs appreciably affected their mental or physical capabilities while “operating” a vehicle. In other words, the state or city must prove:

1. The Defendant ingested a measure of alcoholic beverages or drugs, and

2. That ingestion caused the defendant’s mental or physical capabilities to be appreciably impaired, and

3. That at the time of their impairment they were “operating” a vehicle.

Ingestion of alcohol or drugs. The state must prove that you consumed some quantity of alcohol or that drugs were present in your system. Proof that you consumed alcohol is evidenced by the smell of alcohol on your breath, any admissions made by you and other extrinsic evidence such as a Horizontal Gaze Nystagmus test. Obviously, drugs are harder to prove as outward appearances may not be so obvious. But, it is important to note that drugs do not only mean illegal drugs but also include the use of prescription drugs.

Appreciable impairment. The prosecutor must prove not only that the defendant ingested alcohol and/or drugs but that consumption caused the defendant’s physical or mental capabilities to be appreciably impaired. This is evidenced by one’s demeanor - glassy eyes, slurred speech, lack of coordination, loss of memory, etc. Specific field sobriety tests such as a “walk and turn” test or a “one-legged” test is also used to examine the Defendant’s physical and mental capabilities.

“Operating” a vehicle. While the statute might state that you must be “operating” a vehicle at the time, the term in a misnomer. The vehicle need not be moving or be operated. As long as the vehicle is subject to movement, its is considered “operating” under the statute.. For example, assume you are on the side of the road, “sleeping it off” with the motor running. The courts have consistently found that this is considered operating a vehicle. And you will notice I did not use the term “motorized” or “automobile.” DUI convictions have been imposed on defendants riding bicycles. Nor does the vehicle need to be on the road. DUI conviction have been predicated upon those riding snowmobiles, boats and all terrain vehicles.

Note, the above is a discussion of DUI prosecution based upon physical evidence only. The police can also charge you alternatively with a “per se” violation if you submit to a breath, blood or urine test and the reading exceeds the minimum levels for that test. These tests, called “chemical” tests, do not require the introduction of physical evidence as they are based upon scientific testing. I will discuss this topic in a future post.