State v. Dunn ( 2012 )

[Cite as State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008.]
THE STATE OF OHIO, APPELLANT, v. DUNN, APPELLEE.
[Cite as State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008.]
The community-caretaking/emergency-aid exception to the Fourth Amendment
warrant requirement allows police officers to stop a person to render aid
if they reasonably believe that there is an immediate need for their
assistance to protect life or prevent serious injury.
(No. 2011-0213—Submitted October 19, 2011—Decided March 15, 2012.)
APPEAL from the Court of Appeals for Montgomery County, No. 23884,
2010-Ohio-6340.
__________________
SYLLABUS OF THE COURT
The community-caretaking/emergency-aid exception to the Fourth Amendment
warrant requirement allows police officers to stop a person to render aid if
they reasonably believe that there is an immediate need for their assistance
to protect life or prevent serious injury.
__________________
LUNDBERG STRATTON, J.
{¶ 1} Today this court must decide whether the community-
caretaking/emergency-aid exception to the Fourth Amendment warrant
requirement allows the police to stop a driver based on a dispatch that the driver is
armed and plans to kill himself. Because we answer in the affirmative, we reverse
the judgment of the court of appeals.
I. Facts and Procedural History
{¶ 2} On March 27, 2008, Vandalia Police Officer Robert Brazel
received a dispatch that there was a suicidal male driving a tow truck and that he
was planning to kill himself when he arrived at 114 Helke Road in Vandalia. The
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dispatcher gave the name of the driver, Richard Dunn, defendant-appellee, and
indicated that he had a weapon. The dispatcher also noted that the vehicle was a
“big rig” tow truck displaying the name Sandy’s towing company.
{¶ 3} Officer Brazel was familiar with the Helke Road address because
he had seen a tow truck parked in front of the residence several times during his
patrol route. Less than two minutes after he heard the dispatch, Brazel saw the
tow truck, and it was approximately two miles from the Helke address. Brazel
followed it until another officer arrived to assist him, and then the two officers
signaled for Dunn to pull over.
{¶ 4} After stopping the truck, Dunn, who was crying, got out of the
vehicle and put his hands up. The officers saw that Dunn was holding a cell
phone, but they did not see any weapon. Because they were dealing with an
allegedly suicidal person, they handcuffed Dunn for their safety and his. The
officers did not find any weapons on Dunn other than a small pocketknife. Dunn
was placed in Brazel’s cruiser.
{¶ 5} Brazel testified that as he was walking Dunn to his police cruiser,
Dunn stated: “[I]t’s in the glove box.” Brazel asked him if he was referring to a
gun, and Dunn said yes. The other officer checked the glove compartment and
found a loaded gun.
{¶ 6} After the weapon was secured, Brazel spoke with Dunn about the
events leading up to the stop. Dunn told the officer that the week before, he had
had problems with his soon-to-be ex-wife and had been taken to a hospital for a
mental-health evaluation. Dunn informed the officer that he had intended to shoot
himself when he got to the place where he was to drop off the semi that he was
towing. Brazel explained to Dunn that he could be involuntary committed or he
could go to the hospital voluntarily. Ultimately, Brazel drove Dunn to the
hospital in his patrol car.
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{¶ 7} On August 10, 2009, Dunn was indicted on one count of improper
handling of a firearm in a motor vehicle, R.C. 2923.16(B). On October 2, 2009,
Dunn filed a motion to suppress, contending that the traffic stop violated the
Fourth Amendment and that the officers had improperly interrogated him without
informing him of his Miranda rights. Therefore, Dunn asked that all evidence
resulting from the stop and his statements be suppressed, including the gun found
in the glove compartment. Brazel was the only witness called at the suppression
hearing, and the testimony focused on the facts surrounding the stop. Brazel
testified that he had not observed Dunn commit any traffic violations or violations
of any other laws while he followed him, and he admitted that the officers had not
provided Dunn with Miranda warnings.
{¶ 8} The trial court overruled the motion to suppress, holding that the
stop was a “ ‘legitimate response to an emergency situation,’ ” quoting State v.
Stubbs, 2d Dist. No. CA 16907, 1998 WL 677510, *3 (Oct. 2, 1998), and was
therefore not an unreasonable seizure under the Fourth Amendment. The court
also held that Dunn’s statements and the evidence obtained from them should not
be suppressed, because the police officers had not engaged in custodial
interrogation but rather, Dunn’s statements were spontaneous and unsolicited.
{¶ 9} On December 30, 2009, the court held a change-of-plea hearing at
which Dunn pleaded no contest to the single count in the indictment. Dunn was
sentenced to five years of supervised probation and was ordered to attend
counseling and pay court costs. The Court of Appeals for Montgomery County
reversed the judgment of the trial court, vacated the conviction, deemed Dunn’s
plea of no contest withdrawn, and granted the motion to suppress.
{¶ 10} The case is now before this court upon our acceptance of the
state’s discretionary appeal. State v. Dunn, 128 Ohio St.3d 1458, 2011-Ohio-
1829, 945 N.E.2d 522.
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II. Analysis
{¶ 11} We begin by noting the irony that Dunn, who was suicidal when he
was stopped by the police, now contends that the police should not have stopped
his vehicle to render aid. If the police had not stopped Dunn, he may have
harmed himself. And if the police had not acted and Dunn had harmed or killed
himself, Dunn or his estate could have filed a civil lawsuit against the police for
failure to respond to an emergency. Such is the balancing act of Fourth
Amendment law.
{¶ 12} In analyzing the validity of the stop, the court of appeals relied on
Maumee v. Weisner, 87 Ohio St.3d 295, 720 N.E.2d 507 (1999), and held that the
state had not demonstrated that the dispatcher had a reasonable basis for issuing
the dispatch that caused the officers to stop Dunn’s truck. The court of appeals
appears to have determined that the officers were not authorized to stop Dunn
unless there was evidence from which the dispatcher could have concluded that
the information supplied to him or her had sufficient indicia of reliability. This
was not the proper analysis to employ. As noted by the dissenting judge below,
the evidentiary requirement that Weisner imposes on the state in a suppression
hearing applies only to an “investigative stop” authorized by Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which entails seizure of a person to
investigate a reasonable suspicion of criminal activity. Since this was not a Terry
stop, the court of appeals erred in using this analysis.
A. Fourth Amendment
{¶ 13} The Fourth Amendment to the United States Constitution provides:
{¶ 14} “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.”
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{¶ 15} There are a number of exceptions to the Fourth Amendment
warrant requirement, including the one applicable to this case, the community-
caretaking exception, which courts sometimes refer to as the “emergency-aid
exception” or “exigent-circumstance exception.”
{¶ 16} The community-caretaking exception was first addressed by the
United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct.
2523, 37 L.Ed.2d 706 (1973). Dombrowski, an off-duty Chicago police officer,
was arrested by police in Wisconsin on a charge of drunk driving following a one-
car accident in which Dombrowski’s rental car was heavily damaged. Id. at 435-
436. The car was towed from the scene to a privately owned garage, and a few
hours later, one of the arresting officers searched Dombrowski’s vehicle without a
warrant, looking for his service revolver, which the officer believed to be in his
vehicle. Id. at 436-437. In the trunk of Dombrowski’s vehicle, the officer found
evidence linking him to a murder, a crime for which he was eventually convicted.
Id. at 437, 439. Ultimately, the court concluded that because the trunk of the
vehicle was vulnerable to intrusion by vandals and the officer reasonably believed
that the trunk contained a gun, the search was not unreasonable within the
meaning of the Fourth Amendment. Id. at 448.
{¶ 17} The court explained that local law-enforcement officers
“frequently investigate vehicle accidents in which there is no claim of criminal
liability and engage in what, for want of a better term, may be described as
community caretaking functions, totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a criminal
statute.” Id. at 441. As the court noted in Dombrowski, “[t]he ultimate standard
set forth in the Fourth Amendment is reasonableness.” Id. at 439. Thus, the
Fourth Amendment protects citizens from only unreasonable government
searches and seizures. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct.
1568, 84 L.Ed.2d 605 (1985).
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{¶ 18} The United States Supreme Court further elaborated on the
community-caretaking exception to the Fourth Amendment warrant requirement
in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). “We
do not question the right of the police to respond to emergency situations.
Numerous state and federal cases have recognized that the Fourth Amendment
does not bar police officers from making warrantless entries and searches when
they reasonably believe that a person within is in need of immediate aid.” Id. at
392. “The need to protect or preserve life or avoid serious injury is justification
for what would be otherwise illegal absent an exigency or emergency.” Wayne v.
United States, 318 F.2d 205, 212 (D.C.Cir.1963).
{¶ 19} The Supreme Court has also referred to this exception as the
“emergency-aid exception.” For example, in Michigan v. Fisher, ___ U.S. ___,
130 S.Ct. 546, 175 L.Ed.2d 410 (2009), the court upheld an officer’s warrantless
entry into the defendant’s residence as reasonable when the police officers who
were responding to a call regarding a disturbance observed a tumultuous situation
when they arrived at the home, including blood on a damaged vehicle parked in
the driveway and witnesses reporting that the defendant was “going crazy” inside.
Id. at ___, 130 S.Ct. at 547. The Fisher court noted that “[o]fficers do not need
ironclad proof of ‘a likely serious, life-threatening’ injury to invoke the
emergency aid exception.” Id. at ___, 130 S.Ct. at 549. Rather, “[a]n action is
‘reasonable’ under the Fourth amendment, regardless of the individual officer’s
state of mind, ‘as long as the circumstances, viewed objectively, justify [the]
action.’ ” (Emphasis added in Stuart.) Brigham City v. Stuart, 547 U.S. 398, 404,
126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), quoting Scott v. United States, 436 U.S.
128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).
{¶ 20} Because police officers are duty-bound to provide emergency
services to those who are in danger of physical harm, I American Bar Assn.
Standards for Criminal Justice, Section 1-2.2 at 1-31 (2d Ed.1980), courts must
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frequently consider the reasonableness of an officer’s actions in situations, such as
the one at bar, where a person’s life is in jeopardy. In State v. Applegate, 68 Ohio
St.3d 348, 626 N.E.2d 942 (1994), this court upheld a warrantless entry into a
residence by police officers who, while responding to a report of domestic
violence, heard sounds coming from inside the residence indicative of violence.
Although we did not use the term “community caretaking,” but rather “exigent
circumstances,” we held that the warrantless entry was certainly justified by the
officers’ reasonable belief that entering the residence was necessary to investigate
an emergency threatening life and limb. Id. at 349-350. In so holding, the court
noted: “ ‘[T]he business of policemen and firemen is to act, not to speculate or
meditate on whether the report is correct. People could well die in emergencies if
police tried to act with the calm deliberation of the judicial process.’ ” (Emphasis
added in Applegate.) Applegate at 350, quoting Wayne, 318 F.2d at 212.
{¶ 21} Thus, courts recognize that a community-caretaking/emergency-
aid exception to the Fourth Amendment warrant requirement is necessary to allow
police to respond to emergency situations where life or limb is in jeopardy. For
example, in Turner v. State, 645 So.2d 444 (Fla.1994), the Florida Supreme Court
upheld officers’ warrantless entry into a motel room when the defendant had
opened the door after the officers knocked, walked from the door to a bed, leaving
the door ajar, and pulled out a gun and pointed it at his head. Id. at 447. Further,
in Seibert v. State, 923 So.2d 460, 470-471 (Fla.2006), the Florida Supreme Court
held that the warrantless entry and search of an apartment in response to a call
indicating that a person in the apartment had threatened to kill himself was lawful
because of exigent circumstances indicating the need for help. And the Eighth
Circuit Court of Appeals upheld a warrantless entry into a man’s bedroom when
his wife reported to the police that he was suicidal and had locked himself in the
bedroom with a gun. United States v. Uscanga-Ramirez, 475 F.3d 1024 (8th
Cir.2007). Finally, in Goldsmith v. Snohomish Cty., 558 F.Supp.2d 1140, 1152
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(W.D.Wash. 2008), the court held that the community-caretaking exception to the
warrant requirement applied to officers’ temporary arrest of a violent injured man
for the sole purpose of enabling paramedics to render necessary medical aid. See
also Ziegler v. Aukerman, 512 F.3d 777, 785-786 (6th Cir.2008); State v. Oliver,
91 Ohio App.3d 607, 610, 632 N.E.2d 1382 (9th Dist.1993).
{¶ 22} Thus, we hold that the community-caretaking/emergency-aid
exception to the Fourth Amendment warrant requirement allows police officers to
stop a person to render aid if they reasonably believe that there is an immediate
need for their assistance to protect life or prevent serious injury.
{¶ 23} In this case, officers received a dispatch regarding an allegedly
armed and suicidal person with an imminent plan to kill himself upon reaching a
certain destination. Given that stopping a person on the street is “considerably
less intrusive than police entry into the home itself,” Illinois v. McArthur, 531
U.S. 326, 336, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), the officers’ effecting a
traffic stop to prevent Dunn from harming himself was reasonable under the
Fourth Amendment. Thus, the community-caretaking/emergency-aid exception
to the Fourth Amendment warrant requirement allows police officers to stop a
driver based on a dispatch that the driver is armed and plans to kill himself.
B. Voluntary Statement
{¶ 24} As the trial court below held, the requirement that police officers
administer Miranda warnings applies only when a suspect is subjected to both
custody and interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966). Here, Dunn emerged from the vehicle on his own accord
and almost immediately stated that a gun was in the glove compartment. An
unsolicited and spontaneous statement such as the one made by Dunn in this case
is not the product of an interrogation, so Miranda does not apply. See Rhode
Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
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III. Conclusion
{¶ 25} As Chief Justice Warren Burger once said, “ ‘ “[t]he policeman on
the beat, or in the patrol car, makes more decisions and exercises broader
discretion affecting the daily lives of people, every day and to a greater extent, in
many respects, than a judge will ordinarily exercise in a week * * *.” ’ "
Excerpted from an FBI Academy graduation address by then Chief Justice of the
United States Supreme Court Warren E. Burger. Dimino, Police Paternalism:
Community Caretaking, Assistance Searches, and Fourth Amendment
Reasonableness, 66 Wash. & Lee L.Rev. 1485, 1527 (2009), quoting Abadinsky,
Discretionary Justice 15 (1984), quoting Carlton, A Crime Agenda for North
Carolina 26-27 (1978).
{¶ 26} The community-caretaking/emergency-aid exception to the Fourth
Amendment warrant requirement allows a law-enforcement officer with
objectively reasonable grounds to believe that there is an immediate need for his
or her assistance to protect life or prevent serious injury to effect a community-
caretaking/emergency-aid stop. Thus, the officers in this case were authorized to
stop Dunn based on the dispatch that Dunn was armed and planned to kill himself.
Accordingly, we reverse the judgment of the court of appeals and reinstate the
judgment of the trial court.
Judgment reversed.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, CUPP, and MCGEE
BROWN, JJ., concur.
PFEIFER, J., dissents.
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LANZINGER, J., concurring.
{¶ 27} I concur. As the majority opinion makes clear, the rule requiring
evidence of a telephone tip’s reliability is confined to investigatory stops.
Maumee v. Weisner, 87 Ohio St.3d 295, 720 N.E.2d 507 (1999). And in
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specifically holding that the community-caretaking/emergency-aid exception
exists, we clarify that police may approach citizens without a warrant in
circumstances such as Dunn’s.
{¶ 28} What is troublesome here is that the state indicted Dunn for the
crime of improper handling of a firearm in a motor vehicle 16 months after the
police prevented his suicide. One wonders if it was reasonable for the state to
prosecute Dunn under these circumstances after more than a year had passed.
Nevertheless, a motion to suppress puts at issue the actions of police rather than
prosecutors. Because the officers in this case acted reasonably and responsibly, I
agree that there was no Fourth Amendment violation and that the court of
appeals’ judgment should be reversed.
O’CONNOR, C.J., and MCGEE BROWN, J., concur in the foregoing opinion.
__________________
PFEIFER, J., dissenting.
{¶ 29} Whether this case should have been prosecuted at all is
questionable. But it was. It could have been properly prosecuted. But it wasn’t.
This case is before us because of the prosecution’s simple failure to meet its
burden in the suppression hearing of proving that the traffic stop leading to the
charge against Dunn was reasonable. The prosecution’s failure to meet its burden
comes from its lack of any attempt to show that the telephone tip that led to the
dispatch had sufficient indicia of reliability. This case should stand for the simple
proposition that when criminal charges evolve from a traffic stop that is based
entirely upon a citizen’s call to a dispatcher, the state must prove that the citizen’s
call presented sufficient indicia of reliability to justify the stop.
I
{¶ 30} This is a case about a telephone tip. Officer Brazel stopped Dunn
based solely on a telephone tip that Dunn was suicidal and in imminent danger.
In Maumee v. Weisner, 87 Ohio St.3d 295, 720 N.E.2d 507 (1999), this court
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addressed whether a telephone tip can, by itself, create reasonable suspicion
justifying an investigative stop. This court held that a telephone tip can, standing
alone, create reasonable suspicion justifying an investigative stop where the tip
has sufficient indicia of reliability: “Where an officer making an investigative
stop relies solely upon a dispatch, the state must demonstrate at a suppression
hearing that the facts precipitating the dispatch justified a reasonable suspicion of
criminal activity.” (Emphasis sic.) Weisner, at paragraph one of the syllabus.
{¶ 31} But the majority writes that “the evidentiary requirement that
Weisner imposes on the state in a suppression hearing applies only to an
‘investigative stop’ authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968), which entails seizure of a person to investigate a reasonable
suspicion of criminal activity.” Majority opinion at ¶ 12. First, although it did
involve an arrest for driving while intoxicated, Weisner does not limit its holding
to traffic stops involving suspicion of criminal behavior. Second, although the
court stated in Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d
290 (1978), that “the Fourth Amendment does not bar police officers from
making warrantless entries and searches when they reasonably believe that a
person within is in need of immediate aid,” courts cannot take on faith that an
emergency existed. “[A] warrantless search must be ‘strictly circumscribed by
the exigencies which justify its initiation,’ Terry v. Ohio, 392 U.S., at 25-26, [88
S.Ct. at 1882, 20 L.Ed.2d 889,] and it simply cannot be contended that [the]
search was justified by any emergency threatening life or limb.” Mincey at 393.
That is, as with any search or seizure, a stop based upon a suspected emergency
situation must be objectively reasonable based on the totality of the
circumstances. At heart, Weisner is about whether a stop based solely upon a
telephone tip can be objectively reasonable, and there is no reason that Weisner’s
holding should not include traffic stops made for the purpose of investigating an
emergency situation.
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{¶ 32} The stop of Dunn had all the earmarks of an investigative stop. In
the context of an investigatory stop of an automobile, stopping a car and detaining
its occupants constitutes a seizure. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct.
1391, 59 L.Ed.2d 660 (1979). Officer Brazel testified that he had turned on his
overhead lights and siren to alert Dunn to pull to the side of the road. He and the
township officer also responding “blocked the roadway and lit the area.” When
Dunn emerged from his vehicle, Brazel told him to put his hands in the air, and he
eventually handcuffed him. The video recording of the stop was labeled by the
police as a traffic stop.
{¶ 33} Even if there were a requirement that a suspicion of criminal
activity is necessary to gain the protection of Weisner, the evidence demonstrates
that Brazel did suspect criminal activity by Dunn, i.e., the possession of a gun in
his vehicle. Dunn was eventually charged with a violation of R.C. 2923.16(B),
which states, “No person shall knowingly transport or have a loaded firearm in a
motor vehicle in such a manner that the firearm is accessible to the operator or
any passenger without leaving the vehicle.” Brazel heard a dispatch that a male
driving a tow truck was planning to kill himself when he arrived at a specific
residence. At the suppression hearing, he was asked whether there was any
information dispatched regarding a weapon. He responded affirmatively: “Yes,
advised that he was going to kill himself. But, I don’t remember if they said there
was a—a firearm in the vehicle or anything like that. But, there was some
indication of a weapon with the dispatch.”
{¶ 34} Brazel’s behavior at the stop indicated that he feared Dunn had a
weapon. He called for backup. He approached Dunn’s vehicle with his own
weapon drawn, ordering Dunn to put his hands up. He testified that he had seen a
cell phone in Dunn’s hand but “couldn’t see the obvious other weapons on him at
that time.” He then handcuffed Dunn for the officers’ safety because he “wanted
to check him for weapons.” As Brazel led him to his cruiser (“for his safety and
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our safety,” according to Brazel), Dunn told him, “[I]t’s in the glovebox.” Brazel
had no doubt as to what Dunn was referring: “I said are you referring to the gun.”
Not a gun, the gun. Brazel knew a gun was involved.
{¶ 35} Brazel stopped Dunn because the dispatch indicated that Dunn had
a weapon in his vehicle that could cause his imminent death. Dunn ended up
being charged with “hav[ing] a loaded firearm in a motor vehicle in such a
manner that the firearm [was] accessible to the operator or any passenger without
leaving the vehicle.” The allegation in the call justifying the stop—that he
possessed a weapon in his vehicle—became the very basis of the charge. Thus,
even assuming arguendo that Weisner applies only to situations entailing “seizure
of a person to investigate a reasonable suspicion of criminal activity,” as the
majority holds at ¶ 12, the facts of this case demonstrate that there was sufficient
suspicion of criminal activity in this case to trigger the protections of Weisner.
II
{¶ 36} The majority wants to make this a case only about exigent
circumstances. Certainly, whether it is called the community-caretaking
exception or the emergency-aid exception, there is an exception to the Fourth
Amendment’s warrant requirement in cases where police are responding to
emergency situations. Regarding its line of cases addressing that issue, the United
States Supreme Court recently wrote, “A reasonable police officer could read
these decisions to mean that the Fourth Amendment permits an officer to enter a
residence if the officer has a reasonable basis for concluding that there is an
imminent threat of violence.” Ryburn v. Huff, 565 U.S. ___, ___, 132 S.Ct. 987,
990, 181 L.Ed.2d 966 (2012).
{¶ 37} Of course it is reasonable to make a traffic stop in order to prevent
a suicide; but if the state brings criminal charges based upon that stop, it still must
prove that the officer making the stop had a reasonable basis to believe that the
driver was suicidal. Where the stop is based entirely on an informant’s call to a
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police dispatcher, the reasonableness of the stop must be based upon the
reliability of the tip that generated the police dispatch.
{¶ 38} The majority cites many cases in which courts found that officers
had a reasonable basis to conduct a warrantless entry, but none of those cases
involve a telephone tip as the sole reason supporting the entry. In every case cited
by the majority, the police officers in question also relied on their own
observations.
{¶ 39} In Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d
706 (1973), police opened and searched the trunk of the defendant’s heavily
damaged vehicle after they had had it towed to a privately owned garage.
Because the searching officer knew the defendant to be an off-duty Chicago
police officer and believed that Chicago police officers were required to keep
their service revolver nearby at all times, he searched the trunk to retrieve the
service revolver. The incriminating evidence he found—bloody clothing and
other items—was not what he was originally looking for. The search of the trunk
was not based upon an anonymous telephone report—it was based upon normal
operating procedure and upon the officer’s belief that he was retrieving a revolver
from an unguarded location.
{¶ 40} In Michigan v. Fisher, ___ U.S. ___, 130 S.Ct. 546, 175 L.Ed.2d
410 (2009), police responded to a disturbance call. Upon arriving at the residence
in question, they saw blood on a damaged vehicle parked outside, as well as on a
door of the house. They spoke to witnesses who told them the defendant was
“going crazy” inside the house. Id. at ___, 130 S.Ct. at 547, 175 L.Ed.2d 410.
Through a window, the officers could see the defendant, Jeremy Fisher, inside the
house, screaming and throwing things. The back door was locked, and a couch
had been placed to block the front door. The police entered the home, and the
defendant pointed a rifle at one of the officers. Fisher was later charged with
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crimes related to the firearm. Again, police had entered the home based in part
upon the officers’ own observations.
{¶ 41} Likewise, in Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct.
1943, 164 L.Ed.2d 650 (2006), police entered a home only after they had seen—
through a window—a fight break out inside. After entering the house, they made
arrests for intoxication and contributing to the delinquency of a minor.
{¶ 42} In State v. Applegate, 68 Ohio St.3d 348, 626 N.E.2d 942 (1994),
police entered a residence after they had personally heard sounds coming from
inside the house indicative of violence. When the defendant refused to put down
a whiskey bottle, a scuffle ensued. The defendant was arrested for disorderly
conduct, and while he was being searched, a baggie of cocaine was found in his
pocket.
{¶ 43} In cases cited by the majority involving threatened suicide, the
warrantless entrances also came as the result of personal observations by the
officers involved. In Turner v. State, 645 So.2d 444 (Fla.1994), officers made
warrantless entries into a hotel room when they saw the defendant holding a gun
to his head. They then encountered evidence of murders that the defendant had
committed.
{¶ 44} In Seibert v. State, 923 So.2d 460, 470-471 (Fla.2006), police
responded to a 9-1-1 call regarding a suicidal person. The call had come from the
person’s roommate. When they arrived at the residence, police spoke to the
roommate who had placed the 9-1-1 call and were told that the defendant was
inside the residence and was suicidal. They entered the defendant’s residence
after he cracked open the door, and while inside, they spotted a severed foot.
{¶ 45} In United States v. Uscanga-Ramirez, 475 F.3d 1024 (8th
Cir.2007), the defendant’s wife consented to the police officers’ entry into the
residence, and she told them that her husband was armed and despondent.
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{¶ 46} In all the above cases relied upon by the majority, at least some of
the facts justifying the officers’ warrantless entry into the defendant’s property
were gleaned from the officers’ own investigation. Thus, the present case differs
from all the cased cited by the majority. Officer Brazel’s stop was not based on
any personal observation. It was based only upon a police dispatch. And a
dispatch alone can form a reasonable basis for a valid stop only when there is
some evidence of the reliability of the information given to the dispatcher.
III
{¶ 47} A determination of the reasonableness of a stop under Weisner
“involves a consideration of ‘the totality of the circumstances.’ United States v.
Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 628-629.
Under this analysis, ‘both the content of information possessed by police and its
degree of reliability’ are relevant to the court’s determination. Alabama v. White
(1990), 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309.”
Weisner, 87 Ohio St.3d at 299, 720 N.E.2d 507.
{¶ 48} Where the only information possessed by police prior to the stop is
from an informant’s tip, “the determination of reasonable suspicion will be
limited to an examination of the weight and reliability due that tip,” specifically,
“whether the tip itself has sufficient indicia of reliability to justify the
investigative stop.” Id. The most important factors in determining the reliability
of an informant’s report are “the informant's veracity, reliability, and basis of
knowledge.” Id., citing White at 328.
{¶ 49} In Weisner, this court did not set a high bar on the type of evidence
needed to prove that a call to a dispatcher presents sufficient indicia of reliability
to justify a traffic stop. The state “must present evidence of the facts known to
the dispatcher in these situations.” Weisner at 298. The testimony of the
informant who made the call is not required. The testimony of the dispatcher is
not required. In Weisner, this court held that testimony from the arresting officer
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January Term, 2012
about the facts that precipitated the dispatch as relayed to him by the dispatcher
was sufficient. This court was even willing to allow that testimony as support
even though the dispatcher might not have told the officer all the facts that
precipitated the dispatch until after the stop was completed. Id. at fn. 1.
{¶ 50} Here, the state introduced no evidence regarding the facts known
to the dispatcher regarding the caller. There was no way, then, for the trial court
to judge the reliability of the information the caller gave to the dispatcher. Thus,
the state failed to prove that the stop leading to Dunn’s indictment was
reasonable.
IV
{¶ 51} Great police work does not have to result in a conviction. Whether
they are assisting stranded motorists, helping lost children find their parents, or
calming potentially dangerous situations, police officers serve their communities
daily performing good deeds that do not show up on police blotters. In this case,
Officer Brazel did exemplary work. He interrupted Dunn’s potential suicide. He
defused the situation with no injury to himself or Dunn. He did not arrest Dunn;
instead, he took him to a local hospital to get him the mental-health help he
needed. Why did Brazel drive Dunn himself? Because Dunn was upset over
having been billed for an earlier trip to the hospital by ambulance. This was a
mission of mercy performed with impeccable professionalism by a well-trained
police officer.
{¶ 52} But the prosecutor decided to charge Dunn with a crime, and we
therefore must consider whether the state properly proved the case against him.
At the suppression hearing, the state failed to prove the reliability of its
informant’s tip in a situation where the informant’s tip served as the entire basis
for the stop leading to Dunn’s indictment. The court of appeals was therefore
correct in reversing the conviction. Accordingly, I dissent.
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SUPREME COURT OF OHIO
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram and Timothy J. Cole, Assistant Prosecuting Attorneys, for
appellant.
Gary C. Schaengold, for appellee.
Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, and Thaddeus H. Driscoll, Assistant Attorney General, urging reversal
on behalf of amicus curiae Ohio Attorney General.
Timothy Young, Public Defender, and Jeremy J. Masters, Assistant Public
Defender, urging affirmance on behalf of amicus curiae Ohio Public Defender.
______________________
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