State v. Smith , 117 Ohio App. 3d 278 ( 1996 )

^* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (1997), 78 Ohio St.3d 1463,678 N.E.2d 220. In one of the underlying cases, case No. B-9503586, appellants Sylvester Smith and Benjamin Taylor were both indicted for carrying a concealed weapon in contravention of R.C. 2923.12. As a result of the same incident, in the other underlying case, case No. C-95TRD-15866A, Smith was charged with operating a motor vehicle without a license pursuant to R.C. 4507.02.¹ Appellants filed motions to suppress in case No. B-9503586, which the trial court overruled. Subsequently, in case No. C-95TRD-15866A, Smith filed a motion to suppress, and the trial court overruled it based on the resjudicata effect of the rulings in case No. B-9503586. Thereafter, Smith and Taylor pleaded no contest to all of the charges. The respective trial courts entered findings of guilty and sentenced Smith and Taylor as it appears of record. The sole assignment of error raised by Smith and Taylor in these consolidated appeals is whether the trial court erred in overruling their motions to suppress.² Particularly, they argue that a police broadcast presented no "probable cause" to justify the stop and subsequent search of the automobile in which they were traveling.³

On April 17, 1995, at approximately 4:40 p.m., Lockland Police Officer Todd J. Ober ("Ober") received an all-county police radio broadcast concerning an automobile being operated in a reckless manner on southbound Interstate 75. The broadcast, which originated from a motorist on the highway, described a burgundy-colored 1995 Lincoln Town Car bearing South Carolina license plates and occupied by three African-American men, one of whom was wearing a red bandanna. The broadcast further stated that the vehicle was observed weaving in and out of traffic at a high rate of speed. In response, Ober drove to an entrance to the interstate to attempt to locate the car, and upon seeing a vehicle matching the broadcast description, he followed it a short distance.

Ober testified that initially he did not observe the driver, Sylvester Smith, commit any traffic violations, but that once he pulled behind the car, he observed the car slowly "weaving" within its lane.⁴ After observing this for approximately fifty to one hundred feet, Ober activated his emergency lights, and the car eventually pulled off the road. Three other officers joined Ober. The resulting investigation and search of the car led to the charge against Smith for driving a car without a license and the charges against both Smith and Taylor for carrying a concealed weapon.

The United States Supreme Court in Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911, held that the determination of whether a police officer had a reasonable, articulable suspicion to make an investigatory stop requires a two-step analysis: (1) a determination of the historical facts leading up to the stop, reviewing the trial court's findings of historical fact only for clear error and giving "due weight" to "inferences drawn from those facts by resident judges and local law enforcement officers," id. at 699, 116 S.Ct. at 1663,134 L.Ed.2d at 920; and (2) a determination of whether the "historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion."Id. at 696, 116 S.Ct. at 1661-1662, 134 L.Ed.2d at 919.

In determining the propriety of the police officers' conduct, we must first address whether the initial stop by Ober was warranted. If it was not, we need not continue our analysis.

A police officer, without probable cause to stop and briefly detain a person, may do so if the officer has reasonable suspicion based upon specific articulable facts that the suspect is engaged in criminal activity. United States v. Cortez (1981),449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621; Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v.Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271,1272-1273. Reasonable suspicion must be based on the totality of the circumstances, State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044, paragraph one of the syllabus, and "viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold." Andrews, at 87-88, 565 N.E.2d at 1273.⁵ Once the defendant has raised the issue, the burden shifts to the state to prove that the stop was supported by reasonable suspicion. SeeXenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889, paragraph two of the syllabus; State v. Goodrich (1996),114 Ohio App.3d 645, 683 N.E.2d 855.

Under the totality of the circumstances of this case, where the anonymous tip was not sufficiently corroborated and Ober did not observe any suspicious behavior, we conclude that Ober lacked the necessary reasonable suspicion to justify the investigatory stop.

In Alabama v. White (1990), 496 U.S. 325, 110 S.Ct. 2412,110 L.Ed.2d 301, the United States Supreme Court held that an anonymous tip, if corroborated, may exhibit sufficient indicia of reliability to justify the investigatory stop of a car.⁶Id. at 332, 110 S.Ct. at 2417, 110 L.Ed.2d at 310. The holding is a clarification of a statement made in Adams v. Williams (1972),407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, that "[s]ome tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized."Id. at 147, 92 S.Ct. at 1924, 32 L.Ed.2d at 617-618.

In this case we have an anonymous tip of a minor traffic violation which required further investigation.⁷ The resulting investigation did not reveal any suspicious behavior, although the officer did locate a car similar to the one described by the anonymous tipster. The record does not indicate that Ober observed any erratic driving. "[T]he simple corroboration of neutral details describing the suspect or other conditions existing at the time of the tip, without more, will not produce reasonable suspicion for an investigatory stop."State v. Ramsey (Sept. 20, 1990), Franklin App. Nos. 89AP-1298 and 89AP-1299, unreported, at 2, 1990 WL 135867. CompareState v. Leonhardt (Sept. 25, 1996), Hamilton App. Nos. C-950193, C-950194, C-950258, and C-950259, 1996 WL 539787 (denial of motion to suppress affirmed where anonymous tip was sufficiently corroborated by deputy's independent observations). The totality of the circumstances in this case indicate that Ober did not have specific, articulable facts which reasonably warranted the intrusion. State v. Halahan (1995), 108 Ohio App.3d 33, 669 N.E.2d 883; State v. Campbell (1990), 68 Ohio App.3d 688, 589 N.E.2d 452; Goodrich, supra;Kirtland v. Grunz (Sept. 22, 1995), Lake App. Nos. 95-L-009 and 95-L-010, unreported; State v. Spikes (June 9, 1995), Lake App. No. 94-L-187, unreported, 1995 WL 407357; State v. Sheehan (1995), 72 Ohio Misc.2d 58, 656 N.E.2d 746.

Additionally, since Ober did not observe reckless driving or unlawful weaving, the holding in Dayton v. Erickson (1996),76 Ohio St.3d 3, 665 N.E.2d 1091, cited in the dissent, that a pretextual stop of a vehicle is not unreasonable if the police officer has probable cause that a traffic offense has occurred or is occurring, in our view, does not apply.

Therefore, the judgments of the trial courts are reversed, and the cause is remanded for further proceedings in accordance with law.

Judgment accordingly.

DOAN, J., concurs.

HILDEBRANDT, J., dissents.

¹ Although the record is not before us, appellants state in their brief that Smith was also charged in a companion case, No. C-95TRD-14866B, with a violation of R.C. 4511.33, providing rules for driving in marked lanes; that charge, we are told, was subsequently dismissed following a no-contest plea to the charge of driving without a license. An officer testified at the hearing that he had cited Smith for weaving in his lane of traffic.

² We have sua sponte removed this case from the accelerated calendar.

³ In his oral argument before the trial court, counsel for Smith and Taylor asserted that he had made the state aware that he was challenging the validity of the search and "the investigatory nature of the action taken by the officers." In closing he stated that he was "challenging the original stop." The trial court determined, in what it defined as "the primary issue," that the stop was valid. It further determined that the smell of marijuana permitted the police to proceed. In their appellate brief, Smith and Taylor contend that the investigatory stop was invalid and "anything subsequent constituted an illegal seizure." They also contend that even were the initial stop valid, the continued detention was not based on a reasonable and articulable suspicion. Thus, for purposes of our analysis, based upon the content of the briefs, we will address only the investigatory stop and, if necessary, the subsequent detention.

⁴ R.C. 4511.33 provides:

"Whenever any roadway has been divided into two or more clearly marked lanes for traffic, * * * the following rules apply:

"(A) A vehicle * * * shall be driven, as nearly as practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety."

Ober testified that he did not observe the car weave outside the white line defining the lane, nor did he see the car change lanes. Therefore, Ober did not observe any violation of this statute.

⁵ "Reasonable suspicion," not "probable cause," is required to make an investigatory stop. "Reasonable suspicion" has been defined as "a particularized and objective basis" for suspecting a detainee of criminal activity. United States v. Cortez (1981),449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629. "Probable cause" exists where "the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found."Ornelas v. United States, supra, 517 U.S. at 696,116 S.Ct. at 1661, 134 L.Ed.2d at 918.

⁶ The court emphasized that the holding was very fact-specific and the anonymous tip was found to be trustworthy and reliable based mainly upon the correct prediction of the suspect's future behavior.

⁷ The fact that the anonymous tip was broadcast over the police radio system does not automatically make it reliable. A police broadcast alone may be sufficient to support reasonable suspicion for an investigative stop or probable cause for arrest only where the broadcast is issued in reliance upon an officer who has the requisite knowledge to justify the stop or arrest. See United States v. Hensley (1985), 469 U.S. 221, 230-232,105 S.Ct. 675, 682, 83 L.Ed.2d 604, 613-615; State v. Holmes (1985),28 Ohio App.3d 12, 28 OBR 21, 501 N.E.2d 629.