IN THE SUPREME COURT OF OHIO. Appellant, On Appeal from the Delaware County Court of Appeals, V. Fifth Appellate District

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1 qrlglnpt. IN THE SUPREME COURT OF OHIO STATE OF OHIO, Appellant, On Appeal from the Delaware County Court of Appeals, V. Fifth Appellate District CHRISTOPHER BURNAP, Court of Appeals Appellee. Case No. 11CAC MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT STATE OF OHIO ELIZABETH A. MATUNE ( ) Assistant Prosecuting Attorney Delaware City Prosecutor 70 North Union Street Delaware, Ohio (740) (740) (Facsimile) COUNSEL FOR APPELLANT, STATE OF OHIO William T. Cramer ( ) 470 Olde Worthington Road, Suite 200 Westerville, Ohio (614) T D JUN`2 1 t012 CtERK OF COURT SUPREME C URT Cf OHIO COUNSEL FOR APPELLEE, CHRISTOPER BURNAP

2 TABLE OF CONTENTS PaQe TABLE OF CONTENTS ii... ui TABLE OF AUTHORITIES... ^^^ EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION...1 STATE OF THE CASE AND FACTS....5 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW...7 Proposition of Law I: A report from an identified citizen that a specified driver is "intoxicated" may, standing alone, provide reasonable suspicion enabling law enforcement to initiate a brief, initial encounter with that driver...7 Proposition of Law II: Observation of traffic violations, or "bad driving," is not necessary when ari identified citizen indicates that a driver is "intoxicated."...12 CONCLUSION...13 CERTIFICATE OF SERVICE...14 APPENDIX Appx. Page Opinion of the Delaware County Court of Appeals...15 Judgment of the Delaware County Court of Appeals

3 TABLE OF AUTHORITIES Cases Page Adams v. Williams, 407 U.S. 143 (1972)......;...8 Illinois v. Gates, 462 U.S. 213 (1983)...10 Maumee v. Weisner, 87 Ohio St.3d 295 (1999)...8, 9,10,11 State v. Frady, 142 Ohio App.3d 776 (2nd Dist. 2001) Terry v. Ohio, 392 U.S. 1 (1968)...6, 7, 8 United States v. Arvisu, 534 U.S. 266 (2002)...7, 8 United States v. Cortez, 449 U.S. 411 (1981)...7, 8 Statutes Ohio Revised Code ui

4 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This case presents a question of great interest and importance to the people of Ohio: may a police officer lawfully stop a driver based on a report from an informed citizen informant that the driver is "intoxicated?" The Fifth District Court of Appeals answered that question in the negative, holding that a call from an identified citizenfollowed by a face to face confirmation with an officer at the scene - reporting a driver is "intoxicated" does not provide reasonable suspicion justifying a brief encounter with the driver to investigate whether he is indeed operating his vehicle while under the influence of alcohol. Such a rule goes beyond any existing Constitutional protections. This decision rejects the inherent reliability identified citizen informants have long been afforded. By refusing to allow an identified citizen informant's report to form the basis for reasonable suspicion, the court elevated that concept beyond what has been the threshold for police encounters for decades. Moreover, such a rule will require unnecessarily delay law enforcement from stopping reported intoxicated drivers and therefore place the public at risk. Under both the Ohio and United States Constitutions, an officer need only have a reasonable suspicion that criminal activity is taking place before initiating a brief investigatory encounter. Such an encounter is designed to obtain more information to determine whether a crime is indeed taking place. Probable cause is not required before this initial encounter can take place. Instead, an officer needs only a "particularized and

5 0 objective basis for suspecting" that a person was involved in some form of criminal activity before making contact. United States v. Cortez, 449 U.S. 411, (1981). Because of the relatively moderate threshold for reasonable suspicion, this Court has previously acknowledged that "a telephone tip can, by itself, create reasonable suspicion justifying an investigatory stop where the tip has sufficient indicia of reliability." Maumee v, Weisner, 87 Ohio St. 3d 295, 296 (1999). Here, the officer had the telephone report from an identified citizen, later confirmed in person, that a specific driver was "intoxicated." Because the citizen was identified, the officer was not obligated to scrutinize the basis of her opinion. Illinois v. Gates, 462 U.S. 213, (1983). Free to accept at face value the citizeri s report that the driver was intoxicated, the officer had a reasonable suspicion that the crime of OVI was occurring and was thus justified in approaching the driver to make further observations for himself. Yet the court of appeals rejected the idea that an identified citizen working at a business who calls in an intoxicated customer leaving the business provides sufficient indication of driving while under the influence of alcohol to permit even that brief initial encounter to gather more information. Rather, the court seems to say, the officer should instead 1) wait to observe "impaired driving" or 2) turn attention to the citizen to scrutinize her observation that the driver is impaired before a Terry stop can be lawfully performed. By instituting these additional hurdles despite the existence of a report from an identified citizen that an intoxicated person is driving, the court of appeals appears to have conflated reasonable suspicion with probable cause. Raising 2

6 the bar for a brief, initial encounter with a suspected drunk driver lacks foundation in either the Constitution or existing case law. Delaying the stop of an impaired driver places the general public at risk. There is perhaps no crime that presents as a great a danger to the public at large than operating a motor vehicle while under the influence of alcohol and/or drugs. A person operating a vehicle while under the influence places every motorist and pedestrian in the vicinity - and sometimes even the homeowners in their nearby residences - at risk of injury or death. If the officer simply lets the offender driver away in order to wait and observe impaired driving, she or he would be failing to protect the public. Similarly, starting the investigation with an extended questioning of the citizen would also leave the reported impaired driver out on the road. And yet neither of these actions is necessary to justify the initial, brief encounter with the driver. Impaired driving is not a necessary element of operating a motor vehicle while under the influence of alcohol, although it can provide the reasonable suspicion to initiate a traffic stop. But here, the officer had the telephone report from an identified citizen, later confirmed in person, that a specific driver was intoxicated. Because the citizen was identified, the officer was not obligated to scrutinize the basis of her opinion. Free to accept her information at face value, the officer had reasonable suspicion that the crime of OVI was occurring and was thus justified in approaching the driver. With this decision, the Fifth District Court of Appeals raised the standard for initiating a stop to investigate a report of an intoxicated driver above what is required 3

7 by the Constitution. By overlooking the inherent reliability of identified citizen informants, the court raised the threshold level for what constitutes reason suspicion to justify a brief initial encounter with a reported impaired driver. This decision will hamper the ability of law enforcement to investigate reports of such drivers in a timely manner, thereby broadening the risk to innocent bystanders. For this reason, the issues presented in this case are of great public interest and should be heard by this Court. 4

8 STATEMENT OF THE CASE AND FACTS "At around 2:30 a.m. on Saturday June 4, 2011, a person who identified herself as an employee of a Sunoco gas station in Delaware called the Delaware Police Department and reported that a customer at the gas station appeared to be intoxicated. The caller described the allegedly intoxicated person s vehicle as a 'white truck,' and the caller provided a license plate number for that truck. The caller also said that the truck was starting to travel north on Route 23 into the parking area for a nearby Big Lots store. "James Ailes is a police officer with the Delaware Police Department, and he was on-duty and was wearing his uniform that morning. A police dispatcher employed by the Delaware Police Department broadcast information about the allegedly intoxicated driver to on-duty Delaware police officers moments after receiving the call from the Sunoco employee. Ailes heard that dispatch, and he drove to the reported location in his cruiser. "When Ailes arrived less than five minutes later, he saw a white truck stopped at the carry-out window at a McDonald's restaurant. The truck's engine was running, and the truck was in the drive-through lane designated for use by carry-out customers at the restaurant. The truck was the only vehicle in that lane, and the carry-out window was the only part of the McDonald's restaurant that was open for business at that early hour of the morning. "Ailes looked at the license plate on the white truck, and he saw that the number on the plate matched the plate number that the Sunoco employee had given to the 5

9 police dispatcher (who had in turn passed that number along to Ailes and other officers on the road). "At about the same time that Ailes arrived at the McDonald's restaurant, one of his colleagues from the police department arrived also. That second officer spoke with a woman. who walked up to him, and that woman turned out to be the Sunoco employee who had called the police about the white truck and its driver. (The Sunoco gas station was a short walk away from the McDonald's restaurant, and in fact Ailes testified at the suppression hearing that he could 'throw a baseball' from the gas station to the restaurant.) After the second police officer spoke with the Sunoco employee, that officer radioed Ailes to say that the driver of the white truck at the McDonald's carryout window was the same allegedly intoxicated person whom she had described in her call to the police. "Ailes stopped his cruiser near the white truck and caught the attention of the truck's driver. Ailes then pointed toward a nearby area in the McDonald's parking lot, thereby indicated to the driver that Ailes wanted the driver to pull up and park there. "The defendant was the driver of the white truck, and he was alone in the vehicle. He promptly complied with Ailes signal by pulling away from the carry-out window and parking the truck in the McDonald's parking lot about 20 feet away. Ailes then stepped out of his cruiser and approached the defendant's truck." August 8, 2011, Judgment Entry Denying the Defendant's 7/1/11 Motion to Suppress, pp Ultimately, the encounter with Officer Ailes resulted in OVI charges being filed against Burnap. 6

10 Burnap filed a motion to suppress all evidence flowing from his encounter with Officer Ailes, claiming that the officer lacked reasonable suspicion to justify the initial approach and questioning. The trial court conducted a hearing on the motion, and the state presented testimony from Officer Ailes. After considering that evidence and the controlling law, the trial court denied Burnap's motion. Burnap pled no contest to the OVI charge and was found guilty. He then instituted an appeal to the Fifth District Court of Appeals, raising a single assignment of error: The trial court violated appellant's rights under the Fourth Amendment by refusing to suppress evidence obtained during a traffic stop after the state failed to present specific, articulable facts to support a reasonable suspicion of criminal activity. State v. Burnap, 5th Dist. No. 11CAC090086, 2012-Ohio-2047, 8. The court of appeals sustained Burnap's assignment of error, reversing the trial court, and ordered the charges against Burnap be dismissed. The State is now seeking leave to appeal this decision. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law I: A report from an identified citizen that a specified driver is "intoxicated" may, standing alone, provide reasonable suspicion enabling law enforcement to initiate a brief, initial encounter with that driver. Law enforcement may constitutionally perform a traffic stop for the purpose of investigating a reasonable suspicion of criminal activity. United States v. Terry, 392 U.S. 1, 21 (1968). Reasonable suspicion is present if law enforcement had a "particularized and objective basis for suspecting" that a person was involved in some form of criminal 7

11 activity. United States v. Cortez, 449 U.S. 411, (1981). Whether there was a particularized and objective basis supporting the suspicion of criminal activity hinges on "an objective standard: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution and belief that the action taken was appropriate?" Terry, 392 U.S. at (citation and quotations omitted). Reasonable suspicion to conduct a brief stop cannot be conflated with probable cause to arrest the target for the crime he or she is suspected of committing. Adams v. Williams, 407 U.S.143, (1972). Rather, "Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop... to determine... identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time." Id. (citation and quotations omitted). For that reason, reasonable suspicion is not subject to "a strict inflexible standard," and thus there is no fixed definition. Weisner, 87 Ohio St. 3d at. Moreover, law enforcement need not rule out all possible innocent explanations for the facts contributing the reasonable suspicion of criminal activity. United States v. Arvisu, 534 U.S. 266, 277 (2002). So long as the facts would lead "an objectively reasonable police officer observing what the officer in question actually observed" to believe there was criminal activity afoot, there is a reasonable basis for the stop. State v. Frady, 142 Ohio App.3d 776, 782 (2nd Dist. 2001). In this case an informed citizen reported that a driver who just left the business where she is working is intoxicated. After first phoning this information to police, she 8

12 then voluntarily met with officers on the road - prior to their contact with Burnap - to confirm that he was the intoxicated driver she called about. Whether there was reasonable suspicion thus hinges on the value of the information provided by the citizen: would that report "warrant a man of reasonable caution and belief that" making contact with the driver "was appropriate?" See Terry, 392 U.S. at This Court has previously held that "a telephone tip can, by itself, create reasonable suspicion justifying an investigatory stop where the tip has sufficient indicia of reliability." Weisner, 87 Ohio St. 3d at 296. Information from identified citizen informants inherently carry a high degree of, negating the need to show strong indicia of reliability in other aspects: "[I]f an unquestionably honest citizen comes forward with a report of criminal activity -which if fabricated would subject him to criminal liability-... rigorous scrutiny of the basis of his knowledge unnecessary." Gates, 462 U.S. at 233. An identified citizen informant's tip merits an even higher degree of reliability when it is based upon firsthand knowledge. Weisner, 87 Ohio St.3d at 302. Likewise, that citizen informant's credibility is further enhanced when he or she is relating the situation as it is occurring. Id. Finally, the identified citizen informant's motivation in tipping off law enforcement is significant to the reliability determination; when that motivation is purely altruistic, the tip is that much more credible. Id. Here, an identified citizen, a clerk at a local gas station, called in a report of an intoxicated driver leaving the gas station. She provided a description of the vehicle and directions of travel, and met officers out on the road to visually confirm who she was 9

13 reporting. By doing so, she confirmed that she was relaying firsthand information-she could not have confirmed who the "intoxicated driver" was unless she was the one who determined he was intoxicated. Similarly, a contemporaneous description of a crime to police dispatch as the event is unfolding-or even once it is just completed-will lend "further credibility to the accuracy of the facts being relayed." Id. Here, the clerk was providing information moments after it was observed. Finally, an altruistic motive can be inferred as the basis for the clerk's call. That she met an officer out on the road demonstrates that she was concerned that Burnap posed a danger to the public at large. See id. at 302 ("We can reasonably infer...that [the caller] considered [the driver] a threat... to other motorists and that he was motivated, therefore, not by dishonest and questionable goals, but by his desire to eliminate a risk to the public's safety."). An altruistic motive lends further reliability to the tip. Id. Despite the overwhelming indications of reliability, the court of appeals faulted the citizen informant for not "establish[ing] personal experience as foundation for forming an opinion the driver was intoxicated." Essentially, the court of appeals rejected the Weisner reliability factors as insufficient. Rather than afford this citizen a high degree of credibility, the court directed that the officer should have scrutinized her opinion and the basis for that opinion. The foundation for forming the opinion, however, is implicit in the facts. Admittedly, it is never outright stated that the clerk observed the driver and noted that he must be intoxicated. And yet personal interaction is inferred and thus needed no 10

14 elaborate explanation: Burnap was a customer at the business. As he was leaving, the clerk at that business reported he was "intoxicated." Intoxicated is a truncated analysis of a condition, and it is made through personal observation. Once she met the officers out on the road to confirm that Burnap was indeed the person she was talking about, it solidified the fact that she personally made observations about Burnap that led her to conclusion that he was intoxicated; after all, she could not confirm the identity of a man she never encountered. The inherent reliability of her tip allows officers to forgo any "rigorous scrutiny of the basis of [her] knowledge," Gates, 462 U.S , and act on that information without an explanation the precise logistics of their customer-clerk interactions. By requiring additional information to even make the initial, brief encounter with Burnap, the court of appeals seems to have lost focus of the issue. The question was not whether there was sufficient information to perform field sobriety tests or to make an OVI arrest, but rather whether the clerk's tip would "warrant a man of reasonable caution and belief that" a brief encounter with Burnap to make further observations "was appropriate." Terry, 392 U.S. at Given the inherent reliability of the citizen's tip, the initial approach was indeed appropriate and supported by reasonable suspicion. This Court should accept this proposition of law and hold that an identified citizen informant's report that a driver is intoxicated may supply reasonable suspicion to justify a brief initial encounter by law enforcement. 11

15 Proposition of Law II: Observation of traffic violations, or "bad driving," is not necessary when an identified citizen indicates that a driver is "intoxicated." As explained above, the citizen informant's tip that Burnap was intoxicated and driving away provided the reasonable suspicion required to make contact with Burnap. See above, Proposition of Law I. The court of appeals, however, also singled out the clerk's failure to report "bad driving" as a reason for rejecting her tip. "Bad driving" is not necessary to approach a driver suspected of operating his vehicle while impaired. That is because the underlying traffic violations that might be observed during a more routine OVI investigation are not elements of the criminal offense of operating a motor vehicle while under the influence. See O.R.C If the identified citizen informant's report that the driver is intoxicated provides a reasonable suspicion that the driver is operating his motor vehicle while under the influence of alcohol, reports of "bad driving" are unnecessary. This Court should accept this proposition of law and hold an officer may initiate an OVI investigation without observing bad driving if there is a reliable tip that the driver is under the influence. 12

16 CONCLUSION The decision below is wrong and carries grave implications for future OVI investigations. Officers have long been able to accept the word of an identified citizen informant at face value, and there is no reason that this practice should be divorced from OVI investigations. The tip in this case was inherently credible and thus provided reasonable suspicion enabling to officer to briefly approach Burnap to assess his condition. To hold otherwise not only flies in the face of existing case law regarding the use of tips from identified citizen informants, but also elevates reasonable suspicion well above its definition and purpose. The decision below must be reversed. Failure to do so will hamper Ohio's police officers ability to investigate impaired drivers and place many innocent bystanders at risk. Respectfully submitted, ELIZ4kB$TFM. MATUNE ( ) Assistant Prosecuting Attorney Delaware City Prosecutor 70 North Union Street Delaware, Ohio (740) (740) (Facsimile) 13

17 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing notice was provided to William T. Cramer, Counsel for Appellee, via regular United States Mail at 470 Olde Worthington Road, Suite 200, Westerville, Ohio 43082; at wtcesq@cramerlawoffice.com; and in Counsel's Delaware Municipal Court mailbox, on June 21, ELIZABETH A. MATUNE 14

18 IN THE DELAWARE 1VILTNICIPAL COURT DELAWARE COUNTY, OI-IIO N O - O C7 G ^ C f ^O n p 0 D^yr r-< co rn^ - x. c»c pc7 rf State of Ohio c ^ O^ N vs. as^ No. 11-TRC Christopher R. Bumap Judgment Entry Denying the Defendant's 7/1/11 Motion to Suppress The defendant is charged with two traffic offenses that are alleged to have occurred on June 4, Both of the charges listed on the traffic ticket are operating-a-vehicle-while-under-the-influence-of-alcoliol offenses. The defendant filed an appeal of his administrative license suspension (ALS) on June 9, 2011, and then he filed a motion to suppress on July 1, In that latter filing, the defendant argues that the law enforcement officer who filed the charges against him lacked the requisite reasonable suspicion to approach and question him. (The defendant also raised other issues in the motion, but he withdrew those other claims and the ALS appeal at the start of an August 3, 2011 hearing on the suppression motion.) At the August 3, 2011 hearing on the motion to suppress, the defendant was present in court and was represented by his attorney, Dominic L. Mango. The State of Ohio was represented by Assistant Prosecutor Mark T. Corroto. One 1

19 witness - Officer James Ailes from the Delaware Police Department - testified at the hearing. Based on the evidence presented at the hearing, I make the following findings of fact: At around 2:30 a.m. on Saturday June 4, 2011, a person who identified herself as an employee of a Sunoco gas station in Delaware called the Delaware Police Department and reported that a customer at the gas station appeared to be intoxicated. The caller described the allegedly intoxicated person's vehicle as a "white truck," and the caller provided a license plate number for that truck. The caller also said that the truck was starting to travel north on Route 23 into the parking area for a nearby Big Lots store. James Ailes is a police officer with the Delaware Police Department, and he was on-duty and was wearing his uniform that morning. A police dispatcher employed by the Delaware Police Department broadcast information about the allegedly intoxicated driver to on-duty Delaware police officers moments after receiving the call from the Sunoco employee. Ailes heard that dispatch, and he drove to the reported location in his cruiser. When Ailes arrived less than five minutes later, he saw a white truck stopped at the carry-out window at a McDonald's restaurant. The truck's engine 2

20 was running, and the truck was in the drive-through lane designated for use by carry-out customers at the restaurant. The truck was the only vehicle in that lane, and the carry-out window was the only part of the McDonald's restaurant that was open for business at that early hour of the morning. Ailes looked at the license plate on the white truck, and he saw that the number on the plate matched the plate number that the Sunoco employee had given to the police dispatcher (who had in turn passed that number along to Ailes and other officers on the road). At about the same time that Ailes arrived at the McDonald's restaurant, one of his colleagues from the police department arrived also. That second officer spoke with a woman who walked up to him, and that woman turn.ed out to be the Sunoco employee who had called the police about the white truck and its driver. (The Sunoco gas station was a short walk away from the McDonald's restaurant, and in fact Ailes testified at the suppression hearing that he could "throw a baseball" from the gas station to the restaurant.) After the second police officer spoke with the Sunoco employee, that officer radioed Ailes to say that the Sunoco employee had just confirmed that the driver of the white truck at the McDonald's carry-out window was the same allegedly intoxicated person whom she had described in her call to the police. 3

21 Ailes stopped his cruiser near the white truck and caught the attention of the truck's driver. Ailes then pointed toward a nearby area in the McDonald's parking lot, thereby indicating to the driver that Ailes wanted the driver to pull up and park there. The defendant was the driver of the white truck, and he was alone in the vehicle. He promptly complied with Ailes's signal by pulling away from the carry-out window and parking the truck in the McDonald's parking lot about 20 feet away. Ailes then stepped out of his cruiser and approached the defendant's truck. Ailes's ensuing conversation with the defendant eventually led to the filing of the traffic charges in this case. The Prosecution Bears the Burden of Proof The prosecution bears the burden of persuasion - the burden of proof - to show that the police contact with the defendant was justified and that the resulting traffic charges were warranted. Xenia v. Wallace, 37 Ohio St.3d 216, 220 (1988) ("once a defendant has demonstrated a warrantless search or seizure and adequately clarified that the ground upon which he challenges its legality is lack of probable cause, the prosecutor bears the burden of proof, including the burden of going forward with evidence, on the issue of whether probable cause existed for 4

22 the search or seizure"). The prosecution is required to meet that burden by a preponderance of the evidence. Athens v. Wolf, 38 Ohio St.2d 237, 241 (1974). The Officer's Decision To Approach the Defendant's Vehicle and to Signal His Interest in Speaking with the Defendant in the Parking Lot Was Permissible Under the Fourth Amendment When an officer conducts a brief investigatory stop of a person or vehicle, "the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot." United States v. Arvisu, 534 U.S. 266, 273 (2002) (quotations omitted). When making a reasonable-suspicion determination, a court should consider the "totality of the circumstances - the whole picture" to determine whether the detaining officer had a "particularized and objective basis for suspecting" that the particular person stopped was involved in some sort of criminal activity. United States v. Cortez, 449 U.S. 411, (1981). And the officer's actions are to be "judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?" Terry v. Ohio, 392 U.S. 1, (1968) (citation and quotations omitted). See also State v. Frady, 142 Ohio App.3d 776, 782 (2nd Dist. 2001) ("the proper analysis of issues involving stops and arrests is not the reasoning 5

23 process actually employed by the police officer, but whether an objectively reasonable police officer observing what the police officer in question actually observed would have had a proper basis for the stop, detention, or arrest"). The circumstances are "to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold." State v. Andrews, 57 Ohio St.3d 86, (1991). And that officer may draw on his "own experience and specialized training to make inferences from and deductions about the cumulative information available" to him that "might well elude an untrained person." Arvisu, 534 U.S. at 273 (quotations omitted). See also State v. Ratcliff, 95 Ohio App.3d 199, 204 (5th Dist. 1994) ("A court reviewing the officer's actions must give due weight to his training and view the evidence as it would be understood by those in law enforcement"). An officer "need not rule out the possibility of innocent conduct" to have reasonable suspicion for a Terry investigatory stop. Arvisu, 534 U.S. at 277. "[T]here could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot." Reid v. Georgia, 448 U.S. 438, 441 (1980) (per curiam). Indeed, Terry itself involved "a series of acts, each of them perhaps innocent" if viewed separately, "but which taken together warranted further investigation." Terry, 392 U.S. at 22. And "the level of 6

24 suspicion required for a Terry stop is obviously less demanding than that for probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989). In this case, Officer Ailes heard a radio report from a police dispatcher at about 2:30 a.m. on a Saturday morning indicating that a citizen caller who worked at a Sunoco gas station was voicing concern about a possibly intoxicated motorist leaving the gas station in a white truck. From that radio report, Ailes learned the location of the possible problem, the white truck's direction of travel, and that truck's license plate number. Armed with that information, Ailes drove to the area and arrived no more than five minutes after he first heard the radio report. He immediately saw a vehicle matching the dispatcher's description, and that white truck's license plate number likewise aligned with the citizen caller's report. Then moments later, one of Ailes's colleagues - who was also in a police cruiser in the same area - radioed to Ailes that he had just spoken face-to-face with a woman who had identified herself as the Sunoco employee who had called the police dispatcher minutes earlier. According to that other police officer, the Sunoco employee was now close enough to the white truck idling in the McDonald's drive-through lane to confirm that that vehicle and its driver were the ones that had prompted her to call the police. 7

25 At that point, Ailes had sufficient information that would have prompted a reasonable police officer to investigate the possibility that criminal activity - a possible drunk-driving offense - was then underway. First, of course, "[a] late hour can contribute to reasonable suspicion." United States v. Blair, 524 F.3d 740, 751 (6th Cir. 2008). Though there is certainly nothing improper - let alone illegal - about a motorist's decision to drive to a gas station and a McDonald's restaurant at 2:30 a.m., Ailes could nonetheless rightly approach the situation with an elevated feeling of concern about a possibly intoxicated motorist at that early hour on a Saturday morning. And Ailes could also rely on the information reported by the citizen caller through the Delaware police dispatcher as he considered whether reasonable suspicion for an investigatory stop existed at the time and place in question. See Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008) (an "officer's reasonable suspicion... can be derived from such sources as informant tips, dispatch information, and directions from other officers"); State v. Cook, 65 Ohio St.3d 516, 521 (1992) ("An officer need not have knowledge of all the facts necessary to justify an investigatory stop, as long as the law enforcement body as a whole possesses such facts and the detaining officer reasonably relies on those who possess the facts"). 8

26 A "telephone tip can, by itself, create reasonable suspicion justifying an investigatory stop where the tip has sufficient indicia of reliability." City of Maumee v. Weisner, 87 Ohio St.3d 295, 296 (1999). A citizen caller who provides self-identifying information during a call - such as her place of employment - and who then approaches a police officer once one arrives at the scene and who reaffirms to the officer her initial report about a possibly intoxicated motorist and then confirms that the police are just steps away from that motorist "would be unlikely to offer a false report [to a police dispatcher or to an officer on the scene] because of the potential consequences," and such a caller is therefore viewed by courts as more reliable than an anonymous informant. Id., 87 Ohio St.3d at 302. In this case, Ailes saw - before he spoke with or even signaled to the defendant - a man in a white truck with a license plate that matched the one described by the Sunoco employee. And Ailes had also heard over his radio that the caller was now on the scene and that she had just told one of Ailes's colleagues face-to-face that the man in the white truck near Ailes was the one whom that caller had mentioned in her telephone conversation with the police dispatcher just minutes earlier. Ailes's visual information matched the verbal description provided by the citizen caller, including the report that the driver was a man, that he was traveling in a white truck, that his license plate was a particular number, 9

27 and that he had been traveling toward the parking lot near to where Ailes now saw him. And the Sunoco employee was clearly not afraid to be identified by the police at that point, as of course that employee had walked from the gas station toward the McDonald's restaurant and had approached and spoken with one of Ailes's colleagues once he too arrived in a cruiser. Moreover, a citizen's personal observation of suspicious activity is afforded "greater reliability than a secondhand description." Id. And a citizen caller's contemporaneous description of events to a dispatcher as those events are happening or have just happened "lends further credibility to the accuracy of the facts being relayed, as it avoids reliance upon the informant's memory." Id. Just as the Supreme Court found the tipster in the Weisner case to be credible and trustworthy because that caller provided contact information and an eyewitness description of suspicion activity as it happened, I likewise find the telephone tip from the Sunoco employee to be credible and trustworthy in this case. The information that she provided to the dispatcher about the truck driver's gender, his vehicle, the vehicle's license plate number, and the location where he was traveling all appeared to be borne out by Ailes's initial observations in the restaurant parking lot, and those facts were confirmed by the Sunoco employee's in-person conversation with Ailes's colleague at the scene. There was at that point 10

28 no reason for Ailes to doubt the veracity of any of the caller's reports, including the allegation that the man in the white truck may have been intoxicated. To be sure, the defendant's travels that morning could have been perfectly innocent and legal. But an officer reacting to the events as they were unfolding that morning could reasonably have concluded that a brief investigatory stop was appropriate to confirm or dispel his suspicion that the defendant may not have been fit to drive at that point. In short, the totality of information available to Officer Ailes gave him an objectively reasonable basis to approach the defendant's idling vehicle, signal him to pull up and park a few feet away, and then to speak briefly with him so that Ailes could quickly confirm or dispel the citizen caller's concerns about the defendant's condition that morning. Ailes handled the situation in a measured and reasonable way, and there is nothing in the record to suggest that he activated his cruiser's overhead flashing lights or siren, or that he drew a weapon, raised his voice, or took any other steps that might have suggested that he was doing something beyond what the circumstances warranted. The information available to Ailes at the moment he approached the defendant's truck suggested that had he ignored the citizen caller's concerns, the defendant might have driven away and perhaps caused some harm to himself or 11

29 others on the road. The slight intrusion occasioned by Ailes's approach to the idling vehicle was a reasonable way for him to make sure that no such harm was in the offing that morning. I therefore find that Ailes did not violate the Fourth Amendment by walking up to the defendant's idling vehicle and directing him to park nearby so that Ailes could speak briefly with the defendant in the McDonald's parking lot. For the reasons explained above, the defendant's motion to suppress is denied. August6, 2011 Copy to: Dominic L. Mango, Counsel for Defendant Mark T. Corroto, Assistant Prosecutor I pd. 12

30 COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO -vs- Plaintiff-Appellee.JUDGES: ;Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. CHRISTOPHER BURNAP Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from Delaware Municipal Court, Case No. 11 -TRC JUDGMENT: Reversed and Dismissed DATE OF JUDGMENT ENTRY: APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant ELIZABETH A. MATUNE Assistant Prosecuting Attorney Delaware City Prosecutor 70 North Union Street Delaware, Ohio WILLIAM T. CRAMER 470 Olde Worthington Road, Suite 200 Westerville, Ohio Courh of Appeals LPelavvare Co., Ohio f the withi^a t^:e a true ^ ^ he&^ sr V.)io office. r,p a.rses a:a

31 Delaware County, Case No. 11CAC Hoffman, J. {11} Defendant-appellant Christopher Burnap appeals the August 8, 2011 Judgment Entry entered by the Delaware County Court of Common Pleas denying his motion to suppress evidence. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {12} On June 4, 2011, an employee of a gas station called the Delaware Police Department reporting a customer at the gas station appeared to be intoxicated. The caller related the customer was driving a white truck, and provided a license plate number, indicating the truck was travelling north on Route 23. { 3} Officer James Ailes of the Delaware Police Department responded to the call. Ailes then spotted a white truck with the matching license plate number at a carryout window of a McDonald's Restaurant. The truck's engine was running. A second officer arrived at the scene, as did the gas station employee, who indicated the white truck was the customer she had called to report. {14} Officer Ailes then caught the attention of the truck's driver, indicating to the driver to pull over to an area in the parking lot. The driver was alone in the vehicle and promptly complied. Following the incident, Appellant was charged with operating a vehicle while intoxicated. {15} Appellant filed a motion to suppress the evidence flowing from his encounter with Officer Ailes, claiming the officer lacked reasonable suspicion to justify the stop. The trial court conducted a hearing on the motion to suppress, ultimately overruling the motion.

32 Delaware County, Case No. 11 CAC { 6} Appellant entered a plea of no contest to the charge. The trial court accepted the plea, finding Appellant guilty of the charge and imposing a sentence accordingly. (77} Appellant now appeals, assigning as error: ( 8} "I. THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS UNDER THE FOURTH AMENDMENT BY REFUSING TO SUPPRESS EVIDENCE OBTAINED DURING A TRAFFIC STOP AFTER THE STATE FAILED TO PRESENT SPECIFIC, ARTICULABLE FACTS TO SUPPORT A REASONABLE SUSPICION OF CRIMINAL ACTIVITY." ^ (79) There are three methods of challenging on appeal a trial court's ruling on a ss^l ^lant= hollcn c tha t^^ne nf fac} In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. See: State v. Klein, 73 Ohio App.3d 486 (1991), State v. Guysinger, 86 Ohio App.3d 592 (1993). Second, an appellant may argue the trial court failed to apply the correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. See: State v. Williams, 86 Ohio App.3d 37 (1993). Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law, an appellant may argue the trial court has incorrectly applied the law in deciding the ultimate or final issue raised in the motion to suppress. In reviewing this type of claim, an appellate court must give deference to the trial court and is governed by an abuse of discretion standard; i.e., it must determine whether the trial court's subjective determination of the ultimate issue in the case was unreasonable, arbitrary or

33 Delaware County, Case No. 11 CAC unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217 ( 1983). It is with this framework in mind that we address the appellant's first and second assignments of error. {110} "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." United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Alabama v. White (1990), 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301. But it requires something more than an "inchoate and unparticularized suspicion or 'hunch'." Terry v. nhin (1 grfl 88 S Ct L Ed 2d 889. "[T]he Fourth Amendment requires at least a minimal level of objective justification for making the stop." Illinois v. Wardlow (2000), 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570. {111} "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." Id. at 299, 720 N.E.2d 507. 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. Id, at 300, 720 N.E.2d 507. An identified citizen informant may be highly reliable, and therefore a strong showing as to other indicia of reliability may be unnecessary.!d. Thus, courts have routinely credited the identified citizen informant with greater reliability. Id.

34 Delaware County, Case No. 11 CAC {112} The Tenth District Court of Appeals addressed the issue presented herein in State v. Brant, 2001-Ohio 3994: {713} "In this case, we must determine if Officer Fraley had a reasonable suspicion, based on articulable facts, to stop Brant's vehicle. Brant argues that Officer Fraley lacked sufficient information to justify a Terry stop. In particular, Brant argues that the officer had no personal knowledge which would lead him to believe that Brant was violating the law. Specifically, Brant contends that the facts provided by Mr. Bunting, even if known to Officer Fraley, were not sufficient enough to demonstrate a reasonable and articulable suspicion that Brant was engaged in unlawful behavior. We agree. (114) "This court has previously held that 'the simple corroboration of neutral datails descrih'nn +ha susr,ac+ 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 No. 89AP-1298, unreported. '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.' Id; Adams v. Williams (1972), 407 U.S. 143, 147 (when a tip lacks an indicia of reliability, further investigation is required before an investigatory stop of the suspect's vehicle will be authorized)." { 15} " `* {116} "Careful review of the record indicates that although the tip was reliable, it lacked sufficient information to provide reasonable suspicion that Brant was operating a motor vehicle while under the influence of alcohol. Mr. Bunting provided the Grove City Police Department dispatcher with the color of Brant's vehicle along with the license

35 Delaware County, Case No. 11CAC plate number. Mr. Bunting also indicated that Brant was honking his horn for ten minutes, his shirt was on backwards and inside out and his speech was very slow. While it is not clear if the dispatcher relayed all of this information to Officer Fraley, Mr. Bunting nonetheless failed to indicate that he witnessed any traffic violations, unlawful behavior, or evidence of impaired driving. Additionally, even though Officer Fraley attempted to further investigate the tip, his independent police work proved to be fruitless. If Officer Fraley had observed erratic driving, then sufficient indicia of reliability would have been present to conduct the investigatory stop. Under the totality of the circumstances, Officer Fraley lacked a reasonable and articulable suspicion to stop Brant's vehicle. Ramsey, supra. Since Officer Fraley's personal observations failed to r.r.firr.. Mr R ntinn!c belief 4haf Rran} UiaR intnylcatpd wp._hellp.yp. fhr'lt Brant's f'ourtn Amendment rights were violated and, as such, Brant's sole assignment of error is welltaken and is sustained." {717} In the case sub judice, on cross-examination at the suppression hearing, Otficer Ailes testified: {718} "Q. Officer, when you -- you indicated that you received information from a caller directly to you, correct? { 19} "A. No, the caller called dispatch. Dispatch did send me. { 20} "Q. Okay. And the information was that there was not [sic] an intoxicated person at the Sunoco, correct? { 21} "A. Correct. {722} "Q. That's the only information that you got? {123} "A. I got - - I got the report that an intoxicated driver was leaving Sunoco.

36 Delaware County, Case No. 11CAC { 24} "Q. Okay. And that's it, right, they described the person as intoxicated? {125} "A. That's it. {726} "Q. No information what they had to drink or anything about them, correct? { 27} "A. Correct. {128} "Q. Okay. So actually it was the dispatcher who talked to this caller, correct? {129} "A. Correct. - {130} "Q. And the dispatcher is an officer with your department, correct? {131} "A. I'm sorry, say that again. { 32} "Q. The dispatcher would be an officer with your police department? {133} "A. Yes, the dispatcher works for the police department, yes. {134} "Q. Delaware city Police Department? {135} "A. Delaware City Police." { 36} " * * {137} "Q. And you never directly talked to the person from Sunoco, correct? {138} "A. Correct." {739} Tr. at 9-10, 15. {140} Here, the gas station attendant reported to the police dispatch her opinion a driver was intoxicated. The attendant did not indicate bad driving or inappropriate activity or behavior in Appellant while operating his motor vehicle. The attendant did not indicate any personal interaction with the driver or establish any personal experience as foundation for forming an opinion the driver was intoxicated. While the citizen informant was reliable, we find the conclusory information provided was insufficient to justify an

37 Delaware County, Case No. 11CAC investigatory stop in the absence of any observations by Officer Ailes to demonstrate Appellant was committing an offense. {741} Accordingly, we conclude the trial court erred in denying Appellant's motion to suppress. { 42} The judgment of the Delaware Municipal Court is reversed and the charge ordered dismissed. By: Hoffman, J. Gwin, P.J. concurs, Farmer, J. dissents HON. W. SCOTT GWIN HON. SHEILA G. FARMER

38 Delaware County App. Case No. 11CAC Farmer, J., dissents { 43} I respectfully dissent from the majority's view that the information from the citizen informer was insufficient to justify an investigatory stop of appellant. {144} Despite the majority's reliance on the dicta in the Brant case, I would find the information provided by a neutral and unbiased observer of an intoxicated person driving a specific vehicle was sufficient for the police to initiate an investigatory stop. I find no difference between this stop and a DUI checkpoint stop and I would affirm the trial court's denial of the motion to suppress. HON. SHEILA G. FARMER