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State v. Frank2/18/2000
OPINION.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Causes Remanded
The state appeals from the trial court's orders granting a motion to suppress evidence obtained after the police stopped a truck driven by the defendant-appellee, Brian Frank, based both upon the suspicion that he was driving while intoxicated and upon the fact that he was impeding traffic by driving well below the speed limit. The issue is whether the arresting officer's suspicion was justified, based upon information she had earlier obtained from another police officer who had seen Frank staggering from his truck before entering a bar, as well as her own observations of Frank's unusually slow and overly cautious driving. We hold that the state met its burden of establishing that the intrusion was justified within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution.
FACTS
About 2:00 a.m. on August 30, 1998, Cincinnati Police Sergeant Dawn Sherman, looking out a restaurant window, saw Frank staggering away from a blue Dodge truck parked on Ludlow Avenue. She saw him trip on the curb and then enter a bar. Sgt. Sherman then stopped Officer Julie McKeel (nee Reichow) and several other police officers and alerted them to a possible DUI. Sgt. Sherman related her observations to McKeel and the other officers, but explained that she had not seen the suspect operate the truck. She gave Officer McKeel the truck's description and license number.
Thirty minutes later, Officer McKeel, while operating radar on Clifton Avenue, saw the same Dodge truck described by Sgt. Sherman turn from Ludlow Avenue onto Clifton Avenue. Officer McKeel testified that she followed the truck in her cruiser, noting that it was travelling between 15 to 20 miles per hour notwithstanding a posted speed limit of between 25 to 35 miles per hour. She stated that she saw the truck's brake lights flash continuously as she followed the truck for about six blocks. According to Officer McKeel, the truck remained in the right lane south on Clifton Avenue, turned east onto McMicken, and then south back onto Clifton.
Officer McKeel testified that traffic around the truck, which she described as heavy on McMicken because the bars were closing, was proceeding at the posted speed limit. She testified that she observed southbound vehicles in the right lane pull around the truck, pass in the left lane, and then return to the right lane. Officer Robert Rosey, who had also been alerted by Sergeant Sherman about the possible DUI, testified that he observed traffic going around both the truck and Officer McKeel's cruiser. Officer Rosey testified that, in his view, the truck was "impeding traffic." He stated that he pulled his cruiser next to Officer McKeel's on Clifton Avenue to inquire if she needed assistance. According to Officer Rosey, Officer McKeel told him she was following a possible DUI and requested his assistance as a back-up officer.
Eventually, Officer McKeel stopped the truck at Clifton and Warner Street. She testified that she had arrived at the conclusion that the driver, Frank, was impeding traffic, meaning that cars following him were not able to go the normal speed limit without passing. She described Frank's driving as causing a "traffic tie-up." She testified that she also found it unusual that Frank was continuously touching his brakes. Asked directly why she finally pulled Frank over, Officer McKeel stated:
There's a number of reasons. My sergeant advised me to be on the lookout for a possible person driving under the influence fitting the description, which was a male white
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