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State v. Kepford12/6/2004
On January 10, 2004, while on patrol in a police cruiser, Lt. Joseph Greathouse of the Bucyrus Police Department received a radio dispatch stating that a Hi-Miler gas station clerk had reported two persons occupying a Black Ford F-150 truck with license plate EQ60FE had left the station in the truck with open containers of alcohol. The clerk also stated that the occupants might be under the influence of alcohol. Lt. Greathouse subsequently observed this vehicle stopped at a flashing red light at an intersection for approximately 45 seconds. Lt. Greathouse then stopped the vehicle and Kepford was eventually arrested for driving under the influence of alcohol.
{ } On March 8, 2004, Kepford filed a motion to suppress the evidence. A hearing was held on April 5, 2004. At the hearing, the only witness to testify was Lt. Greathouse. Lt. Greathouse testified that dispatch advised him that the clerk from the Hi-Miler gas station had called with a tip about an intoxicated driver. The dispatch stated that the clerk had seen an open container and gave the vehicle description and license plate. Based upon this tip, Lt. Greathouse stopped Kepford's vehicle. On April 26, 2004, the trial court overruled the motion to suppress finding that the tip contained sufficient information to justify the stop. On May 18, 2004, Kepford filed a motion to reconsider, which was denied. Kepford then entered a plea of no contest on June 11, 2004. The trial court found Kepford guilty. Kepford appeals from the denial of the motion to suppress and raises the following assignment of error.
The trial court erred in denying [Kepford's] motion to suppress evidence and dismiss the charges against [Kepford] as the officer did not have a reasonable suspicion justifying the initial stop. Evidence seized after the stop of [Kepford] should have been suppressed as evidence obtained fell under the fruit of the poisonous tree doctrine.
{ } Appellate review of a trial court's ruling granting a motion to suppress involves mixed questions of law and fact. State v. Long (1998), 127 Ohio App.3d 238, 713 N.E.2d 1. "[A] reviewing court must defer to the trial court's findings of fact if competent, credible evidence exists to support the trial court's findings." State v. Hapney, 4th Dist. Nos. 01CA30,01CA31, 2002-Ohio-3250, at . "The reviewing court then must independently determine, without deference to the trial court, whether the trial court properly applied the substantive law to the facts of the case." Id.
{ } In this case, the facts are not in question. The parties agree that there was a dispatch and as to the contents of that dispatch. The parties also agree that the sole reason for the stop was the dispatch. Thus, the only issue before the trial court, and this court, is whether the informant who provided the information was reliable enough to support a reasonable suspicion upon which the officer could have reasonably based the stop.
{ } The Ohio Supreme Court has addressed the issue of the reliability of telephone tips and the use of such as the basis for a traffic stop in Maumee v. Weisner (1999), 87 Ohio St.3d 295, 720 N.E.2d 507. In Weisner, the Supreme Court held that the facts precipitating the dispatch must justify a reasonable suspicion of criminal activity and that the tip must have sufficient indicia of reliability. "Where, as here, the information possessed by the police before the stop stems solely from an informant's tip, the determination of reasonable suspicion will be limited to an examination of the weight and reliability due that tip." Id at 299. The relevant factors are the informant's veracity, reliability, and basis of knowledge. Id. An identified citizen informant may be considered highly reliabl
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