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State v. Adkins11/17/2000
DECISION AND JUDGMENT ENTRY
This accelerated appeal is from the April 14, 2000 judgment of the Erie County Court, Milan, Ohio, which sentenced appellant following his guilty plea to charges of operating a motor vehicle while under the influence of alcohol and/or drugs (R.C. 4511.19(A)(1) and (3)) and while not wearing a seat belt (R.C. 4513.263). Appellant, Robert A. Adkins, asserts a single assignment of error on appeal:
"THE STOP OF APPELLANT'S VEHICLE WAS UNCONSTITUTIONAL BECAUSE THE OFFICERS INVOLVED DID NOT POSSESS A REASONABLE AND ARTICULABLE SUSPICION THAT APPELLANT VIOLATED A TRAFFIC LAW OR WAS ENGAGED IN ANY CRIMINAL ACTIVITY."
Prior to trial, appellant moved to suppress the evidence obtained as a result of an alleged illegal stop of his motor vehicle. After the trial court denied the motion, appellant entered a guilty plea, and he was sentenced.
On appeal, appellant contends that the trial court erred when it denied his motion to suppress. The trial court determined the following facts from the motion to suppress hearing. Employees of a fast food restaurant called the police to report a drive-thru customer (appellant) whose voice was slurred, who was behaving strangely in that he was rowdy and honking the horn inappropriately, and who was otherwise acting in such a way that led the employees to believe that he was intoxicated. The court failed to note that the evidence was undisputed that while the employees who waited on appellant observed the slurred speech and strange behavior, it was a manager who called the police to report a drunk driver. One of the employees testified that she overheard the manager say that appellant had slurred speech (which the manager did not hear) and that he was honking the horn and yelling (which the employee testified that the manager could have heard while she was making the call). While the trial court found that the employees described appellant's vehicle as a 1953 Chevrolet, they in fact only testified that he drove an old-fashioned green car. A police officer stopped a 1953 Chevrolet vehicle as it was leaving the restaurant based upon the phone call from these employees. The trial court also did not mention in its factual findings that there was evidence that other patrons pointed at the car as the officer arrived. Relying upon Maumee v. Weisner (1999), 87 Ohio St.3d 295, the trial court held that this stop did not violate appellant's constitutional right to be free from unreasonable stops and seizures.
A warrantless stop can be reasonable even if it is based solely upon a tip from a citizen and not upon the officer's personal observations of illegal activity. The test to determine if the stop is reasonable is whether under the totality of the circumstances the tip is trustworthy. Maumee v. Weisner (1999), 87 Ohio St.3d 295. Therefore, the state must prove that the "facts precipitating the dispatch justified a reasonable suspicion of criminal activity." Id. at 298. Where the officer's credibility is not attacked, we must consider whether the "tip itself has sufficient indicia of reliability to justify the investigative stop" by considering the "informant's veracity, reliability, and basis of knowledge." Id. at 299. The facts that the Ohio Supreme Court considered key in the Weisner case were that the citizen who provided identifying information, willingly continued contact, personally observed the events as they were occurring, and possessed an appropriate motivation for making the tip. Id. at 301-302.
Appellant contends that the case before us is factually distinguishable from the Weisner case. Appellant argues that the manager who made the call is an unknown informant because her identity ha
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