On May 24, 2012, a driver was cited for an OVI, in violation of R.C. 4511.19(A)(1)(a). The driver entered a plea of not guilty at his arraignment and then filed a motion to suppress all the evidence which was acquired from the stop and subsequent arrest. A hearing on the motion to suppress was held on September 4, 2012.
Two witnesses, and a police officer for the State of Ohio at the motion to suppress hearing. The first witness testified that on May 24, 2012, she picked up her fiancé from his place of employment and began to take him home. Shortly thereafter, she noticed a car directly behind her. The driver of the vehicle was honking the horn repeatedly, yelling, and flashing the car’s lights. As she proceeded down the road, the driver pulled beside her on the passenger side and continued yelling at her, threatening her, and driving erratically. She then followed the car into a parking lot in order to obtain its license plate number. While she was attempting to exit the lot and turn back out onto the main road, she was held up by traffic. The other driver again pulled up behind her while she was waiting for the traffic to clear. Two men exited the vehicle and approached her car. At that point she headed back on the main road; and her fiancé called 911.
When he called 911, he told the police dispatcher that the driver of a blue Ford Focus hatchback with after-market blue headlights on the hood was driving erratically, swerving, and threatening them. Gardner also identified the license plate number of the car. He described the driver as fairly tall with dark hair. Due to the car being on the right side of Gardner when it was pulled beside them, he could not specifically describe the passenger. The dispatcher asked the couple to stop nearby and speak to a police officer.
Meanwhile, the police officer heard the dispatcher relay that someone was being run off the road by a dark colored Ford Focus with blue headlights. Other police officers in the vicinity were headed to the reported location. The police officer was traveling north when he spotted a car matching the description heading southbound. According to the officer, he could see that the occupants of the vehicle were two white males, also matching the description given by dispatch. The headlights on the vehicle were “very distinctive” to the police officer as well.
He turned his police cruiser around and pursued the car. As the car pulled into a “Speedy Mart,” he pulled up behind it and watched appellant step out. Another police officer in an unmarked vehicle pulled up and began to question the appellant’s passenger. Other police officers in the area proceeded north to make contact with the victims. After initiating contact with the appellant, the police officer who testified at the hearing radioed the officers that had interviewed the two witnesses to confirm that he had located the vehicle in question.
The police officer testifying at the hearing proceeded to ask the driver about the night and his actions earlier. The driver answered that he had just come from the area in question; but he denied having any involvement in the incidents reported by dispatch. After further investigation, the police officer charged appellant with the OVI.
After hearing testimony of the witnesses, the trial court denied appellant’s motion to suppress. Thereafter, he changed his plea to no contest and the trial court found him guilty of OVI. This appeal was timely filed on October 29, 2012.
The driver argued on appeal that the police officer did not possess the constitutionally required reasonable and articulable suspicion needed to perform the investigative stop. the driver also contended that the reliability of each of the citizen informants was questionable. The State argued that based upon the totality of the circumstances the police officer appropriately relied on the 911 dispatch and subsequent information to stop appellant’s vehicle. The driver’s sole assignment of error was that the trial court erred when it overruled his motion to suppress.
An Ohio Court of Appeal’s review of a trial court’s decision on a motion to suppress presents a mixed question of law and fact. State v. Jones, 4th Dist. No.11CA13, 2012 Ohio 1523 ¶ 6 citing, State v. Roberts, 110 Ohio St.3d 71, 2006 Ohio 3665, 850 N.E.2d 1168, at ¶ 10 and State v. Burnside, 100 Ohio St.3d 152, 2003 Ohio 5372, 797 N.E.2d 71, at ¶ 8. When considering a motion to suppress, the trial court acts as the trier of fact and is in the best position to resolve factual questions and evaluate witness credibility. Id. Accordingly, we defer to the trial court’s findings of fact if they are supported by competent credible evidence. Id. citing State v. Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (2000). Accepting those facts as true, we must independently determine whether the trial court reached the correct legal conclusion in analyzing the facts of the case. Id. citing Roberts at ¶ 100; Burnside at ¶ 8.
The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution guarantee the right of the people to be free from unreasonable searches and seizures. See State v. Orr, 91 Ohio St.3d 389, 391, 2001 Ohio 50, 745 N.E.2d 1036. These two provisions contain nearly identical language and the Supreme Court of Ohio has interpreted them as affording the same level of protection. Id. “Once the defendant demonstrates that he was subjected to a warrantless search or seizure, the burden shifts to the State to establish that the warrantless search or seizure was constitutionally permissible.” State v. Hansard, 4th Dist. No. 07CA3177, 2008 Ohio 3349, at ¶ 14, citing Maumee v. Weisner, 87 Ohio St.3d 295, 297, 1999 Ohio 68, 720 N.E.2d 507 and Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988), at paragraph two of the syllabus.
All parties agree that the stop at issue in this case is an investigative stop subject to Fourth Amendment jurisprudence. The investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to stop and briefly detain an individual if the officer possesses a reasonable suspicion, based upon specific and articulable facts, that criminal activity “may be afoot.” State v. Abernathy, 4th Dist. No. 07CA3160, 2008 Ohio 2949 ¶22-24, quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); see also United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct 673, 145 L.Ed.2d 570 (2000); State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991); State v. Venham, 96 Ohio App.3d 649, 654, 645 N.E.2d 831, 833 (1994).
A valid investigative stop must be based upon more than a mere “hunch” that criminal activity is afoot. See e.g., Arvizu at 273; Wardlow at 124; Terry at 27. Reviewing courts should not, however, “demand scientific certainty” from law enforcement officers. Wardlow at 125. Rather, a reasonable suspicion determination “must be based on commonsense judgments and inferences about human behavior.” Id. Thus, “the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizui at 274; Wardlow at 123.
A court that is determining whether a law enforcement officer possessed reasonable suspicion to stop an individual must examine the “totality of the circumstances.” See e.g., Arvizu at 273. The totality of the circumstances approach “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” Id. quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Thus, when a court reviews an officer’s reasonable suspicion determination, a court must give “due weight” to factual inferences drawn by resident judges and local law enforcement officers. Id.
An informant’s tip may provide officers with the reasonable suspicion necessary to conduct an investigative stop. Abernathy, 4th Dist No. 07CA3160, 2008 Ohio 2949 at ¶ 26. Where 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. Maumee, 87 Ohio St.3d 295, 1999 Ohio 68, 720 N.E.2d 507 at 299. The appropriate analysis then is whether the tip itself has sufficient indicia of reliability to justify the investigative stop. Id. Factors considered “highly relevant in determining the value of the [informant's] report” are the informant’s veracity, reliability, and basis of knowledge. Id. (Citations omitted).
In this case, the information leading to the stop of appellant came from the witness who called the matter in. Courts have generally classified informants into three groups: the anonymous informant, the known informant, and the identified citizen informant. Maumee at 300. Gardner cannot be classified as anonymous or a known informant (“someone from the criminal world who has provided previous reliable tips”) given the circumstances of his report to police. Id. Therefore, for purposes of constitutional analysis, Gardner is [**10] an “identified citizen informant” in this case. The trial court concluded that Gardner’s tip was both credible and reliable. The trial court also found that sufficient facts existed to create reasonable suspicion for Officer Howell to stop appellant’s vehicle.
In Maumee the Ohio Supreme Court further explained:
While the United States Supreme Court discourages conclusory analysis based solely upon these categories, insisting instead upon a totality of the circumstances review, it has acknowledged their relevance to an informant’s reliability. The court has observed, for example, that an anonymous informant is comparatively unreliable and his tip, therefore, will generally require independent police corroboration. Alabama v. White, [496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).] The court has further suggested that an identified citizen informant may be highly reliable and, therefore, a strong showing as to the other indicia of reliability may be unnecessary: “[I]f an unquestionably honest citizen comes forward with a report of criminal activity—which if fabricated would subject him to criminal liability—we have found rigorous scrutiny of the basis of his knowledge unnecessary.” Illinois v. Gates, [462 U.S. 213, 233-234, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).]
It is clear from the record that neither Alcorn nor Gardner spoke directly to the arresting officer. However, an officer may rely upon information collectively known to the law enforcement officers involved in the search or investigation. State v. Kelley, 4th Dist. No. 10CA3182, 2011 Ohio 3545, ¶ 26. See also, State v. Cook, 65 Ohio St.3d 516, 521, 605 N.E.2d 70. “An officer need not have knowledge of all of the facts necessary to justify [a search], as long as the law enforcement body as a whole possesses such facts and the detaining officer reasonably relies upon those who possess the facts.” Cook at 521. Thus, for example, “[a] radio broadcast may provide the impetus for an investigatory stop, even when the officer making the stop lacks all of the information justifying the stop.” Id. The Ohio Supreme Court has therefore described the relevant Fourth Amendment inquiry as “whether the law-enforcement community as a whole complied with the Fourth Amendment; the entire system is required to possess facts justifying the stop or arrest, even though the arresting officer does not have those facts.” Id.
The driver argued that the witness who called the matter in provided insufficient information to justify Officer Howell’s stop. Appellant cites to State v. Ramsey, 10th Dist. Nos. 89AP-1298 & 89AP-1299, 1990 Ohio App. LEXIS 4120, 1990 WL 135867 (Sept. 20, 1990) as a factually similar case, wherein the Tenth District Court of Appeals reversed a trial court’s denial of a motion to suppress based upon an improper investigatory stop. In Ramsey, the arresting officer received a radio dispatch that described in great detail the vehicle operated by a possible drunk driver. A private citizen had called the Sheriff’s Dispatcher with the information. She left her name and phone number when she called. A vehicle matching the description was sighted by police officers; and the car was observed for a quarter of a mile. The officers did not observe any traffic violations; but when they pulled the car over, in a mobile home driveway, they believed that the defendant was intoxicated. The defendant was arrested for drunk driving and other outstanding tickets.
The Tenth District Court of Appeals reversed the denial of defendant’s motion to suppress because “the tip has no more reliability than an anonymous phone tip. The informant provided no basis for her knowledge, nor did she demonstrate any special familiarity with defendant’s affairs.” Id. at 5. The court found no indication in the record that the police even attempted to verify the caller’s identity or that any indication existed that the informant could actually be identified in the future if the report turned out to be maliciously made. Id.
The Court of Appeals ruled that the case was distinguishable from Ramsey because of the nature of the informant. The reporting witness provided an eyewitness account of a car driving erratically that threatened the two witnesses. The reporting witness also provided police a description of the car including distinctive aftermarket headlights and a license plate number. The two witnesses then met with a police officer face to face to confirm the information, which the arresting officer received via radio relay. In contrast, the Tenth District Court of Appeals considered the informant in Ramsey to be practically anonymous. Id. at 5-6. Here, concerned for their safety, the witnesses reported the car to police as an eyewitness account. The Court of Appeals ruled that the reporting witness fell under the category of a known citizen informant. Therefore, the witness is more reliable than the informant described in Ramsey and rigorous scrutiny of the basis of his knowledge is unnecessary. Gates, 462 U.S. at 234.
The Court of Appeals agreed with the trial court that the witness’s tip was credible and reliable. The crucial inquiry is to his “veracity, reliability, and basis of knowledge,” since his tip is the basis for the reasonable suspicion. Maumee, 87 Ohio St.3d 295, 1999 Ohio 68, 720 N.E.2d 507 at 299. As noted before, the witness was a highly reliable individual, providing a specific description of the vehicle he witnessed driving erratically. He was concerned for the safety of his fiance and himself. He not only provided details; but he also communicated in person with a police officer that established communication with Officer Howell to confirm further details of the vehicle and driver. We find under the totality of the circumstances that his tip provided reasonable suspicion for the officer to conduct an investigatory stop on appellant. The Court of Appeals ruled that the State met its burden of establishing the stop’s constitutionality.