If I am not Doing Anything Wrong, Can the Police Stop Me Just Because I am Acting Strangely?

By | April 17, 2013

“The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and seizures, including unreasonable automobile stops.” Bowling Green v. Godwin, 110 Ohio St.3d 58, 850 N.E.2d 698, 2006 Ohio 3563. In order to make an investigative traffic stop, an officer must have a reasonable suspicion, based on specific and articulable facts, that the motorist was engaged in criminal activity or that the vehicle was in violation of the law. State v. Snyder, 7th Dist. No. 03 BE 15, 2004 Ohio 3200, citing City of Dayton v. Erickson, 76 Ohio St. 3d 3, 12, 1996 Ohio 431, 665 N.E.2d 1091 (1996); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

But what if you aren’t doing anything illegal or suspicious, just acting strangely? Ohio case law states that the Police may also stop a vehicle pursuant to their community caretaker function. The Ohio Supreme Court recently examined the community caretaker function in State v. Dunn, 131 Ohio St.3d 325, 2012 Ohio 1008, 964 N.E.2d 1037:

“The [United State Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)] court explained that local law-enforcement officers “frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 441, 93 S.Ct. 2523, 37 L.Ed.2d 706. As the court noted in Dombrowski, “[t]he ultimate standard set forth in the Fourth Amendment is reasonableness.” Id. at 439, 93 S.Ct. 2523, 37 L.Ed.2d 706. Thus, the Fourth Amendment protects citizens from only unreasonable government searches and seizures. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).”

And in State v. Norman, 136 Ohio App.3d 46, 54, 1999 Ohio 961, 735 N.E.2d 953 (3d Dist.1999), the court also described the community caretaking function as it relates to traffic stops:

“Police officers without reasonable suspicion of criminal activity are allowed to intrude on a person’s privacy to carry out “community caretaking functions” to enhance public safety. The key to such permissible police action is the reasonableness required by the Fourth Amendment. When approaching a vehicle for safety reasons, the police officer must be able to point to reasonable, articulable facts upon which to base her safety concerns. Such a requirement allows a reviewing court to answer Terry’s fundamental question in the affirmative: “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?” 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.”

In the case of State v. Shelley, 2013 Ohio 1116, the trial court found that the stop was consensual and that a reasonable officer in this situation would believe that the vehicle or the occupant may need assistance. The court noted that Trooper Metz observed the vehicle stopped at a yield sign as he drove approximately a quarter of a mile toward the vehicle. He then stopped behind the vehicle and waited another 13 seconds before activating his overhead lights. There was no other traffic, the vehicle had its right turn signal on, and it continued to remain stationary during the entire period of observation. The court concluded that under these circumstances it was reasonable to believe the driver needed assistance or the vehicle was disabled. Thus, the court found the community caretaker exception applied here.

The trial court also relied on this court’s case of State v. Hlinovsky, 7th Dist. No. 09-BE-19, 2011 Ohio 6421, in determining that the initial stop here was consensual.

In Hlinovsky, the trooper observed the defendant’s vehicle traveling very slowly on U.S. 40 around 3:00 a.m. The trooper caught up to the vehicle. The vehicle pulled off to the side of the road. The trooper passed it, and then saw the vehicle turn its headlights off. This caught the trooper’s attention and he wanted to find out what was going on. So the trooper turned around and pulled behind the vehicle. He called the stop in as a disabled vehicle and got out to check on the occupants’ well-being. Upon making contact with the occupants, the trooper smelled alcohol. This ultimately led to an OMVI arrest. The trial court denied the defendant’s motion to suppress evidence from the stop.

On appeal, Ohio’s Eleventh District Court of Appeals found that the initial encounter between the trooper and the defendant was a consensual encounter, rather than an investigatory stop requiring reasonable suspicion. We noted that the trooper did not actually initiate a traffic stop; instead, he approached a vehicle that had pulled to the side of the road and parked in order to ask the occupants some questions. Id. at ¶58. The Eleventh District Court of Appeeals stated that a police encounter is consensual when a person is free to walk away from the officer and may refuse to answer questions. Id. at ¶53, citing U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). And the Eleventh District Court of Appeals noted that in general, when an officer merely approaches and questions a person in a parked vehicle, it is a consensual encounter that is not a seizure so as to require reasonable suspicion. Id. at ¶55. The Court further found that the trooper was carrying out his community caretaker function in assisting a potentially disabled vehicle. Id. at ¶64.

In Shelby, the trial court found the stop to be consensual based on Hlinovsky. But the present case is distinguishable. In this case, Trooper Metz pulled up behind appellant and activated his overhead lights. He then followed appellant, with his overhead lights on, to the side of the road. (Tr. 7-8, 28). And once appellant pulled over, the trooper asked to see his driver’s license. (Tr. 10, 31). Additionally, Trooper Metz did not inquire if appellant needed assistance. (Tr. 32-33). Thus, Trooper Metz did not “merely approach” appellant, he used his overhead lights and request for a driver’s license as a show of authority that appellant was not free to leave. See State v. Clapper, 9th Dist. No. 11CA0031-M, 2012 Ohio 1382 (reasonable person in defendant’s situation would be under the impression that she “could not refuse assistance and leave the scene,” when, with overhead lights flashing, the officer demanded to see her license and proof of insurance rather than inquiring whether she needed assistance).

But even though the trial court erred in finding the stop was consensual, the decision to deny the motion to suppress was still proper because of the community caretaker function.

In Clapper, 2012 Ohio 1382, ¶13, the court observed that the community caretaker function has been applied in cases where a vehicle was stationary in a place where it should not be parked because it gave rise to an inference of the vehicle’s or the driver’s impairment. Citing, Bucyrus v. Lewis, 66 Ohio App.3d 256, 583 N.E.2d 1114 (3d Dist.1990) (driver sleeping in vehicle parked in bank’s drive-through lane), State v. Chrzanowski, 180 Ohio App.3d 324, 2008 Ohio 6993, 905 N.E.2d 266 (11th Dist.) (driver sitting in vehicle stopped on the roadway), State v. Chapa, 10th Dist. No. 04AP-66, 2004 Ohio 5070 (driver stopped her vehicle “in the middle of the roadway with its headlights on and leaving no room for other vehicles to pass”).

This case is similar to the other “parked car” cases. Here Trooper Metz observed appellant’s vehicle from a quarter of a mile away stopped at a yield sign. Once Trooper Metz stopped behind appellant’s vehicle, it remained stopped for another 13 seconds until Trooper Metz activated his overhead lights. During this time, there was no traffic that would have prevented appellant from continuing on his way. (Tr. 7, 26). And appellant was blocking Trooper Metz from proceeding without driving around him [**16] into the wrong lane of traffic. (Tr. 8, 26). Also during this time, appellant’s right turn signal was on. (Tr. 26). Based on these considerations, Trooper Metz felt he should “check on” appellant. (Tr. 26).

Appellant contends that once he began to drive away, after seeing Trooper Metz’s overhead lights, this should have alleviated the trooper’s concerns regarding a possible medical emergency or disabled vehicle. Thus, he asserts the trooper should not have stopped him. But at the time Trooper Metz activated his overhead lights, he had a legitimate concern about the condition of the van and its driver. This concern did not immediately vanish when the van began to drive away. Once Trooper Metz’s concern was aroused and he made the decision to check on appellant, it was reasonable for him to follow through with checking on the van and its driver.

Ohio’s 11th District Court of Appeals ruled that the trooper’s actions here were reasonable under the Fourth Amendment. He was able to point to reasonable, articulable facts upon which to base his concern for checking on the driver and the vehicle. The facts articulated by the trooper demonstrate concern over whether the vehicle was having trouble or the driver required some sort of assistance. As such, the trial court properly overruled appellant’s motion to suppress based on the community caretaker function.