Let’s be honest, speeding tickets are a real pain in the ass.  In fact, the whole speeding ticket process is a real pain in the ass.  There is the traffic stop, the questioning by the police officer, making sure you pay the ticket, making sure that the police officer check marked the box saying you showed insurance, calling the already annoyed traffic court clerk to ensure they received your payment, and of course getting two points on your license.

Now, I usually get two types of phone calls from people looking for legal representation to fight their speeding ticket.  The first type of caller just wants the ticket reduced because they already know they are a lead-foot and just want to avoid any license points.  The second type of caller, and my favorite caller, starts asking me questions on how I would fight the ticket, what kind of discovery I request from the prosecutor’s office, what kind of questions I ask the police officer during a speed ticket trial, etc.

At first, I was always under the assumption that this type of caller was asking these questions to see if I was qualified to handle a speed ticket case.  Boy was I wrong!  I caught on pretty quick that this type of caller was just soliciting information from me in a very nonchalant way.  Now when I get these phone calls, I just start to laugh.  I immediately ask the caller if he/she plans on going it alone in a speed ticket trial.  That usually gets a chuckle out of them and they begrudgingly say “yes.”  When asked why, they all say the same thing.  “Well I cannot justify paying an attorney to handle a speed ticket when I can easily handle it myself.”  And then, the truly best part, are the defenses they came up with to beat the speeding ticket.

Below are some of my favorite defenses I have heard over the years:

1)         The officer won’t show up so I automatically win

2)        The officer misspelled my name, so the ticket must be dismissed

3)        The officer marked my car as being blue, but it is actually metallic blue.  So he got the wrong guy as there were other blue cars on the road

4)        I never saw a posted speed limit sign

5)         When I saw the police cruiser, I hit the brakes and slowed down.  If the judge hears that he will know I was not speeding

I can tell you now; those defenses never really go so well in court.  I did find one speeding ticket case that went up on appeal where the defendant was on the right track for defending against his speeding ticket, but unfortunately fell short.  This case is none other than State v. Sferra, 2016-Ohio-7161

In Sferra, the defendant was accused of traveling 53 mph in a 35 mph zone.  Deputy Hopp observed Sferra traveling southbound on Ravenna Road at a high rate of speed.  Because of this observation, Deputy Hopp activated his Python MPH unit to detect Sferra’s speed.

During direct examination, Deputy Hopp testified that he calibrated the radar unit with tuning forks before his shift and midway through his shift.  Based on the calibration, Deputy Hopp further testified that this showed that the radar unit was reliable.  When questioned about Sferra’s speed, Deputy Hoop testified that the radar unit indicated the vehicle was going 53 mph in a 35 mph zone and that was consistent with the audible sound from the radar unit.

On cross-examination, when asked by Sferra if he was certified to operate a radar unit, Deputy Hopp answered in the affirmative that he was certified in radar.

Based on Deputy Hopp’s testimony, the trial court found Sferra guilty of speeding.  Sferra, not wanting to give up, took his case to the appellate court.

On appeal, Sferra raised a sufficiency of evidence argument and a manifest weight of the evidence argument.

With regards to speed, the appellate court opened up their analysis with the following:

In general, a velocity reading made by a speed detection device is authenticated by evidence of three specific things.  First, the device must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science.  Second, the state must show that the device used was an accepted type and in good condition for accurate work.  Finally, the witness using the device must be qualified to operate the device through training and experience.  State v. Jamnicky, 2004-Ohio-324 (citing East Cleveland v. Ferell (1958), 168 Ohio St. 298).

Sferra’s first mistake, as the appellate court rightfully points out, is that he never raised any issue as to whether or not the Python MPH radar unit was an accepted type of speed detection device.  Thus, that argument was waived.

Sferra’s second mistake was not arguing that the state failed to show Deputy Hopp was not properly trained on the radar unit and that the state failed to produce a certificate showing Deputy Hopp was certified to operate the radar unit.

Based on these findings, the appellate court overruled both of Sferra’s arguments on appeal.

It is clear that Sferra tried his best to defend against his speed ticket, but just did not have the proper knowledge and know-how to take on an officer like Deputy Hopp.  Not to mention, Sferra struggled with some evidentiary issues.

Speeding ticket cases are very winnable, but going it alone is usually not the best answer!  Talk with a traffic attorney before you walk into that courtroom alone.  It will be worth it!

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I have to admit, I would never think that how one reaches for his or her wallet would determine the outcome of a Terry pat-down search.  But, in this day and age, I guess anything is possible.

In State v. Reece, 2016-Ohio-7805, Dayton detectives were following leads to apprehend a shooting suspect who shot a two year old child.  The detectives were able to ping the shooting suspect’s cellular phone, which lead them to a shopping center.  Upon arrival, the detectives observed Reece sitting in the passenger side of an SUV in the parking lot.  At the time, Reece had his hood up and was looking down at his lap, possibly playing with his cellphone.

The detectives approached the vehicle with their weapons drawn and ordered Reece to put his hands up.  Reece immediately complied with the order and remained in the SUV with his hands in the air.  One of the detectives opened the passenger side door, saw Reece’s face, and concluded that they got the wrong guy.  However, a detective asked for Reece’s identification card, in which Reece once again complied with the order.  When reaching for his wallet, which was located in his left rear pocket, Reece reached with is left hand while his right arm moved toward his left side covering his waist area.  This movement led to the searching of Reece’s person by the detective.  Not surprisingly, the detective found a gun on Reece.  Because of this, Reece was indicted on one count of Carrying a Concealed Weapon, a felony of the fourth degree.  Reece soon after moved the trial court to suppress the pat-down search because the detective did not have reasonable suspicion to conduct any search.

During direct examination, the detective stated that when Reece covered his waistband area with his right hand “it just looked really strange to me.”  After observing this strange movement, the detective asked Reece if he had any weapons on his person.  Reece responded that he did not have any weapons.  The detective went on to testify he informed Reece that he would have to check him for weapons and began to reach for Reece’s waistband.  Reece, not liking that idea, shoved the detective’s hand away from his waistband.  Thereafter, Reece was searched by the detective and the gun was found on Reece.

The detective further stated that the area where they found Reece was a high crime area with a lot of violent crime, including weapon offenses.  In addition, the detective testified that the shooting had occurred approximately four hours before his interaction with Reece, at a location that was a couple miles away from the shopping center.  Lastly, the detective stated that before he conducted the pat-down he confirmed that Reece was not the shooting suspect.

Prior to letting the detective leave the witness stand, requested that the detective demonstrate the right arm movement that Reece allegedly made during the incident.

Based on the detective’s demonstration of Reece’s right arm movements, the trial court found that the movement of Reece’s right arm, while his left arm was reaching for his wallet, was a natural movement and not a furtive gesture.  Thus, said movement was not sufficient to support a reasonable belief that Reece was armed and dangerous to justify a pat-down search for weapons.  Not happy with this outcome, the state appealed.

The appellate court opens up their analysis by stating that an officer must have reasonable individualized suspicion that the suspect is armed and dangerous before he may conduct a pat-down for weapons.  Terry v. Ohio, 392 U.S. 1.  The existence of reasonable suspicion is determined by evaluating the totality of the circumstances, considering those circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to the events as they unfold.”  State v. Andrews, 57 Ohio St.3d 86.

Now before diving back into some more exciting case law, I wanted to talk about the totality of the circumstances the detective testified to during the suppression hearing.  The detective had 1) Reece was located in a high crime area, 2) Reece was approximately a couple miles from the scene of a shooting that had occurred four hours earlier, and 3)  the detective believed that Reece’s movement with his right arm was furtive in nature.

Okay, let us now jump back into that case law!

The appellate court goes on to state that “while the nature of an area as a high-crime area is a factor to be considered in determining whether a protective search is warranted, that factor alone is insufficient to justify a protective search.” State v. Wilcox, 2008-Ohio-3856.  In addition, “although furtive movements alone would not be sufficient to justify a search, they can be considered in making a totality of the circumstances determination.  State v. Abner, 2011-Ohio-4007.  A furtive gesture may be defined as a situation where police see a person in possession of a highly suspicious object or some object which is not identifiable but which because of other circumstances is reasonably suspected to be contraband and then observe that person make an apparent attempt to conceal that object from police view.  State v. Allen, 2010-Ohio-3336.

With all of that, the appellate court deferred to the trial court’s finding that Reece did not reach for anything or make any furtive movement.  With the furtive movement out, the only thing left out of the totality of the circumstance factors, as described above, is Reece being in a high crime area and Reece being approximately 2 miles away from the shooting scene.  These factors, however, did not weigh in the state’s favor.  The appellate court further found that even with the two other factors, the detective made the decision to pat-down Reece after he already knew that Reece was not the suspect in the investigation and that Reece fully cooperated with the officer’s demands and questions.

I have to be honest; this is an extremely close case that really hinged on the detective’s demonstration of Reece’s right arm movements.  Had the trial court found this movement to be furtive, I have no doubt Reece would have a felony conviction on his record right now.  Tough case, but great outcome for Reece!

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I imagine that most judges have seen it all when it comes to individuals testifying, begging for forgiveness, using inappropriate words, and even the occasional fake fainting spell.  In my own personal experience, I get a good laugh every now and again while waiting for my case to be called from defendants just saying the wrong things to a judge and basically working against themselves for any favorable solution.  Never ends well for these individuals.  The main reason, of course, is because this individual lost credibility with the court.  Losing one’s credibility with a court can happen to anyone, including prosecutors, defense attorneys, and even police officers.  Once credibility is lost in the courtroom, it is damn near impossible to get it back!  And that is exactly what happened with the officer in State v. Poorman, 2016-Ohio-7110.

In Poorman, Sgt. Courtney stopped a vehicle for having a headlight out.  Upon approaching the vehicle, Courtney discovered that the headlight was working.  The headlight in question was pointing up towards the sky.

Unfortunately for the driver, he looked familiar to Courtney.  However, Courtney testified that he was not “100 percent sure who it was.”  And because that is good enough for police work, Courtney asked the driver for his license.  The driver in turn stated that he did not have a driver’s license, and just like that Courtney realized who the driver was based on his sleuth skills.  According to Courtney, this driver was “known to the Wauseon Police Department as never having a valid driver’s license.”

With that, Courtney placed the driver in the backseat of his police cruiser.  When the backup officer, Officer Hunter, showed up on the scene, Courtney ordered Hunter to “get an identification” from Poorman.  After getting Poorman’s identification, Hunter called it into dispatch.  Dispatch informed Hunter that Poorman had a warrant for his arrest.  Hunter then placed Poorman under arrest and conducted a search incident to arrest.  That search yielded marijuana in Poorman’s pocket.

To make matters even better, a K-9 was called to the scene.  The K-9 alerted to the vehicle and heroin was found in a cigarette pack were Poorman was seated.  When asked why a K-9 was called to the scene, Courtney explained that “one of the indicators” for calling the K-9 unit was the driver’s record.  Courtney went on to explain that “the fact is that the driver is a known drug dealer in town.”  No other indicators were given by Courtney.

Poorman filed a motion to suppress evidence arguing, that Courtney was without probable cause to make the initial traffic stop.  To really drive his motion home, Poorman attached an affidavit from the driver.  The affidavit stated the following:

“Officer Courtney knows me since high school, he said he pulled me over for my headlights, but the headlights worked.  He pulled my niece over in that car before.  He already had a preconceived notion as to the presence of drugs.  I heard the female officer say, “I want to search that car anyway.”  I saw Officer Courtney touch the headlight.  I was not speeding and I pulled over into the parking lot to get formula and I was there to get the formula.”

In addition, Poorman questioned why there was no video footage of the stop, despite Courtney’s cruiser being equipped with a working dash camera.  Poorman asserted that police department records indicated that Courtney’s cruiser recorded the stops both immediately prior to and immediately after the stop in question.

With regards to the cruiser camera, Courtney first stated on direct examination the he realized that his in car camera was still recording from the previous stop, so he reached up and manually shut off the tape recorder to “stop the recording of that previous traffic stop.”

On cross-examination, Courtney “corrected” his previous testimony.  Specifically, Courtney testified that he “stopped the recording of the video, but did not shut the camera off.”  Courtney explained that the camera “was still burning the previous traffic stop to the DVD, and that’s why it did not turn on and capture the traffic stop.”  When asked by defense counsel if it was “physically impossible” to turn the camera back on, Courtney explained “I could have, but the thing is, is when I turned my lights on, my overhead lights, it automatically turns the camera on and that’s what I had anticipated that my camera of doing, but it didn’t do that because it was still burning the previous stop.”

Officer Hunter and the K-9 Officer also testified in the motion to suppress.  At the conclusion of Poorman’s motion, the court allowed the parties to file supplemental briefs.  Soon after, the trial court issued a judgment entry granting Poorman’s motion to suppress.  The state subsequently appealed.

After discussing some basic procedural and standard of review case law, the appellate court quotes a significant portion of the trial court’s entry.  For your reading pleasure, below is the quoted section that the appellate court relied on in their decision upholding Poorman’s motion to suppress.

“This case presents the Court with a difficult scenario, due in large part to the significant number of coincidences that occurred here.  What would normally be a ten minute interlude, for a headlight problem morphed into a forty-five minute search and seizure foray of major proportions.  Apparently it was just a coincidence that Courtney was patrolling the driver’s neighborhood at 11:15 p.m. on February 20, 2015; merely a coincidence that a one lamp encounter would justify a turn around and high speed chase; merely a coincidence that the on-board camera was mysteriously shut off; merely a coincidence that the lamp was actually working; merely a coincidence that the driver just happened to be in the car that was stopped for a headlight violation; and merely a coincidence that Courtney just happened to know that the driver was driving on a suspended license.

The number of coincidences occurring here, one upon the other, has morphed into a pattern, and a suspicion of good motive.  One might even call it a fishing expedition, and I do.  Just as in the Rules of Evidence, where it is stipulated that inferences cannot be drawn upon other inferences, so too here, with the number of coincidence that have occurred leading up to the stop here, all being piled one upon the other, are too coincidental, such that the arrest cannot be supported.

In that context the Court must note that the Defendant has also raised a number of credibility issues here.  The fact that it was revealed, and then admitted on Cross-Examination, by Courtney, that he did have some past but significant credibility issues of his own, does not help the state’s case here.  For that reason alone the Court will have to take some of Courtney’s salient testimony with a grain of salt.”

With that, the appellate court held “the trial court found Courtney’s testimony not credible as to many events leading up to and including the traffic stop.  We further find there was sufficient competent credible evidence before the trial court to justify a finding that Courtney was without reasonable suspicion to initiate the traffic stop.”

I can tell you right now, if Courtney had credibility with the court, this traffic stop would probably have gone a different way.  In addition, there is not a doubt in my mind that trial counsel knew of Courtney’s credibility issues and attacked them full force.  Just goes to show you what a defense attorney can do when he/she researches all aspects of a case, to include the officer’s background!

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