Speeding Tickets and Pacing: A Case Against Police Officer’s Personal Judgment Call

For all you road warriors out there, getting caught for speeding by the Highway Patrol has to be one of the biggest Debbie Downers.  You have to pull over, the Trooper talks to you as if he is your father and you disappointed him, then the Trooper tells you how speeding is dangerous, and finally hands you a speeding ticket.  Typically at some point in this conversation, the Trooper will brag about how he clocked you going 87 mph with his laser gun or with his radar unit.  And God forbid if you are one of those unlucky souls that get ticketed for speeding by airplane traffic enforcement.  But what about receiving a speeding ticket by a Trooper or Police Officer via pacing your vehicle?

Pacing a vehicle to determine speed is nothing new in Ohio.  Appellate Courts across Ohio have been issuing opinions over pacing for some time now.  However, what is relevant to this analysis is whether or not an officer’s speedometer is considered an electrical, mechanical, or digital device that aides in an officer’s visual estimation of a vehicle’s speed under Ohio Revised Code 4511.091.  Before getting into statutorily analysis of R.C. 4511.091, I believe it would be useful to understand the theory of pacing a vehicle.

Pacing involves the officer maintaining an equal distance between the patrol car and your vehicle for the entire time you are being paced.  The officer then uses his speedometer to clock your speed.  To accomplish this task, the police officer will utilize what is sometimes referred as “bumper pace.”  The police officer will keep equal distance between his front bumper and your rear bumper.  Given that this is more difficult for the police officer when his vehicle is farther from your vehicle, the police officer will most likely try to cut down the distance between the vehicles.  The shorter distance the officer maintains, the easier it is for the police officer to clock your speed using his speedometer.  Putting this all together: (1) the police officer has to keep a constant distance from the vehicle in front of him; (2) the police officer must maintain that exact distance for some period of time; and (3) the police officer must watch his speedometer to accurately gauge the suspected vehicles speed.

As you can tell, there is a greater potential for user error on the part of the police officer when pacing a vehicle versus the police officer utilizing laser or radar.  In addition, there are plenty of arguments that can be made against pacing.  For example, a person can state that the officer was catching up to his vehicle when the officer was allegedly pacing the vehicle; or the road conditions would not allow pacing because of hills, dips, and various other obstacles; or it was night time out and there is no way the police officer could pace just on the vehicle’s tail lights alone.  Based on these examples, it is easy to see that pacing can be shown as an inaccurate means to help aide an officer’s visual estimation of a vehicle’s speed.

Now that we have a very basic understanding of pacing, let’s look to how the Ohio Supreme Court and the Ohio Legislature handled unaided visual estimation of a vehicle’s speed versus an aided visual estimation.

In Barberton v. Jenney, 2010-Ohio-2420, the Ohio Supreme Court tackled the issue of whether a person can be convicted for a speed violation based solely on a police officer’s unaided visual estimation of a motor vehicle’s speed.  To summarize the facts very briefly, Mr. Jenney was traveling down State Route 21 when Officer Santimarino observed Mr. Jenney traveling in excess of the posted speed limit of 60 mph.  Mr. Jenney’s speed was based on Officer Santimarino’s visual estimation of Mr. Jenney’s vehicle and based on a radar reading of 82 mph.  At the time, Officer Santimarino was observing vehicles for potential speed violations in a stationary position.  Mr. Jenney argued at trial that the radar results should not be admissible because the city failed to establish a proper foundation for admission.  Based on this logic, Mr. Jenney maintained that without the radar results, the city failed to present sufficient evidence of his speed and his conviction could not stand.

The Ohio Ninth District Court of Appeals agreed with Mr. Jenney that since the city could not produce Officer Santimarino’s radar operator’s certificate at trial, the trial court erred in permitting Officer Santimarino to testify about his radar results.  However, the Ninth District found the admission of Officer Santimarino’s testimony regarding the radar results was harmless error because Officer Santimarino’s visual estimation of the vehicle’s speed was sufficient to support Mr. Jenney’s conviction.

Not wanting to give up his fight, Mr. Jenney took his issue to the Ohio Supreme Court.  Unfortunately, the Ohio Supreme Court was not in Mr. Jenney’s corner for this fight.  The Court held that “a police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to support a conviction of speeding in violation of R.C. 4511.20(D) without independent verification of the vehicle’s speed if the officer is trained, is certified by the Ohio Peace Training Academy or a similar organization that develops and implements training programs to meet the needs of law-enforcement professions and the communities they serve, and is experienced in visually estimating vehicle speed.”

As you can imagine, not too many people were happy about the Court’s decision regarding unaided visual estimation.  In short, what is the point of having radar or laser anymore if a police officer can just use a visual estimation?  Assuming that the police officer meets the training requirements set forth in the Court’s decision, all a police officer would need to do in order to obtain a speed conviction is state, “yeah the vehicle in question was going about 41 mph to 46 mph in a 35 mph zone based upon my visual estimation.”    Well this did not sit well with the Ohio Legislature.  In House Bill 86, the Ohio Legislature amended R.C. 4511.091 to do away with unaided visual estimations of a vehicle’s speed.

R.C. 4511.091(C) states:

(1) No person shall be arrested, charged or convicted of a violation of any provision of divisions (B) to (O) of section 4511.21 or section 4511.211 of the Revised Code or substantially similar municipal ordinance based on a peace officer’s unaided visual estimation of the speed of a motor vehicle. This division does not do any of the following:

(a)Preclude the use by a peace officer of a stopwatch, radar, laser, or other electrical, mechanical, or digital device to determine the speed of a motor vehicle.

Although the amendment to R.C. 4511.091 was a little too late for Mr. Jenney, overall it did away with allowing a police officer to utilize unaided visual estimations of a vehicle’s speed to obtain a speed conviction.  However, if you look at R.C. 4511.091 (C)(1)(a), police officers are not precluded from speed arrests if the officer used a stopwatch, radar, laser, or other electrical, mechanical, or digital device.  Radar is generally attached, in some form or another, to the patrol car.  Laser is typically a laser gun that the police officer uses from a stationary position on the side of the road.  Lastly, speed enforcement airplanes use stopwatches to calculate a person’s speed on the roadway.  So that leaves us with other electrical, mechanical, or digital devices.  Well, what falls into the category of other electrical, mechanical, or digital devices?

The Second District Court of Appeals addressed the issue of what falls into the category of other electrical, mechanical, or digital devices under R.C. 4511.091 in State v. West, 2015-Ohio-442.  In West, Trooper Pohlable visually estimated Ms. West’s vehicle to be travelling at 40 mph in a 30 mph zone on McCall Avenue.  Trooper Pohlable then set his cruiser speedometer at 40 mph and followed Ms. West for a quarter a of mile, while watching to determine whether Ms. West maintained her speed.  Trooper Pohlable found Ms. West to be traveling between 40 mph to 41 mph.  Based on this, Trooper Pohlable stopped Ms. West for speeding and subsequently arrested her for illegal drug possession.  Ms. West moved to suppress the evidence of illegal drugs, arguing that because Trooper Pohlable’s traffic stop for speeding was based on unaided visual estimation of speed, he therefore had no reasonable suspicion to stop Ms. West.

The trial court sustained Ms. West’s motion to suppress, finding that Trooper Pohlable used an unaided visual estimation of speed in deciding to initiate the traffic stop.  The trial court went on to state that there was insufficient evidence and authority to support the reliability of pacing.  The Second District Court of Appeals, however, saw things differently.

Looking to R.C. 4511.091 (C)(1)(a), the Court stated, “we conclude that a cruiser speedometer qualifies as an electric, mechanical, or digital device to determine the speed of a motor vehicle.”  The Court further held that “while Trooper Pohlable did make an initial unaided visual estimate that the car was speeding, he then used his speedometer to pace the vehicle in order to determine its speed.”

Well there you have it folks.  In a quick two sentence paragraph, speedometer was thrown into the category of electric, mechanical, or digital device to determine the speed of a motor vehicle.  If you break it down, this makes sense on a very basic level.  For instance: (1) vehicles have both mechanical and electrical parts; (2) the vehicle must have a speedometer; (3) the speedometer is either an analog (mechanical) speedometer or an electrical speedometer; (4) thus, perfect match for the electric, mechanical, or digital device category.  This basic level is where I take issue with police officers pacing vehicles and using their speedometer to issue speeding tickets.

To me it is very clear that after the Ohio Supreme Court’s holding in Barberton v. Jenney, the Ohio Legislature wanted to protect motorist from speeding citations based on a police officer’s own personal judgment of how fast an individual is traveling, i.e. unaided visual estimation.  And they did so by amending R.C. 4511.091 to specifically state that a police officer’s unaided visual estimation of a vehicle’s speed is not good enough for an arrest or conviction.  Based on this, I don’t believe the Ohio Legislature intended to have a cruiser’s speedometer be considered a mechanism to aid a police officer with speed violations.  For the simple fact that pacing a vehicle and using a speedometer is still a police officer’s personal judgment call!  Just like a police officer’s unaided visual estimation of a vehicle’s speed!

Remember what was discussed earlier with regards to pacing.  The police officer must keep the same distance between his vehicle and the suspected vehicle over a certain time while maintaining his speed.  There is just too much human error in this pacing equation!  The police officer could be speeding to catch up to the suspected vehicle, there could be obstacles in the police officer’s way to preclude him from pacing the suspected vehicle, the distance between the cruiser and the suspected vehicle will continually fluctuate; and most importantly, the police officer will have control over all of this!  Meaning that if the police officer does not like how the pacing is going, he can switch it up to pace the vehicle in a manner that shows the suspected vehicle is speeding!  Maybe accelerate the cruiser for a shorter period of time to show that the suspected vehicle was speeding in excess of the posted speed limit.  Thus, the police officer is exaggerating the true speed of the suspected vehicle.  In other words, making a determination of a vehicle’s speed based on the police officer’s own judgment.  Very similar to that whole unaided visual estimation of a vehicle’s speed!

Bottom line is that the police officer is in full control to show the suspected vehicle is speeding when it comes to pacing versus radar and laser.  There are defenses to radar units and laser guns, but for the most part radar units and laser guns are a point and click mechanism.   In addition, radar unit and laser guns are required to be calibrated and go through a series of internal and external checks before being used for traffic enforcement.  I doubt speedometers go through this type of calibration and checks on a monthly, quarterly, or yearly basis.

Lastly, I think that there is a statutory argument to be made that a speedometer does not belong in the category of other electrical, mechanical, or digital devices.  The Ohio Legislature specifically mentioned that a police officer may use a stopwatch, radar, or laser to determine speed.  As stated above, a stopwatch is used by airplane traffic enforcement officers, and radar units and laser guns are used by road patrol officers.  These three devices are the typical tools of the trade for traffic enforcement.  So if the Ohio Legislature wanted a cruiser’s speedometer to be part of that tool of the trade they could have easily listed it.  After all, a police officer pacing a vehicle is nothing new in Ohio.  But the Ohio Legislature purposefully left the use of speedometer out of the statute!

I truly doubt that the Ohio Legislature wanted the category of other electrical, mechanical, or digital devices to determine a vehicle’s speed to be a catchall category so courts can just toss any device that is electrical, mechanical, or digital in nature.  I believe the Ohio Legislature wanted devices that are electrical, mechanical, or digital to be similar in nature to a stopwatch, laser gun, or radar unit.  Because if that is not the case, below is a crazy example to show how a mechanical bull could be used by a police officer to enforce speed limits.

Officer Barney Fife was ordered to enforce the speed limit on State Route 48.  State Route 48’s speed limit is 40 mph.  With both his radar unit and laser gun being out of commission for calibration tests, Officer Fife needs to find something electrical, mechanical, or digital in nature to determine a person’s speed to aide him in his visual estimations.  The only thing Officer Fife could find was a mechanical bunking bull.  So, Officer Fife sets up his mechanical bunking bull on the side of the road.  Officer Fife determines, based on his own personal judgment, that if the mechanical bunking bull bucks about 20 to 22 times by the time a vehicle passes him, that vehicle is going between 47 mph to 49 mph.  Officer Fife sees his first car, does a visual estimation of 47 mph, turns on his mechanical bunking bull, and the bull bucks 22 times!  Officer Fife has his first speeding victim!  The alleged speeder cannot believe that a mechanical bunking bull determined his speed.  Trial ensues and Officer Fife testifies to his findings.  Officer Fife states on the record that he visually estimated the alleged speeder going 47 mph and he was aided with this visual estimation by his mechanical bunking bull because the bull bucked 22 times by the time the alleged speeder passed his patrol car.  Based on this testimony, the trial court convicts the alleged speeder because Officer Fife was aided in his visual estimation with a mechanical device that is able to determine speed.

Obviously, this story is merely to make a point and to poke fun of the legal system a bit.  But as you can see, I just tossed something mechanical in nature that could potentially determine a vehicle’s speed and aide an officer’s visual estimation of speed.  However, if you do see a mechanical bunking bull on the side of the road, you might want to slow down.

The Perils of Pleading No Contest

There are four pleas an Ohio criminal defendant can enter to a complaint or indictment: (1) not guilty, (2) not guilty by reason of insanity, (3) guilty and (4) no contest.  Many people believe the correct thing to do when they are of the belief they have actually committed the crime is to simply plead no contest.  In my experience defendants are not quite sure why this is the case other than perhaps friends and family members advised them that it is the correct course of action.  Hey, your not pleading guilty, and it gets the case over with, right?

Pleading no contest is often the correct thing to do, but an interesting appellate decision in State v. Martin, 2013-Ohio-5050 shows why this might not always be the best idea.  Before delving into the specifics of Martin, let’s first address the theory behind no contest pleas and why defendants may want or need to enter that particular plea.

A plea of no contest is essentially this: you as the defendant are not going to contest the factual allegations as stated on the face of the charging instrument (complaint or indictment), but you are not admitting your guilt, either.  If the face of the complaint or indictment contain all of the necessary elements of the offense, and thus providing a factual basis for the charge, then the court will proceed to find you guilty.  If the charging instrument is deficient for some reason (e.g., it fails to state an essential element of the charge), the court will have to find you not guilty.  Again, in theory, the idea is that you are simply not contesting the allegations, it is not as if you are acquiescing in state’s request to convict you.  While defective indictments/complaints are not necessarily uncommon, they are hardly something criminal defense attorneys encounter daily.  While we always review the indictment or complaint for legal sufficiency, it’s rare that you hit the jackpot.

So, the logical follow-up question for the layperson is, “if the judge is most likely going to find me guilty anyway, what is the purpose in pleading no contest?”  In truth, there are a few important reasons aside from the fact the indictment might fail to adequately charge a crime.  First, if your conduct resulted in damages to another person (e.g. an OVI crash), it is important to plead no contest so that your criminal conviction cannot be introduced against you in a subsequent civil trial.  If you plead guilty, the plaintiff in the civil suit can introduce a certified judgment of conviction at trial to prove that you were in fact driving impaired when you crashed.  Because you admitted guilt in the OVI criminal case, you cannot later deny that you were in fact drunk.  However, by pleading no contest, the plaintiff in the civil suit would retain the burden of having to prove that you were a drunk driver when you caused the accident and damages to the other party.

Another common reason, and perhaps the most important for criminal practitioners, is to preserve for appeal an objection to the trial court’s pre-trial rulings (motion to dismiss, motion to suppress evidence).   For example, if the court overrules a motion to suppress evidence, a defendant must plead no contest in order to appeal that decision.  If the defendant pleads guilty, by making a complete admission of guilt, he or she waives any right to later claim the trial court erred in its decision not to suppress the evidence.  Nobody cares if the cops violated your fourth amendment protections when you freely admit you are guilty.  Remember, when a court suppresses evidence it is not declaring the defendant is innocent of the crime.  Rather, the court merely prohibits the state from using the illegally obtained evidence against you in its effort to prove your guilt.

Now that we’ve engaged in a macro-level refresher on no contest pleas, let’s take a look at the Martin decision and why it may be a bit of a pit fall for criminal practitioners.  The defendant in Martin was charged with felony domestic violence (DV), which essentially requires the accused to “knowing cause or attempt to cause physical harm to a family or household member.”  Martin argued in the trial court that the victim, his step-sister, was not a “family or household member” as that term is defined under statute.  The defendant and the state both submitted briefs to the trial court regarding their respective legal positions.  After considering the arguments of both sides, the trial court issued a written decision stating how it intended to instruct the jury as to the definition of “family or household member,” and without going into the minutia here, let’s just say it was adverse to the defendant.  Based upon the trial court’s written decision, the jury instructions it intended to provide at trial was certainly going to allow the jury to find beyond a reasonable doubt that a step-sister falls within the definition of a “family or household member.”  Upon seeing the writing on the wall the defendant decided to cut-bait, plead no contest to the DV and have his legal argument decided by the court of appeals.  Or so he thought.

The Second District Court of Appeals quickly overruled his argument that the trial judge erred in finding him guilty of the DV because the victim was not a family or household member under law.  The appellate panel determined that by pleading no contest to the offense of domestic violence, the defendant did not contest the factual allegations in the complaint, including that the victim was a “family or household member.”  The defendant can’t first admit that she is a family or household member at the trial level and then claim she wasn’t when the case is on appeal.  If the defendant wished to contest that issue, he had to have a trial and argue that the state failed to prove that essential element of DV.

So, where does this leave us as criminal practitioners?  Aren’t there many factual allegations contained in indictments that we essentially admit upon a no contest plea after the trial court overrules a pre-trial motion?  The answer is yes, of course.  The difference between this situation and a case where the judge fails to suppress evidence or dismiss a case for violating the right to speedy trial boils down to nature of what was ruled upon by the lower court.  When the court determines the police did not violate the Fourth Amendment, he is ruling on something outside the four corners of the indictment.  The State does not alleged in the charging instrument that police acted constitutionally when they discover a defendant’s heroin.  Therefore, when the Defendant enters a no contest plea to the possession of heroin charge, while not contesting he was in possession of the drug, he is not admitting to the constitutionality of the search, thus preserving that issue for appeal.  The corollary of the Martin case for our heroin hypothetical would be if the defendant was contesting that substance was actually heroin at all.  That is a factual allegation in the indictment.  If the Defendant pleaded no contest to the indictment, he could not later argue on appeal that the court erred in finding him guilty because the substance recovered was not actually heroin.  The no contest plea admitted that fact.

While this was certainly a strange case in some respects, it does make logical and legal sense.  And this case is a helpful reminder that criminal defense attorneys must be aware of what they are preserving on appeal.  If you want to argue a fact that is alleged in the indictment, a no contest plea will foreclose that possibility.


Posted by Charles W. Morrison on November 20, 2013.




Search of Car Violates Fourth Amendment

Anyone who has practiced criminal law, and I’m suspecting many ordinary citizens as well, know the all-to-familiar story where a police officer conducts a routine traffic stop for a relatively minor violation and somehow it turns into a full-blown search of the car.  How does this happen?  Why does failure to use a turn signal at least 100 feet from the turn, or having a broken taillight, eventually result in a felony arrest.  Police normally effectuate the traffic stop with the intent being that he or she ultimately wants to search the car, and they take particular steps to reach that goal.  One of the most common ways the officer gets to search is by obtaining the consent of the driver.  In one of the most confounding questions ever pondered by man, the precise reason that people voluntarily allow the police to search a car in which they have drugs hidden is beyond me.  Nonetheless, it happens all the time.  So, let’s address this issue.

Police have the right to make a traffic stop whenever they witness a traffic violation.  The detention of the driver is a seizure under the Fourth Amendment and therefore is subject to the “reasonableness” requirements.  I.e., the stop can only last as long as is reasonably necessary and must be performed in a reasonable manner.  Once the reason for the traffic stop has ceased to exist (the officer issued the citation), there is no further grounds under which the driver could continue to be detained.  Therefore, the police will have to then show either probable cause to believe that a crime is or has been committed, or at least reasonable suspicion that “crime is afoot” to continue the seizure of the driver in order to investigate.  Or, the police can simply make a request that the driver allow the officer to rummage through their personal property.  Consent is an exception to the Fourth Amendment and the police do not have to have any independent justification.  If you consent, the police are allowed to search, period.

However, what happens when the consent is given only AFTER the police no longer has the right to seize driver, because the traffic citation has been issued and the traffic stop is over? The Second District Court of Appeals correctly ruled that the consent is not valid in State v. White, 2013 Ohio 3027.

The defendant in White was pulled over for a broken taillight after the officer earlier witnessed some unusual behavior on the part of the driver.  A park ranger noticed the defendant sitting in her car in the parking lot of a local metro park.  The officer observed the defendant hunched over the console of the car, and upon her noticing the officer driving by, she popped-up and blurted out a “common epithet.” The decision doesn’t say what epithet she shouted or how the officer possibly heard it from inside his cruiser, but I digress.  The officer then watched as the driver exited the vehicle and walked into the woods, a common endeavor by those that frequent such places.  The officer was nonetheless curious and continued monitoring her behavior.  A short time later she returned to her car and pulled out of the park.  This is when the officer observed that she had a broken taillight and decided it was his chance to pounce.

The officer stopped the vehicle and requested her license and registration.  The officer also called in back-up, who stood on the opposite side of the car, essentially “flanking” the car.  When the information came back that she was valid and had no outstanding warrants, the officer issued her a verbal warning for the taillight – as it was never the reason for the stop to begin with, he wanted to search her and the car.  The officer testified at the suppression hearing that she seemed “nervous,” and her hands were shaking during the stop.  After issuing the warning, he then asked if she would answer a question.  He inquired as to whether she had anything illegal in the car and she responded, “not to my knowledge.” He then asked if he could search the car and she said yes.

The appellate panel held that because her continued seizure was illegal once the traffic stop had been completed, her consent was the product of a Fourth Amendment violation and was invalid.  Therefore, the heroine and marijuana pipe found within the car had to be suppressed. The State obviously argued that under the totality of the circumstances, a reasonable person would have felt free to leave and that she had provided valid consent to search, something people do all the time.

In one of the great myths involved in criminal law, the state loves to argue that a reasonable person would feel free to leave when being asked questions by law enforcement.  Common sense and reality belie this claim as almost no one ever feels comfortable telling an officer to “just move along, nothing to see here, sir.”  And, if someone does ignore an officer, they are usually charged with obstruction of justice or some such nonsense. However, when trial and appellate courts agree that a person “felt free to leave” and could have unilaterally decided the end the encounter with the officer, then there is no seizure under the Fourth Amendment, and no justification is needed to continue to engage the citizen.

In upholding the trial court’s decision to suppress the evidence, the appellate panel cited State v. Ferrante, quoting that “[a] police officer’s request for consent to search a vehicle stopped for a traffic violation is valid if it is made, and voluntary consent is obtained, during the period of time reasonably necessary to process the traffic citation; in other words, while the driver is lawfully detained for the traffic violation.”  If the consent is obtained only after the reason for the traffic stop has ended, as was the case here, the consent is invalid unless the government can then prove that the consent to search was not the product of the illegal seizure, but rather an “independent act of free will.” If the consent is obtained during the time it takes to issue the citation, when the officer has the right to detain the driver, the state need only show that it was voluntarily given and not because they were coerced.

In short, because the police could not point to any objective facts that gave rise to a reasonable suspicion that crime was afoot, once the traffic violation was over, they had no further justification to detain the driver.  The continued detention of the driver was unconstitutional at that point. When the driver then consented, that consent was presumptively invalid unless the state could prove that it was not the product of the illegal seizure, but rather an act of free will.  The trial court found that the consent was in fact the product of the illegal detention and not the driver’s free will.  It found that a reasonable person in this driver’s situation would not have felt free to leave; likely because there were two cruisers involved and the car was ‘”flanked” by the cops.  Would you have felt comfortable saying, “I know you want to ask me some questions, but I’m leaving now, thanks”?  Or, would you have done as every other person does: stay at the scene until the police decide they are done with you?

Here, both the trial and appellate courts understood that this defendant could not have felt free to leave under the totality of the circumstances, and therefore, the consent was invalid.  When the officers had no independent justification to search, the evidence had to be suppressed.  The lesson in all of this is that you should not consent to a search!  Change one fact here or there and this case would have come out a very different way.  In fact, one appellate judge dissented and would have overruled the trial court’s decision to suppress the evidence.

Posted by Charles W. Morrison on August 27, 2013.

Police unlawfully searched car passenger’s purse.

In a great win for the Fourth Amendment, the Second District Court of Appeals upheld a trial court’s ruling that suppressed evidence obtained as the result of the search of a car passenger’s purse.  In State v. Caulfield, the defendant was a front-seat passenger in a car that was pulled over when a member of the Montgomery County, Ohio sheriff’s department noticed the license plate was completely covered in snow and, therefore, obstructed from viewing (which is a no-no).  Upon effectuating the traffic stop, the officer ran the driver’s information through the LEADS system (a database that provides real-time information to law enforcement regarding persons they encounter).  The LEADS system indicated the driver had a suspended license and an active warrant for his arrest.

The officer then arrested the driver on the outstanding warrant and subsequently received his consent to search the vehicle he was driving.  In the meantime, a second officer that had arrived on the scene approached the defendant and instructed her to exit the vehicle so that he may perform the search authorized by the driver’s consent.  When the defendant attempted to bring her purse with her as she exited the car, the officer instructed her to leave the purse inside the car on the passenger seat.  This is common for the police to do, as it is much easier to justify searching objects within a car.

Although the officers testified at the hearing that the defendant had also provided them consent to search her purse, the trial court found the defendant’s contradictory testimony credible, and made a factual finding that she did not consent to the warrantless search.  And, as a lesson to all readers, never provide consent to a search of your property, especially if you know the police are going to find something you would rather they don’t.  And Caulfield’s refusal to provide consent paid off in her case (if she were even asked) – the police ultimately located various drugs and drug paraphernalia in her purse and she was escorted to the pokey in short order.

So, if the trial court found that the defendant had not consented to the search, under what theory did the state appeal the trial court’s ruling?  The state also argued on appeal that the search was lawful as a search incident to arrest of the driver, and that the search was reasonable for “officer safety.”  Under modern Fourth Amendment jurisprudence, if the police effectuate a lawful custodial arrest, they are permitted to perform a search of the person arrested for weapons or contraband, as well as areas within the immediate vicinity of the arrest to ensure the defendant does not grab a weapon or destroy evidence.

The search-incident-to-arrest exception also extends to cars in which arrested persons are or were recently located.  However, the arrested person must actually be able to reach the interior of the car in order for that exception to apply.  Here, the driver was already handcuffed and placed in the police cruiser before the officers searched the inside of his car. It would have been quite a feat for him to grab a weapon from Caulfield’s purse from the back of the cruiser.  Nonetheless, with a straight face, the government actually argued that the search of the purse was necessary for officer safety as they arrested the driver.  Luckily, the appellate panel here correctly followed the Supreme Court’s decision in Arizona V. Gant, which explains that in order to invoke the search-incident-to-arrest exception, the person arrested must actually be able to reach places officers fear may contain a weapon.  Yes, sometimes logic does win out.

There was one final hurdle for the defendant, though: what effect did the driver’s consent to search his car have on the situation? Could that justify the search of the purse?  The answer was obviously no.  The appellate court found that the driver’s consent to search the interior of his car did not extend to the passenger’s purse located within the car (at officer direction, remember).  In order for consent to be lawful, the person providing the consent must have the authority over the area to be searched.  In other words, just as you can’t consent to the search of your neighbor’s house, the defendant’s male accomplice in this case was without authority to provide police consent to search her purse.

In summation, the Second District properly found that no justification existed for the search of an innocent passenger’s purse.  Just because she was riding around with some guy that had an outstanding warrant and failed to properly display his license plate, police cannot simply decide they are going to search her personal property.  I’m sure this was news to the police as they are not used to being told “no,” whether it’s by citizens or courts.

Published by Charles W. Morrison on August 3, 2013.

No Probable Cause, No Problem Says Second District Court of Appeals

If you have ever considered manufacturing your own fireworks at your residence (and who hasn’t, right?), you may want to think again.  In a recent decision by the Second District Court of Appeals, Dayton Police officers were permitted to enter a home’s detached garage and observe its occupants making fireworks inside without the benefit of a warrant, and without even determining whether officers had probable cause to believe that a crime was being committed.

In State v. Griffin, the police had received an anonymous tip that two individuals at Griffin’s residence were “making bombs and selling them to neighborhood kids.”  Police were not immediately dispatched to the home. Rather the call was placed on a list of “medium to lower priority calls” that is logged into police cruiser computers.  This list is evidently maintained and updated every so often so that when police have the time and opportunity to investigate, they can choose then do so.  Leaving for a second the entire series of questions surrounding the fact that giving bombs to children was an “medium to low priority” for Dayton Police, let’s discuss why officers were allowed to enter the detached garage on nothing more than the anonymous tip and some observations they were able to make from the driveway.

Two different officers independently responded to the call and arrived simultaneously at Griffin’s home.  The officers testified they could view from the street that someone was in the garage.  The garage door was apparently open “about waist high.” The officers simply walked up the driveway and, as they approached the garage, claimed to have observed a couch, several tables with mixing bowls, gun powder on the tables and the floor, as well as someone walking back and forth between the tables.   The officers immediately entered the garage and arrested the two individuals for the illegal manufacture of fireworks.

It is undisputed that the officers did not have a warrant, based upon probable cause, to search the garage. Nor did the officers receive consent to enter prior to making contact with Griffin.  In overruling Griffin’s motion to suppress evidence, the trial court determined that once officers observed gunpowder strewn across the tables, the officers had probable cause to enter.  Apparently, viewing gun power was enough for the trial court to find probable cause existed that a crime was being committed – the illegal manufacture of fireworks.  Moreover, the officers did not need to first obtain a warrant because an emergency existed which excused the general requirement that searches be performed only upon issuance of a warrant from a neutral and detached magistrate.

The general rule is that a search of a home without a warrant, even if based upon probable cause that crime is being committed, is per se unreasonable and, therefore, unconstitutional under the 4th Amendment.  However, one of the several exceptions to the warrant requirement is “exigent circumstances” or when an emergency exists where it is reasonable for the officers to immediate perform the search.  Nonetheless, there must still be probable cause that a crime or evidence of crime is located within the home to dispense with a warrant.

In sustaining the trial court’s ruling, the Appellate court did not base its decision on the fact that the officers had probable cause of a crime. In fact, the Appellate Court did not even reach that decision. And for good reason, it is highly unlikely that having gun powder and mixing bowls in your garage is evidence of a crime.  Instead, the appellate court ruled the search constitutional based upon another exception to the warrant requirement, the “community caretaking/emergency aid exception.”  Under this doctrine, officers are privileged to enter a home without a warrant or probable cause if (1) police have reasonable grounds to believe that there was an immediate need to protect the lives or property of themselves or others; (2) the circumstances, as viewed objectively, justify the warrantless entry; and (3) there is a reasonable basis, short of probable cause, to associate the place to be searched with an emergency.  The anonymous tip, corroborated by the officer observations once on the property, were enough for the court to find the community caretaking exception applied.

The Court states in its opinion that “[while] we may question whether, before the officers entered the garage, there was probable cause to believe a crime was being committed … such determination is not controlling in an analysis of the community caretaking exception to the Fourth Amendment.”  The panel goes on to find that under the particular circumstances presented in this case, officers reasonably entered the garage to ensure that the apparent explosives did not pose an immediate danger to the officers and others in the area.

The Court was quick to emphasize, however, that it was not insinuating through its holding that every corroborated report of a dangerous weapon or ordinance is sufficient to justify a warrantless entry into a home, citing State v. Boyd (a case in which our firm was responsible for the appeal and successfully established that the warrantless search of a home and seizure of a gun was unconstitutional).  The Court may as well have said “this is a unique set of facts and, based upon all of the circumstances, we can’t fault the police for acting.”  I take the decision as saying Bombs + Kids = enter the garage and stop this.  Therefore, I’m not confident this decision will have very much impact long-term.  As much as the Fourth Amendment has been eroded by judicially-created exceptions over the years, this decision doesn’t really do any more damage to our constitutional protections.

However, this case is a good reminder that notwithstanding the Fourth Amendment, sometimes police don’t even have to establish probable cause to enter your home! And there are so many exceptions to the warrant requirement that it is indeed rare these days for officers on the scene to even bother to seek a warrant, knowing that their actions will likely be excused away as long as the bad guys get caught.  The real lesson here is that if you are doing something you shouldn’t, don’t expose the activities to the public by leaving the door halfway opened.  You are only setting yourself up for a search that will ultimately be upheld. In other words, actively protect your Fourth Amendment rights as there are a whole lot of ways courts can get around having to do so for you.

Posted on July 27, 2013, by Charles W. Morrison