Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

INVESTIGATIVE DETENTION (ME037)

Also see Informants; Search and Seizure; Arrest; Admissions and Confessions.

Terry weapons frisks

Terry weapons frisks - vehicle stops

Justification - people

Justification - vehicles

Justification - vehicles - knowledge of officer

Justification - vehicles - erratic driving

Justification - vehicles - occupants

Justification - other property

Duration

Dog Cases

Scope

Secondhand and broadcast information

Consensual encounters

Pretext stops

Profile cases

Other issues

Terry weapons frisks

State v. Dickerson, 179 Ohio App. 3d 754, 2008-Ohio-6544 – Stop of vehicle to write a loose license plate citation was justified. So was a weapons frisk after the driver fled and jettisoned marijuana. But seizure of a pill bottle was not. Having satisfied himself the object was not a weapon, a Terry frisk may not be used as a pretext for a search for contraband.

Florida v. J.L. (2000), 529 U.S. 513, 120 S.Ct. 1375 -- An anonymous tip that a person is carrying a gun is, without more, is not sufficient to left a police officer's stop and frisk of that person. There is no "firearm exception" to the general rule barring investigatory stops based on bare-bones anonymous tips. Mere physical description of the suspect does not provide sufficient corroboration. Applied: State v. Morrison (2000), 138 Ohio App. 3d 168; State v. Riley (2001), 141 Ohio App. 3d 409.

State v. Skaggs (1999), 134 Ohio App. 3d 162 -- Officers had a basis to make a Terry stop, but did not have a basis for additionally believing the suspect might be armed, warranting a weapons frisk for their protection.

State v. Kolb, Montgomery App. No. 20601, 2005-Ohio-1209 -- Defendant ran into location of a police stop and seemed surprised to see the officers. He jammed his hands into his pockets and asked what was going on. When he removed his hands as directed, one pocket "was full of stuff." Officers hunch there might be a gun was unparticularized. Suppression motion should have been sustained.

State v. Scasny, Ross App. No. 04CA2768, 2004-Ohio-4918 -- Terry permits searches for weapons, not contraband. Officer gave no adequate basis for his search of the defendant, including his wallet where LSD was found. But since the officer had sufficient grounds to arrest the defendant for another offense, search is upheld as a search incident to arrest.

State v. Clark (2000), 139 Ohio App. 3d 183 -- Tip to housing authority police did not left investigative detention, but even if it had, Terry frisk well into period of detention was unwarranted. Defendant had been cooperative and no additional information surfaced warranting frisk officers had foregone at time of initial contact.

State v. Mackey (2001), 141 Ohio App. 3d 604 -- Thick overalls prevented an adequate weapons frisk, so it was permissible to unhook the bib to frisk inner clothing. Helps that officer began with frisk of outer clothing instead of just reaching into pockets. Concurring judge questions how often weapons are found between the buttocks, which was where drugs were found in this case.

State v. Jackson, 165 Ohio App. 3d 271, 2006-Ohio-262 -- Officers executing a search warrant at a boot joint frisked the defendant for weapons, but found cocaine. Ybarra v. Illinois, (1979), 444 U.S. 85 distinguished as officers articulated a sufficient basis for a weapons frisk encompassing mention of weapons as subject of the search and personal experience of the officer that patrons might be armed.

Terry v. Ohio (1968), 392 U.S. 1 -- (1) The Fourth Amendment right against unreasonable searches and seizures applies to people on the street and not just while they are in their homes. (2) When a police officer has stopped a person on the street and restrains his freedom to walk away, there has been a seizure for purposes of the Fourth Amendment. (3) A pat down of the external portion of that person's clothing is a search for purposes of the Fourth Amendment. (4) Where a reasonably prudent officer is justified, based on the surrounding circumstances, in believing that a pat down for weapons is justified for the safety of himself or others he may do so even in the absence of probable cause for the arrest of the individual who has been detained. At page 27: "(I)n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." (5) The exclusionary rule is a remedy when the stop and frisk was not legally justified.

Ybarra v. Illinois (1979), 444 U.S. 85 -- Warrant to search tavern and the person of the bartender did not automatically permit search or weapons frisk of patrons. Also see State v. Croft (April 1, 1982), Franklin Co. App. No. 81AP-803, unreported (1982 Opinions 886) -- Police were not authorized to conduct weapons frisk of all patrons of unlicensed bar during a raid.

State v. Farmer (1984), 21 Ohio App. 3d 77 -- Terry frisk was justified where subject was found on the steps of a building about to be searched at night and had no ready explanation for his presence. Also see State v. McGlown (1982), 3 Ohio App. 3d 344.

State v. Moody (1985), 30 Ohio App. 3d 44 -- Weapons frisk was justified where the defendant, during a routine liquor law inspection at a bar, upon being asked for identification became belligerent and kept his hand in the pocket of his field jacket.

State v. Freeman (1980), 64 Ohio St. 2d 291 -- Paragraph one of the syllabus: "The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances."

State v. Warren (1998), 129 Ohio App. 3d 598 -- (1) A Terry stop requires a reasonable articulable suspicion criminal activity is afoot, but a Terry frisk further requires a reasonable suspicion the suspect is armed. Mere presence in a high crime area does not left routine frisks of all detainees. (2) Contraband was discovered only after officer felt a lump and asked what it was. Suppression required under the fruit of the poisonous tree doctrine.

Hayes v. Florida (1985), 470 U.S. 811 -- Absent probable cause for arrest, judicial authorization or consent, taking a suspect to the police station for purposes of fingerprinting is beyond the scope of a Terry stop and frisk, and the results are to be suppressed. Also see Davis v. Mississippi (1969), 394 U.S. 721.

State v. Daniel (1992), 81 Ohio App. 3d 325 -- Court construes initial approach to defendant as not being a seizure for Fourth Amendment purposes, but then concludes that reaching into pocket after being asked to produce identification justified frisk for weapons.

State v. Marni (1992), 78 Ohio App. 3d 279 -- Stop and frisk was not warranted where officer had followed car to owner's apartment building, observed broken rear window and mirror on floor of passenger compartment, but indicated no specific reasons indicating fear for his own safety after approaching the defendant who had identified himself as the owner of the car.

State v. Jenkins (1982), 24 Ohio Ops. 3d 106 -- There was no basis for a Terry frisk when defendant was simply seen talking to others in a high crime area, without doing anything illegal or which would raise a suspicion of illegal activity.

Return to top of page

Arizona v. Johnson (2009), 129 S.Ct. 781 – Car was lawfully stopped by officers assigned to the Tucson police department gang unit. Passenger was asked to step out so an officer could question him regarding gang activity out of the hearing of the driver. In the view of the Arizona Court of Appeal, this converted an investigative detention to a consensual encounter. Thus the officer was not permitted to conduct a weapons frisk absent reasonable suspicion the passenger was engaged in criminal activity. Reversed. Frisk was valid provided the detention was not measurably prolonged by questioning on matters not related to the initial stop. Opinion is a primer on what is permitted during vehicle stops.

State v. Lozada 92 Ohio St. 3d 74, 2001-Ohio-149 -- Syllabus: "During a routine traffic stop, it is reasonable for the officer to search the driver for weapons before placing the driver in a patrol car, if placing the driver in the patrol car during the investigation prevents officers of the driver from being subjected to a dangerous condition and placing the driver in the patrol car is the least intrusive means to avoid the dangerous condition. (2) During a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in a patrol car during the investigation is for the convenience of the officer." Also see State v. Dabney, Belmont App. No. 92 BE 31, 2003-Ohio-5141. (Unreasonable to place passenger in rear of cruiser after already frisking him for weapons and cuffing him behind the back.)

State v. Phillips, 155 Ohio App. 3d 149, 2003-Ohio-5742 -- (1) Stop based on lack of front plate was justified. Plate must be on the front of the vehicle, not lying on the dashboard. (2) Officers failed to articulate further justification for a weapons frisk. At ¶ 32: "Bulging pockets do not connote crimes or weapons when they have no specific nexus to criminal activity, and there was none here. Defendant's response that 'Nothing' was inside was so patently untrue as to be more an annoyed rejoinder than a false report. The fact that this was a 'high crime area' does not cast these otherwise unremarkable events in a criminal light."

State v. Perkins (2001), 145 Ohio App. 3d 583 -- Officers searched car for weapons while defendant was in cruiser, before any decision had been made whether he would be permitted to return to his car. Only justification advanced by prosecutor was that the search was justified as a protective weapons search allowed by Terry. Suppression was ordered by the trial court and affirmed by the court of appeals, which declined holding a warrant was not required. Concurring opinion suggest search might have been justified on other grounds.

State v. Daniels, Stark App. No. 2002CA00290, 2003-Ohio-2492 -- Flight into a motel room in an area known for drug use justified knocking on the room door.

State v. Evans (1993), 67 Ohio St. 3d 405 -- Syllabus: "(1) The driver of a motor vehicle may be subjected to a brief pat-down search for weapons where the detaining officer has a lawful reason to detain said driver in a patrol car. (2) When an officer is conducting a lawful pat-down search for weapons and discovers an object on the suspect's person which the officer, through his or her sense of touch, reasonably believes could be a weapon, the officer may seize the object so long as the search stays within the bounds of Terry v. Ohio (1968), 392 U.S. 1..." See discussion at pp. 414-416 as to further search where object felt is not clearly a weapon. Officer may not remove objects simply on the grounds that they might contain a small weapon such as a razor blade. Compare State v. Armstrong (1995), 103 Ohio App. 3d 416, which should turn on the trial court's mistaken reference to probable cause rather that reasonable articulable suspicion, but instead circumvents the syllabus rule of Evans.

Michigan v. Long (1983), 463 U.S. 1032, 1049-1050 -- "...(T)he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect may gain immediate control of weapons."

State v. Bobo (1988), 37 Ohio St. 3d 177 -- Paragraph two of the syllabus: "Where a police officer, during an investigative stop, has a reasonable suspicion that an individual is armed based on the totality of the circumstances, the officer may initiate a protective search for the safety of himself and others." Also see State v. Chapman (1992), 73 Ohio App. 3d 132, 134-135; State v. Smith (1978), 56 Ohio St. 2d 405 (abnormal or furtive behavior by subject stopped for traffic violation may left Terry frisk); State v. Kessler (1978), 53 Ohio St. 2d 204; State v. Bohler (1977), 59 Ohio App. 2d 327; State v. Moncrief (1980), 69 Ohio App. 2d 51 (high crime area after dark, police outnumbered by occupants); State v. Harris (1987), 36 Ohio App. 3d 106.

State v. Townsend (1991), 77 Ohio App. 3d 651 -- Police lacked authority to conduct Terry frisk of passenger in car whose driver was apparently being taken into custody. Frisk could not be justified as a safety precaution before placing defendant in a cruiser to drive him to a phone in order to make arrangements for car to be driven away since car had a cellular phone, nor was there any reason why the defendant could not have walked to a phone. Failure to identify himself to the officers' satisfaction did not left frisk.

State v. Mason (1996), 115 Ohio App. 187 -- Though speeding usually leads to a summons and not arrest, failure to produce license would have justified arrest. Thus weapons frisk before being placed in cruiser was proper.

Return to top of page

State v. Hodges, 183 Ohio App. 3d 160, 2009-Ohio-3378 – Officers ordered defendant out of a parked van after seeing a passenger wave to women in another vehicle, then return to the van as the women drove off after spotting the cruiser. Trial court properly ordered suppression of gun found in the van. Mere presence in a high drug area does not suspend the protections of the Fourth and Fourteenth Amendments.

State v. Cosby, 177 Ohio App. 3d 670, 2008-Ohio-3862 - - Activating cruiser beacon and aiming spotlight at the defendant amounted to a seizure, not a consensual encounter. Further ordering the defendant to stop as he approached the cruiser further supports this conclusion. Simply being in a high crime area at 4:00 a.m. and waiting through two walk/don‘t walk cycles did not provide reasonable suspicion warranting investigative detention. After the defendant was in the spotlight he dropped a bag of crack and stood on it. This did not constitute abandonment since it was precipitated by police action.

State v. Gulley, 181 Ohio App. 3d 117, 2009-Ohio-692 – Police saw two pedestrians walking in the roadway on a snowy night. One appeared impaired, the other did not. Defendant, who was not impaired, walked away from officer, was ordered to stop, grabbed, and jettisoned a baggie of crack during a struggle that took him to the ground. While the officers did not have reasonable suspicion that he was involved in criminal activity, they were justified in detaining the defendant while inquiring into the condition of his companion who appeared to need assistance.

State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, ¶30-62 -- Partially corroborated anonymous tip did not left investigative detention, but upon arrival of an officer in a marked vehicle the defendant's calling out, followed by flight of an associate, did.

State v. Davis (2000), 140 Ohio App. 3d 659 -- Apartment was under surveillance in preparation for execution of search and arrest warrants. Defendant was seen leaving the apartment and stopped, even though he did not match the description of the suspect. Nor was there any other basis for reasonably believing him to be engaged in unlawful activity. Evidence was properly suppressed.

State v. Washington (2001), 144 Ohio App. 3d 482, 490 -- The actions of a DEA agent who stopped the defendant at an Amtrack station as a suspected drug courier contributed to a reasonable belief that he was not free to go. Thus there was a seizure. Nervousness was only slightly probative of wrongdoing. Travelling under an assumed name raised only a generalized suspicion, and might have been indicative of other behavior, such as marital infidelity. Thus investigative detention was unjustified, and consent to search luggage was not voluntary. Compare State v. Alexander, 151 Ohio App. 3d 590, 2003-Ohio-760.

Illinois v. Wardlow (2000), 528 U.S. 119, 120 S.Ct. 673 -- Flight at the approach of a police officer, in an area of known drug trafficking, justifies a Terry detention. Court adheres to its holding in Florida v. Royer (1983), 460 U.S. 491 that an individual approached by an officer without reasonable suspicion may ignore the police and go about his business.

Brown v. Texas (1979), 443 U.S. 47 -- Police were not entitled to stop the defendant, who was seen walking in an area with high incidence of drug trafficking, and demand ID, relying on a Texas statute making it a crime for a person to refuse to identify himself to a police officer, but without any particularized suspicion of wrongdoing.

Michigan v. Summers (1981), 452 U.S. 692 -- Permissible for officers executing a search warrant to detain person descending front steps. For Fourth Amendment purposes, a warrant to search for contraband, founded on probable cause, implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. The reasonableness of the temporary detention is determined by balancing the character of the official intrusion and its justification.

State v. Gonsior (1996), 117 Ohio App. 3d 481, 486 -- "In order to create a basis in law to effect a search...the basis of an officer's suspicions requires some nexus between the individual he detains and some specific criminal conduct. Further, that basis must be articulated by the officer or hypothesized from the totality of facts and circumstances before him." Officer tried to left detention of a group of young men citing his belief they did not belong in the area and acted suspiciously as he approached. Motion to suppress should have been sustained. Also see Akron v. Little (1998), 94 Ohio Misc. 2d - Motorist paused before getting out of car and going into apartment building.

United States v. Bautista (9th Cir. 1982), 684 F. 2d 1286, 1289 -- "Race or color alone is not a sufficient basis for making an investigatory stop... However, race can be a relevant factor." Also see United States v. Brignoni-Ponce (1975), 422 U.S. 873, 886-887; United States v. Malides (9th Cir. 1973), 473 F. 2d 859, 862.

State v. Berry (1995), 104 Ohio App. 3d 301 -- While under observation, defendant left the porch where he was seated to hold a conversation with the driver of a car which stopped briefly. Stop and frisk was not warranted. Dissenting judge would give great weight to the police officer's intuition, seemingly the sort of "inchoate hunch" held not to be an adequate basis in other cases.

State v. Walker (1993), 90 Ohio App. 3d 132 -- Mere fact that the defendant ran when approached by officers in an area of high drug activity did not left investigative stop. Compare State v. Curry (1994), 95 Ohio App. 3d 93 where the additional facts include display of something held in a hand to another pedestrian, refusal to identify self when tackled, refusal to remove hand from pocket where a weapon might have been concealed, and the drugs were discarded before being seized. But see dissent. Also compare State v. Alexander (1997), 120 Ohio App. 3d 164.

State v. Freeman (1980), 64 Ohio St. 2d 291 -- Detention justified by subject being seen sitting alone in a parked car for twenty minutes in the middle of the night in a high crime area where the officer was aware of recent criminal activity.

State v. Chandler (1989), 54 Ohio App. 3d 92 -- Headnote 2: "A person's mere presence in an area of high crime activity does not suspend the protections of the Fourth and Fourteenth Amendments to the United States Constitution."

State v. Brown (1992), 83 Ohio App. 3d 673 -- Defendant was walking down the street with a person seen to be carrying an open container. Mere proximity to another person committing an illegal act did not left detention and frisk, nor were police justified in further investigating opaque brown paper bag found during the pat down (which contained marijuana). For a case involving the same facts, see State v. Lockett (1994), 99 Ohio App. 3d 81, 82: "The drug problem facing this country notwithstanding, the United States of America remains a free country, and its citizens are not under any legal obligation to give reasons why they live or walk in their neighborhoods, even if their neighborhoods are not so affluent and bubbling with wealth and prestige."

State v. Nealen (1992), 84 Ohio App. 3d 235 -- White defendant was approached by officers by officers in a black neighborhood with a known incidence of drug trafficking. He dropped two rocks of crack after being asked what was concealed in his fist. Held to be an unlawful investigative detention.

Return to top of page

State v. Brown, 183 Ohio App. 3d 337, 2009-Ohio-3804 – Stop by Highway Patrol officer was pretextual, but was valid as there was probable cause based on following a semi too closely. However the detention was improperly extended beyond the time needed to resolve the basis for the stop. Essentially the opinion faults drug interdiction tactics the patrol evidently trains, including separation of the driver and vehicle, separate questioning of driver and passenger as to details of their travel, and requesting permission for consent to search the vehicle. ¶19: "This court has identified '[v]arious activities, including following a script, prolonging a traffic stop in order to "fish" for evidence, separating an individual from his car and engaging in "casual conversation" in order to observe "body language" and "nervousness" [that it has] deemed (depending on the overall facts of the case) to be manipulative practices which are beyond the scope of, " * * * the fulfillment of the purpose for which the stop was made."'" Quoting State v. Bevan (1992), 80 Ohio App. 3d 126, 130 and State v. Correa (1995), 108 Ohio App. 3d 362, 368.

State v. Starkey, 183 Ohio App. 3d 215, 2009-Ohio-3276 – Highway Patrol officer was looking for a possible drunk walking in the roadway spotted a Camaro stopped beyond a stop sign at a T-intersection. No infraction was claimed. Turning on his beacon before approaching made the stop an investigative detention, not a consensual encounter. Under the totality of the circumstances the officer did not have reasonable suspicion of criminal behavior.

State v. Patrick, 153 Ohio Misc. 2d 20, 2008-Ohio-7142 – Deputy passed bicyclist lawfully riding two abreast, but followed by other vehicles. He stopped and told the defendant to stop. The defendant rode on. Back in the cruiser, now with lights on, he drove ahead, then blocked the road. Again the defendant rode on. The officer stopped a third time just before the bridge to West Virginia at Chesapeake and tasered the defendant. Motion to suppress granted. There was no justification for a Terry stop or arrest as there was no violation of the law observed. The defendant had a fundamental right under the Fourth Amendment to be left alone.

State v. Hageman, 180 Ohio App. 3d 640, 2009-Ohio-169 – Officer claimed defendant make an improper left turn because he entered the curb lane rather than the lane closest to the center line. R.C. 4511.36 and an equivalent municipal ordinance seemingly do not bar turning into the curb lane, but, in any event, apply only to "intersections." Officer was not sure whether defendant made the turn from a cross street or a bowling alley. The exit from a parking lot is not an intersection within the definition of R.C. 4511.01(KK). Thus the officer did not have a reasonable basis for the stop.

State v. Carr, 173 Ohio App. 3d 436, 2007-Ohio-5466 – DNR officer on routine patrol at Buckeye Lake stopped a pontoon boat for a safety inspection. This led to an OVI conviction. R.C. 1547.521(A)(4), which broadly authorizes such inspections, does not trump the constitutional requirement of reasonable suspicion. Circumstances are different than in other cases involving lights or passage through a no wake zone, since the defendant did nothing unlawful. Absent reasonable suspicion, safety inspections may only be performed through a checkpoint procedure designed to limit the discretion of officers.

State v. Lewis, 179 Ohio App. 3d 159, 2008-Ohio-5805 – License plate check on a car came back clean, but a deputy in another county asked the city officer who had run the check to look for the car because he had "paperwork" for the registered owner. City officer parked behind car when she spotted the car backing out a driveway. This amounted to detention with the required suspicious circumstances suggesting criminal activity. Fruits of the stop must be suppressed, presumably being the officer‘s observations leading to field sobriety testing and an OMVI charge.

State v. Bacher, 170 Ohio App. 3d 457, 2007-Ohio-727 -- Driving 42 or 43 mph in a 65 zone does not justify pulling the motorist over, unless it is below a posted minimum speed limit or other traffic is impeded, notwithstanding that the motorist acted like a drunken buffoon after he was stopped.

State v. Farris, 109 Ohio St. 3d 519, 2006-Ohio-3255 -- Continued detention of speeder was justified based on slight odor of burnt marijuana. Questioning in the front seat of a cruiser was custodial. Pre-Miranda admissions were not rendered admissible by repetition following advisement. Under the Ohio Constitution, evidence found in trunk is suppressible. Without admissions, probable cause for search of the car reached the interior but not the trunk. Also see State v. Coston, 168 Ohio App. 3d 278, 2006-Ohio-3961.

State v. Paschal, 169 Ohio App. 3d 200, 2006-Ohio-5331 -- Officer pulled up alongside a car parked by a boarded up house where there had been a recent drug raid. He spoke with both occupants, then turned around in a nearby driveway. Passenger then ran off and driver drove away. This did not constitute unprovoked flight because it was not immediate and may have been the subjects going about their legitimate business. There was competent credible evidence supporting the trial court having granted a motion to suppress.

State v. Owens, Franklin App. No. 03AP-423, 2004-Ohio-5159 -- Defendant stopped in the middle of the street to move a child to safety. Officer stopped, ordered car moved, then prepared to issue a parking ticket after demanding the drivers license. LEADS check showed suspension. Resisting charge arose out of effort to handcuff the defendant. Conviction reversed as the officer had no right to demand a license in issuing a parking ticket, which is a civil matter. Use of license violated the Fourth Amendment, as it was illegally obtained. Defendant was entitled to use force to resist the illegal arrest. When officer sprayed mace in the defendant's face she inflicted serious physical harm.

State v. Latham, Montgomery App. No. 20302, 2004-Ohio-2314 -- A windshield crack that does not obscure vision or otherwise render the vehicle unsafe does not warrant a traffic stop by city officers. Based on a provision in the Administrative Code, it might left a safety inspection by a Highway Patrol officer.

State v. Watson, 157 Ohio App. 3d 217, 2004-Ohio-2628 -- Search of vehicle for a gun was warranted even though driver had been removed. There was a reasonable basis for the search, and the necessity to search continued as if not arrested the driver would have been allowed to get back behind the wheel.

State v. Huth, 163 Ohio App. 3d 102, 2005-Ohio-4303 -- Driver stopped for speeding appeared nervous to the extent the court is of the view that a weapons search of the car would have been justified. Instead, the officer waited until the ticket had been issued, then asked for consent to search, stating: "I ask every driver. If I have consent it's easier." This language is problematic under State v. Robinette (1997), 80 Ohio St. 3d 234, but given that the circumstances otherwise justified a search, the validity of the consent need not be determined.

State v. Wallace (2001), 145 Ohio App. 3d 116 -- Cruiser blocked car in a crowded lot shared by a bar and an insurance office. Officer insisted on speaking with occupants who did not want to talk to him. Car had been placed in gear so as to back up. Blocking was a seizure. There was no reasonable basis for the officer to believe illegal conduct was underway, and the approach was not a consensual encounter. Suppression affirmed.

State v. Delemos (2000), 140 Ohio App. 3d 512 -- Trial court could properly conclude video from cruiser was more credible than Highway Patrol trooper's testimony. Tape showed only slight drifting within the lane, with no other traffic nearby. Cracked taillight did not appear blinding and a single intact red taillight was all the law required. Trooper had also been deceptive about the actual basis for the stop.

State v. Downs, Wood App. No. WD-030030, 2004-Ohio-3003 -- Officer claimed defendant briefly crossed the broken line dividing two south bound lanes. (1) This was insufficient to left investigative detention based on erratic driving. (2) There was no probable cause for stopping the defendant for a traffic infraction: she did not cross the center line, there was no danger to traffic since the other lane was unoccupied, and she did not have to signal since a lane change was not completed.

City of Indianapolis v. Edmond (2000), 121 S.Ct. 447 -- Indianapolis drug interdiction checkpoints found to violate the Fourth Amendment.

State v. Bryson (2001), 142 Ohio App. 3d 397, 403-404 -- "We find that a driver's action in making a legal turn within sight of a roadblock does not give a police officer a reasonable basis to suspect that the driver is involved in criminal wrongdoing. This conclusion reflects 'the realization that citizens will avoid contact with police for reasons other than fear of being caught for a crime they have committed. A completely innocent person may wish to avoid the delay which a discussion with police may entail; others have a fear of police authority; still others resent and seek to avoid the '"hassle"' of a stop which lacks any basis.' State v. Talbot [(Utah 1990), 792 P.2d 489,494, fn. 11]."

State v. Landrum (2000), 137 Ohio App. 3d 718 -- Random stop of truck leading to discovery it was overweight held to be a constitutional violation. There was no probable cause, no reasonable suspicion of criminal activity, and no regulatory authorization for purely random stops. Compare Perrysburg v. Miller, 153 Ohio App. 3d 665, 2003-Ohio-4221 where random stops were authorized and sorting principle was arrived at before officer began counting passing trucks.

State v. Howard 146 Ohio App. 3d 335, 2001-Ohio-1379 -- Driver of car loaded with marijuana and cocaine left it running at a gas pump while he went to McDonalds for food. (1) Upon learning that the registered owner of car had an open warrant, highway patrol officer had a reasonable basis to stop the car after it drove off. Would have been a different outcome had the officer received additional information that the owner was white and the driver was black. (2) Leaving the car running and vacant was an offense, by itself warranting the stop. (3) Pockets bulging with cash justified Terry weapons frisk.

State v. Orr, 91 Ohio St. 3d 389, 2001-Ohio-50 -- Syllabus: "In determining the constitutionality of a driver's license checkpoint, a court must evaluate, on a case by case basis, the checkpoint's intrusion on privacy, the state's interest in maintaining the checkpoint, and the extent to which the checkpoint advances the state's interest." Factors cited in favor of Dayton checkpoints included advance warning to approaching drivers, display of authority, brevity of stops, even for violators, and the success rate in issuing citations.

State v. Berry, Wood App. No. WD-02-043, 2003-Ohio-1860 -- Stop for violation of a "do not exit sign" led to OMVI charge. Motion to suppress was properly granted as such signs are not recognized in the Ohio Manual of Uniform Traffic Control Devices and the sign was posted below the six to seven feet required by the OMUTCD. Compare State v. Dunfee, Athens App. No. 02CA37, 2003-Ohio-5970 where a no U-turn sign was legible, but about a foot too low.

Bowling Green v. Godwin, 110 Ohio St. 3d 58, 2006-Ohio-3563 -- Syllabus: "A law enforcement officer who personally observes a driver disregard a traffic-control device that complies with the Ohio Manual of Uniform Traffic Control Devices may have probable cause under the totality of the circumstances to stop the driver, even though the device was not installed in compliance with a local ordinance requiring approval of city council for the installation of traffic-control devices."

Bowling Green v. Lynn, 165 Ohio App. 3d 825, 2006-Ohio-1401 -- Violation of a no turn on red sign was the basis for a traffic stop and other charges. Since the sign wasn't authorized by the local traffic commission, a claimed violation charge would have failed. However, the sign was authorized by OMUTCD, and properly provided a basis for the stop. State v. Berry, Wood App. No. WD-02-043, 2003-Ohio-1860, and State v. Godwin, Wood App. No. WD-04-094, 2005-Ohio-3204 explained and distinguished.

State v. Grant, 120 Ohio Misc. 2d 21, 2002-Ohio-5419 -- Reading a map while driving a few miles below the speed limit without inconvenience to other drivers did not left stop for operating a vehicle in wilful or wanton disregard of the safety of others.

Delaware v. Prouse (1979), 440 U.S. 648, 653 -- However brief, the stop of a vehicle and the detention of its occupants is a "seizure" within the meaning of the Fourth and Fourteenth Amendments. Compare State v. Goines (1984), 16 Ohio App. 3d 168 -- Impermissible stop in Prouse was without any particular justification while stop here was a part of a routine safety inspection at a checkpoint.

Pennsylvania v. Mimms (1977), 434 U.S. 106 -- (1) Motorist stopped for traffic violation may be ordered out of the car. (2) Bulge in jacket justified frisk for weapons.}

State v. Brown (1996), 116 Ohio App. 3d 477 -- Defendant's truck was parked by auto dealership in the middle of the night. Defendant drove away as officer pulled in behind. Investigative stop was not warranted. Even if viewed as a stop to aid a disabled motorist, stop was not warranted as defendant had begun to drive off.

State v. Klein (1991), 73 Ohio App. 3d 486 -- Stop not justified where officer, concerned about vandalism and thefts, first saw car parked on a car sales lot at 1:35 a.m. but observed no traffic violations or other evidence of criminal conduct when he followed the car when it pulled onto the street.

Wickliffe v. Gutauckas (1992), 79 Ohio App. 3d 224 -- Officer had helped defendant locate her car an hour and ten minutes before he pulled her over, and based upon her condition at that time advised her not to drive. This observation warranted a subsequent stop of the vehicle. However, there was no probable cause for arrest where all the officer observed before placing her under arrest was the odor of alcohol.

State v. Medlar (1994), 93 Ohio App. 3d 483 -- Fourth Amendment violation found where officer waited for the driver of an illegally parked vehicle to return and drive off, then stopped him under the pretext of issuing a parking ticket, and without other specific articulable facts lefting the stop.

State v. Rhude (1993), 91 Ohio App. 3d 623, 626 -- "The fact that a person pulls out of one driveway and into another a short distance down the road, in an area where several burglaries had been reported, is not sufficient to constitute reasonable suspicion, particularly where one of the driveways leads to the person's own residence."

Kirtland Hills v. McGrath (1993), 89 Ohio App. 3d 282 -- Stop of vehicle was not justified where officer mistakenly believed speed limit was 35 mph and defendant was below the 50 mph prima facie limit which actually applied. Evidence resulting from the illegal stop, which led to an OMVI prosecution, suppressed as fruit of the poisonous tree.

Maumee v. Johnson (1993), 90 Ohio App. 3d 169 -- Officers did not have reasonable basis to believe car was speeding where they thought the degree of lean while rounding a corner was consistent with speeding, but had no measurement, never saw brake lights and found the car to be operating within the speed limit when they caught up with it.

State v. Gardner (1993), 88 Ohio App. 3d 354 -- Highway Patrol officer followed a car seen running a red light and approached the driver after he parked at a carryout. Defendant was not allowed to put a witness on at the motion hearing who would have testified that no traffic violation was committed, thus stop was unjustified. While the court agrees that a defendant would ordinarily be allowed to present such testimony, there was no stop and no investigation until the driver had left his car and exhibited signs of intoxication.

State v. Guysinger (1993), 86 Ohio App. 3d 592 -- Stop of vehicle based on broken brake light lens (which showed white light) was not justified. Other light displayed red and R.C. 4513.071 only requires one stop light emitting red light.

State v. Goodlow (1992), 84 Ohio App. 3d 529, 533 -- Furtive or fumbling movement, without more, does not left the stopping or search of a vehicle. Also see In re Agosto (1993), 85 Ohio App. 3d 188. Compare State v. Crosby (1991), 72 Ohio App. 3d 148.

State v. Johnston (1993), 85 Ohio App. 3d 475 -- While activation of the beacon on a cruiser may generally constitute a seizure, it did not where the defendant parked next to a highway patrol cruiser and the officer activated his beacon before asking the driver "what do you need?"

State v. Vanscoder (1994), 92 Ohio App. 3d 853 -- Flickering taillight and loud muffler justified stop of car. Odor of burning marijuana and the readily visible "roach in the ashtray" justified warrantless search under the automobile exception to the warrants requirement.

United States v. Brignoni-Ponce (1975), 422 U.S. 873 -- Except at the border or its functional equivalent, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences drawn from those facts, that reasonably warrant suspicion that the vehicle contains illegal aliens. Also see United States v. Cortez (1981), 449 U.S. 411.

Return to top of page

Also see Informants

State v. Delagraza (2001), 144 Ohio App. 3d 474 -- Officers saw suspect flag down three cars but never saw drugs or money change hands. Defendant was in a fourth vehicle that stopped. Suppression was proper as officers acted on no more than a hunch drug activity was taking place.

Wilmington v. Connor (2001), 144 Ohio App. 3d 735 -- Though a temporary tag doesn't not have to be illuminated if placed in the back window, it does if placed in plate holder. Thus officer had a legitimate reason to stop the car. Even if the tag didn't have to be illuminated, as another court of appeals has held, mistake of law would not have invalidated the stop.

State v. Held (2001), 146 Ohio App. 3d 365 -- Even though license plates are now reflective, they must be illuminated. Rear plate light may have been operative, but rear bumper was missing and plate in a different location was not illuminated. Thus office had probable cause to stop the motorist.

State v. Heinrichs (1988), 46 Ohio App. 3d 63 -- Investigative stop not justified by generalized concern about crime in the vicinity.

Fairlawn v. Skoblar (1997), 122 Ohio App. 3d 464 -- Officer had no basis for stopping car exiting cemetery late at night where only justification was concern about "Devil Worship," though there had been no reports of related criminal activity.

State v. Carter (1994), 69 Ohio St. 3d 57, 65 -- Investigative stop of vehicle was not justified based on presence in a high crime area, and suspicion occupants had been involved in a breaking and entering, articulated as: "There was no evidence, counselor, of that happening. That just happened to be a procedural type of thing," together with a description of ordinary activity. Compare State v. Morales (1993), 92 Ohio App. 3d 580 where actions made it appear a drug transaction had occurred and one of the subjects was known to the officer and State v. Patterson (1994), 95 Ohio App. 3d 255 where officer positioned himself along the likely escape route of a burglar and saw same car pass both ways on a dead end road in the middle of the night.

Tallmadge v. McCoy (1994), 96 Ohio App. 3d 604, 608 -- Stop of truck was justified where officer knew owner's license had been suspended following arrest two weeks previously, since it is reasonable to infer that the owner is the driver. Though this proved not to be the case, the odor of alcohol and bloodshot eyes justified continued detention of person behind the wheel.

State v. Epling (1995), 105 Ohio App. 3d 663 -- Stop was justified where officer called in license number, was told registered owner was under suspension, and description of operator matched that of registered owner. Also see State v. Marker (1998), 130 Ohio App. 3d 200.

State v. Lauch (1997), 122 Ohio App. 3d 522 -- Stop was justified where officer had recent knowledge defendant was under suspension, and though he knew of occupational driving privileges and nearby location of employment, he did not know work hours.

State v. Anthill (1993), 91 Ohio App. 3d 589 -- Information from a domestic violence complainant that the defendant was highly intoxicated and driving around the area looking for her and their son was sufficient justification for stopping his car.

Return to top of page

State v. Hodge, 147 Ohio App. 3d 550, 2002-Ohio-3053 -- Minor weaving over the line dividing traffic lanes warranted stop. State v. Drogi (1994), 96 Ohio App. 3d 466 overruled.

Pepper Pike v. Parker (2001), 145 Ohio App. 3d 17 -- Low speed, riding the brake, weaving and wide turn justified stop. Dissenting judge believes this does not rise above the officer's first impression that motorist was uncertain of his surroundings.

State v. Santmire, Franklin App. No. 02AP-517, 2002-Ohio-6758 -- Safely backing up two car lengths to move from a left turn lane to a lane for through traffic that did not violate R.C. 4511.38 did left stop based on claimed erratic driving.

State v. Woods (1993), 86 Ohio App. 3d 423 -- Momentary use of high beams did not left investigatory stop. Compare Westlake v. Kaplysh (1997), 118 Ohio App. 3d 18 -- Prolonged use of high beams behind another car at an intersection and facing oncoming traffic. But see dissent on definition of "oncoming traffic."

State v. Harding (1992), 81 Ohio App. 3d 619 -- Weaving in lane and snow covered rear window justified investigative stop of vehicle. Also see State v. Lloyd (1998), 126 Ohio App. 3d 95, 101-104.

State v. Smith (1996), 117 Ohio App. 3d 278 -- Anonymous report of erratic driving was not confirmed by officer's observation of minor, lawful, weaving within marked lane. Stop not justified.

Hamilton v. Lawson (1994), 94 Ohio App. 3d 462 -- Crossing dotted line dividing lanes of traffic headed in the same direction on one road and an imaginary center line on another did not left investigative stop. Also see State v. Glasscock (1996), 111 Ohio App. 3d 37.

State v. Williams (1993), 86 Ohio App. 3d 37 -- Stop of vehicle was not justified by facts: (1) defendant was driving a new pickup, which according to the officer are frequently stolen; (2) it was 11:16 p.m.; and (3) he twice went out of his lane of travel by the width of one tire. Compare State v. Wireman (1993), 86 Ohio App. 3d 451 (defendant went left of center three times, at least once by a distance of three feet); State v. Hiler (1994), 96 Ohio App. 3d 271 (erratic driving continued for about a mile and plate was registered to a different vehicle); State v. Pringle (1998), 128 Ohio App. 3d 740 (work truck with plates assigned to a passenger vehicle); State . Webb (1997), 120 Ohio App. 3d 56; State v. Stamper (1995), 102 Ohio App. 3d 431 (repeated fishtailing and deviation from lane indicated improper allowance for road being snow-covered).

State v. Gullett (1992), 78 Ohio App. 3d 138 -- Stop of vehicle not justified based on brief excursions over edge line, by vehicle otherwise operated lawfully. Also see State v. Brite (1997), 120 Ohio App. 3d 517; State v. Johnson (1995), 105 Ohio App. 3d 37; Mason v. Loveless (1993), 87 Ohio App. 3d 264; State v. Drogi  (1994), 96 Ohio App. 3d 466.

Village of New Lebanon v. Blankenship (1993), 65 Ohio Misc. 2d 1 -- Weaving on a residential street without a marked center line and in the absence of other traffic did not left investigative stop.

Return to top of page

State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539 – Syllabus: "A traffic stop is constitutionally valid when a law-enforcement officer witnesses a motorist drift over the lane markings in violation of R.C. 4511.33, even without further evidence of erratic or unsafe driving." Motorist twice went a tire width over the fog line. Issue here is reasonable suspicion justifying a stop, not probable cause for a citation.

State v. McCaulley, 161 Ohio App. 3d 568, 2005-Ohio-2864, ¶11 -- "...(O)rdering a driver out of his or her car during a traffic stop is permissible because such a procedure promotes officer safety while inflicting a minimal intrusion into the driver's personal liberty...However, taking the additional step of placing a driver in a patrol car during a routine traffic stop, and the pat-down search that would normally precede such a step - increases the intrusive nature of the detention and must be justified by reasons beyond those that necessitated the traffic stop...Such a step may be justified if it protects the officers or driver from a dangerous condition during the traffic stop, and is the least intrusive means to avoid the dangerous condition...; to avoid escalation of a dangerous situation...; or if the officer has a reasonable, articulable belief that an individual is armed and/or dangerous or is engaged in criminal activity...An officer's convenience will not left placing a driver in the rear of a cruiser...Although the failure to produce a license during a traffic stop is a lawful reason for detaining a driver in a patrol car, an officer clearly may not place a driver in his cruiser as a matter of course while he runs the license information through the computer."

State v. Taylor (2000), 138 Ohio App. 3d 139 -- Suppression required where Highway Patrol officers illegally expanded the scope and duration of a traffic stop to investigate the passengers. Court rejects condition of car and actions of occupants as providing justification for continued detention, nor does finding a basis to arrest the driver left continued detention of passengers in so-called "protective custody."

State v. Isbele (2001), 144 Ohio App. 3d 780 -- Motorist was stopped by an apartment building, arrested for OMVI, and found in possession of cocaine. Passenger told officers she had done nothing wrong and asked if she could go into apartment building where she apparently lived. Prosecutor claimed this conduct justified detention. Passenger was told she was probably headed for the jail and warned she could be charged with conveying drugs into a detention facility. She handed over a packet of cocaine. Evidence properly suppressed. Fact driver had drugs did not create reasonable basis to believe passenger did as well. Nor does request to terminate an encounter with police left detention.

Brendlin v. California (2007), 127 S.Ct. 2400 -- Both the driver and a passenger have standing to contest the legality of a vehicle stop because both have been seized for purposes of the Fourth Amendment. Traffic stops involve an officer's unquestioned command of the situation. A passenger by remaining inside the vehicle demonstrates submission. Accord: State v. Carter (1994), 69 Ohio St. 3d 57, 63.

Maryland v. Wilson (1997), 519 U.S. 408 -- A police officer may, as a matter of course, order passengers in a lawfully stopped car to step out of the vehicle. Court does not decide whether officer may further detain passenger, once out of vehicle.

United States v. White (C.A.D.C. 1981), 648 F. 2d 29 -- Fact suspects were ordered to step from car at gunpoint did not convert detention to an arrest.

State v. Randleman (1995), 108 Ohio App. 3d 468, 473 -- "Allowing officers to ask a passenger to leave the vehicle so that his conduct can be better monitored is a modest infringement on a passenger's liberty interest."

State v. Cullers (1997), 119 Ohio App. 3d 355 -- Gun and drugs were found under driver's seat after driver was removed from car, but before he was arrested. Defendant's nervousness after being stopped for a minor traffic offense, the need to prevent him from reaching under the seat, and the need to repeatedly order him out of the car warranted search for the safety of the officers.

Return to top of page

United States v. Place (1983), 462 U.S. 696 -- Applying the standard of Terry v. Ohio, the investigative detention of a traveller's luggage is permissible on less that probable cause, however a ninety minute detention, including transfer to another airport for inspection by a narcotics detection dog was unreasonable.

Return to top of page

Duration

State v. Batchilli, 113 Ohio St. 3d 403, 2007-Ohio-2204 -- Syllabus: "(1) A traffic stop is not unconstitutionally prolonged when permissible background checks have been diligently undertaken and not yet completed at the time a drug dog alerts on the vehicle. (2) The 'reasonable and articulable' standard applied to a prolonged traffic stop encompasses the totality of the circumstances, and a court may not evaluate in isolation each articulated reason for the stop. United States v. Arvizu (2002), 534 U.S....applied." See the dissent for a commentary on the arresting officer's conduct.

Chillicothe v. Frey, 156 Ohio App. 3d 296, 2004-Ohio-927 -- Motion to suppress properly granted where duration of traffic stop exceeded the time needed to issue headlight ticket. Officer stopped defendant for burned out headlight based on observation earlier that night. This was a pretext for looking into the officer's observation of defendant carrying a heavy object down an alley before he got into his car. Officer left the scene to conduct further investigation before making an arrest for RSP. City's claim of consensual encounter rejected - analogy was drawn to a "medieval rascal finding sanctuary by beating the King's knaves to the Church."

State v. Frady (2001), 142 Ohio App. 3d 776 -- Erratic driving warranting a citation justified the initial stop. Subject's actions upon complying with request to step out of car justified continued detention for administration of field sobriety tests. Officer was not obligated to give Miranda warnings because the defendant was not in custody prior to arrest.

State v. Hackett, 171 Ohio App. 3d 235, 2007-Ohio-1868 -- Initial investigative detention was justified by information from an informant corroborated by the officer. But repeated "protective searches" finally resulting in the seizure of drugs were unwarranted.

State v. DeCaminada, 148 Ohio App. 3d 213, 2002-Ohio-2917 -- Officer's initial approach and questions directed to a woman sitting in a car parked at an apartment complex may not have amounted to detention, but subsequent requests for identification and a pill bottle he observed, coupled with the late hour and the ten to fifteen minutes that passed, amounted to detention. Circumstances coupled with repeated requests for the pill bottle meant the seizure was not consensual.

United States v. Sharpe (1985), 470 U.S. 675 -- In determining whether the duration of an investigative detention is reasonable, it is appropriate to consider whether the police diligently and quickly pursued any follow up investigation. DEA agent following suspect vehicles had radioed for help. After first vehicle was stopped, there was a fifteen minute delay before he arrived at location where second vehicle stopped. Court found this delay acceptable.

State v. McFarland (1982), 4 Ohio App. 3d 158 -- Detention in a locked police car for ten minutes while officer ran a radio check for outstanding warrants was reasonable where: (1) officer suspected involvement in illegal drug activity based on frequency of drug sales in area where defendant was detained; (2) there was the association of someone with name given by detainee being involved in drug sales; and (3) defendant's actions were furtive. At p. 161: "The exigencies of reasonable investigatory efforts sufficiently justified the limitations on defendant's freedom for a reasonable investigatory purpose that was not unduly prolonged."

State v. Pugh (April 20, 1982), Franklin Co. Case No. 81AP-779 (1982 Opinions 1120) -- Investigatory detention for purposes of show up held proper. Implied overruled by Hayes v. Florida (1985), 470 U.S. 811.

United States v. Onyema (E.D.N.Y. 1991), 766 F. Supp. 76 -- Extended detention, without judicial authorization, of incoming airline passenger suspected of carrying drugs in his alimentary tract was contrary to the Fourth Amendment. Compare United States v. Montoya de Hernandez (1985), 473 U.S. 531.

State v. Newsome (1990), 71 Ohio App. 3d 73 -- Analysis of justification for detention and search follows the progress of the incident from articulable reasons for initial investigative stop through justification to frisk subject for weapons through probable cause for warrantless search of auto after contraband had been discarded.

State v. Chatton (1984), 11 Ohio St. 3d 59, 463 N.E. 2d 1237 -- Even though the initial detention is justified, detention may not continue once that basis has been eliminated. Here, officer had stopped car which did not display front or rear license plate, but had no justification for continuing detention after saw temporary tag on the rear deck. Also see State v. Riddle (1995), 104 Ohio App. 3d 679. Compare State v. Allen (1985), 21 Ohio App. 3d 199 where failure to produce operator's license justified further investigation.

State v. Frye (1985), 21 Ohio App. 3d 133 -- Since Ohio law requires only one taillight, officer who stopped car to advise driver one taillight was burned out had no authority to detain the driver in order to check status of license and registration.

Ohio v. Robinette (1996), 519 U.S. 33 -- The Fourth Amendment does not require that a lawfully seized defendant be advised that he is free to go before his consent to search will be recognized as voluntary. For the possible continued viability of the previous decision by the Ohio Supreme Court, see the concurring and dissenting opinions. As to the legality of prolonging the detention, the majority only states that the subjective intentions of the officer do not matter, so long as the detention was objectively warranted.

State v. Robinette (1997), 80 Ohio St. 3d 234 -- Syllabus: "When a police officer's objective justification to continue detention of a person stopped for a traffic violation for the purpose of searching the person's vehicle is not related to the purpose of the original stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some illegal activity lefting an extension of the detention, the continued detention to conduct a search constitutes an illegal seizure. (State v. Robinette [1995], 73 Ohio St. 3d 650, 635 N.E. 2d 695, paragraph one of the syllabus, modified.) (2) Under Section 14, Article I of the Ohio Constitution, the totality-of-the-circumstances test is controlling in an unlawful detention to determine whether permission to search a vehicle is voluntary. (State v. Robinette [1995], 73 Ohio St. 3d 650, 635 N.E. 2d 695, paragraph two of the syllabus, vacated.) Footnote 6 suggests that the "you are free to go" advice called for in Robinette I would still be sound police practice.

State v. Retherford (1994), 93 Ohio App. 3d 586 -- After ticket was issued the motorist was told she could go but then was immediately asked for consent to search her car and its contents. Seizure concluded to have continued and it was required that there be articulable reasons for suspecting criminal activity. Evidence should have been suppressed. At p. 602: "When consent is obtained after illegal police activity...the unlawful police action presumptively taints and renders involuntary any consent to search." Also see State v. Anderson  (1995), 100 Ohio App. 3d 688; State v. Eastham (December 19, 1995), Franklin Co. App. No. 95APA05-566, unreported (1995 Opinions 5452). Compare State v. Carlson (1995), 102 Ohio App. 3d 585 [impliedly overruled by State v. Robinette (1995), 73 Ohio St. 3d 650].

State v. Correa (1995), 108 Ohio App. 3d 362 -- Evidence should have been suppressed where drug interdiction strategies taught troopers were used to prolong detention beyond the scope of the initial justification for stopping motorist. Also see State v. Gonyou (1995), 108 Ohio App. 3d 369.

State v. Vanderhoff (1995), 106 Ohio App. 3d 21 -- Police investigated suspicious parked car, arrested one occupant on outstanding warrants and ascertained that there were no warrants for the defendant. Since there was no basis for continued detention, results of alleged consent search should have been suppressed.

State v. Rusnak (1997), 120 Ohio App. 3d 24 -- Detention was not unlawfully prolonged where dog sniff procedure was completed while officer was waiting for license information.

Return to top of page

Dog cases

State v. Hoppert, 181 Ohio App. 3d 787, 2009-Ohio-1785 – Officer patrolling a park observed two people in a parked pickup. Registered owner had a suspended license. Driver indicated there was a spoon with heroin residue in the cab. Dope dog was summoned and a second spoon was seized from the passenger‘s car, parked nearby. Majority finds no constitutional violation as the passenger had no expectation of privacy as her car was parked in a public place. Dissent notes that while the driver was under arrest, the passenger was merely detained. Unjustified continued detention while the dope dog was brought to the scene invalidated the search.

State v. Yslas, 173 Ohio App. 3d 396, 2007-Ohio-5646, ¶23-37 – Officer used lane violation as a pretense for stopping a pickup he had spotted earlier. Dope dog arrived fifteen minutes later and alerted on cocaine in the cab. Defendant then directed officer to 760 pounds of marijuana in the bed. While detention may last only as long as necessary to make out a ticket, here the actions of the occupants, and their "metaphysical" responses to questions, created escalating reasonable suspicion of criminal activity.

Illinois v. Caballes (2005), 125 S.Ct. 834 -- Dog sniff conducted while officer competed issuance of a warning ticket for speeding did not violate the Fourth Amendment.

State v. Ramos, 155 Ohio App. 3d 396, 2003-Ohio-6535 -- When a canine drug search is involved, the police must have a reasonable suspicion that a vehicle contains drugs in order to detain the vehicle for the arrival of a drug sniffing dog beyond the time needed to resolve the basis for the initial stop. Detention here went beyond even the highway patrol officer's dubious claim it took up to 30 minutes to complete a citation. Also see State v. Koueviakoe, Gallia App. No. 03CA18, 2004-Ohio-1994. Compare State v. Hudson, Miami App. No. 2003-CA-39, 2004-Ohio-3140 (the dog arrived while the citation was being written); State v. Kazazi, Wood App. No. WD-03-035, 2004-Ohio-4147 (air freshener in a rental car and other factors); State v. Jones, Washington App. No. 03CA61, 2004-Ohio-7280 (dog arrived within two minutes while awaiting warrants checks).

State v. Nguyen, 157 Ohio App. 3d 482, 2004-Ohio-2879 -- Records pertaining to a drug detection dog's training are material and subject to discovery. "Real world" records pertaining to the dog's performance in the field are not material, largely because dogs may alert to residues of drugs no longer present. Opinion extensively discusses cases on the subject from federal courts and courts in other states. Also see State v. Lopez, 166 Ohio App. 3d 337, 2006-Ohio-2091.

Return to top of page

Scope

State v. Wilcox, 177 Ohio App. 3d 609, 2008-Ohio-3856 – Officers involved in a recent case before the Second District conducted an internal search of the "lunge area" of a vehicle suspected of having excessively tinted windows. Doing so as a matter of routine is unconstitutional. In the other case it was justified because the driver was known to have a history of fighting with the police and fleeing traffic stops. Here it was unjustified as all the officers could cite was earlier seeing someone walking diagonally away from the vehicle, reports of a similar vehicle fleeing on another day, and the nature of the neighborhood. All the officers had was a hunch. Initial stop for a license plate light was OK, even though the motive of the officers may not have been the equipment code violation. Weapon found in the vehicle led to a more thorough frisk of the occupants and discovery of crack, which fell from the leg of the defendant‘s pants as an officer performed a "dolphin" sweep of his buttocks.

State v. Forest, 146 Ohio Misc. 2d 1, 2008-Ohio-1547 – During a supposed frisk for weapons, crack cocaine was found in the area between the defendant‘s buttocks. Though that may be an area commonly used to conceal crack, it is not an area reasonably patted down in a weapons frisk.

State v. Lawson, 180 Ohio App. 3d 516, 2009-Ohio-62 – Weapons frisk was warranted but "plain touch" exception did not apply as the object of interest was not immediately identifiable as a weapon or contraband. Officer admitted manipulating the object in an effort to ascertain what it might be.

State v. Crusoe, 150 Ohio App. 3d 208, 2002-Ohio-6389 -- Police officer involved in the execution of a search warrant testified that he frisked the defendant for both weapons and drugs. Warrant did not provide for search of the defendant's person. A proper protective frisk is limited to weapons. "Plain feel" exception does not apply because stated purpose included search for drugs as well as weapons, and from the officer's testimony, what he felt was not immediately identifiable as crack. Since there was no warrant for the defendant's arrest, inevitable discovery does not apply.

State v. Groves, 156 Ohio App. 3d 205, 2004-Ohio-662 -- During frisk officer felt an object in the suspect's sock too small to be a weapon, but which he "suspected" to be crack. "Suspected" is not enough to establish the probable cause required for seizure under the plain feel exception. Also see State v. Lander (January 21, 2000), Montgomery App. No. 17896.

Minnesota v. Dickerson (1993), 508 U.S. 366 -- Court almost endorses the so called "plain touch" exception to the warrants requirement. If an object that is plainly contraband is detected during a properly limited Terry frisk, it may be seized. However, the officer may not manipulate the object to ascertain its identity. For a misapplication of the "plain touch" rule to the discovery of a bag seen placed in the suspect's pocket, see State v. Hunter (1994), 98 Ohio App. 3d 632.

State v. Cloud (1993), 91 Ohio App. 3d 366 -- Applying Minnesota v. Dickerson, while stop of subject was warranted, frisk for weapons did not left seizure of object not thought to be a weapon and where identity as contraband was not immediately evident to the officer. Object was a plastic bag containing forty-four rocks of crack. Also see State v. White (1996), 110 Ohio App. 3d 347 (fourteen rocks of crack in left sock).

State v. Brandon (1997), 119 Ohio App. 3d 594 -- Officer's claim lump in pocket was readily identifiable as rock cocaine was not credible.

State v. Osborne (1994), 99 Ohio App. 3d 577, 582 -- Drugs found in film canister turned up during frisk for weapons should have been suppressed: "Once the officer has visually examined the object and concludes that it is not a weapon, that it does not contain a weapon, and that it is not obviously contraband, then the officer's justification for conducting a limited frisk for weapons is dissipated, and the officer may not then search for evidence or contraband, generally, without probable cause and exigent circumstances."

State v. Franklin (1993), 86 Ohio App. 101 -- (1) Scope of permissible Terry frisk exceeded where officer told suspects to go to a cruiser and empty out their pockets. Also see State v. Smith (1996), 116 Ohio App. 3d 842. (Detainee told to remove his sock for search by officer.) (2) Requirement that officer fear for his safety was rebutted by fact officer had known suspect since high school and said he did not usually engage in criminal activity.

State v. Edwards (1992), 80 Ohio App. 3d 319 -- Though the initial stop and frisk for weapons was valid, further search surpassed justifiable limits. Apparently only basis for further search was officer had seen defendant reach into a jacket pocket.

State v. Lamar (1993), 86 Ohio App. 3d 731 -- Though stop of vehicle for speeding was justified, search of glove compartment, which the defendant hesitated opening, and the officer saw did not contain a weapon, was not.

Return to top of page

Also see Informants

State v. Chadwell, 182 Ohio App. 3d 256, 2009-Ohio-1630 – Dayton detective became involved in surveillance of an individual suspected of drug activity, coordinating his efforts with those of Greene County drug task force. Much of the activity described could well be innocent. The defendant came to his attention and was later seen about to make contact with the initial target. The initial target fled but was captured. Defendant sped off. Detective radioed for him to be stopped. Activity observed found sufficient to warrant investigative stop. Drugs were found during a Terry sweep of the "lunge area" of the car. Officers who made the stop were entitled to rely upon broadcast information.

Newcomerstown v. Ungurean, 146 Ohio App. 3d 409, 2001-Ohio-1754 -- Truckstop waitress reported seeing a beer bottle and a shot glass on the trunk lid of a Honda, and that the car's four occupants appeared intoxicated when they were in the restaurant. Information was broadcast to an officer who stopped the car without observing any offense. The tip was not anonymous since a name was given to dispatcher, though not passed on to officer. A greater degree of reliability is typically afforded informants who provide a name. Information from the waitress gave rise to a reasonable suspicion the driver was intoxicated.

State v. Bryant (2000), 138 Ohio App. 3d 343 -- Kentucky officers radioed they were pursuing a fleeing motorist across an Ohio River bridge, but did not state the reason why they wished to make a stop. Ohio officer responded at the site where the out of state officers finally stopped the car. Majority finds the broadcast justified the stop. Dissent finds failure to convey underling reason for making a stop makes that conclusion contrary to Maumee v. Weisner (1999), 87 Ohio St. 3d 295.

State v. Worthman (2001), 145 Ohio App. 3d 126 -- Terry stop was justified. Officer who broadcast request suspect be detained had an adequate basis to believe he was involved in drug activity. Detaining officer was justified in following routine in asking for name and SSN in order to run a warrants check. Handcuffing suspect and placing him in the back of the cruiser while the officer responded to another situation was proper as suspect had jerked away preventing completion of frisk.

United States v. Hensley (1985), 469 U.S. 604 -- Evidence uncovered in the course of an investigative stop based on a flyer received from another police department is admissible if the issuing department had sufficient information to left the stop and whether, based on an objective reading of the flyer, the officers actually making the stop could defensibly act in reliance on the flyer.

Maumee v. Weisner (1999), 87 Ohio St. 3d 295 -- Syllabus: (1) Where an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity. (2) A telephone tip can, by itself, create a reasonable suspicion lefting an investigatory stop where the tip has sufficient indicia of reliability." See dissent, calling for corroboration or observation by officer making the stop when information is received in the form of an unverified report of erratic driving.

State v. Hill (1981), 3 Ohio App. 3d 10 -- Headnote: "While the police are entitled to rely upon and obey directives issued by means of a radio broadcast, the broadcast itself does not provide reasonable cause for an investigative stop. Where a defendant in a criminal proceeding challenges the legality of an investigative stop made in response to a police broadcast, it is incumbent upon the prosecution to present evidence showing the factual basis for the broadcast." Also see State v. Holmes (1985), 28 Ohio App. 3d 12 -- Though officer effecting arrest lacked probable cause for arrest, officer who aired broadcast did have probable cause.

State v. Lackey (1981), 3 Ohio App. 3d 239 -- Where police officers relying on broadcast would have been entitled to conduct Terry frisk for weapons, asking the subject first where the gun was did not violate privilege against self-incrimination.

State v. Goodrich (1996), 114 Ohio App. 3d 645 -- When a radio dispatch provides the sole basis for the investigatory stop of a vehicle, the state must establish that there was a sufficient factual basis for the issuance of the dispatch. United States v. Hensley (1985), 469 U.S. 604, Whitley v. Warden (1971), 401 U.S. 560 and State v. Hill (1981), 3 Ohio App. 3d 10 applied. Also see State v. Evans (1998), 127 Ohio App. 3d 56.

State v. Ramey (1998), 129 Ohio App. 3d 409 -- Citizen-informant flagged down a cruiser and related suspicion driver of a particular car was DUI. Information was relayed by radio, and a car matching the description was stopped for investigation. Since the citizen made no effort to conceal identity, information was presumptively reliable.

Return to top of page

United States v. Drayton (2002), 122 S.Ct. 2105 -- Officers entered bus, approached passengers moving from back to front, and without individualized suspicion asked some for permission to search their luggage or person. Held not to be a seizure, despite confining conditions on the bus and an officer who remained in position at the front of the bus. It was not necessary to inform subjects that they did not have to consent. Also see Florida v. Bostick (1991), 501 U.S. 429; Florida v. Royer (1983), 460 U.S. 491; California v. Hodari D. (1991), 499 U.S. 621.

State v. Campbell, 157 Ohio App. 3d 222, 2004-Ohio-2604 -- Officer pulled up behind police car, immediately approached the driver and within 20-30 seconds asked for license which he took to the cruiser. Trial court properly concluded this was not a consensual encounter. ¶21: "Although George (the officer) testified that Campbell could have left at that point, leaving Campbell's license in George's possession, so that George 'probably would have had to mail it to him,' we will charitably construe this testimony as having been facetious."

State v. Ford, 149 Ohio App. 3d 676, 2002-Ohio-5529 -- Trial court did not lose its way in accepting bystander's account over that of an officer and concluding that aggressive approach was not a consensual encounter. Though the defendant proved to have an outstanding warrant, the evidence seized must be suppressed because the initial approach was unlawful.

State v. Wheat, Licking App. No. 02CA97, 2003-Ohio-1147 -- Defendant gave police his name and address, but when asked to come closer he refused, turned, and walked away. Consensual encounter ended at that point. Police did not have reasonable suspicion of criminal activity permitting detention and discovery of drugs on defendant's person.

State v. Cook, Montgomery App. No. 20427, 2004-Ohio-4793 -- Initial questioning of pedestrian remained a consensual encounter, but demand she open her hand closed into a fist converted the situation to an investigative detention, here unsupported by reasonable suspicion criminal activity was afoot.

Warensville Heights v. Mollick (1992), 79 Ohio App. 3d 494 -- In the middle of the night, officer approached driver standing by his car in an area known for drug activity and requested identification. License turned out to be suspended. Court finds production was consensual and no Fourth Amendment interests were implicated. See concurring opinion for why result should have been otherwise. Compare State v. Venham (1994), 96 Ohio App. 3d 649, where initial detention of vehicle and occupants in search of a fugitive was legitimate, but continued detention and request to see license was not, after it had been ascertained fugitive was no longer in the vehicle.

Return to top of page

Pretext stops

State v. Murphy, 159 Ohio App. 3d 74, 2004-Ohio-5817 -- Objective facts justified stop of semi though stated suspicion based on trucking company's safety record may have been dubious.

Whren v. United States (1996), 517 U.S. 806 -- A traffic stop must be supported by probable cause, but its constitutional reasonableness does not otherwise hinge on the subjective intentions of the officer.

Dayton v. Erickson (1996), 76 Ohio St. 3d 3 -- Syllabus: "Where a police officer stops a vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable under the Fourth Amendment to the United States Constitution even if the officer had some ulterior motive for making the stop, such as a suspicion that the violator was engaging in more nefarious criminal activity. (United States v. Ferguson (C.A. 6 1993], 8 F. 3d 385, applied and followed." See dissent.

State v. Cowans (1999), 87 Ohio St. 3d 68, 74-77 -- The pretext doctrine may still apply to searches not requiring probable cause, such as searches by parole officers. A parole officer may not be used as a stalking horse by other investigators.

State v. Roaden (1994), 98 Ohio App. 3d 500, 503 -- Officer saw marijuana in defendant's car parked near his trailer. Search held pretextual, as the officer, "did not have probable cause or even a reasonable suspicion sufficient to left intruding on private property and looking into appellant's car. (The officer) simply had no reason to be in a position to be in a position to look into appellant's vehicle. We do not believe that spending two hours looking for a speeder and going out of the way to give a warning about speeding are actions a reasonable officer would take without an invalid purpose. Instead, we think it clear that (the officer) manipulated events to conduct a search that could not otherwise be made and therefore his reasons for being on the property and looking into appellant's vehicle was pretextual." Also see State v. French (1995), 104 Ohio App. 3d 740.

Return to top of page

State v. Washington (2001), 144 Ohio App. 3d 482, 494 -- Profile characteristics may be so general that they can be modified to left arbitrary or discriminatory targeting of suspects. "...(O)ne can fit the profile by debarking too early or too late, by carrying too much luggage or not enough, by looking around the terminal or looking straight ahead, and by coming from or arriving at virtually any urban location."

Reid v. Georgia (1980), 448 U.S. 438 -- Precursor to drug courier profile cases. Actions at airport which were common among a large group of presumably innocent travellers did not left detention. Also see United States v. Berry (5th Cir. 1982), 670 F. 2d 583. Compare United States v. Bowles (5th Cir. 1980), 625 F. 2d 526: United States v. Mendenhall (1980), 446 U.S. 544; Florida v. Rodriguez (1984), 469 U.S. 1, Florida v. Royer (983), 460 U.S. 491; State v. Hassey (1983), 9 Ohio App. 3d 231.

State v. Foster (1993), 87 Ohio App. 3d 32 -- Highway Patrol officer properly stopped vehicle for equipment violation, but continued detention and questioning was improper. At p. 40: "What (we) have here, obviously, is a so-called 'profile case' where an investigating officer notes some facts which are among a number of indicia often found in the profile of a typical drug courier or dealer. If the facts cited by the officer in this case are sufficient grounds to left search of the vehicle, then any late-model car being driven from Detroit by one or two young men, with a radar detector, some fast food wrappers, and a hanging toggle switch in it, together with a little bit of missing trim, is subject to a stop and search action."

State v. Taylor (1995), 106 Ohio App. 3d 741 -- Discreet approach to deplaning passenger matching drug courier profile did not exceed bounds of a consensual encounter. Eventual consent to search luggage was voluntary.

State v. Miller (1997), 117 Ohio App. 3d 750 -- Reasonable suspicion found to exist where the driver's actions were consistent with the profile created by analysis of drug deals commonly transacted in the area.

Return to top of page

State v. Walker-Stokes, 180 Ohio App. 3d 36, 2008-Ohio-6552 – State appealed suppression based on insufficient basis for investigative detention leading to arrest on an outstanding warrant. Court finds it was a close question whether the stop was justified, but finds it need not decide the issue. Instead, ¶40 holds, "because, as a matter of law, an outstanding arrest warrant operates to deprive its subject of the reasonable expectation of privacy the Fourth Amendment protects, the exclusionary rule does not apply to a search and seizure of the subject that would otherwise be illegal because of a Terry violation." Concurring opinion notes the court has been back and forth on this issue and finds it vexing.

State v. Harding, 180 Ohio App. 3d 497, 2009-Ohio-59 – Subject was stopped as a possible trespasser in a public housing development. Frisking him for weapons converted a consensual encounter to a seizure. Absent articulable suspicion justifying investigative detention this was improper. But the exclusionary rule does not apply because the defendant had outstanding warrants, even though this was unknown to the officers at the time.

State v. Certain, 180 Ohio App. 3d 457, 2009-Ohio-148 – Fleeing from an officer attempting to make an apparently valid Terry stop may be the basis for an obstructing official business charge. Flight is an affirmative act, distinguishable from a mere refusal to do as directed. Court abrogates its contrary holding in State v. Gillenwater (April 2, 1998) Highland App. No 97CA0935.

Hiibel v. Sixth Judicial District Court of Nevada (2004), 124 S.Ct. 2451 -- Nevada statute requiring the subject of a Terry stop to furnish a name survives Fourth and Fifth Amendment challenges. Unlike the Texas statute in Brown v. Texas (1979), 443 U.S. 47 there has to be reasonable suspicion the subject was involved in criminal activity. Unlike the statute in Kolender v. Lawson (1983), 461 U.S. 352 requiring "credible and reliable" identification, the subject only had to provide a name. The Fifth Amendment claim is fielded by reserving for another time how to address situations where "furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense."

United States v. Arvizu (2002), 122 S.Ct. 744 -- When determining whether an officer had a reasonable suspicion warranting an investigative detention, a court is to consider the totality of the circumstances and the inferences that might be drawn. Lower court faulted for looking too critically at the individual circumstances cited by a Border Patrol officer who stopped a minivan carrying drugs. While each might have been susceptible to an innocent explanation, and some were more probative than others, taken together there was a particularized and objective basis for stopping the vehicle.

Illinois v. McArthur (2001), 121 S.Ct. 946 -- No Fourth Amendment violation found where police prevented defendant from entering his residence unattended while search warrant was being obtained.

State v. Norman (1999), 136 Ohio App. 3d 46 -- Officer approached a car observed parked for two minutes at a rural intersection in the middle of the night. She said it was to see if it had broken down or if the driver needed assistance. Approach said to be proper as a part of the officer's community caretaking functions. Case does not address events following initial approach. Also see State v. Cunningham, Montgomery App. No. 20059, 2004-Ohio-3088 (Parked, locked car with keys in the ignition and cash on the seat.)

Rocky River v. Saleh (2000), 139 Ohio App. 3d 313, 327 -- A police officer does not have to possess specific facts warranting suspicion of criminal behavior to run a license plate check on a vehicle travelling the public roadway. It is reasonable to infer the registered owner is actually driving the vehicle at the time of the license plate check.

State v. Yeatts, Clark App. No. 02CA45, 2002-Ohio-7285 -- While activating a cruiser's beacon may generally constitute a show of force amounting to a seizure, it does not when the occupant of the vehicle is unconscious.

Ornelas v. United States (1996), 517 U.S. 690 -- The determination or reasonable suspicion or probable cause for purposes of passing on the validity of a warrantless search is a mixed question of fact and law, to be reviewed de novo by an appellate court, without deference to the findings of the trial court called for when pure questions of fact are involved.

State v. Long (1998), 127 Ohio App. 3d 328 -- Trooper grabbed keys belonging to motorist found asleep behind the wheel. This facilitated investigative detention (which the court goes on to find was unjustified), but did not convert detention to arrest.

Pemberville v. Hale (1998), 125 Ohio App. 3d 629 -- Driver was arrested, the car impounded and passenger was given no alternative but to empty his pockets before riding back to town in the cruiser. Search was unlawful.

State v. Sharp (October 2, 1986), Montgomery County App. No. 8703, unreported -- The fact that an investigative stop leads to an arrest does not vindicate the initial stop.

Return to top of page

Return to Index