City of Maumee v. Weisner

• Decision Date: 22 December 1999
• Docket Number: No. 98-2016.,98-2016.
• Citation: 720 NE 2d 507,87 Ohio St.3d 295
• Parties: CITY OF MAUMEE, APPELLANT, v. WEISNER, APPELLEE.
• Court: Ohio Supreme Court

87 Ohio St.3d 295

720 NE 2d 507

CITY OF MAUMEE, APPELLANT, v. WEISNER, APPELLEE.

No. 98-2016.

Supreme Court of Ohio.

Submitted September 21, 1999.

Decided December 22, 1999.

John B. Arnsby, Maumee Municipal Prosecutor, for appellant.

Bischoff, Kenney & Niehaus and Stephen M. Sadowski, for appellee.

Betty D. Montgomery, Attorney General, Edward B. Foley, State Solicitor, and Stephen P. Carney, Associate Solicitor, urging reversal for amicus curiae, Ohio Attorney General.

David H. Bodiker, Ohio Public Defender, David Hanson and Siobhan O'Keeffe, Assistant State Public Defenders, urging affirmance for amicus curiae, Ohio Public Defender.

COOK, J.

This case involves a Fourth Amendment challenge to an officer's stop of a suspected drunk driver. Specifically, we have been asked to determine whether a citizen informant's telephone tip may provide the sole basis for an officer's stop of a motorist suspected of driving under the influence. We resolve this issue in favor of the city of Maumee and hold that a telephone tip can, by itself, create reasonable suspicion justifying an investigative stop where the tip has sufficient indicia of reliability.

I. Burden of Proof at Suppression Hearing

A

As a preliminary matter, we must resolve a debate among Ohio appellate courts concerning the state's burden of proof at a suppression hearing. Despite the focus of the parties' briefs, it was upon this issue that the appellate court's decision turned. Specifically in conflict is whether the state must prove, when an investigative stop is made in sole reliance upon a police dispatch, that the information known to the officer issuing the dispatch was sufficient to justify the stop, or whether the stopping officer's testimony that he relied upon the dispatch is, by itself, sufficient. Following State v. Hill (1981), 3 Ohio App.3d 10, 3 OBR 10, 443 N.E.2d 198, the court below held that the state is required to prove that the information known to the dispatcher was sufficient to raise a reasonable suspicion of criminal activity. Concluding that the city failed to meet this burden of proof, the appellate court reversed the trial court's decision.

Generally, at a suppression hearing, the state bears the burden of proving that a warrantless search or seizure meets Fourth Amendment standards of reasonableness. 5 LaFave, Search and Seizure (3 Ed.1996), Section 11.2(b). In the case of an investigative stop, this typically requires evidence that the officer making the stop was aware of sufficient facts to justify it. Terry v. Ohio (1968), 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906. But when an investigative stop is made in sole reliance upon a police dispatch, different considerations apply.

A police officer need not always have knowledge of the specific facts justifying a stop and may rely, therefore, upon a police dispatch or flyer. United States v. Hensley (1985), 469 U.S. 221, 231, 105 S.Ct. 675, 681, 83 L.Ed.2d 604, 613. This principle is rooted in the notion that "effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information." Id. at 231, 105 S.Ct. at 682, 83 L.Ed.2d at 614, quoting United States v. Robinson (C.A.9, 1976), 536 F.2d 1298, 1299. When a dispatch is involved, therefore, the stopping officer will typically have very little knowledge of the facts that prompted his fellow officer to issue the dispatch. The United States Supreme Court has reasoned, then, that the admissibility of the evidence uncovered during such a stop does not rest upon whether the officers relying upon a dispatch or flyer "were themselves aware of the specific facts which led their colleagues to seek their assistance." It turns instead upon "whether the officers who issued the flyer" or dispatch possessed reasonable suspicion to make the stop. (Emphasis sic.) Id. at 231, 105 S.Ct. at 681, 83 L.Ed.2d at 613 (discussing and applying Whiteley v. Warden, Wyoming State Penitentiary [1971], 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306, to reasonable suspicion in the context of a police flyer). Thus, "[i]f the flyer has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment." Hensley, 469 U.S. at 232, 105 S.Ct. at 682, 83 L.Ed.2d at 614.

Many courts in Ohio and other jurisdictions have interpreted Hensley and Whiteley to require proof at the suppression hearing that the officers issuing the dispatch possessed sufficient knowledge of facts or information to justify the stop, where the stopping officer himself did not. See State v. Hill, supra; State v. Ramsey

(Sept. 20, 1990), Franklin App. Nos. 89AP-1298 and 89AP-1299, unreported, 1990 WL 135867. Other Ohio courts have held instead that an officer's statement that he relied upon a dispatch is, by itself, sufficient to justify the stop, regardless of the knowledge of the officer issuing the dispatch. See, e.g., State v. Good (1987), 37 Ohio App.3d 174, 525 N.E.2d 527; State v. Janda (Apr. 14, 1993), Lorain App. No. 92CA005416, unreported, 1993 WL 120549. See, also, State v. Penn (Aug. 2, 1994), Franklin App. No. 93AP-953, unreported, 1994 WL 409758.

We believe the latter approach is inconsistent with United States Supreme Court precedent and fails to adequately protect the citizen's Fourth Amendment rights. Accordingly, we clarify here that 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.

B

Given that the state must present evidence of the facts known to the dispatcher in these situations, the next question concerns the type of evidence that may be used for this purpose. The appellate court below concluded that the city's failure to offer the testimony of either the dispatcher or the citizen informant rendered its evidence insufficient. In this assessment of the sufficiency of the evidence, however, the court, without explanation, ignored Roberts's testimony about the facts relayed from the caller to the dispatcher. While a stopping officer in a dispatch situation will typically be unaware of the facts known to the dispatcher, this case is different. Here, Roberts testified that the dispatcher relayed to him the facts precipitating the dispatch.¹

We believe that the appellate court should have considered Roberts's testimony in assessing whether the facts known to the dispatcher were sufficient to justify the stop. First, we note that the hearsay rule does not preclude courts' consideration of this evidence, because "[a]t a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial." United States v. Raddatz (1980), 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424, 425. We further note that no one argued at any point in the proceedings that the officer's testimony was unreliable. Roberts's testimony regarding the information that the dispatcher knew, therefore, should have been analyzed to determine whether the burden was met.

Given that this evidence should have been considered, we turn now to our analysis of the facts known to the dispatcher. Specifically, we must determine whether those facts, which came solely from a citizen informant's tip, were sufficient to create a reasonable suspicion justifying the stop.

II. Reasonable Suspicion

The proscriptions of the Fourth Amendment impose a standard of reasonableness upon the exercise of discretion by government officials. Delaware v. Prouse (1979), 440 U.S. 648, 653-654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667. "Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 654, 99 S.Ct. at 1396, 59 L.Ed.2d at 667-668. To justify a particular intrusion, the officer must demonstrate "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.

The United States Supreme Court has interpreted the Fourth Amendment to permit police stops of motorists in order to investigate a reasonable suspicion of criminal activity. Id. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906-907. The reasonable suspicion necessary for such a stop, however, eludes precise definition. Rather than involving a strict, inflexible standard, its determination involves a consideration of "the totality of the circumstances." United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 628-629. Under this analysis, "both the content of information possessed by police and its degree of reliability" are relevant to the court's determination. Alabama v. White (1990), 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309.

Where, as here, the information possessed by the police before the stop stems solely from an informant's tip, the determination of reasonable suspicion will be limited to an examination of the weight and reliability due that tip. See id. The appropriate analysis, then, is whether the tip itself has sufficient indicia of reliability to justify the investigative stop. Factors considered "`highly relevant in determining the value of [the informant's] report'" are the informant's veracity, reliability, and basis of knowledge. Id. at 328, 110 S.Ct. at 2415, 110 L.Ed.2d at 308, quoting Illinois v. Gates (1983), 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 543. To assess the existence of these factors, it is useful to categorize informants based upon their typical...