City of Sidney v. George E. Poore

• Decision Date: 30 March 1988
• Docket Number: 17-86-35,88-LW-1105
• Parties: CITY OF SIDNEY, Plaintiff-Appellee, v. George E. POORE, Defendant-Appellant.
• Court: United States Court of Appeals (Ohio)

CITY OF SIDNEY, Plaintiff-Appellee, v. George E. POORE, Defendant-Appellant.

No. 17-86-35.

88-LW-1105 (3rd)

Court of Appeals of Ohio, Third District Shelby

March 30, 1988

Criminal Appeal from Municipal Court.

Michael L. Smith, Sidney, for appellant.

Michael Boller, Prosecuting Attorney, Duane A. Goettemoeller, Sidney for appellee.

OPINION

SHAW Judge.

This is an appeal by the defendant-appellant, George E. Poore from a judgment of the Municipal Court of Sidney, Ohio finding him guilty of violating Sidney Ordinance 333.01A2, " * * * "driving under the influence of alcohol or drugs of abuse with BAC of .10 * * * '," and Sidney Ordinance 529.04, " * * * "did knowingly possess an open container of an alcoholic beverage in a motor vehicle to wit; one quart bottle of Budweiser beer partially consumed.' "

Prior to his conviction, the defendant filed a motion to suppress evidence. Following a hearing before the municipal court, however, the motion was overruled. Thereafter, the defendant's plea was changed from "not guilty" to "no contest," and he was convicted. He now appeals his conviction, asserting the following two assignments of error:

"I.A MUNICIPAL POLICE OFFICER DOES NOT POSSESS PROBABLE CAUSE TO STOP AND ARREST A SUSPECT, WITHOUT A WARRANT, FOR A MISDEMEANOR VIOLATION SOLELY UPON INFORMATION RECEIVED FROM A RADIO TRANSMISSION FROM SOME THIRD PARTY.

"II.A MUNICIPAL POLICE OFFICER MAY NOT USE HEARSAY INFORMATION ABOUT ACTS OR EVENTS OCCURING [SIC] OUTSIDE HIS JURISDICTION AS PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT IS COMMITTING A MISDEMEANOR OFFENSE INSIDE HIS JURISDICTION."

Because the defendant's assignments are closely related, they will be considered together.

At the hearing on the defendant's motion to suppress, Shelby County Sheriff John Lenhart testified that prior to the defendant's arrest, he and another vehicle were forced off the state route on which they were traveling by an on-coming red pick-up truck. He stated that, although he was in an unmarked car and in civilian clothes, he proceeded to follow the vehicle and radioed the Shelby County Sheriff's Office for assistance.

According to Sheriff Lenhart, the Sheriff's Office was unable to dispatch a unit to assist him, the closest unit being fifteen miles away, but the Sidney Police Department was radioed. He testified that he continued to follow the truck for approximately four miles, and watched as the vehicle swerved left of center and off the right berm. He also stated that he saw the driver of the truck " * * * consume what appeared to be an alcoholic beverage, beer, out of a quart size container." (Tr. 14.)

Officer Frilling of the City of Sidney Police Department testified that he was within Sidney's city limits when he received a radio transmission from the Sidney Police dispatcher concerning the vehicle Sheriff Lenhart was following. According to Officer Frilling's testimony, he was told where the driver of the vehicle lived, that the vehicle was a red pick-up truck, and he was given the vehicle's license plate number. He stated that he proceeded to the area of the driver's residence and there waited until he sighted the approaching red pick-up truck.

Officer Frilling testified that he instructed the driver of the pick-up truck to pull-over to the side of the road, where Sheriff Lenhart, who had parked his car a short distance away, confirmed that the truck was the vehicle he had been following. After a field sobriety test was administered, Officer Frilling stated that he arrested the driver for driving while intoxicated. The defendant concedes that he was arrested within the city limits of Sidney.

Stopping an automobile and detaining its occupants constitute a "seizure" under the Fourth Amendment. See Delaware v. Prouse (1979), 440 U.S. 648, 653. In Terry v. Ohio (1968), 392 U.S. 1, however, the United States Supreme Court recognized that, under limited circumstances, the police may stop persons without having probable cause and not violate the Fourth Amendment's strictures concerning unreasonable searches and seizures. Accordingly, in Delaware, supra, the Court held that in order for a traffic stop to be reasonable, there must be " * * * at least [an] articulable and reasonable suspicion that * * * either the vehicle or an occupant is otherwise subject to seizure for violation of law * * *." Id. at 663.

Certainly Sheriff Lenhart had a reasonable suspicion that would have justified the stopping of the defendant's vehicle. His automobile was forced off the road by the defendant's truck, and he observed the defendant drive erratically and drink from a quart size container. However, as previously mentioned, Sheriff Lenhart was unable to stop the defendant's vehicle because he was in civilian clothes and was not in a squad car.

Consequently, the issue with which we must be concerned is whether Officer Frilling's reliance on the radio transmission justified his stopping of the defendant's vehicle, when the radio transmission was based on articulable facts that would support a reasonable suspicion that the defendant was subject to seizure. See United States v. Hensley (1985), 469 U.S. 221.

In Hensley, supra, a "wanted flyer" was issued by a St. Bernard, Ohio police officer to " * * * other police departments in the Cincinnati metropolitan area." Id. at 223. Issued pursuant to an informant's tip that Hensley had driven the getaway car in a recent armed robbery in Bernard, the wanted flyer described Hensley and listed the location and date of the robbery. Id. The flyer requested the other departments to " * * * pick up and hold Hensley for the St. Bernard police in the event he were located * * *," twice stating that he was only " * * * wanted for investigation * * *." Id.

A teletype copy of the flyer was received by the police in Covington, Kentucky, a suburb of Cincinnati. Id. Thereafter, Covington police stopped Hensley's automobile, and, after several guns were found in his possession, he was arrested. Id. at 224-225.

In finding Hensley's stop reasonable under the Fourth Amendment, the Supreme Court held:

" * * * if a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification, * * * to pose questions to the person, or to detain the person briefly while attempting to obtain...